G.R. No.

102358 November 19, 1992

SPOUSES VICENTE and GLORIA MANALO, petitioners,

vs.
HON. NIEVES ROLDAN-CONFESOR, in her capacity as Undersecretary of Labor and Employment, JOSE SARMIENTO as POEA
Administrator, CAREERS PLANNERS SPECIALISTS INTERNATIONAL, INC., and SPOUSES VICTOR and ELNORA
FERNANDEZ, respondents.

BELLOSILLO, J.:

The Court views with grave concern the alarming incidents of illegal recruitment which demonstrate all too clearly that overseas
employment has fast developed into a major source not only of much-needed foreign exchanged but also, for the cunning and the crafty,
of easy money.

In response to a newspaper advertisement looking for a couple to work as driver and tutor cum baby sitter, petitioners Vicente and Gloria
Manalo went to Career Planners Specialists International, Inc. (CPSI), a licensed service contracting firm owned by private respondents,
the spouses Victor and Elnora Fernandez. After the requisite interview and testing, they were hired to work for a family in Saudi Arabia
for a monthly salary of US$350.00 each. According to petitioners, a placement fee of P40,000.00 was imposed as a precondition for the
processing of their papers. They paid only P30,000.00 in cash and executed a promissory note for the balance. Then they were allowed
by respondent Elnora Fernandez to sign their contract papers but did not issue a receipt for the placement fee despite demand.

Shortly before boarding their flight to Saudi Arabia, petitioners were handed their contracts. According to Gloria, she was surprised to
discover that her position had been changed to that of domestic help. However, a CPSI employee assured her that the change was only
for the purpose of facilitating her departure and did not in any way alter her employment as tutor. Incidentally, CPSI provided petitioners
with the Travel Exit Pass (TEP) of Filipino Manpower Services, Inc. (FILMAN), a duly licensed recruitment agency.

Contrary to the representation of her recruiter, Gloria was actually hired as a domestic help and not as a tutor, so that after working for
only twenty-five (25) days in Jeddah, she returned to Manila. Soon after, Vicente also resigned from his work and followed her home. He
could not stand the unbearable working conditions of his employment. However, before leaving, he had to execute a promissory note to
cover his plane fare which respondent Victor Fernandez advanced. Vicente also had to sign a quitclaim in favor of CPSI and his employer.

On 29 February 1988, petitioners sued private respondents before the Philippines Overseas Employment Administration (POEA) charging
them with illegal exaction, 1 false adverstisement, 2 and violation of other pertinents laws, rules and regulations. They demanded the
refund of the amount exacted from them, plus payment of moral damages and the imposition of administrative sanctions. 3

Private respondents countered: (1) that Gloria applied as domestic help fully aware that she could not be a tutor since she did not speak
Arabic; (2) that the promissory note for P10,000.00 was required of petitioners because they were hired without paying placement fees;
(3) that it was unlikely for petitioners, who were mature, educated and experienced in overseas work, to part with P30,000.00 without
securing a receipt; (4) that Vicente executed a quitclaim in favor of CPSI duly authenticated by embassy officials in Saudi Arabia; (5) that
there was no impropriety in having the employment papers of petitioners processed by FILMAN because it was a sister company of CPSI,
and private respondents Victor and Elnora were officers in both agencies.

Private respondents prayed for the disqualification of petitioners from overseas employment, and sought to recover from them the SR
1,150 plane fare advanced by Victor for Vicente, P10,000.00 as placement fee evidenced by a promissory note, and attorney's fees.

Mainly, on the basis of the transcripts of petitioners' testimonies in the clarificatory questioning before the Rizal Provincial Prosecutor in
a related criminal case,4 the POEA issued its Order of 7 May 1990 giving more weight and credence to petitioners' version thus —

After a careful evaluation of the facts and the evidence presented, we are more inclined to give weight to complainants'
posture. Complainants' version of the case spontaneously presented in their pleadings is, to our mind, more convincing
than respondent's stand. Moreover, the manner by which complainants narrated the whole incident inspired belief in the
allegation that respondent Career is indeed guilty of illegal exaction. Thus, the actual expenses incurred by herein
complainants computed hereinbelow less the allowable fees of P3,000.00 (P1,500.00 per worker, respondent being a
service contractor) should be returned to them.

Actual Expenses —

P30,000.00 — placement fees

14.00 — application form
300.00 — psychological test
1,400.00 — medical exam
P31,000.00 — total

less 3,000.00 — processing fees at

P1,500.00 per applicant

P28,714.00 — amount to be refunded

It appearing, however, that only respondent Career Planners Specialist(s) Int'l. Inc., took part in the collection of the
aforesaid amount, the same should be solely held liable.

We cannot likewise give credence to the Final Quitclaim signed by complainant Vicente Manalo before he left for the
Philippines and presented by respondent as defense. While its genuineness may not be in question, we believe that it has
no bearing on the issue at bar. The aforesaid Quitclaim deals more with matters concerning complainants' employment
abroad. However, the subject of the instant claim is the refund of complainants' expenses prior to their deployment to Saudi
Arabia.
 On the other hand, we hold FILMAN liable for allowing its document such as the TEP to be used by other agency.
Respondent's defense that there is nothing wrong in this because FILMAN is a sister company of CAREER does not merit
consideration because such practice is not allowed under the POEA Rules and Regulations. A check with our records,
however, showed that respondent FILMAN had been put in the list of forever banned agencies effective April 5, 1989.

Anent the claim for moral damages, this Office has no jurisdiction to entertain the same.

WHEREFORE, . . . the Authority of Career Planners Specialist(s) International is hereby suspended for four (4) months or
in lieu thereof, a fine of P40,000.00 is hereby imposed for illegal exaction on two counts plus restitution of the amount of
P28,714.00 to herein complainants in both instances.

Filipino Manpower Services, Inc. is hereby meted a fine of P40,000.00 for two counts of misrepresentation. Its perpetual
disqualification from recruitment activities is hereby reiterated.

The claim for moral damages is dismissed for lack of jurisdiction.

Respondent Career's counterclaim is likewise dismissed or lack of merit. 5

Private respondents filed a motion for reconsideration and on 4 February 1991, POEA issued a resolution setting arise its earlier order
stating that —

It is worth mentioning at this point that our sole basis for holding respondent Career liable for illegal exaction was the
uncorroborated testimony of the complainants.

As we have consistently held, (the) charge of illegal exaction is a serious charge which may cause the suspension or
cancellation of the authority or license of the offending agency. Hence, it should be proven and substantiated by a clear and
convincing evidence. Mere allegation of complainant that the agency charged more than the authorized fee will not suffice
to indict the agency for illegal exaction unless the allegation is supported by other corroborative circumstantial evidence.

Thus, for lack of concrete evidence or proof to support our initial findings, we are inclined to reconsider the penalty imposed
upon respondent.

Foregoing premises, the penalty of suspension imposed upon respondent Career Planners Specialist(s) International, Inc.
pursuant to our Order dated May 7, 1990 is hereby LIFTED.

Accordingly, the alternative fine of P40,000.00 which was paid under protest by respondent is hereby ordered refunded to
them. 6
Petitioners appealed to the Secretary of Labor. On 5 July 1991, then Undersecretary of Labor Ma. Nieves Roldan-Confesor (now
Secretary of Labor) sustained the reconsideration of POEA. Her Order reads in part —

We find . . . no cogent reason or sufficient justification to reverse or modify the assailed Order.

Records reveal that the only basis for holding respondent Career Planners Specialist(s) International, Inc., liable for illegal
exaction, as held in the previous POEA Order dated May 7, 1990 was the uncorroborated testimony of the complainants.
There was no concrete evidence or proof to support the POEA Administrator's initial findings.

We take this opportunity to inform the complainants that the charge of illegal exaction is a serious charge which may cause
the suspension or cancellation of the authority or license of a recruitment agency. Therefore, said charge must be proven
and substantiated by clear and convincing evidence. A mere allegation will not suffice to find an agency liable for illegal
exaction unless said allegation is supported by other corroborative circumstantial evidence. In this connection, records show
that complainants could not narrate the specific circumstances surrounding their alleged payment of the amount of
P30,000.00. They could not even remember the specific date when said amount was paid to respondent agency. In addition,
when complainants were separately questioned as to how the money was kept bundled together prior to being handed to
respondent agency for payment, Gloria Manalo said it was wrapped in a piece of paper while Vicente Manalo said it was
placed inside an envelope. 7

On the charge of petitioners that they were given jobs (driver/domestic help) different from those advertised by private respondents, the
Undersecretary ruled that there was no misrepresentation by way of false advertisement because it was established that private
respondents also caused to be printed in the same newspaper page a second box looking for a couple driver/domestic help.

In her Order of 9 October 1991, then Undersecretary Ma. Nieves Roldan-Confesor denied petitioners' motion for reconsideration. 8

In the present recourse, petitioners claim that public respondent POEA committed a fatal jurisdictional error when it resolved private
respondents' motion for reconsideration in violation of Rule V, Book VI of the 1985 POEA Rules and Regulations directing the transmittal
of motions for reconsideration to the National Labor Relations Commission (NLRC) for determination. Consequently, for want of legal
competence to act on said motion, the Order of 4 February 1991, as well as the subsequent orders of public respondent Undersecretary
of Labor dated 5 July 1991 and 9 October 1991, is null and void.

In Aguinaldo Industries Corporation v. Commissioner of Internal Revenue 9 We ruled —

To allow a litigant to assume a different posture when he comes before the court and challenge the position he had accepted
at the administrative level, would be to sanction a procedure whereby the court — which is supposed
to review administrative determinations — would not review, but determine and decide for the first time, a question not
raised at the administrative forum. This cannot be permitted, for the same reason that underlies the requirement of prior
exhaustion of administrative remedies to give administrative authorities the prior opportunity to decide controversies within
 its competence, and in much the same way that, on the judicial level, issues not raised in the lower court cannot be raised
for the first time on appeal.

The alleged procedural lapse by respondent POEA was raised by petitioners only before Us, notwithstanding that such ground was
already existing when they appealed to the Secretary of Labor. Ironically, petitioners now question the jurisdiction of the Secretary of
Labor over the appeal which they themselves elevated to that office. When petitioners filed their motion for reconsideration with the
Undersecretary of Labor, this procedural issue was not even mentioned. Clearly, it would be the height of unfairness and inequity if We
now allow petitioners to backtrack after getting an unfavorable verdict from public respondents whose authority they themselves involved.
In Tijam v.Sibonghanoy 10 We said: ". . . we frown upon the "undesirable practice" of a party submitting his case for decision and then
accepting the judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse . . . ."

In this regard, however, We find no procedural infirmity constituting reversible error.

The 1985 POEA Rules and Regulations 11 is divided into eight (8) Books. Book VI, cited by petitioners, is entitled "Adjudication Rules".
The procedure outlined therein relates to the original and exclusive jurisdiction exercised by POEA through its Adjudication Department
"to hear and decide all cases involving employer-employee relations arising out of or by virtue of a law or contact involving Filipino workers
for overseas employment," involving "[v]iolation of the terms and conditions of employment . . . . [d]isputes relating to the implementation
and interpretation of employment contracts . . . [m]oney claims of workers against their employers and/or their duly authorized agents in
the Philippines or vice versa . . . . [c]laims for death, disability and other benefits arising out of employment . . . . and . . . . [v]iolations of
our non-compliance with any compromise agreement entered into by and between the parties in an overseas employment contract."

On the other hand, Book II entitled "Licensing and Regulations" of the 1985 POEA Rules and Regulations, notably Rule VI cited by private
respondents, refers particularly to the procedure for suspension, cancellation and revocation of Authority or License 12 through the POEA
Licensing and Regulation Office (LRO).

The controversy in the present case centers on the liability of private respondents for illegal exaction, false advertisement and violation
of pertinent laws and rules on recruitment of overseas workers and the resulting imposition of penalty of suspension of the Authority of
respondent CPSI. Quite plainly, We are not concerned here with employer-employee relations, the procedure of which is outlined in Book
VI; rather, with the suspension or revocation of Authority embodied in Book II.

Evidently, no jurisdictional error was accordingly committed because in cases affecting suspension, revocation or cancellation of Authority,
the POEA has authority under Sec. 18, Rule VI, Book II, to resolve motions for reconsideration which may thereafter be appealed to the
Secretary of Labor. Section 18, provides: "A motion for reconsideration of an order o suspension (issued by POEA) or an appeal to the
Minister (now Secretary of Labor) from an order cancelling a license or authority may be entertained only when filed with the LRO within
ten (10) working days from the service of the order or decision" (parenthesis supplied).

Petitioners also argue that public respondents gravely abused their discretion when they violated petitioners' right to administrative due
process by requiring clear and convincing evidence to establish the charge illegal exaction. This point is well taken. There was grave
abuse of discretion.
In the administrative proceedings for cancellation, revocation or suspension of Authority or License, no rule requires that testimonies of
complainants be corroborated by documentary evidence, if the charge of unlawful exaction is substantially proven. All administrative
determinations require only substantial proof and not clear and convincing evidence as erroneously contended by pubic respondents.

Clear and convincing proof is ". . . more than mere preponderance, but not to extent of such certainty as is required beyond reasonable
doubt as in criminal cases . . ." 13 while substantial evidence ". . . consists of more than a mere scintilla of evidence but may be somewhat
less than a preponderance . . . ." 14 Consequently, in the hierarchy of evidentiary values, We find proof beyond reasonable doubt at the
highest level, followed by clear and convincing evidence, preponderance of evidence, and substantial evidence, in that order.

That the administrative determination of facts may result in the suspension or revocation of the authority of CPSI does not require a higher
degree of proof. The proceedings are administrative, and the consequent imposition of suspension/revocation of Authority/License does
not make the proceedings criminal. Moreover, the sanctions are administrative and, accordingly, their infliction does not give rise to double
jeopardy when a criminal action is instituted for the same act.

Thus We held in Atlas Consolidated Mining and Development Corporation v. Factoran, Jr. 15 —

. . . it is sufficient that administrative findings of fact are supported by evidence, or negatively stated, it is sufficient that
findings of fact are not shown to be unsupported by evidence. Substantial evidence is all that is needed to support an
administrative finding of fact, and substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion (Ang Tibay v. Court of Industrial Relations, 69 Phil. 635, 642; Police Commission v. Lood,
127 SCRA 762 [1984].

The POEA, after assessing the evidence of both parties, found that private respondents collected from petitioners P30,000.00 as
placement fees; consequently, it ruled that there was illegal exaction. Surprisingly, without altering its findings of fact, POEA reconsidered
its order. It held that uncorroborated testimonies were not enough to conclude that illegal exaction was committed, particularly so that this
might result in the suspension or revocation of respondents' authority to engage in recruitment activities. The premise that testimonies of
petitioners should be supported by some other form of evidence is, to say the least, fallacious. In Castillo v. Court of Appeals, 16 where
the appellate court reversed the findings of fact of the trial court by requiring a higher degree of proof, We held —

. . . we find no strong and cogent reason which justifies the appellate court's deviation from the findings and conclusions of
the trial court. As pointed out in Hernandez v. Intermediate Appellate Court (189 SCRA 758 [1990]), in agrarian cases, all
that is required is mere substantial evidence. Hence, the agrarian court's findings of fact which went beyond the minimum
evidentiary support demanded by law, that is, supported by substantial evidence, are final and conclusive and cannot be
reversed by the appellate tribunal.

The seeming discrepancy in the statements of the witnesses (one saying the money was wrapped in paper, the other, that the money
was in an envelope; neither testified on the specific date of the exaction), refers only to minor details. Perhaps it would be different if the
variance refers to essential points, e.g., whether the amount of P30,000.00 was actually paid by petitioners to private respondents.
Consequently, whether the money was wrapped in paper, or placed in an envelope, or unwrapped or whether the parties could not recall
when there payment was effected is unimportant. After all, the money could have been wrapped in paper and placed in the envelope, or
placed in the envelope without being wrapped, or wrapped with use of an unpasted envelope that appeared to be the envelope itself. In
either case, petitioners, could have viewed them differently; but the difference is ultimately inconsequential. The crucial point to consider
is that the petitioners categorically and unequivocally testified that respondents collected from them the amount of P30,000.00 as their
placement fees and that they paid the amount demanded. In this regard, it may be worth to emphasize that only substantial evidence,
not necessarily clear and convincing evidence, is required. Moreover, when confronted with conflicting assertions, the rule that "as
between a positive and categorical testimony which has a ring of truth on one hand, and a bare denial on the other, the former is generally
held to prevail . . . ." 17 applies.

But even on the supposition that there was no payment of P30,000.00, it cannot be denied that private respondents required petitioners
to execute a promissory note for P10,000.00 purportedly because petitioners were hired without paying placement fees. The mere
charging of P10,000.00, standing alone, is enough to hold private respondents answerable for illegal exaction because the allowable
amount to be collected per contract worker according to respondent POEA was only P1,500.00, or P3,000.00 for both petitioners.

WHEREFORE, the petition is GRANTED. The challenged Orders of respondent Undersecretary of Labor dated 5 July 1991 and 9 October
1991, as well as the Resolution of respondent POEA dated 4 February 1991, having been issued with grave abuse of discretion amounting
to lack or excess of jurisdiction are SET ASIDE, and the original Order of respondent POEA dated 7 May 1990 is ordered REINSTATED
and AFFIRMED.

SO ORDERED.

G.R. No. 140520 December 18, 2000

JUSTICE SERAFIN R. CUEVAS, substituted by ARTEMIO G. TUQUERO in his capacity as Secretary of Justice, Petitoner,
vs.
JUAN ANTONIO MUÑOZ, Respondent.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals, dated November 9, 1999, directing the immediate
release of respondent Juan Antonio Muñoz from the custody of law upon finding the Order 2of provisional arrest dated September 20,
1999 issued by Branch 19 of the Regional Trial Court of Manila to be null and void.
The antecedent facts:
On August 23, 1997, the Hong Kong Magistrate’s Court at Eastern Magistracy issued a warrant for the arrest of respondent for seven (7)
counts of accepting an advantage as an agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong,
and seven (7) counts of conspiracy to defraud, contrary to the common law of Hong Kong.3 Said warrant remains in full force and effect
up to the present time.4
On September 13, 1999, the Philippine Department of Justice (hereafter, "Philippine DOJ") received a request for the provisional arrest
of the respondent from the Mutual Legal Assistance Unit, International Law Division of the Hong Kong Department of Justice (hereafter,
"Hong Kong DOJ")5 pursuant to Article 11(1) of the "Agreement Between The Government Of The Republic Of The Philippines And The
Government Of Hong Kong For The Surrender Of Accused And Convicted Persons" (hereafter, "RP-Hong Kong Extradition
Agreement").6 The Philippine DOJ forwarded the request for provisional arrest to the Anti-Graft Division of the National Bureau of
Investigation (NBI).
On September 17, 1999, for and in behalf of the government of Hong Kong, the NBI filed an application for the provisional arrest of
respondent with the Regional Trial Court (RTC) of Manila.
On September 20, 1999, Branch 19 of the RTC of Manila issued an Order granting the application for provisional arrest and issuing the
corresponding Order of Arrest.7
On September 23, 1999, respondent was arrested pursuant to the said order, and is currently detained at the NBI detention cell.8
On October 14, 1999, respondent filed with the Court of Appeals, a petition for certiorari, prohibition and mandamus with application for
preliminary mandatory injunction and/or writ of habeas corpus assailing the validity of the Order of Arrest. The Court of Appeals rendered
a decision declaring the Order of Arrest null and void on the following grounds:
(1) that there was no urgency to warrant the request for provisional arrest under Article 11(1) of the RP-Hong Kong Extradition Agreement;9
(2) that the request for provisional arrest and the accompanying warrant of arrest and summary of facts were unauthenticated and mere
facsimile copies which are insufficient to form a basis for the issuance of the Order of Arrest; 10
(3) that the twenty (20) day period for provisional arrest under Section 20(d) of Presidential Decree No. 1069 otherwise known as the
Philippine Extradition Law, was not amended by Article 11(3) of the RP-Hong Kong Extradition Agreement which provides for a forty-five
(45) day period for provisional arrest;11
(4) that the Order of Arrest was issued without the Judge having personally determined the existence of probable cause; 12 and
(5) that the requirement of dual criminality under Section 3(a) of P.D. No. 1069 has not been satisfied as the crimes for which respondent
is wanted in Hong Kong, namely accepting an advantage as an agent and conspiracy to commit fraud, are not punishable by Philippine
laws.13
Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the Department of Justice, lost no time in filing the instant
petition.14
On November 17, 1999, respondent filed an Urgent Motion For Release Pending Appeal. He primarily contended that, since Section
20(d) of P.D. No. 1069 sets the maximum period of provisional arrest at twenty (20) days, and he has been detained beyond the said
period, without both a request for extradition having been received by the Philippine DOJ and the corresponding petition for extradition
having been filed in the proper RTC, he should be released from detention. 15
On December 16, 1999, petitioner filed a Manifestation with this Court stressing the fact that as early as November 5, 1999, the Philippine
DOJ had already received from the Hong Kong DOJ, a formal request for the surrender of respondent. Petitioner also informed this Court
that pursuant to the said request for extradition, the Philippine DOJ, representing the Government of Hong Kong, filed on November 22,
1999, a verified petition for the extradition of respondent docketed as Case No. 99-95733 and currently pending in Branch 10 of the RTC
of Manila.16
Petitioner submits that the Court of Appeals erred in nullifying the Order of provisional arrest against respondent.
Petitioner imputes the following errors in the subject Decision of the Court of Appeals, to wit:
I
The Court of Appeals gravely erred in holding that:
A. there was no urgency for the provisional arrest of respondent;
B. the municipal law (P.D. No. 1069) subordinates an international agreement (RP-Hongkong Agreement);
C. the supporting documents for a request for provisional arrest have to be authenticated;
D. there was lack of factual and legal bases in the determination of probable cause; and
E. the offense of accepting an advantage as an agent is not an offense under the Anti-Graft and Corrupt Practices Act, as amended.
II
The Court of Appeals seriously erred in declaring as null and void the trial court’s Order of Arrest dated September 20, 1999 despite that
(sic) respondent waived the right to assail the order of arrest by filing in the trial court a motion for release on recognizance, that (sic) the
issue of legality of the order of arrest was being determined by the trial court, and respondent mocked the established rules of procedure
intended for an orderly administration of justice.17
Petitioner takes exception to the finding of the Court of Appeals that the offense of accepting an advantage as an agent is not punishable
under Republic Act (R.A.) No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act, thus, obviating the application of P.D.
No. 106918 that requires the offense to be punishable under the laws both of the requesting state or government and the Republic of the
Philippines.19
However, the issue of whether or not the rule of double criminality applies was not for the Court of Appeals to decide in the first place.
The trial court in which the petition for extradition is filed is vested with jurisdiction to determine whether or not the offenses mentioned in
the petition are extraditable based on the application of the dual criminality rule and other conditions mentioned in the applicable treaty.
In this case, the presiding Judge of Branch 10 of the RTC of Manila has yet to rule on the extraditability of the offenses for which the
respondent is wanted in Hong Kong. Therefore, respondent has prematurely raised this issue before the Court of Appeals and now,
before this Court.
Petitioner’s other arguments, however, are impressed with merit.
First. There was urgency for the provisional arrest of the respondent.
Section 20(a) of P.D. No. 1069 reads as follows:
Provisional Arrest. - (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same
remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with
Section 4 of this Decree;
and Article 11 of the Extradition Agreement between the Philippines and Hong Kong provides in part that:
(1) In urgent cases, the person sought may, in accordance with the law of the requested Party, be provisionally arrested on the application
of the requesting Party. x x x.
Nothing in existing treaties or Philippine legislation defines the meaning of "urgency" as used in the context of a request for provisional
arrest. Using reasonable standards of interpretation, however, we believe that "urgency" connotes such conditions relating to the nature
of the offense charged and the personality of the prospective extraditee which would make him susceptible to the inclination to flee or
escape from the jurisdiction if he were to learn about the impending request for his extradition and/or likely to destroy the evidence
pertinent to the said request or his eventual prosecution and without which the latter could not proceed. 20
We find that such conditions exist in respondent’s case.
First. It should be noted that at the time the request for provisional arrest was made, respondent’s pending application for the discharge
of a restraint order over certain assets held in relation to the offenses with which he is being charged, was set to be heard by the Court
of First Instance of Hong Kong on September 17, 1999. The Hong Kong DOJ was concerned that the pending request for the extradition
of the respondent would be disclosed to the latter during the said proceedings, and would motivate respondent to flee the Philippines
before the request for extradition could be made.21
There is also the fact that respondent is charged with seven (7) counts of accepting an advantage as an agent and seven (7) counts of
conspiracy to defraud, for each count of which, if found guilty, he may be punished with seven (7) and fourteen (14) years imprisonment,
respectively. Undoubtedly, the gravity of the imposable penalty upon an accused is a factor to consider in determining the likelihood that
the accused will abscond if allowed provisional liberty. It is, after all, but human to fear a lengthy, if not a lifetime, incarceration.
Furthermore, it has also not escaped the attention of this Court that respondent appears to be affluent and possessed of sufficient
resources to facilitate an escape from this jurisdiction.22
The arguments raised by the respondent in support of his allegation that he is not a flight risk, are, to wit:
a) He did not flee or hide when the Central Bank and the NBI investigated the matter alleged in the request for extradition of the Hongkong
Government during the second half of 1994; he has since been cleared by the Central Bank;
b) He did not flee or hide when the Hongkong Government’s Independent Commission Against Corruption (ICAC) issued a warrant for
his arrest in August 1997; he has in fact filed a case in Hongkong against the Hongkong Government for the release of his frozen assets;
c) He never changed his address nor his identity, and has sought vindication of his rights before the courts in Hongkong and in the
Philippines;
d) He has never evaded arrest by any lawful authority, and certainly will never fly away now that his mother is on her death bed. 23
do not convince this Court. That respondent did not flee despite the investigation conducted by the Central Bank and the NBI way back
in 1994, nor when the warrant for his arrest was issued by the Hong Kong ICAC in August 1997, is not a guarantee that he will not flee
now that proceedings for his extradition are well on the way. Respondent is about to leave the protective sanctuary of his mother state to
face criminal charges in another jurisdiction. It cannot be denied that this is sufficient impetus for him to flee the country as soon as the
opportunity to do so arises.
Respondent also avers that his mother’s impending death makes it impossible for him to leave the country. However, by respondent’s
own admission, his mother finally expired at the Cardinal Santos Hospital in Mandaluyong City last December 5, 1999.24
Second. Twelve (12) days after respondent was provisionally arrested, the Philippine DOJ received from the Hong Kong DOJ, a request
for the surrender or extradition of respondent.
On one hand, Section 20(d) of P.D. No. 1069 reads as follows:
(d) If within a period of twenty (20) days after the provisional arrest the Secretary of Foreign Affairs has not received the request for
extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody.
On the other hand, Article 11(3) of the RP-Hong Kong Extradition Agreement provides that:
(3) The provisional arrest of the person sought shall be terminated upon the expiration of forty-five days from the date of arrest if the
request for surrender has not been received, unless the requesting Party can justify continued provisional arrest of the person sought in
which case the period of provisional arrest shall be terminated upon the expiration of a reasonable time not being more than a further
fifteen days. This provision shall not prevent the re-arrest or surrender of the person sought if the request for the person’s surrender is
received subsequently.
Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition Agreement which allows a period of forty-five (45) days for
provisional arrest absent a formal request for extradition has amended Section 20(d) of P.D. No. 1069 which provides only a twenty (20)
day period for the same.25
Petitioner’s argument on this point, however, has been rendered moot and academic by the fact that as early as November 5, 1999 or
twelve (12) days after respondent’s arrest on September 23, 1999, the Philippine DOJ already received from the Hong Kong DOJ, a
request for the surrender of respondent. The crucial event, after all, which tolls the provisional detention period is the transmittal of the
request for the extradition or surrender of the extraditee. Hence, the question as to whether the period for provisional arrest stands at
twenty (20) days, as provided for in P.D. No. 1069, or has been extended to forty-five (45) days under the Extradition Agreement between
Hong Kong and the Philippines is rendered irrelevant by the actual request made by the Hong Kong DOJ for the extradition of
respondent twelve (12) days after the request for the latter’s provisional arrest.
Likewise, respondent’s contention in his motion for release pending appeal, that his incarceration cannot continue beyond the twenty (20)
day period without a petition for his extradition having been filed in court, is simply bereft of merit. It is clear from the above-cited
provisions, that for the provisional arrest of an accused to continue, the formal request for extradition is not required to be filed in court. It
only need be received by the requested state within the periods provided for by P.D. No. 1069 and the RP-Hong Kong Extradition
Agreement. By no stretch of imagination may we infer from the required receipt of the request for extradition and its accompanying
documents, the additional requisite that the same be filed in the court within the same periods.
Third. The request for provisional arrest of respondent and its accompanying documents are valid despite lack of authentication.
Section 20(b) of P.D. No. 1069 reads as follows:
(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic
channels or direct by post or telegraph.
and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in part that:
x x x. The application for provisional arrest shall contain an indication of intention to request the surrender of the person sought and the
text of a warrant of arrest or a judgment of conviction against that person, a statement of the penalty for that offense, and such further
information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed, or the person
convicted, within the jurisdiction of the requested Party.
The language of the abovequoted provisions is clear. There is no requirement for the authentication of a request for provisional arrest
and its accompanying documents.
We also note that under Section 20(d) of P.D. No. 1069, viz:
(d) If within a period of 20 days after the request for provisional arrest the Secretary of Foreign Affairs has not received the request for
extradition and the documents mentioned in Section 4 of this Decree,26 the accused shall be released from custody.27
the original or authenticated copies of the decision or sentence imposed upon the accused by the requesting state or the criminal charge
and the warrant of arrest issued by the authority of the requesting state, need not accompany the request for provisional arrest and may,
in fact, be transmitted after the said request has already been received by the requested state.
Furthermore, the pertinent provision of the RP-Hong Kong Extradition Agreement enumerates the documents that must accompany the
request, as follows: (1) an indication of the intention to request the surrender of the person sought; (2) the text of a warrant of arrest or
judgment of conviction against that person; (3) a statement of penalty for that offense; and (4) such further information as would justify
the issue of a warrant of arrest had the offense been committed, or the person convicted, within the jurisdiction of the requested
party.28 That the enumeration does not specify that these documents must be authenticated copies, is not a mere omission of law. This
may be gleaned from the fact that while Article 11(1) does not require the accompanying documents of a request for provisional
arrest to be authenticated, Article 9 of the same Extradition Agreement makes authentication a requisite for admission in evidence of any
document accompanying a request for surrender or extradition.29 In other words, authentication is required for the request for surrender
or extradition but not for the request for provisional arrest.
We must also state that the above mentioned provisions of P.D. No. 1069 and the RP-Hong Kong Extradition Agreement, as they are
worded, serve the purpose sought to be achieved by treaty stipulations for provisional arrest.
The process of preparing a formal request for extradition and its accompanying documents, and transmitting them through diplomatic
channels, is not only time-consuming but also leakage-prone. There is naturally a great likelihood of flight by criminals who get an
intimation of the pending request for their extradition. To solve this problem, speedier initial steps in the form of treaty stipulations for
provisional arrest were formulated.30 Thus, it is an accepted practice for the requesting state to rush its request in the form of a telex or
diplomatic cable, the practicality of the use of which is conceded.31 Even our own Extradition Law (P.D. No. 1069) allows the transmission
of a request for provisional arrest via telegraph.32 In the advent of modern technology, the telegraph or cable have been conveniently
replaced by the facsimile machine. Therefore, the transmission by the Hong Kong DOJ of the request for respondent’s provisional arrest
and the accompanying documents, namely, a copy of the warrant of arrest against respondent, a summary of the facts of the case against
him, particulars of his birth and address, a statement of the intention to request his provisional arrest and the reason therefor, by fax
machine, more than serves this purpose of expediency.
Respondent’s reliance on Garvida v. Sales, Jr.33 is misplaced. The proscription against the admission of a pleading that has been
transmitted by facsimile machine has no application in the case at bar for obvious reasons. First, the instant case does not involve a
pleading; and second, unlike the COMELEC Rules of Procedure which do not sanction the filing of a pleading by means of a facsimile
machine, P.D. No. 1069 and the RP Hong Kong Extradition Agreement do not prohibit the transmission of a request for provisional arrest
by means of a fax machine.
In a futile attempt to convince this Court, respondent cites our ruling in the recent case of Secretary of Justice v. Hon. Lantion, et
al.34 , where we held that the right of an extraditee to due process necessarily includes the right to be furnished with copies of the
extradition request and supporting papers, and to file a comment thereto during the evaluation stage of the extradition proceedings.
Respondent posits that, in the same vein, the admission by the RTC of the request for provisional arrest and its supporting documents
despite lack of authentication is a violation of the respondent’s right to due process. This contention fails to impress us.
Respondent’s contention is now a non-issue, in view of our Resolution dated October 17, 2000 in the said case of Secretary of Justice v.
Hon. Lantion, et al. reconsidering and reversing our earlier decision therein. Acting on therein petitioner’s Motion for Reconsideration, we
held that therein respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process.35 Worthy to
reiterate is the following concluding pronouncement of this Court in the said case: 36
In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the private respondent has no right to
due process at all throughout the length and breath of the extrajudicial proceedings. Procedural due process requires a determination of
what process is due, when it is due and the degree of what is due. Stated otherwise, a prior determination should be made as to whether
procedural protections are at all due and when they are due, which in turn depends on the extent to which an individual will be ‘condemned
to suffer grievous loss.’37 We have explained why an extraditee has no right to notice and hearing during the evaluation stage of the
extradition process. As aforesaid, P.D. 1069 xxx affords an extraditee sufficient opportunity to meet the evidence against him once the
petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court
of the formal petition for extradition. The extraditee’s right to know is momentarily withheld during the evaluation stage of the extradition
process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated
by premature information of the basis of the request for his extradition. No less compelling at that stage of the extradition proceedings is
the need to be more deferential to the judgment of a co-equal branch of the government, the Executive, which has been endowed by our
Constitution with greater power over matters involving our foreign relations. Needless to state, this balance of interests is not a static but
a moving balance which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and to the
execution stage depending on factors that will come into play. In sum, we rule that the temporary hold on private respondent’s privilege
of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to
resist the request for his extradition to the United States. There is no denial of due process as long as fundamental fairness is assured a
party.
Respondent also contends that the request for his provisional arrest was rendered defective by the fact that the person who made the
request was not a foreign diplomat as provided for in Section 4 (2) of P.D. No. 1069, to wit:
SEC. 4. Request; By Whom Made; Requirements.-
(1) Any foreign state or government with which the Republic of the Philippines has entered into extradition treaty or convention, and only
when the relevant treaty or convention, remains in force, may request for the extradition of any accused who is suspected of being in the
territorial jurisdiction of the Philippines.
(2) The request shall be made by the Foreign Diplomat of the requesting state or government, addressed to the Secretary of Foreign
Affairs, x x x.
This contention deserves scant consideration. The foregoing refers to the requirements for a request for extradition and not for a request
for provisional arrest. The pertinent provisions are Article 11(2) which states:
An application for provisional arrest may be forwarded through the same channels as a request for surrender or through the International
Criminal Police Organization (INTERPOL);38
and Article 8(1) which provides:
Requests for surrender and related documents shall be conveyed through the appropriate authority as may be notified from time to time
by one party to another.39
Hence, there is sufficient compliance with the foregoing if the request for provisional arrest is made by an official who is authorized by the
government of the requesting state to make such a request and the authorization is communicated to the requested state.
The request for provisional arrest of respondent was signed by Wayne Walsh, Senior Government Counsel of the Mutual Legal Assistance
Unit, International Law Division of the Hong Kong DOJ who stated in categorical terms that:
The Department of Justice (Mutual Legal Assistance Unit) of the HKSAR is the appropriate authority under the Agreement to make
requests for provisional arrest and surrender. I confirm that as a member of the Mutual Legal Assistance Unit, I am authorized (sic) to
make this request for provisional arrest.40
Last. There was sufficient factual and legal basis for the determination of probable cause as a requisite for the issuance of the Order of
Arrest.41
We have defined probable cause for the issuance of a warrant of arrest as "the existence of such facts and circumstances that would
lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested."42 The
determination of probable cause is a function of the Judge. Such is the mandate of our Constitution which provides that a warrant of
arrest shall issue only upon probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.43 In the case of Allado v. Diokno,44 we stated that personal determination by the Judge
of the existence of probable cause means that he -
(a) shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, may disregard the fiscal’s
report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable
cause.45
The Judge cannot, therefore, merely rely on the certification issued by the prosecutor. He is, however, not required to personally
examine ipso facto the complainant and his witnesses. He sufficiently complies with the requirement of personal determination if he
reviews the information and the documents attached thereto, and on the basis thereof forms a belief that the accused is probably guilty
of the crime with which he is being charged.46 The Judge determines the existence of probable cause to pass upon whether a warrant of
arrest should be issued against the accused, that is, whether there is a necessity for placing him under immediate custody in order not to
frustrate the ends of justice.47
The request for the respondent’s provisional arrest was accompanied by facsimile copies of the outstanding warrant of arrest issued by
the Hong Kong government, a summary of the facts of the case against respondent, particulars of his birth and address, an intention to
request his provisional arrest and the reason therefor. The said documents were appended to the application for respondent’s provisional
arrest filed in the RTC,48 and formed the basis of the judge’s finding of probable cause for the issuance of the warrant of arrest against
respondent.
Respondent alleges the contrary and surmises that all that the trial judge did was to interview NBI agent Saunar who filed the application
for the issuance of the warrant of provisional arrest, and that "her honor did not probably even notice that the supporting documents were
not authenticated."49 The allegation, baseless and purely speculative, is one which we cannot countenance in view of the legal
presumption that official duty has been regularly performed. 50
That the Presiding Judge of RTC Manila, Branch 19, made a personal determination of the existence of probable cause on the basis of
the documents forwarded by the Hong Kong DOJ is further supported by the Order of Arrest against respondent which states:
ORDER
This treats of the Application For Provisional Arrest of Juan Antonio Muñoz, for the purpose of extradition from the Republic of the
Philippines.
This application was filed in behalf of the Government of Hong Kong Special Administrative Region for the provisional arrest of Juan
Antonio Muñoz, pursuant to Section 20 of Presidential Decree No. 1069, in relation to paragraph 1, Article 11 of the Agreement for the
Surrender of Accused and Convicted Persons between the Republic of the Philippines and Hong Kong on provisional arrest. The
application alleged that Juan Antonio Muñoz is wanted in Hong Kong for seven (7) counts of the offense of "accepting an advantage as
an agent", contrary to Section 9(1) (9) of the Prevention of Bribery Ordinance Cap. 201 of Hong Kong and seven (7) counts of the offense
of "conspiracy to defraud", contrary to the Common Law of Hong Kong.
That a warrant of arrest was issued by the Magistrate’s Court at Eastern Magistracy, Hong Kong on August 23, 1997, pursuant to the 14
charges filed against him before the issuing Court. Juan Antonio Muñoz is now alleged to be in the Philippines. He was born on June 24,
1941, a holder of Philippines Passport No. 2K 934808, formerly an employee of the Central Bank of the Philippines and with address at
Phase 3, BF Homes, No. 26 D C Chuan Street, Metro Manila.
That there is an urgency in the issuance of the provisional arrest warrant for the reason that the application to discharge the restraint over
the funds, subject of the offenses, in his Citibank Account in Hong Kong was set for hearing on September 17, 1999 and that his lawyer
in Hong Kong will be notified of the request of the Hong Kong Government for his provisional arrest (sic) and Juan Antonio E. Muñoz
upon knowledge of the request.
Considering that the Extradition treaty referred to is part of our systems of laws and recognized by Presidential Decree No. 1069 and the
Constitution itself by the adoption of international laws, treaties and conventions as parts (sic) of the law of the land, the application for
provisional arrest of Juan Antonio Muñoz is hereby GRANTED. Let a warrant for his provisional arrest therefore issue.
SO ORDERED.51 (Underscoring supplied.)
Finally, petitioner also avers that the respondent has waived his right to assail the validity of his provisional arrest when he filed a motion
for release on recognizance. Considering that we find petitioner’s other contentions to be impressed with merit, there is no need to delve
further into this particular issue.
WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court of Appeals, dated November 9, 1999, in CA-G.R. SP
No. 55343 is hereby REVERSED and SET ASIDE. Respondent’s "Urgent Motion For Release Pending Appeal" is hereby DENIED.
SO ORDERED.
G.R. No. 152807 August 12, 2003
HEIRS OF LOURDES SAEZ SABANPAN: BERNARDO S. SABANPAN, RENE S. SABANPAN, DANILO S. SABANPAN and THELMA
S. CHU; HEIRS OF ADOLFO SAEZ: MA. LUISA SAEZ TAPIZ, MA. VICTORIA SAEZ LAPITAN, MA. BELEN SAEZ and EMMANUEL
SAEZ; and HEIRS OF CRISTINA SAEZ GUTIERREZ: ROY SAEZ GUTIERREZ and LUIS SAEZ JR., petitioners,
vs.
ALBERTO C. COMORPOSA, HERDIN C. COMORPOSA, OFELIA C. ARIEGO,1 REMEDIOS COMORPOSA, VIRGILIO A.
LARIEGO,1a BELINDA M. COMORPOSA and ISABELITA H. COMORPOSA, respondents.
PANGANIBAN, J.:
The admissibility of evidence should be distinguished from its probative value. Just because a piece of evidence is admitted does not ipso
facto mean that it conclusively proves the fact in dispute.
The Case
Before us is a Petition for Review2 under Rule 45 of the Rules of Court, seeking to set aside the August 7, 2001 Decision and the February
27, 2002 Resolution of the Court of Appeals3 (CA) in CA-GR SP No. 60645. The dispositive portion of the assailed Decision reads as
follows:
"WHEREFORE, in view of all the foregoing, the Court hereby AFFIRMS the Decision dated 22 June 2000 rendered by Branch 18 of the
Regional Trial Court of Digos, Davao del Sur, REVERSING and SETTING ASIDE the Decision of the Municipal Trial Court of Sta. Cruz,
Davao del Su[r]."4
The assailed Resolution5 denied petitioners' Motion for Reconsideration.
The Facts
The CA summarized the factual antecedents of the case as follows:
"A [C]omplaint for unlawful detainer with damages was filed by [petitioners] against [respondents] before the Santa Cruz, Davao del Sur
Municipal Trial Court.
"The [C]omplaint alleged that Marcos Saez was the lawful and actual possessor of Lot No. 845, Land 275 located at Darong, Sta. Cruz,
Davao del Sur with an area of 1.2 hectares. In 1960, he died leaving all his heirs, his children and grandchildren.
"In 1965, Francisco Comorposa who was working in the land of Oboza was terminated from his job. The termination of his employment
caused a problem in relocating his house. Being a close family friend of [Marcos] Saez, Francisco Comorposa approached the late Marcos
Saez's son, [Adolfo] Saez, the husband of Gloria Leano Saez, about his problem. Out of pity and for humanitarian consideration, Adolfo
allowed Francisco Comorposa to occupy the land of Marcos Saez. Hence, his nipa hut was carried by his neighbors and transferred to a
portion of the land subject matter of this case. Such transfer was witnessed by several people, among them, Gloria Leano and Noel
Oboza. Francisco Comorposa occupied a portion of Marcos Saez' property without paying any rental.
"Francisco Comorposa left for Hawaii, U.S.A. He was succeeded in his possession by the respondents who likewise did not pay any
rental and are occupying the premises through petitioners' tolerance.
"On 7 May 1998, a formal demand was made upon the respondents to vacate the premises but the latter refused to vacate the same and
claimed that they [were] the legitimate claimants and the actual and lawful possessor[s] of the premises. A [C]omplaint was filed with the
barangay office of Sta. Cruz[,] Davao del Sur, but the parties failed to arrive at an amicable settlement. Thus, the corresponding Certificate
to File Action was issued by the said barangay and an action for unlawful detainer was filed by petitioners against respondents.
"Respondents, in their Answer, denied the material allegations of the [C]omplaint and alleged that they entered and occupied the premises
in their own right as true, valid and lawful claimants, possessors and owners of the said lot way back in 1960 and up to the present time;
that they have acquired just and valid ownership and possession of the premises by ordinary or extraordinary prescription, and that the
Regional Director of the DENR, Region XI has already upheld their possession over the land in question when it ruled that they [were]
the rightful claimants and possessors and [were], therefore, entitled to the issuance of a title.
"The Municipal Trial Court of Sta. Cruz, Davao del Sur rendered judgment in favor of petitioners but the Regional Trial Court of Digos,
Davao del Sur, on appeal, reversed and set aside the said decision. x x x" 6
Ruling of the Court of Appeals
Affirming the Regional Trial Court (RTC), the CA upheld the right of respondents as claimants and possessors. The appellate court held
that -- although not yet final -- the Order issued by the regional executive director of the Department of Environment and Natural Resources
(DENR) remained in full force and effect, unless declared null and void. The CA added that the Certification issued by the DENR's
community environment and natural resources (CENR) officer was proof that when the cadastral survey was conducted, the land was
still alienable and was not yet allocated to any person.
According to the CA, respondents had the better right to possess alienable and disposable land of the public domain, because they have
sufficiently proven their actual, physical, open, notorious, exclusive, continuous and uninterrupted possession thereof since 1960. The
appellate court deemed as self-serving, and therefore incredible, the Affidavits executed by Gloria Leano Saez, Noel Oboza and Paulina
Paran.
Hence, this Petition.7
The Issue
In their Memorandum, petitioners raise the following issues for the Court's consideration:
"I
Did the Court of Appeals gravely abuse its discretion and [err] in sustaining the ruling of the Regional Trial Court giving credence to the
Order dated 2 April 1998 issued by the regional executive director?
"II
Did the Court of Appeals gravely abuse its discretion and err in sustaining the Regional Trial Court's ruling giving weight to the CENR
Officer's Certification, which only bears the facsimile of the alleged signature of a certain Jose F. Tagorda and, [worse], it is a new matter
raised for the first time on appeal?
"III
Did the Court of Appeals gravely abuse its discretion and err in holding that the land subject matter of this case has been acquired by
means of adverse possession and prescription?
"IV
Did the Court of Appeals gravely abuse its discretion, and err in declaring that, 'neither is there error on the part of the Regional Trial
Court, when it did not give importance to the affidavits by Gloria Leano Saez, Noel [Oboza], and Paulina Paran for allegedly being self
serving?'"8
To facilitate the discussion, the fourth and the third issues shall be discussed in reverse sequence.
The Court's Ruling
The Petition has no merit.
First Issue:
The DENR Order of April 2, 1998
Petitioners claim that the reliance of the CA upon the April 2, 1998 Order issued by the regional director of the DENR was erroneous.
The reason was that the Order, which had upheld the claim of respondents, was supposedly not yet final and executory. Another Order
dated August 23, 1999,9 issued later by the DENR regional director, allegedly held in abeyance the effectivity of the earlier one.
Under the Public Land Act,10 the management and the disposition of public land is under the primary control of the director of lands 11 (now
the director of the Lands Management Bureau or LMB), 12 subject to review by the DENR secretary.13 As a rule, then, courts have no
jurisdiction to intrude upon matters properly falling within the powers of the LMB.
The powers given to the LMB and the DENR to alienate and dispose of public land does not, however, divest regular courts of jurisdiction
over possessory actions instituted by occupants or applicants to protect their respective possessions and occupations. 14 The power to
determine who has actual physical possession or occupation of public land and who has the better right of possession over it remains
with the courts.15 But once the DENR has decided, particularly through the grant of a homestead patent and the issuance of a certificate
of title, its decision on these points will normally prevail.16
Therefore, while the issue as to who among the parties are entitled to a piece of public land remains pending with the DENR, the question
of recovery of possession of the disputed property is a matter that may be addressed to the courts.
Second Issue:
CENR Officer's Certification
Petitioners contend that the CENR Certification dated July 22, 1997 is a sham document, because the signature of the CENR officer is a
mere facsimile. In support of their argument, they cite Garvida v. Sales Jr.17 and argue that the Certification is a new matter being raised
by respondents for the first time on appeal.
We are not persuaded.
In Garvida, the Court held:
"A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an
original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. x
x x"18
Pleadings filed via fax machines are not considered originals and are at best exact copies. As such, they are not admissible in evidence,
as there is no way of determining whether they are genuine or authentic. 19
The Certification, on the other hand, is being contested for bearing a facsimile of the signature of CENR Officer Jose F. Tagorda. The
facsimile referred to is not the same as that which is alluded to in Garvida. The one mentioned here refers to a facsimile signature, which
is defined as a signature produced by mechanical means but recognized as valid in banking, financial, and business transactions.20
Note that the CENR officer has not disclaimed the Certification. In fact, the DENR regional director has acknowledged and used it as
reference in his Order dated April 2, 1998:
"x x x. CENR Officer Jose F. Tagorda, in a 'CERTIFICATION' dated 22 July 1997, certified among others, that: x x x per records available
in his Office, x x x the controverted lot x x x was not allocated to any person x x x."21
If the Certification were a sham as petitioner claims, then the regional director would not have used it as reference in his Order. Instead,
he would have either verified it or directed the CENR officer to take the appropriate action, as the latter was under the former's direct
control and supervision.
Petitioners' claim that the Certification was raised for the first time on appeal is incorrect. As early as the pretrial conference at the
Municipal Trial Court (MTC), the CENR Certification had already been marked as evidence for respondents as stated in the Pre-trial
Order.22 The Certification was not formally offered, however, because respondents had not been able to file their position paper.
Neither the rules of procedure23 nor jurisprudence24 would sanction the admission of evidence that has not been formally offered during
the trial. But this evidentiary rule is applicable only to ordinary trials, not to cases covered by the rule on summary procedure -- cases in
which no full-blown trial is held.25
Third Issue:
Affidavit of Petitioners' Witnesses
Petitioners assert that the CA erred in disregarding the Affidavits of their witnesses, insisting that the Rule on Summary Procedure
authorizes the use of affidavits. They also claim that the failure of respondents to file their position paper and counter-affidavits before
the MTC amounts to an admission by silence.
The admissibility of evidence should not be confused with its probative value. Admissibility refers to the question of whether certain pieces
of evidence are to be considered at all, while probative value refers to the question of whether the admitted evidence proves an
issue.26 Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the
guidelines provided by the rules of evidence.27
While in summary proceedings affidavits are admissible as the witnesses' respective testimonies, the failure of the adverse party to reply
does not ipso facto render the facts, set forth therein, duly proven. Petitioners still bear the burden of proving their cause of action,
because they are the ones asserting an affirmative relief.28
Fourth Issue:
Defense of Prescription
Petitioners claim that the court a quo erred in upholding the defense of prescription proffered by respondents. It is the former's contention
that since the latter's possession of the land was merely being tolerated, there was no basis for the claim of prescription. We disagree.
For the Court to uphold the contention of petitioners, they have first to prove that the possession of respondents was by mere tolerance.
The only pieces of evidence submitted by the former to support their claim were a technical description and a vicinity map drawn in
accordance with the survey dated May 22, 1936. 29 Both of these were discredited by the CENR Certification, which indicated that the
contested lot had not yet been allocated to any person when the survey was conducted. 30 The testimony of petitioners' witnesses alone
cannot prevail over respondents' continued and uninterrupted possession of the subject lot for a considerable length of time.
Furthermore, this is an issue of fact that cannot, as a rule, be raised in a petition for review under Rule 45. 31
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioners.
SO ORDERED.
A.M. No. CA-05-20-P September 9, 2005
(Formerly OCA IPI No. 05-81-CA-P)
ASSOCIATE JUSTICE DELILAH VIDALLON-MAGTOLIS, COURT OF APPEALS, Complainant,*
vs.
CIELITO M. SALUD, CLERK IV, COURT OF APPEALS, Respondent.
DECISION
CALLEJO, SR., J.:
Cielito Salud, Clerk IV, Mailing Section of the Judicial Records Division, Court of Appeals (CA) stands charged with the following offenses:
1. Inefficiency and incompetence in the performance of official duties;
2. Conduct grossly prejudicial to the best interest of the service; and
3. Directly or indirectly having financial and material interest in an official transaction, under Section 22, paragraphs (p), (t) and (u), Rule
XIV of the Omnibus Rules Implementing the Civil Service Law.1
The Facts
Melchor Lagua was found guilty of homicide in Criminal Case Nos. 118032-H and 118033-H before the Regional Trial Court of Pasig
City, Branch 163.2 On appeal, the case was assigned to the Sixth Division of the Court of Appeals, docketed as CA-G.R. CR No. 27423.
Lagua, who was then detained at the Bureau of Prisons National Penitentiary in Muntinlupa City, filed a Very Urgent Petition for Bail.
Finding the petition well-taken, the appellate court issued a Resolution on October 9, 2003, directing him to post a ₱200,000.00 bond.
Lagua’s bond was approved in a Resolution 3 dated November 6, 2003, where the appellate court also directed the issuance of an order
of release in favor of Lagua. The resolution was then brought to the Office of the Division Clerk of Court, Atty. Maria Isabel M. Pattugalan-
Madarang, for promulgation.
Irma Del Rosario, Utility Worker, noticed the respondent’s unusual interest in the Lagua case. The respondent had apparently been
making inquiries whether the appellate court had already directed the issuance of an order of release in the said case and was initially
told there was none yet. Due to his persistence, the records of the case were eventually found. 4 Atty. Madarang then directed the typing
of the Order of Release Upon Bond,5 and to notify the mailing section that there were orders requiring personal service. 6 At around 4:00
p.m., the respondent then went to Atty. Madarang’s office and assisted in arranging and stapling the papers for release. He brought the
said resolutions and other papers himself to the Mailing Section.7
On November 7, 2003, the respondent went to the National Penitentiary to serve the resolution and order of release in the Lagua case.
The respondent left the prison compound at around 2:30 p.m. 8
In the meantime, Atty. Madarang received a telephone call from a certain Melissa Melchor, who introduced herself as Lagua’s relative. It
was about 2:00 p.m. The caller asked her how much more they had to give to facilitate Lagua’s provisional liberty. The caller also told
Atty. Madarang that they had sought the help of a certain Rhodora Valdez of the Regional Trial Court (RTC) of Pasig, where the criminal
case originated, but were told that they still had a balance to be given to Justice Magtolis and Atty. Madarang through the respondent.
Atty. Madarang then called the said court and asked to speak to Ms. Valdez, pretending to be Lagua’s relative.
What transpired thereafter is contained in Atty. Madarang’s Affidavit dated December 8, 2003, as follows:
4. That upon telephone queries made with the office of the Clerk of Court of RTC Pasig, I learned that Rhodora Valdez is the incumbent
Process Server of RTC, [Branch] 163, Pasig City, from which the original case against accused-appellant Lagua originated. Disguising
myself as accused-appellant Lagua’s relative, I dialed [Branch] 163, RTC, Pasig (6314273) but Rhodora Valdez did not report for work
that day, according to Baby (also known as Ester), her officemate (who) answered my call. She added that Rhodora Valdez has been
waiting for us (Lagua’s relatives) to call. Her exact words were these: "Wala si Rhodora. Meron lang siyang nilakad. Pero kahapon pa
nya hinihintay ang tawag nyo. May kulang pa kayo eh. Kailangan kasing i-en banc sa Court of Appeals ang kaso ni Lagua."
5. That I coordinated with Ms. Cecil Secarro, the Acting Chief of the Mailing Section, to inquire if it was usual/normal for her to text her
process servers on the field for an update of their deliveries, to which she answered in the affirmative. While she was in the office, she
texted Salud for his whereabouts and he replied, that he was on his way back to Quezon City. That was before 4 p.m., adding that his
deliveries were ok.
6. That I got Salud’s mobile phone number from Ms. Secarro and started texting him at about the same time Ms. Secarro did. I represented
myself as Arlyn, Lagua’s relative. Most of his text messages are still stored in my mobile phone. In fact, I received one text message from
him while I was at the office of Justice Magtolis, (the Chairman of the 6th Division and the ponente of C.R. No. 27423) in the late afternoon
of November 7, 2003 while reporting to her this incident. Those stored in my phone are the following:
1. bkit, C rhodora to. 639204439082. – Nov. 2003, 15:36:15
2. CNO KAMAGANAK AT ANONG PANGALAN MO – 639204439082, 7 Nov 2003 16:14:47
3. SINO K KC NAGHIWALAY N KAMI – 639204439082, 7 Nov 2003 16:40:21
4. TAWAG K S AKIN – 639204439082 – 7 Nov 2003 17:18:47
5. NARELEASE N C MR. LAGUA. NAGKITA N B KAYO – 639204439082-7 Nov 2003 19:44:52
6. Magkano b and binigay nyo sa middle nyo. Puede bang malaman – 639184470111-7 Nov 2003 20:32:05
7. Gud evening. May gusto lng akong malaman. Sana alang makaalam kahit cino. Lito – 639184470111–7 Nov. 2003 19:54:20
8. Cno ang kausap n Rhodora. Pwede bang malaman – 639184470111-7 Nov 2003 20:37:57
9. May landline ka. Tawagan kta bukas nang umaga – 639184470111-7 Nov 2003 20:56:31
10. Wag s Court of Appeal. Txt na lang kta kung saan. – 639184470111-7 Nov 2003 20:52:58
11. Gusto mo bukas nang umaga magkita tyo. 639184470111 – 7 Nov 2003 20:57:10
12. D ba pwede bukas tyo kita. May gusto lang ako malaman – 639184470111 7 Nov 2003 21:02:41
13. D 2ngkol kay rhodora duon sa kasama ko kaninang lalakeng pinsan – 639184470111 – 7 Nov 2003, 21:04:28
14. Ala po ako sa Lunes sa opis. Sa hapon po puede kyo – 639184470111, 7 Nov 2003 21:07:23
15. Kay Melchor Lagua 639184470111 – 7 Nov 2003 21:08:19
16. Kasama ko cya kanina nang lumabas – 639184470111 – 7 Nov. 2003 21:13:05
17. Ano m ba Melchor Lagua – 639184470111 – 7 Nov 2003 21:15:52
18. Between 5 and 5:30 ng hapon. Bkit. 639184470111 – 7 Nov. 2003 21:54:24
19. 3 PM PUWEDE KB – 639004039082 10 Nov 2003 12:09:32
20. Kilala mo b c rhodora. Nagkita na b kayo. Ala naman problema sa kanya. Ok naman 639184470111 – 7 Nov 2003, 21:57:13
21. MAGKITA N LANG TAYO – 639204439082 – 10 Nov. 2003, 12:20:16
22. A, OK, NAGKITA N B KAYO NG KAMAGANAK MO – 639204439082 – 10 Nov 2003 15:12:14
23. D TALAGA AKO DARATING DAHIL WALA AKONG KAILANGAN S IYO. – 639204439082 – 10 Nov 2003 18:36:03
7. That Salud called me up in the morning of November 8, 2003 at around 7:33 but I purposely did not answer him. Why did he need to
call me up?
8. That I personally called up the Bureau of Prisons for the exact time the Order of Release was delivered and when accused appellant
Lagua was released. I learned that the Order of Release was received at 9:15 A.M. and that Lagua was released between 5-5:30 P.M.
of November 7, 2003.
9. That I was able to talk to Rhodora Valdez the following Monday, November 10, 2003. Again, I introduced myself as Lagua’s relative,
Arlyn and told her I only wanted to know how much more we had to pay for Lagua’s release. She refused to entertain me because
according to her, "Hindi ikaw ang kausap ko. Duda ako sa yo. Kung gusto mo, puntahan mo ako dito bukas, para magkita tayo. Pero
lumabas na si Lagua. Itinawag sa akin ni Lito Salud." Then, she [hung] up.
10. That on Tuesday, November 11, 2003, I brought Salud, accompanied by Ms. Secarro to Justice Magtolis. Out of the confrontation,
we discovered that Salud did not properly serve the copies of the Resolution and Order of Release upon the accused-appellant and his
counsel, Atty. Salvador C. Quimpo of the Quimpo Dingayan-Quimpo and Associates. He gave them to a certain Art, allegedly Lagua’s
relative who he claimed approached him at the Bureau of Prisons in the morning of November 7, 2003. He told Justice Magtolis that he
gave these documents to Art, who promised to take care of them, even before he could deliver the copy addressed to the Director of
Prisons. He never mentioned that this Art was connected with the office of accused-appellant’s counsel. Because of this information from
Salud himself, I did not sign the Certificate of Service, Annex "C".
11. That several days later, Salud accompanied by Ms. Secarro, came to my office to apologize. But before he could even say a word,
he broke down in [wails]. In between his loud cries, he uttered, "Boss, patawad po, alang-alang sa aking mga anak."9
On November 11, 2003, Justice Magtolis called the respondent to her office. When confronted, the respondent denied extorting or
receiving money for Lagua’s release, or in any other case. He, however, admitted serving the copies of resolution and order of release
intended for Lagua and his counsel to Art Baluran. 10 Justice Magtolis then called the respondent to a meeting with Clerk of Court Atty.
Tessie L. Gatmaitan, who stated that she would transfer the respondent to another office which has nothing to do with cases.
Justice Magtolis lodged the complaint against the respondent in a Letter dated November 14, 2003, containing, among others, the
following allegations:
The delivery of resolutions/orders to unauthorized persons and "complete strangers" who promised to "take care thereof" ("siya na raw
ang bahala") constitutes not only neglect of duty but also conduct prejudicial to the best interest of the service. Staying for the whole day
within the vicinity of the National Bilibid Prisons to the point of failing to fulfill his other duties for the day constitutes inefficiency and
incompetence in the performance of official duties. On the other hand, the use of my name and that of our Division Clerk of Court to
illegally solicit financial or material benefit from parties with pending cases before this Court is illegal per se.
In view of the foregoing, it is respectfully requested that Cielito Salud be subjected to an administrative investigation and disciplinary
action.11
Attached to the complaint were the following documents to support the charges:
ANNEX "A" - Record of the cases received by Salud on November 6, 2003 for delivery/service the following day, November 7, 2003.
Please note that in each of the 3 cases assigned to him, there are several parties/counsels to be served.
ANNEX "B" - Certificate of Service signed by Salud, attested by the Acting Chief of the Mailing Section and Division Clerk of Court Ma.
Ramona L. Ledesma, showing that the parties/counsel in SP-67586 were served only on November 10, 2003 (not on November 7, 2003).
ANNEX "C" - Certificate of Service for CR-27423, and corresponding Delivery Receipts.
"C-1" - Delivery Receipts for Defense Counsel Salvador Quimpo signed by someone whose signature was identified by Salud [as] "Art"
– a cousin of appellant Melchor Lagua.
"C-2" - Delivery Receipt for the accused-appellant, received by the same "Art" and not served thru the Director of Prisons.
"C-3" - Delivery Receipt for the OSG, showing that it was delivered/received by the said office on November 10, 2003, not on November
7, 2003.
"C-4" - Delivery Receipt for the Director of Prisons showing receipt on November 7, 2003.
ANNEX "D" - Record of Resolutions in 3 other cases (SP-80241, SP-65404 and SP-77957) received for service by Salud on November
10, 2003. The resolutions/processes in these 3 cases were delivered/served to the parties/counsel on November 10, 2003 together with
undelivered resolutions left unserved/undelivered on November 7, 2003.
ANNEX "E" - Certification signed by Salud showing service to parties/counsel in SP-65404 (received by Salud on November 10, 2003)
on November 10, 2003 (same date)
ANNEX "F", "F-1" & "F-2" - Delivery Receipts for parties/counsel in SP-65404, showing service/delivery on November 10, 2003 – in
contrast to his minimal delivery/services on November 7, 2003 only in Muntinlupa.
ANNEX "G" - Copy of the resolution dated November 6, 2003 of the 6th Division approving the appellant’s bond and directing the issuance
of an order of release.
ANNEX "H" - Copy of the Order of Release upon Bond, which Salud was supposed to deliver, among others on November 7, 2003 to the
defense counsel, the appellant and the OSG.12
In his counter-affidavit,13 the respondent vehemently denied the charges. He never demanded money from Lagua’s relative; his name
had been used by someone and was, thus, a mere victim of the circumstances. Moreover, the fact that he immediately released the CA
order in question was clear proof that he had no financial interest in the transaction. His version of the events that occurred that day is as
follows:
4.1 That on November 6, 2003 at around 1:38 p.m. the Acting Chief of the Mailing Section gave me an assignment to deliver the Writ of
Habeas Corpus (hearing on November 26, 2003 at RTC, Zamboanga) for CA-G.R. SP No. 80238 for delivery to NBI, PAO, Quezon City,
Muntinlupa;
4.2 That I delivered a copy of the Writ of Habeas Corpus to [the National] Bureau of Investigation (NBI);
4.3 That while I was at the NBI, I received a text message from my boss, requesting me to return to the office immediately because there
is another notice of resolution coming from Atty. Ledesma which I have to serve to Quezon City and Las Piñas;
4.4 In compliance with the request, I returned to the Office and arrived at around 3:15 p.m.;
4.5 That when I received the resolution, I read the same and found out that the hearing is still scheduled on December 10, 2003 at 10:30
a.m.;
4.6 That when I was about to leave to deliver the Writ of Habeas Corpus and the Notice of Hearing to the PAO, Quezon City, my officemate
Jun Vicencio told me to wait because Irma, the staff of Atty. Madarang requested me to standby because I need to deliver the Order of
Release to the New Bilibid Prison, Muntinlupa;
4.7 That because of the request I waited until 4:00 p.m.;
4.8 That because its already late, I decided to go to Atty. Madarang’s office to inquire about the Order of Release which I need to deliver
to the New Bilibid Prison, Muntinlupa;
4.9 That Atty. Madarang told me to wait a little while because the order is about to be finished. So I waited.
4.10 That Atty. Madarang gave to me the Order of Release at 4:15 p.m.
4.11 That because I am aware that I may not reach [the] New Bilibid Prison on time, I told Atty. Madarang that I can deliver it on November
7, 2003, early in the morning. She agreed and told me "THANK YOU" Ikaw na ang bahala;
4.12 That I informed my boss about the Order of Release that was assigned to me and she had it listed in our logbook. I asked my boss
[Cecil Secarro] if I can deliver the Notice of Hearing for SP 67586 and the others on Monday if I cannot finish delivering them on November
7, 2003. She agreed but told me to be sure that the Order of Release will be served first and the others be served not later than Monday,
November 10, 2003. Thereafter, I went home.
4.13 That on November 7, 2003, I went straight to [the] New Bilibid Prison and arrived there before 8:00 [a.m.] Unfortunately, all the staff
wearing white uniforms and the security guards were falling in line in front of the building of the New Bilibid Prison. So I could not enter
the administration office.
4.14 That while I was standing in front of the building where the administrative office is located, a certain ART approached me and asked
me if I am the personnel of the Court of Appeals who will deliver the Order of Release.
4.15 That I said yes, and he told me his name and said that he is a relative of MELCHOR LAGUA (prisoner) and is connected with the
office of Atty. [Quimpo].
4.16 That at around 9:30 [a.m.] I was able to enter the administrative offices but because there was no staff inside – I went to the
documentation office. The staff in the documentation office told me to submit the Order of Release to the administrative office. He said
that they will prepare the documents of MELCHOR LAGUA (prisoner) but also told me that the prisoner might be released on Monday
yet because the signatories are busy attending the ongoing 98 anniversary celebration;
4.17 That I returned to the administrative office and was able to find Mr. JUANITO TORRES, Administrative Officer III, who received the
copy for the Director but refused to receive the copy of Mr. LAGUA. He told me to wait for his staff to receive the copy of Mr. LAGUA;
4.18 That because the staff were not around, I went to the canteen to buy softdrinks to quench my thirst;
4.19 That Mr. ART followed me in the canteen and told me to assist in the release of Mr. LAGUA because there were no personnel
attending to the Order of Release;
4.20 That since my boss told me to insure the release of the prisoner, I waited for my staff to arrive who will attend to the matter;
4.21 That I delivered the copy of Mr. LAGUA to the staff. But ART told them he can receive the copy of Mr. LAGUA because he is his
relative so, the staff told me to give the copy to ART.
4.22 That I gave the copy of the Order of Release for the accused to ART. ART also told me that he is authorized to receive the copy for
Atty. Quimpo because he is also the representative of the law office. Hence, I also gave the copy for Atty. Quimpo to ART;
4.23 That I was able to finish my duty at the New Bilibid Prison at around 2:30 [p.m.] and I proceeded to Purok I, 6A Bayanan, Muntinlupa
to serve the Writ of Habeas Corpus in CA-G.R. SP No. 80238;
4.24 That because of [sic] the address of the addressee was incomplete, I found a hard time locating the address of the addressee and
when I found Purok I, 6A, the persons thereat do not know JOEL DE LA PAZ. I asked for their help but nobody in the place knew JOEL
DE LA PAZ;
4.25 That I left Muntinlupa late in the afternoon and due to the lack of time I decided to deliver the other documents on the next working
day which is Monday, November 10, 2003;
4.26 That I delivered the other documents on Monday, November 10, 2003, without any problem;
4.27 That I was surprised when Atty. Madarang later on accused me that I used her name and the name of Justice Magtolis to demand
money from Mr. LAGUA’S relative.14
Considering the gravity of the charges, then Acting Presiding Justice Cancio C. Garcia15 referred the matter to Atty. Elisa B. Pilar-
Longalong, Assistant Clerk of Court, for investigation, report, and recommendation.
The Investigation
The requisite hearings were held from December 12, 2003 to August 4, 2004.
Atty. Madarang affirmed the contents of her Affidavit16 dated December 8, 2003. She testified that the respondent later came to her office
along with Ms. Secarro. Amidst his cries, he pleaded, "Boss, patawad po, alang-alang sa aking mga anak." She replied, "Wait, wala ka
namang kasalanan sa akin. Ikaw ang nagpasimuno ng lahat ng ito." The respondent repeated, "Boss, patawad po alang alang sa aking
mga anak," and Atty. Madarang answered, "Okey lang, pinatawad na kita. Hindi naman ako galit sa iyo."17
Justice Magtolis testified that Atty. Madarang reported having received a telephone call from the alleged relative of Lagua. She narrated
that she gave the name "Arlyn" to the caller, and, thereafter, exchanged text messages with the respondent. Justice Magtolis instructed
Atty. Madarang to continue communicating with the respondent and, if possible, to see it through a possible pay-off where a National
Bureau of Investigation (NBI) agent would be asked to assist them. However, the entrapment did not materialize. The respondent
thereafter came to her office, where he was asked why he was unable to serve all the other papers and documents that day. 18 He also
admitted that he served a copy of the resolution to the wrong person (Baluran). Justice Magtolis also stated that she threatened to transfer
the respondent, and that the latter vehemently objected, pleaded, and cried saying, "Huwag naman pong pa-transfer." When asked why,
the respondent said that he has children in school and something like, "Dyan po ako kumikita."19
Another witness was Cristy Flores, convicted of three counts of estafa who served time at the Correctional Institute for Women in Batangas
City. She testified that the respondent was introduced to her in December 1998 by a certain Crisanta Gamil.20 Gamil was also detained
at the correctional facility; the respondent had worked on her appeal bond papers and asked for ₱20,000.00 to facilitate the issuance of
the appeal bond.21 The payment was made right in front of her, and the respondent issued a receipt. 22 The witness also testified that
Gamil told her, "O, at least dyan mo ipalakad ang papel mo. Okay ′yan, sigurado."23 The respondent visited her in May 1999, as she had
asked him to fix her appeal bond. During the visit, the respondent took the pertinent documents from her. 24 The witness also stated that
she gave the respondent a partial payment of ₱7,000.00 25 on May 16, 1999 and he issued a receipt.26They then proceeded to the
Documents Section where they secured copies of the court decision, certificate of manifestation and her picture. She made the last
payment of ₱13,000.00 in June 13, 1999, and also issued a receipt. The respondent was also asking for an additional payment of
₱15,000.00, which she was unable to give.
Flores narrated that she introduced another detainee to the respondent, Dalawangbayan, whom the latter was also able to "help". She
stated that according to Dalawangbayan, the respondent asked for ₱200,000.00. She further testified that she knew the respondent as
Joselito M. Salud, and not Cielito Salud.27 After the incident, she wrote a letter to Associate Justice Conrado Vasquez, Jr. to ask for
assistance regarding her appeal bond.
Atty. Salvador Quimpo, Lagua’s counsel, testified that it was Engineer Art Baluran who hired him as counsel of the said accused. He
stated that he gave an oral authorization to Baluran to get the CA resolutions or orders; Baluran was the one who furnished him a copy
of the resolution.28 He called Mr. Baluran to say that an order for Lagua’s release had already been issued by the appellate court. The
witness stated, however, that he had never seen the respondent before.29
The respondent testified that he has been a CA employee since 1991. He admitted that he knew Flores, and met her in January 1999
when he brought Gamil’s order of release in the Batangas City Jail. He claimed that he was waiting for the relatives of Gamil as they were
the ones who would pay for his fare home, and while waiting, he talked to the jailguard/warden. Flores then approached him and asked
him if he was from the CA. When the respondent answered in the affirmative, Flores replied that Justice Vasquez was her neighbor in
Biñan, Laguna.
The respondent admitted that he was in the Correctional Institute for Women in Mandaluyong City on May 16, 1999, as he was then
visiting Vilma Dalawangbayan. He also saw Flores.30 When asked why he visited Dalawangbayan, the respondent replied that Flores had
written a letter to him (which he dubbed as "maintrigang sulat")31 addressed "Lito Salud, Mailing Section, Court of Appeals." In the said
letter, Flores asked him to help Dalawangbayan, just like he had helped Gamil. The respondent then showed the letter to then Chief of
Office Prudencio B. Aguilar, who told him, "Puntahan mo yan, Lito at maintriga ′yang sulat na ‘yan, baka tayo mapahamak dyan."32 Thus,
he went to the Correctional Institute in Mandaluyong City to "sort things out" with Dalawangbayan and Gamil. The respondent, however,
stated that he could not find the letter anywhere and had already been lost. 33
During his May 16, 1999 visit to the correctional facility, Flores approached him in the visiting hall, and said suddenly, "Sandali lang,
Kuya," then left. He then talked to Dalawangbayan about the "controversial" letter, explaining that his job in the Court of Appeals was only
to remand the records and deliver the Orders for release, just like what he did in Gamil’s case. 34 He again visited Dalawangbayan on
June 13, 199935 as evidenced by the entries in the visitor’s logbook. He was no longer able to speak to Flores, but made five other such
visits to Dalawangbayan in the correctional facility.
The Findings of the Investigating Officer
In her Report dated January 21, 2005, Atty. Longalong found that the respondent was guilty as charged, and made the following
recommendation:
In view of all the foregoing, there is substantial evidence to hold respondent liable for the offenses charged. He is liable for inefficiency
and incompetence in the performance of his official duties and for conduct prejudicial to the best interest of the service when he admittedly
served the copies of the resolution and order of release in the Lagua case intended for detained appellant and his counsel on Mr. Baluran
whom he admitted to have met only on that day, against the rules and normal office procedure on personal service. His long stay in the
Bureau of Prisons also caused the delay in the service of other court processes assigned to him for service on that day. He is also liable
for having financial or material interest in an official transaction considering his undue interest in the service of the order of release and
actual release of Lagua to the point of staying almost the whole day in the Bureau of Prisons and the aborted "deal" as can be concluded
from the phone call of Melissa Melchor to Atty. Madarang and subsequent exchange of text messages with Atty. Madarang disguising as
Lagua’s relative. …
RECOMMENDATION:
1. Rule IV, Section 52 of Civil Service Commission Memorandum Circular No. 19, S. 1999, issued pursuant to Book V of the Administrative
Code of 1987, provides that the penalty for the first offense of inefficiency and incompetence in the performance of official duties, for
conduct prejudicial to the best interest of the service and for directly or indirectly having financial and material interest in any official
transaction is suspension for a period of 6 months, 1 day to 1 year. Pursuant to Section 55 of the same Memorandum Circular, if the
respondent is found guilty of 2 or more charges, the penalty to be imposed should be that corresponding to the most serious charge and
the rest shall be considered as aggravating circumstances. Section 54-c of the same Memorandum Circular provides that the maximum
of the penalty shall be imposed where only aggravating and no mitigating circumstances are present. Since in this case, the penalty is
the same for all 3 offenses, the maximum of the penalty for the first offense which is suspension for 1 year [may be] imposed on the
respondent.
2. Considering that the prescribed penalty for the offense exceeds one month suspension, the case may now be referred to the Supreme
Court for appropriate action, pursuant to Circular No. 30-91 of the Office of the Court Administrator.36
The Ruling of the Court
On the charge of inefficiency, the respondent is clearly administratively liable. After serving Lagua’s copy of the resolution and order of
release to the prison Director, he should have immediately returned to his station or served the other resolutions and documents for
personal service. As an officer of the court, the respondent plays an essential part in the administration of justice. He is required to live
up to the stringent standards of his office, and his conduct must, at all times, be above reproach and suspicion. He must steer clear of
any act which would tend to undermine his integrity, or erode somehow the people’s faith and trust in the courts. 37 As the respondent
himself admitted, he stayed on until 2:30 p.m. without any valid reason, despite the fact that he knew he still had to serve several orders
and resolutions. As pointed out by the Investigating Officer, "inefficiency and incompetence in the performance of official duties" is
classified as a grave offense, and is punishable by suspension for six months and one day to one year. 38
Indeed, the complainant in administrative proceedings has the burden of proving the allegations in the complaint by substantial evidence.
If a court employee is to be disciplined for a grave offense, the evidence against him must be competent and derived from direct
knowledge; as such, charges based on mere suspicion and speculation cannot be given credence. Thus, if the complainant fails to
substantiate a claim of corruption and bribery, relying on mere conjectures and suppositions, the administrative complaint must be
dismissed for lack of merit.39 However, in administrative proceedings, the quantum of proof required to establish malfeasance is not proof
beyond reasonable doubt but substantial evidence, i.e., that amount of relevant evidence that a reasonable mind might accept as
adequate to support a conclusion, is required.40 The findings of investigating magistrates on the credibility of witnesses are given great
weight by reason of their unmatched opportunity to see the deportment of the witnesses as they testified. 41
To determine the credibility and probative weight of the testimony of a witness, such testimony must be considered in its entirety and not
in truncated parts. To determine which contradicting statements of a witness is to prevail as to the truth, the other evidence received must
be considered.42 Thus, while it is true that there is no direct evidence that the respondent received any money to "facilitate" the release
of detained Lagua, the following circumstances must be taken as contrary to the respondent’s plea of innocence:
First. The respondent admitted that he was the sender of the first three text messages in Atty. Madarang’s cellphone: "bkit, C rhodora to";
"CNO KAMAGANAK AT ANONG PANGALAN MO"; and "SINO K KC NAGHIWALAY N KAMI." The respondent’s testimony on the matter
is as follows:
Q: In the hearing of December 2, 2003, in the TSN on page 32 onwards …
ATTY. ROSERO:
Is that the testimony of Atty. Madarang, Justice?
JUSTICE MAGTOLIS:
Oo. I will just refer to your admission through your counsel that Cellphone No. 6392044390[8]2 is yours. You admitted that?
ATTY. ROSERO:
I think we made an admission as to that matter, Justice. We’ll just check the affidavit of Atty. Madarang.
JUSTICE MAGTOLIS:
Here, admitted. Basahin mo.
ATTY. ROSERO:
Yes, Justice, admitted but not the cellphone number …
JUSTICE MAGTOLIS:
Sige, ulitin natin, 6392044390[9]2.
ATTY. ROSERO:
Yes, admitted. That is his cellphone.
JUSTICE MAGTOLIS:
This cellphone is yours.
Q: Do you also admit that you called Atty. Madarang several times on November 7, 2003?
ATTY. ROSERO:
November 7 is… a Friday. Tumawag ka daw several times kay Atty. Madarang, November 7?
JUSTICE MAGTOLIS:
Texted, I’m sorry I will correct that, texted.
A: Nauna po siyang magtext sa akin, Justice, hindi po ako nagtext sa kanya. Nagtext po siya sa akin sumagot po ako sa kanya.
Q: There was an exchange several times?
A: Nuong pong text niya sa akin … hindi po several times dahil … kung makita ′nyo po dyan.
JUSTICE MAGTOLIS:
Let me see the affidavit of Atty. Madarang. After this question, may I ask for a continuance?
ATTY. ROSERO:
No objection, Your Honor.
JUSTICE MAGTOLIS:
All these text messages were checked by us with your counsel in the cellphone of Atty. Madarang which were preserved until we allowed
her to erase these. There are exchanges here: 6392044390[8]2, November 7. When she texted she answered, "Bkit c Rhodora 2" and
then second was, "Cnong kamaganak anong pangalan mo?" This is addressed to you, this is your telephone?
A: Opo.
Q: But the one who answered is Rhodora?
A: Ako po ′yun.
Q: Ikaw ang sumasagot. Why did you say that you are Rhodora?
A: Justice, nung ma-receive ko po ′yong text niya apat na beses ko pong na-receive ang text ni Arlene.
INVESTIGATOR:
Who is Arlene?
A: Atty. Madarang. Arlene, sa text po niya sa akin, "Sir Lito, kamaganak po ito ni Mr. Lagua. Magkano pa po ba ang kakulangang pera
para ibigay ko sa inyo. Si Rhodora ba kasama?" Hindi ko po sinagot yon. Pangalawa, ′yun din po ang message nya. Ano ito? Sa akin
pong kuan, sa pag-iisip ko lang po, bakit dahil si Mr. Art Baluran kamag-anak na, ano ito? Text pa ulit pa sya ng pangatlo. Nang-iintriga
na ′to. Pang-apat, intriga ′to. Text ko nga rin ′to, lokohan lang tayo. "Bkit si Rhodora ′to" yun po ang sagot ko sa kanya.
Q: So at that time you already knew about Rhodora?
A: Hindi po, dun, duon po sa text niya nakalagay po dun eh, "Si Rhodora kasama ba"? So ikinuan ko po na si Rhodora ′to, dun po sa text
nya.
Q: Nakipaglokohan ka?
A: Sa text niya nakalagay dun na "Si Rhodora ba kasama" kaya po ako nakipaglokohan dun. 43
As pointed out by the Investigating Officer, the respondent’s claim of "joking around" ("nakipaglokohan") with an unknown sender of a
text message by replying thereto is contrary to a normal person’s reaction. This is made even more apparent by the fact that the
respondent even admitted that he called Atty. Madarang twice, and when asked why, gave a vague answer, and, when further questioned,
even broke down in tears.44
The respondent’s claim that the admission of the text messages as evidence against him constitutes a violation of his right to privacy is
unavailing. Text messages have been classified as "ephemeral electronic communication" under Section 1(k), Rule 2 of the Rules on
Electronic Evidence,45 and "shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof."
Any question as to the admissibility of such messages is now moot and academic, as the respondent himself, as well as his counsel,
already admitted that he was the sender of the first three messages on Atty. Madarang’s cell phone.
This was also the ruling of the Court in the recent case of Zaldy Nuez v. Elvira Cruz-Apao.46 In that case, the Court, in finding the
respondent therein guilty of dishonesty and grave misconduct, considered text messages addressed to the complainant asking for a
million pesos in exchange for a favorable decision in a case pending before the CA. The Court had the occasion to state:
… The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on
Electronic Evidence, which provides:
"Ephemeral electronic communication" refers to telephone conversations, text messages … and other electronic forms of communication
the evidence of which is not recorded or retained."
Under Section 2, Rule 11 of the [said rules], "Ephemeral electronic communications shall be proven by the testimony of a person who
was a party to the same or who has personal knowledge thereof … ." In this case, complainant who was the recipient of the said messages
and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone
number reflected in complainant’s cellphone from which the messages originated was hers. Moreover, any doubt respondent may have
had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the
text messages between her and complainant. It is also well to remember that in administrative cases, technical rules of procedure and
evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt
or lack thereof of respondent in this case.
Second. The respondent’s testimony during the hearings held before Investigating Officer Atty. Longalong is replete with inconsistencies
and "loopholes." He claimed that he made inquiries from other CA staff and learned that there was indeed a deal between someone in
the criminal section and a certain Rhodora of the RTC, Pasig. He further claimed that the said parties wanted to get back at him for
"immediately serving" the release order which prevented them from demanding the balance of the deal from Lagua’s relative. However,
this bare claim was not corroborated by any witness. Moreover, the respondent alleged that two anonymous callers claimed to know
something about the case against him; when asked about it, he stated that he no longer exerted efforts to find out who they were as they
did not give out their names:
JUSTICE MAGTOLIS:
Q: On page 5 of your affidavit, you said in paragraph 8 "That I made some inquiry and some personnel of the Court of Appeals told me
that there is indeed a deal between a staff in the Criminal Section and Rhodora of RTC, Pasig. Can you tell us who is this staff?
A: Ah dito po Justice, hindi po siya nagpakilala, sa telephono po.
INVESTIGATOR:
Sino siya?
A: Hindi po siya … ′yong tawag po niya sa akin sa telepono nang malaman po dito sa CA na ako ay kinasuhan ninyo tumawag po siya
sa Personnel.
JUSTICE MAGTOLIS:
Q: Who is siya?
A: Ay hindi po siya nagpakilala.
INVESTIGATOR:
Lalaki o babae?
A: Una po babae tapos ′yong pangalawa po lalaki.
INVESTIGATOR:
Sinong kinakausap?
A: Ako po.
INVESTIGATOR:
Hinahanap ka?
A: Hinahanap po nila ako.
JUSTICE MAGTOLIS:
Q: What did he tell you? He, lalaki, ano?
A: Sa babae muna po?
Q: Oo, babae’t lalake ba?
A: Opo.
Q: Who was the first caller, the lady or the gentleman?
A: Babae po.
Q: Were you the one who answered the phone?
A: Hindi po.
INVESTIGATOR:
Hinahanap daw siya.
JUSTICE MAGTOLIS:
Q: Hinahanap ka, okay, when you answered the phone, what did you say?
A: Ang sabi ko po sa kanya, "pupuwede mo ba akong matulungan sa paggawa ng affidavit dahil kinasuhan nga ako ni Justice Magtolis."

Q: But you do not know who you were talking to?

A: Tinanong ko nga po kung sino siya eh tumutulong lang daw siya sa akin dahil ang naririnig niyang tsismis din dyan eh baka po si
Rhodora ang may ka-kuan sa Criminal.
Q: Saan ′yong ka-kuan?
A: Ang may kausap sa Criminal.
Q: Who said "na baka si Rhodora ang may kausap sa Criminal"?
A: ′Yon pong kausap ko sa kabilang linya.
Q: The name you do not know?
A: Eh tinanong ko naman po kung sino siya ayaw naman po niyang magpakilala. Matutulungan mo ba ako, ibinaba na po ang telepono.
INVESTIGATOR:
Anonymous caller.
JUSTICE MAGTOLIS:
You are very fond of answering calls. You don’t even know the name.
Q: That anonymous caller told you that there must be some deals between Rhodora and someone from the Criminal Section?
A: ′Yun din daw po ang naririnig niyang tsismis dyan sa labas.
Q: Tsismis, that was that the caller told you?
A: Opo.
Q: And she wanted to help you?
A: Kaya po sinabi din sa akin na tsismis eh hindi pa po pwedeng …
Q: What did you answer her?
INVESTIGATOR:
Anong sagot mo raw?
JUSTICE MAGTOLIS:
Q: Anong sagot niya sa tulungan kasi nakakarinig siyang tsismis?
INVESTIGATOR:
Q Ano ang sagot mo?
A: Eh iyon nga ang gusto kong malaman, ang katotohanan. Baka naman pupuwede mo akong matulungan. Sino ba ′to?
JUSTICE MAGTOLIS:
Q: Di ba she was the one who offered to help?
A: Ay ayaw daw po naman niyang masabit po ang pangalan niya.
Q: But she was the one who called you?
A: Opo.
Q: Okay. How did your talk end with this girl or lady?
A: Nung pagsalita ko nga pong baka pupuwede akong tulungan, wala na.
Q: How about the man, the gentleman or the boy who called?
A: Same kuan din po ang kanilang kuan e.
JUSTICE MAGTOLIS:
Don’t use kuan.
ATTY. ROSERO:
Sige, Lito, ipaliwanag mo.
A: Same kuento rin po, sinabi niya na ganuon din po na narinig din po niya sa labas.
JUSTICE MAGTOLIS:
Q: Alright, you were not the one who answered the call?
A: Hindi po.
Q: Somebody called you that there’s a phone call?
A: Opo.
Q: When you answered, what was your first word?
A: Hello!
Q: What was the answer at the other end of the line?
A: Hello rin po.
Q: What next?
A: Alam mo, ang sabi po niya sa akin ganito po …
Q: Who was the first one who said something other than hello?
A: Siya po ang nauna.
Q: What did she say, the exact words?
A: Exact words, sa naalala kong sinabi niya "Alam mo, Mr. Salud," Salud po ang kuan niya sa akin, "narinig ko sa labas, istoryahan dyan
sa labas na baka si Rhodora ang may ka-kuan dito sa Criminal." Ang sabi ko po sa kanya "Iyan din ang itinawag sa akin kahapon. Eh
dalawa na kayo eh baka naman pupuwede nyo akong matulungan. Puede ko bang malaman ang pangalan mo?" Ganun din po, ayaw
na pong magsalita ibinaba na [ang] telepono.
Q: Do you know Rhodora?
A: Hindi po.
Q: You never met her?
A: Hindi po.
Q: You never talked to her?
A: Nung pong ipinakiusap nyo sa akin sa telepono po nung tayo po’y …
Q: After the conversation with the lady and that gentleman who called you to offer some help and afterwards did not help at all, what
happened?
A: Wala na po.
Q: Did you not check with Rhodora, "What is this they are talking about that it might be between you and someone in the Criminal
Section?" You never asked her that?
A: Hindi ko na rin po …
Q: You did not. But I thought you wanted help from those people who can help you?
A: Eh hindi na nga po sila nagbanggit po ng pangalan dahil po sabi ng unang babae ayaw nga rin po niyang sumabit sa kaso. 47
This respondent’s actuation on this matter, if at all true, is again contrary to the normal reaction of one who has been administratively
charged, and wants to clear his name of any wrongdoing.
The respondent also admitted visiting an inmate (Vilma Dalawangbayan) at the correctional facility eight times for no apparent reason.
This admission lends some credence to the testimony of Flores, that she was the one who introduced him to Dalawangbayan, the person
he was visiting. When asked why he frequently visited, he stated that he found her beautiful ("Maganda po siya, Justice"), and was on
the verge of courting her ("Para na nga po akong nanliligaw"). The Court believes that this allegation was concocted by the respondent
as a mere afterthought, to cover up for his misdeeds.
The Investigating Officer also found that the respondent was "high-strung" during his testimony, and this finding must be accorded respect.
Indeed, when the issue is the credibility of witnesses, the function of evaluating it is primarily lodged in the investigating judge. The rule
which concedes due respect, and even finality, to the assessment of the credibility of witnesses by trial judges in civil and criminal cases
where preponderance of evidence and proof beyond reasonable doubt, respectively, are required, applies a fortiori in administrative cases
where the quantum of proof required is only substantial evidence. The investigating judge is in a better position to pass judgment on the
credibility of witnesses, having personally heard them when they testified, and observed their deportment and manner of testifying.48 Thus,
the following findings of Atty. Longalong are well taken:
However, respondent denied receiving ₱20,000 from Gamil and ₱15,000 from Flores and signing "LM Salud" on Flores’ notebooks
(Exhibits E-1 and F-1) but admitted visiting Vilma at the Correctional Institute for Women 8 times from May to August 1999. Respondent’s
denial here appears self-serving and incredible considering his admission of going to the Correctional Institute for Women several times
for no valid official reason. Moreover, although Flores is a convict for estafa, her
testimony on the matter was more consistent and credible. Likewise, respondent admitted seeing Flores at the Correctional Institute for
Women and that Flores mailed her letter to him on May 16, 1999 which he called "maintriga." He also admitted that he told Flores to seek
the help of Justice Vasquez on her case. The foregoing, plus the fact that Flores eventually wrote Justice Vasquez, confirms the truth of
Flores’ testimony on the matter.
With the aforecited admissions by respondent, the substantial evidence presented by the complainant and her witnesses with their positive
and forthright testimonies deserve more credence than respondent’s self-serving denial and inconsistent and vague testimony. Even the
demeanor of complainant and her witnesses give credence to their testimonies than the nervous and [high-strung] demeanor of
respondent during his testimony. Moreover, complainant and her witnesses, including the superiors of respondent, have no reason or
motive whatsoever to testify falsely against him. Respondent’s defense of denial is inherently a weak defense. It is well settled that denial,
to be believed, must be buttressed by strong evidence of non-culpability, otherwise the denial is purely self-serving and with nil evidentiary
value (People of the Philippines v. Arlee, 323 SCRA 201). Like the defense of alibi, denial crumbles in the light of positive declarations
(People of the Philippines vs. Ricafranca, 323 SCRA 652).
Indeed, the Court is looked upon by people with high respect, a sacred place where litigants are heard, rights and conflicts settled and
justice solemnly dispensed with. Misbehavior within or around the vicinity diminishes its sanctity and dignity. The conduct and behavior
required of every court personnel, from the presiding judge to the lowliest clerk, must always be beyond reproach and circumscribed with
the heavy burden of responsibility. Their conduct must, at all times, be characterized by, among other things, propriety and decorum so
as to earn and keep the public’s respect and confidence in the judicial service. 49 Public service requires the utmost integrity and strictest
discipline. Thus, a public servant must exhibit at all times the highest sense of honesty and integrity not only in the performance of his
official duties but in his personal and private dealings with other people.50
While there is no direct evidence to suggest that he actually extorted money to "facilitate" the issuance of the appeal bond and release
order which he himself served, the surrounding circumstances, as well as the inconsistencies in his testimony, point towards administrative
culpability. The respondent’s actuations fall short of the standard required of a public servant. He is guilty of gross or grave misconduct.
Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior,
willful in character, improper or wrong behavior,51 while "gross," has been defined as "out of all measure; beyond allowance; flagrant;
shameful; such conduct as is not to be excused." 52 Under the Omnibus Civil Service Rules and Regulations, grave misconduct is
punishable by dismissal from the service even for the first offense, as it is classified as a grave offense. However, considering that the
respondent has not been previously charged nor administratively sanctioned, the Court finds that a penalty of suspension for one year
and six months will serve the purpose of disciplining the respondent.
Court personnel, from the lowliest employee to the clerk of court or any position lower than that of a judge or justice, are involved in the
dispensation of justice, and parties seeking redress from the courts for grievances look upon them as part of the Judiciary. They serve
as sentinels of justice, and any act of impropriety on their part immeasurably affect the honor and dignity of the Judiciary and the people’s
confidence in it.53 Thus, any conduct which tends to diminish the image of the Judiciary cannot be countenanced.
IN LIGHT OF ALL THE FOREGOING, respondent Cielito M. Salud is found GUILTY of inefficiency and gross misconduct. He
is SUSPENDED for a period of One (1) Year and Six (6) Months, effective immediately. He is further DIRECTED to inform the Court as
to the date of his receipt of this Decision to determine when his suspension shall have taken effect.
The Office of the Court Administrator is also DIRECTED to conduct a discreet investigation on the possible involvement of Rhodora
Valdez (Utility Worker), and other personnel of the Regional Trial Court of Pasig City, Branch 163.
SO ORDERED.
G.R. No. 193531 December 14, 2011
ELLERY MARCH G. TORRES, Petitioner,
vs.
PHILIPPINE AMUSEMENT and GAMING CORPORATION, represented by ATTY. CARLOS R. BAUTISTA, JR.,Respondent.
DECISION
PERALTA, J.:
Petitioner Ellery March G. Torres seeks to annul and set aside the Decision 1 dated April 22, 2010 of the Court of Appeals (CA) in CA-
G.R. SP No. 110302, which dismissed his petition seeking reversal of the Resolutions dated June 23, 2008 2 and July 28, 20093 of the
Civil Service Commission (CSC). Also assailed is the CA Resolution4dated July 30, 2010 denying petitioner's motion for reconsideration.
Petitioner was a Slot Machine Operations Supervisor (SMOS) of respondent Philippine Amusement and Gaming Corporation (PAGCOR).
On the basis of an alleged intelligence report of padding of the Credit Meter Readings (CMR) of the slot machines at PAGCOR-Hyatt
Manila, then Casino Filipino-Hyatt (CF Hyatt), which involved the slot machine and internal security personnel of respondent PAGCOR,
and in connivance with slot machine customers, respondent PAGCOR's Corporate Investigation Unit (CIU) allegedly conducted an
investigation to verify the veracity of such report. The CIU discovered the scheme of CMR padding which was committed by adding zero
after the first digit of the actual CMR of a slot machine or adding a digit before the first digit of the actual CMR, e.g., a slot machine with
an actual CMR of ₱5,000.00 will be issued a CMR receipt with the amount of either ₱50,000.00 or ₱35,000.00. 5 Based on the CIU's
investigation of all the CMR receipts and slot machine jackpot slips issued by CF Hyatt for the months of February and March 2007, the
CIU identified the members of the syndicate who were responsible for such CMR padding, which included herein petitioner. 6
On May 4, 2007, the CIU served petitioner with a Memorandum of Charges 7 for dishonesty, serious misconduct, fraud and violation of
office rules and regulations which were considered grave offenses where the penalty imposable is dismissal. The summary description
of the charges stated:
Sometime between November 2006 and March 2007, you facilitated and actively participated in the fraudulent scheme with respect to
irregular manipulation of Credit Meter Reading (CMR) which, in turn, led to the misappropriation of money earmarked for the slot machine
jackpot at CF Hyatt Manila. These anomalous transactions were consummated through your direct participation and active cooperation
of your co-employees and customers. With malice afterthought, you embezzled and stole monies from PAGCOR, thereby resulting in
substantial losses to the proprietary interest of PAGCOR.8
On the same day, another Memorandum of Charges9 signed by Rogelio Y. Bangsil, Jr., Senior Branch Manager, CF Hyatt Manila, was
issued to petitioner informing him of the charge of dishonesty (padding of anomalous SM jackpot receipts). Petitioner was then required
to explain in writing within seventy-two (72) hours from receipt thereof why he should not be sanctioned or dismissed. Petitioner was
placed under preventive suspension effective immediately until further orders.
On May 7, 2007, petitioner wrote Manager Bangsil a letter explanation/refutation 10 of the charges against him. He denied any involvement
or participation in any fraudulent manipulation of the CMR or padding of the slot machine receipts, and he asked for a formal investigation
of the accusations against him.
On August 4, 2007, petitioner received a letter11 dated August 2, 2007 from Atty. Lizette F. Mortel, Managing Head of PAGCOR's Human
Resource and Development Department, dismissing him from the service. The letter reads in part, to wit:
Please be informed that the Board of Directors, in its meeting on July 31, 2007, approved the recommendation of the Adjudication
Committee to dismiss you from the service effective upon approval due to the following offense:
Dishonesty, gross misconduct, serious violations of office rules and regulations, conduct prejudicial to the best interests of the company
and loss of trust and confidence, committed as follows: For actively and directly participating in a scheme to defraud the company in
conspiracy with co-employees and SM customers by padding slot machine Credit Meter Reading (CMR) receipts in favor of co-conspirator
customers who had said (sic) CMR receipts paid at the teller's booth on numerous occasions which caused substantial losses to the
proprietary interests of PAGCOR.12
On September 14, 2007, petitioner filed with the CSC a Complaint13 against PAGCOR and its Chairman Efraim Genuino for illegal
dismissal, non-payment of backwages and other benefits. The complaint alleged among others: (1) that he denied all the charges against
him; (2) that he did ask for a formal investigation of the accusations against him and for PAGCOR to produce evidence and proofs to
substantiate the charges, but respondent PAGCOR did not call for any formal administrative hearing; (3) that he tried to persuade
respondent PAGCOR to review and reverse its decision in a letter of reconsideration dated August 13, 2007 addressed to the Chairman,
the members of the Board of Directors and the Merit Systems Protection Board; and (4) that no resolution was issued on his letter
reconsideration, thus, the filing of the complaint. Petitioner claimed that as a result of his unlawful, unjustified and illegal
termination/dismissal, he was compelled to hire the services of a counsel in order to protect his rights.
Respondent PAGCOR filed its Comment wherein it alleged, among others, that petitioner failed to perfect an appeal within the period and
manner provided by the Uniform Rules on Administrative Cases in the Civil Service Law.
On June 23, 2008, the CSC, treating petitioner's complaint as an appeal from the PAGCOR's decision dismissing petitioner from the
service, issued Resolution No. 081204 denying petitioner's appeal. The dispositive portion of which reads as follows:
WHEREFORE, the instant appeal of Ellery March G. Torres is hereby DENIED. Accordingly, the decision contained in a letter dated
August 2, 2007 of Lizette F. Mortel, Managing Head, Human Resource and Development Department (HRDD), PAGCOR, finding him
guilty of Dishonesty, Gross Misconduct, Serious Violation of Office Rules and Regulations, Conduct Prejudicial to the Best Interest of the
Service and Loss of Trust and Confidence and imposing upon him the penalty of dismissal from the service, is hereby AFFIRMED. The
penalty of dismissal carries with it the accessory penalties of forfeiture of retirement benefits, cancellation of eligibility, perpetual
disqualification from reemployment in the government service, and bar from taking future Civil Service Examination.14
In so ruling, the CSC found that the issue for resolution was whether petitioner's appeal had already prescribed which the former answered
in the positive. The CSC did not give credit to petitioner's claim that he sent a facsimile transmission of his letter reconsideration within
the period prescribed by the Uniform Rules on Administrative Cases in the Civil Service. It found PAGCOR's denial of having received
petitioner's letter more credible as it was supported by certifications issued by its employees. It found that a verification of one of the
telephone numbers where petitioner allegedly sent his letter reconsideration disclosed that such number did not belong to the PAGCOR's
Office of the Board of Directors; and that petitioner should have mentioned about the alleged facsimile transmission at the first instance
when he filed his complaint and not only when respondent PAGCOR raised the issue of prescription in its Comment.
Petitioner's motion for a reconsideration was denied in CSC Resolution No. 09-1105 dated July 28, 2009.
Petitioner filed with the CA a petition for review under Rule 43 of the Rules of Court seeking to set aside the twin resolutions issued by
the CSC.
On April 22, 2010, the CA issued its assailed decision dismissing the petition for lack of merit.
In dismissing the petition, the CA found that petitioner failed to adduce clear and convincing evidence that he had filed a motion for
reconsideration. It found insufficient to merit consideration petitioner's claim that he had sent through a facsimile transmission a
letter/reconsideration dated August 13, 2007 addressed to PAGCOR's Chairman, members of the Board of Directors and the Merit
Systems Protection Board; that assuming arguendo that a letter reconsideration was indeed sent through a facsimile transmission, such
facsimile transmission is inadmissible as electronic evidence under the Electronic Commerce Act of 2000; and that a review of the CSC
assailed resolution revealed that the telephone numbers where petitioner claimed to be the recipient of the faxed document sent was not
that of PAGCOR's Office of Board of Directors. The CA found baseless and conjectural petitioner's claim that PAGCOR can easily deny
having received the letter by giving orders to their employees to execute an affidavit of denial under pain and threat of administrative
sanction or termination from service.
The CA then concluded that PAGCOR's decision which was contained in a letter dated August 4, 2007 dismissing petitioner from the
service had already attained finality since there was no motion for reconsideration filed by petitioner in the manner and within the period
provided for under the Revised Uniform Rules on the Administrative Cases in the Civil Service.
Petitioner's motion for reconsideration was denied in a Resolution dated July 30, 2010.
Hence, this petition where petitioner states the errors committed by the CA in this wise:
The first issue that should be resolved is:
1. Whether or not the Court of Appeals erred when it affirmed the dismissal of petitioner based merely on technicality without considering
the allegations on summary and arbitrary dismissal based on fabricated and unfounded accusations.
Next to be raised were the issues propounded in petitioner's Memorandum dated 29 January 2010 but were not tackled upon by the
Court of Appeals, thus:
A. Whether or not the Civil Service Commission erred in ruling that there was no valid letter/motion for reconsideration submitted to
reconsider petitioner's dismissal from the service;
B. Whether or not the Civil Service Commission erred in giving more weight to PAGCOR's denial of having received petitioner's letter of
reconsideration;
C. Whether or not the Civil Service Commission erred in not acting/resolving the Ex-Parte Motion to Issue Subpoena Duces Tecum;
D. Whether or not the Civil Service Commission erred in ruling that petitioner's failure to send his letter reconsideration through mail or
by personal service as set forth in the Rules of Court, he forfeited his right to appeal; and
E. Whether or not the Civil Service Commission erred in favoring PAGCOR"s dismissal of petitioner from employment based on hearsay,
imaginary and non-existent evidence.15
The threshold issue for resolution is whether the CA erred when it affirmed the CSC's dismissal of the appeal for being filed beyond the
reglementary period.
Petitioner contends that he filed his letter reconsideration of his dismissal 16 on August 13, 2007, which was within the 15-day period for
filing the same; and that he did so by means of a facsimile transmission sent to the PAGCOR's Office of the Board of Directors. He claims
that the sending of documents thru electronic data message, which includes facsimile, is sanctioned under Republic Act No. 8792, the
Electronic Commerce Act of 2000. Petitioner further contends that since his letter reconsideration was not acted upon by PAGCOR, he
then filed his complaint before the CSC.
We are not persuaded.
Sections 37, 38, 39, and 43 of the Revised Uniform Rules on Administrative Cases in the Civil Service, which are applicable to this case,
respectively provide, to wit:
Section 37. Finality of Decisions - A decision rendered by heads of agencies whereby a penalty of suspension for not more than thirty
days or a fine in an amount not exceeding thirty (30) days' salary is imposed, shall be final and executory. However, if the penalty imposed
is suspension exceeding thirty days, or fine in an amount exceeding thirty days’ salary, the same shall be final and executory after the
lapse of the reglementary period for filing a motion for reconsideration or an appeal and no such pleading has been filed.
Section 38. Filing of motion for reconsideration. - The party adversely affected by the decision may file a motion for reconsideration with
the disciplining authority who rendered the same within fifteen days from receipt thereof.
Section 39. When deemed filed. - A motion for reconsideration sent by mail shall be deemed filed on the date shown by the postmark on
the envelope which shall be attached to the records of the case and in case of personal delivery, the date stamped thereon by the proper
office.
Section 43. Filing of Appeals. - Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities
imposing a penalty exceeding thirty (30) days suspension or fine in an amount exceeding thirty (30) days’ salary, maybe appealed to the
Commission Proper within a period of fifteen (15) days from receipt thereof.
Clearly, a motion for reconsideration may either be filed by mail or personal delivery. When a motion for reconsideration was sent by mail,
the same shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case.
On the other hand, in case of personal delivery, the motion is deemed filed on the date stamped thereon by the proper office. And the
movant has 15 days from receipt of the decision within which to file a motion for reconsideration or an appeal therefrom.
Petitioner received a copy of the letter/notice of dismissal on August 4, 2007; thus, the motion for reconsideration should have been
submitted either by mail or by personal delivery on or before August 19, 2007. However, records do not show that petitioner had filed his
motion for reconsideration. In fact, the CSC found that the non-receipt of petitioner's letter reconsideration was duly supported by
certifications issued by PAGCOR employees.
Even assuming arguendo that petitioner indeed submitted a letter reconsideration which he claims was sent through a facsimile
transmission, such letter reconsideration did not toll the period to appeal. The mode used by petitioner in filing his reconsideration is not
sanctioned by the Uniform Rules on Administrative Cases in the Civil Service. As we stated earlier, the motion for reconsideration may
be filed only in two ways, either by mail or personal delivery.
In Garvida v. Sales, Jr.,17 we found inadmissible in evidence the filing of pleadings through fax machines and ruled that:
A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an
original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current.
The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an
image of the elemental area in the proper position and the correct shade. The receiver is equipped with a stylus or other device that
produces a printed record on paper referred to as a facsimile.
x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the
original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by
the party and his counsel. It may, in fact, be a sham pleading. x x x181avvphi1
Moreover, a facsimile transmission is not considered as an electronic evidence under the Electronic Commerce Act. In MCC Industrial
Sales Corporation v. Ssangyong Corporation,19 We determined the question of whether the original facsimile transmissions are "electronic
data messages" or "electronic documents" within the context of the Electronic Commerce Act, and We said:
We, therefore, conclude that the terms "electronic data message" and "electronic document," as defined under the Electronic Commerce
Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence.
It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. (Italics ours.)20
We, therefore, found no reversible error committed by the CA when it affirmed the CSC in dismissing petitioner's appeal. Petitioner filed
with the CSC a complaint against PAGCOR and its Chairman for illegal dismissal, non-payment of backwages and other benefits on
September 14, 2007. The CSC treated the complaint as an appeal from the PAGCOR's dismissal of petitioner. Under Section 43 which
we earlier quoted, petitioner had 15 days from receipt of the letter of dismissal to file his appeal. However, at the time petitioner filed his
complaint with the CSC, which was considered as petitioner's appeal, 41 days had already elapsed from the time he received his letter
of dismissal on August 4, 2007; hence, the CSC correctly found that it has no jurisdiction to entertain the appeal since petitioner's dismissal
had already attained finality. Petitioner's dismissal from the service became final and executory after he failed to file his motion for
reconsideration or appeal in the manner and within the period provided for under the Revised Uniform Rules on Administrative Cases in
the Civil Service.
In Peña v. Government Service and Insurance System, 21 We said:
Noteworthy is that the right to appeal is neither a natural right nor a part of due process, except where it is granted by statute in which
case it should be exercised in the manner and in accordance with the provisions of law. In other words, appeal is a right of statutory and
not of constitutional origin. The perfection of an appeal in the manner and within the period prescribed by law is not only mandatory but
also jurisdictional and the failure of a party to conform to the rules regarding appeal will render the judgment final and executory and,
hence, unappealable, for it is more important that a case be settled than it be settled right. Furthermore, it is axiomatic that final and
executory judgments can no longer be attacked by any of the parties or be modified, directly or indirectly, even by the highest court of the
land. Just as the losing party has the right to file an appeal within the prescribed period, so also the winning party has the correlative right
to enjoy the finality of the resolution of the case.22
WHEREFORE, the petition is DENIED. The Decision dated April 22, 2010 and the Resolution dated July 30, 2010 of the Court of Appeals
are hereby AFFIRMED.
SO ORDERED.