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POLITICAL LAW
Public Office

JUDGE FRANCISCO IBAY v. VIRGINIA LIM A.M. No. P-99-1309, September 11, 2000
Facts: Judge Ibay charged Virginia Lim, Stenographic Reporter, with serious neglect of duty and grave misconduct. Judge recommends that Lim be dismissed from service by reason of the following: 1. For conviction of a crime involving moral turpitude (libel) against another judge; 2. For gross neglect of duty (failure to transcribe the stenographic notes of 31 proceedings in 18 inherited cases) 3. For grave misconduct (refusal to transcribe the stenographic notes) 4. For flagrant violation of an Administrative Circular (Lim traveled abroad despite her heavy backlog) The consultant of the Office of the Court Administrator (OCA) recommended that respondent Lim be dismissed from the service. The OCA adopted said recommendation. Issue: Whether respondent should be dismissed from service by reason of her conviction in the said charges. Held: She should be dismissed. No less than the Constitution mandates that all public officers and employees should serve with responsibility, integrity and efficiency. Indeed, public office is a public trust. In the case at bar, respondent Lim's performance as a court employee is clearly wanting. It is evident from the record that she has shown herself to be less than zealous in the performance of the duties of her office which demands utmost dedication and efficiency. Her lackadaisical attitude betrays her inefficiency and incompetence and amounts to gross misconduct. Respondent's unfitness for public service is further bolstered by her failure to manifest to his superior, herein complainant Judge Ibay, utmost respect and obedience to the latter's orders and instructions issued pursuant to the duties of the office the Judge holds by disregarding the latter's orders to transcribe the long-pending stenographic notes and choosing instead to go on leave, even when her application for leave has not been approved. This improper behavior of respondent betrays her abominable disrespect to the court itself. Such a demeanor is a failure of circumspection demanded of every public official and employee. Respondent Lim failed to realize that the performance of her duties are essential to the prompt and proper administration of justice. Not only does her neglect delay the administration of justice; it also erodes public faith in the judiciary. Thus, there is no room in the court or government for that matter for respondent Lim's kind of an employee. All the foregoing considered, respondent must be meted the maximum penalty because all involved in the dispensation of justice must live up to the strictest standard of integrity, probity, uprightness, honesty and diligence in the public service. WHEREFORE, respondent Virginia G. Lim is found GUILTY of gross neglect of duty, grave misconduct, violation of administrative circulars of the Supreme Court and conduct grossly prejudicial to the best interest of the service, and she is hereby DISMISSED from the service, with forfeiture of all benefits and with prejudice to reemployment in any branch or agency of the government, including government-owned and controlled corporations.

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Right to Peacably Assemble; Civil Service; Right to Strike

ACOSTA vs. CA G.R. No. 132088 June 28, 2000

Facts: Petitioners are teachers from different public schools in Metro Manila. On various dates in September and October 1990, petitioners did not report for work and instead, participated in mass actions by public school teachers at the Liwasang Bonifacio for the purpose of petitioning the government for redress of their grievances. For failure to comply with the return-to-work order issued by then Secretary of Education petitioners were administratively charged. Secretary Cario found petitioners guilty as charged and ordered their immediate dismissal from the service. The CSC modified the decision of the Secretary of Education by finding Everdina Acosta guilty of Conduct Prejudicial to the Best Interest of the Service and changing the penalty to suspension. The petitioners contended that their only offense was to exercise their constitutional right to peaceably assemble and petition the government for redress of grievances. Issue: Whether the petitioners engaged in peaceable assembly to petition the government for redress of grievances. Held: The teachers were exercising their right to peaceably assemble. However, the petitioners are being penalized not because they exercised their right of peaceable assembly and petition for redress of grievances but because of their successive unauthorized and unilateral absences which produced adverse effects upon their students for whose education they are responsible. The actuations of petitioners definitely constituted conduct prejudicial to the best interest of the service, punishable under the Civil Service law, rules and regulations These mass actions were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers' sworn duty to perform, undertaken for essentially economic reasons. The ability to strike is not essential to the right of association. In the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose. Suspension of public services, however temporary, will inevitably derail services to the public, which is one of the reasons why the right to strike is denied government employees.. Besides, there are efficient and nondisruptive avenues, other than the mass actions in question, whereby petitioners could petition the government for redress of grievances. Civil Service Commission; Term of Office

GAMINDE vs. COA G.R. No. 140335, December 13, 2000 Facts:
In 1993, the President of the Philippines appointed petitioner Thelma P. Gaminde, ad interim, Commissioner of the Civil Service Commission. She assumed office on June 22, 1993, after taking an oath of office. On September 07, 1993, the Commission on Appointment, Congress of the Philippines confirmed the appointment. In her appointment paper, her term was supposed to expire on February 2, 1999. On February 24, 1998, petitioner sought clarification from the Office of the President. In reply to her request, the Chief Presidential Legal Counsel, opined that it would expire on February 02, 2000. Relying on said advisory opinion, petitioner remained in office after February 02, 1999. On February 04, 1999, CSC Chairman de Leon, wrote the Commission on Audit requesting opinion on whether or not Gaminde and her co-terminous staff may be paid their salaries notwithstanding the expiration of their appointments on February 02, 1999. On February 18, 1999, the General Counsel, Commission on Audit, issued an opinion that "the term of Commissioner Gaminde has expired on February 02, 1999 as stated in her appointment conformably with the constitutional intent. Correspondingly the salaries and emoluments pertaining to petitioner and her co-terminous staff were disallowed.

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Issues: 1. Whether the term of office of Gaminde, as Commissioner, Civil Service Commission, expired on February 02, 1999, as stated in the appointment paper, or on February 02, 2000. 2. Whether she is entitled to the salary and other emoluments. Held: The terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. Applying the foregoing conditions to the case at bar, we rule that the appropriate starting point of the terms of office of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on February 02, 1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the latter. In the law of public officers, there is a settled distinction between "term" and "tenure." The term of an office must be distinguished from the tenure of the incumbent. The term means the time during the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. Petitioner Gaminde succeeded Samilo N. Barlongay who held the initial five-year term, from February 17, 1988, until February 02, 1992. Thus, Gamindes term expired on February 02, 1999. Although it was only on June 22, 1993 that she assumed office, she is bound by the term of the appointment she accepted, expiring February 02, 1999. In this connection, the letter dated April 07, 1998, clarifying that her term would expire on February 02, 2000, was in error. What was submitted to the Commission on Appointments was a nomination for a term expiring on February 02, 1999. Thus, the term of her successor must be deemed to start on February 02, 1999, and expire on February 02, 2006. 2. The term of office of Ms. Thelma P. Gaminde as Commissioner, Civil Service Commission, under an appointment extended to her by Ramos on June 11, 1993, expired on Feb 02, 1999. However, she served as de facto officer in good faith until Feb 02, 2000, and thus entitled to receive her salary and other emoluments for actual service rendered. Election Law; Failure of Elections

BASHER vs. COMMISSION ON ELECTIONS G.R. No. 139028 April 12, 2000
Facts: Petitioner Hadji Rasul Batador Basher and Private Respondent Abulkair Ampatua were both candidates for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur during the May 12, 1997 barangay election. The election was declared a failure and a special one was set for June 12, 1997. Again, the election failed and was reset to August 30, 1997. According to the Comelec, the voting started only around 9:00 p.m. on August 30, 1997 because of the prevailing tension in the said locality. Election Officer Diana Datu-Imam reported that she was allegedly advised by some religious leaders not to proceed with the election because "it might trigger bloodshed." She also claimed that the town mayor, "being too hysterical, yelled and threatened me to declare [a] failure of election in Maidan." Subsequently, the armed followers of the mayor pointed their guns at her and her military escorts, who responded in like manner towards the former. The parties were then pacified at the PNP headquarters. With the arrival of additional troops, the election officer proceeded to Maidan to conduct the election starting at 9:00 p.m. until the early morning of the following day. The holding of the election at that particular time was allegedly announced "over the mosque." The tally sheet for the said "election" showed the following results: private respondent 250 votes; petitioner 15 votes; and Baulo Abdul Razul, a third candidate 10 votes. Private respondent was proclaimed winner.

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Petitioner then filed a Petition before the Comelec praying that the election be declared a failure. Alleging that no election was conducted in the place and at the time prescribed by law. Comelec dismissed the Petition. Issue: 1.Whether or not the election held at around 10:00 o'clock in the evening after the Acting Election Officer had verbally declared or announced a failure of election in Precinct No. 12 is contrary to law, rule and jurisprudence; 2.Whether or not the election held at the residence of an Ex-mayor far from the designated Polling Place of Precinct No. 12, Barangay Maidan, Tugaya; Lanao del Sur is legal or valid; 3.Whether or not the proclamation of the private respondent as the duly elected Punong Barangay of Barangay Maidan and the seven (7) Barangay Kagawads is illegal, null and void ab initio.". Held: Petition is meritorious. The peculiar set of facts in the present case show not merely a failure of election but the absence of a valid electoral exercise. Otherwise stated, the disputed "election" was illegal, irregular and void. 1. As to the time for voting, the law provides that "[t]he casting of votes shall start at seven o'clock in the morning and shall end at three o'clock in the afternoon, except when there are voters present within thirty meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption." Section 22, Article IV of Comelec Resolution No. 2971 also specifies that the voting hours shall start promptly at 7:00 a.m. and end at 3:00 p.m. of the same day. However, the "election" for Barangay Maidan officials was supposed to have been held after 9:00 p.m. of August 30, 1997 until the wee hours of the following day. Certainly, such schedule was not in accordance with law or the Comelec Rules. The Comelec erred in relying on the second sentence of Section 22, Article IV of Comelec Resolution 2971. This presupposes that the election commenced during the official time and is simply continued beyond 3:00 p.m. in order to accommodate voters who are within thirty meters of the polling place, already waiting for their turn to cast their votes. The strained interpretation espoused by the Comelec encourages the conduct of clandestine "elections," for it virtually authorizes the holding of elections beyond normal hours, even at midnight when circumstances could be more threatening and conducive to unlawful activities. On a doctrinal basis, such nocturnal electoral practice discourages the people's exercise of their fundamental right of suffrage, by exposing them to the dangers concomitant to the dead of night, especially in far-flung barangays constantly threatened with rebel and military gunfires. 2. The place where the voting was conducted was illegal. Section 42 of the Omnibus Election Code provides that "[t]he chairman of the board of election tellers shall designate the public school or any other public building within the barangay to be used as polling place in case the barangay has one election precinct . . ." They failed to specify the exact venue. In fact, to this date, even the respondents have failed to disclose where exactly the voting was conducted. 3. As election officer, Election Officer Datu-Imman has no authority to declare a failure of election. Indeed, only the Comelec itself has legal authority to exercise such awesome power. An election officer alone, or even with the agreement of the candidates cannot validly postpone or suspend the elections In sum, the "election" supposedly held for officials of Barangay Maidan cannot be clothed with any form of validity. It was clearly unauthorized and invalid. Not only did the suspension/postponement not comply with the procedure laid down by law and the Comelec Rules, neither was there sufficient notice of the time and date when and the place where it would actually be conducted. The electorate of Barangay Maidan was not given due notice that the election would push through after 9:00 p.m. that same day. Such abbreviated announcement "over the mosque" at such late hour did NOT constitute sufficient notice to the electorate. It was thus as if no election was held at all. Hence, its results could not determine the winning punong barangay. The proclamation of private respondent as punong barangay is VOID. Respondent Comelec is ORDERED to conduct a special election for punong barangay of Maidan, Tugaya, Lanao del Sur as soon as possible.

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Office of the Ombudsman; Jurisdiction

BALUYOT vs. HOLGANZA G.R. No. 136374, Feb. 9, 2000

Facts: Petitioner Baluyot is the chapter administrator of the Phil. Nat'l Red Cross (PNRC)-Bohol Chapter. A team of auditors from the PNRC headquarters found a cash shortage in the funds of its Bohol chapter. Petitioner was held accountable for the shortage. Respondent Holganza, a member of the board of directors of the Bohol chapter sues petitioner for malversation under Art. 217 of the RPC before the Office of the Ombudsman. An administrative case for dishonesty was also opened upon recommendation of respondent Militante, a graft investigator officer. Petitioner moved to dismiss on the ground that the Office of the Ombudsman lacks jurisdiction. Issue: Whether the Ombudsman has jurisdiction over a malversation case involving an chapter administrator of the PNRC Held: YES. PNRC is a gov't owned and controlled corporation with an original charter under RA 95as amended. The test to determine whether a corporation is gov't owned or controlled, or private in nature is simple. Is it created by its own charter for the exercise of a public function or by incorporation under the general corporation law? Those with special charters are gov't corps whose employees are under the jurisdiction of the Civil Service commission and are compulsory members of the GSIS. The PNRC is not impliedly converted to a private corporation simply because its charter is amended to vest in it the authority to secure loans, be exempted from all duties, taxes, fees, and be allotted one lottery draw a year by the PCSO for the support of its disaster relief operation. Clearly then, the Ombudsman has jurisdiction pursuant to Sec. 13 of the Ombudsman Act of 1989 (RA6770) which provides that the "Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government,, including gov't-owned or controlled corporations Locus Standi Legislative Franchise DEL MAR vs. PHILIPPINE AMUSEMENT AND GAMING CORPORATION

G.R. No. 138298, November 29, 2000

EN BANC PUNO, J. Facts: This is a consolidation of two petitions. The Philippine Amusement and Gaming Corporation (PAGCOR) is a government-owned and controlled corporation organized and existing under PD 1869 which was enacted on July 11, 1983. Pursuant to Sections 1 and 10 of P.D. No. 1869, respondent PAGCOR requested for legal advice from the Secretary of Justice as to whether or not it is authorized by its Charter to operate and manage jai-alai frontons in the country. In its Opinion No. 67, Series of 1996 dated July 15, 1996, the Secretary of Justice opined that "the authority of PAGCOR to operate and maintain games of chance or gambling extends to jai-alai which is a form of sport or game played for bets and that the Charter of PAGCOR amounts to a legislative franchise for the purpose." Similar favorable opinions were received by PAGCOR from the Office of the Solicitor General per its letter dated June 3, 1996 and the Office of the Government Corporate Counsel under its Opinion No. 150 dated June 14, 1996. Thus, PAGCOR started the operation of jai-alai frontons. PAGCOR entered into an Agreement with private respondents Belle Jai Alai Corporation (BELLE) and Filipinas Gaming Entertainment Totalizator Corporation (FILGAME) wherein it was agreed that BELLE will make available to PAGCOR the required infrastructure facilities including the main fronton, as well as provide the needed

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funding for jai-alai operations with no financial outlay from PAGCOR, while PAGCOR handles the actual management and operation of jai-alai. Petitioner Raoul B. del Mar filed a Petition for Prohibition to prevent respondent PAGCOR from managing and/or operating the jai-alai or Basque pelota games, by itself or in agreement with Belle Corporation, on the ground that the controverted act is patently illegal and devoid of any basis either from the Constitution or PAGCOR's own Charter. Petitioners Federico S. Sandoval II and Michael T. Defensor filed a Petition for Injunction, which seeks to enjoin respondent PAGCOR from operating or otherwise managing the jai-alai or Basque pelota games by itself or in joint venture with Belle Corporation, for being patently illegal, having no basis in the law or the Constitution, and in usurpation of the authority that properly pertains to the legislative branch of the government. In this case, a Petition in Intervention was filed by Juan Miguel Zubiri alleging that the operation by PAGCOR of jai-alai is illegal because it is not included in the scope of PAGCOR's franchise which covers only games of chance. Petitioners Raoul B. del Mar, Federico S. Sandoval II, Michael T. Defensor, and intervenor Juan Miguel Zubiri, are suing as taxpayers and in their capacity as members of the House of Representatives representing the First District of Cebu City, the Lone Congressional District of Malabon-Navotas, the Third Congressional District of Quezon City, and the Third Congressional District of Bukidnon, respectively. Issues: 1. Does the Court have jurisdiction to take original cognizance of a petition for injunction considering that it is not one of those actions specifically mentioned in Section 1, Rule 56 of the 1997 Rules of Civil Procedure? 2. May the petitioners file the petitions at bar as taxpayers and as legislators, considering that the operation of jai-alai does not involve the disbursement of public funds? 3. Does PAGCOR's legislative franchise include the right to manage and operate jai-alai? Held: 1. YES. It is axiomatic that what determines the nature of an action and hence, the jurisdiction of the court, are the allegations of the pleading and the character of the relief sought. A cursory perusal of the petition filed in G.R. No. 138982 will show that it is actually one for Prohibition under Section 2 of Rule 65 for it seeks to prevent PAGCOR from managing, maintaining and operating jai-alai games. Even assuming, arguendo, that it is an action for injunction, this Court has the discretionary power to take cognizance of the petition at bar if compelling reasons, or the nature and importance of the issues raised, warrant the immediate exercise of its jurisdiction. It cannot be gainsaid that the issues raised in the present petitions have generated an oasis of concern, even days of disquiet in view of the public interest at stake. In Tano, et al. vs. Socrates, et al., this Court did not hesitate to treat a petition for certiorari and injunction as a special civil action for certiorari and prohibition to resolve an issue of far-reaching impact to our people. This is in consonance with our case law now accorded near religious reverence at rules of procedure are but tools designed to facilitate the attainment of justice such that when its rigid application tends to illustrate rather than promote substantial justice, this Court has the duty to suspend their operation. 2. YES, the petitioners may file the petitions at bar as legislators but not as taxpayers. A party suing as a taxpayer must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation. In essence, taxpayers are allowed to sue where there is a claim of illegal disbursement of public funds, or that public money is being deflected to any improper purpose, or where petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. In the petitions at bar, the Agreement entered into between PAGCOR and private respondents BELLE and FILGAME will show that all financial outlay or capital expenditure for the operation of jai-alai games shall be provided for by the latter. Be that as it may, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society, we find and so hold that as members of the House of Representatives, petitioners have legal standing to file the petitions at bar. In the instant cases, petitioners complain that the operation of jai-alai constitutes an infringement by PAGCOR of the legislature's exclusive power to grant franchise. To the extent the powers of Congress are impaired, so is the power of each

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member thereof, since his office confers a right to participate in the exercise of the powers of that institution, so petitioners contend. The contention commands our concurrence for it is now settled that a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office. 3. NO. The charter of PAGCOR does not give it any franchise to operate and manage jai-alai. A "franchise" is a special privilege conferred upon a corporation or individual by a government duly empowered legally to grant it. It is a privilege of public concern which cannot be exercised at will and pleasure, but should be reserved for public control and administration, either by the government directly, or by public agents, under such conditions and regulations as the government may impose on them in the interest of the public. A franchise thus emanates from a sovereign power and the grant is inherently a legislative power. It may, however, be derived indirectly from the state through an agency to which the power has been clearly and validly delegated. In such cases, Congress prescribes the conditions on which the grant of a franchise may be made. Thus, the manner of granting the franchise, to whom it may be granted, the mode of conducting the business, the character and quality of the service to be rendered and the duty of the grantee to the public in exercising the franchise are almost always defined in clear and unequivocal language. In the absence of these defining terms, any claim to a legislative franchise to operate a game played for bets and denounced as a menace to morality ought to be rejected. A historical study of the creation, growth and development of PAGCOR will readily show that it was never given a legislative franchise to operate jai-alai. PAGCOR is engaged in business affected with public interest. The phrase "affected with public interest" means that an industry is subject to control for the public good; it has been considered as the equivalent of "subject to the exercise of the police power." Perforce, a legislative franchise to operate jai-alai is imbued with public interest and involves an exercise of police power. The familiar rule is that laws which grant the right to exercise a part of the police power of the state are to be construed strictly and any doubt must be resolved against the grant. The legislature is regarded as the guardian of society, and therefore is not presumed to disable itself or abandon the discharge of its duty. Thus, courts do not assume that the legislature intended to part away with its power to regulate public morals. The presumption is influenced by constitutional considerations. Constitutions are widely understood to withhold from legislatures any authority to bargain away their police power for the power to protect the public interest is beyond abnegation. Melo, Panganiban, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ ., concur. Separate Opinions DAVIDE, JR., C.J.: In my Separate Opinion in G.R. No. 115044 (Alfredo Lim vs. Hon. Felipe Pacquing) and G.R. No. 117263 (Teofisto Guingona vs. Hon. Vetino Reyes), 240 SCRA 649, 685, I reiterated my prior view in a supplemental concurring opinion I submitted in the earlier case, G.R. No. 115044 that jai alai is not a game of chance, but a sport based on skill. Betting on the results thereof can only be allowed by Congress, and I am not aware of any new law authorizing such betting. My reading of the charter of the PAGCOR fails to disclose a grant of a congressional authority to allow betting on the results of jai alai. Accordingly, all that the PAGCOR may do is operate and conduct the jai alai, but in no case can it allow betting on the results thereof without obtaining a statutory authority for the purpose. VITUG, J.: Gambling, universally regarded to be a threat to the moral fiber of any society, is aptly a prohibited activity in the Philippines. The Revised Penal Code, as well as succeeding amendatory laws, makes "betting, game-fixing, point-shaving or game machination" on games of chance or skill unlawful. 1 The Civil Code additionally states

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that "betting on the result of sports, athletic competitions, or games of skill may be prohibited by local ordinances." 2 An exception to the rule was introduced by the former President Ferdinand E. Marcos when he, in the exercise of his legislative powers under the 1973 Constitution, created the Philippine Amusement Games Corp. ("PAGCOR") 3 and granted it franchise to "operate and maintain gambling casinos, clubs, and other recreation or amusement places, sports, gaming pools, . . ." 4 PAGCOR was authorized to implement, among other things, an objective "to establish and operate clubs and casinos for amusement and recreation, including games of chance, which (might) be allowed by law within the territorial jurisdiction of the Philippines." 5 PAGCOR has entered into a joint venture agreement with Belle Jai Alai Corporation ("BELLE") and Filipinas Gaming Entertainment Totalizator Corporation ("FILGAME") in the operation and management jai alai games. The two firms, under the agreement, would also furnish the jai alai fronton facilities. I see in the joint venture agreement a situation that places BELLE and FILGAME in active endeavor with PAGCOR in conducting jai alai games. Without a congressional franchise of its own, neither BELLE nor FILGAME can lawfully engage into the activity. Indeed, the grant of a franchise is a purely legislative act that cannot be delegated to PAGCOR without violating the Constitution. The thesis rests on the maxim potestas delegata non delegari potest. Any constitutionally delegated sovereign power constitutes not only a right but a duty to be performed by the delegate, the legislature in this case, through the instrumentality of its own judgment. A further delegation of such power to PAGCOR would constitute a negation of this duty in violation of the trust reposed in the delegate mandated to discharge it directly. The broad authority then of PAGCOR under its charter to enter into agreements could not have been meant to empower PAGCOR to pass on or to share its own franchise to others. Had its charter intended otherwise, PAGCOR would have been itself virtually capable of extending franchise rights and thereby be a recipient of an unlawful delegation of legislative power. For the foregoing considerations, I vote to grant the petitions in these cases insofar as they seek to enjoin respondent Philippine Amusement and Gaming Corporation ("PAGCOR") from operating jai alai or Basque Pelota games through respondents Belle Jai alai Corporation ("BELLE") and/or Filipinas Gaming Entertainment Totalizator Corporation ("FILGAME") or through any other agency, but I vote to deny the same insofar as they likewise seek to prohibit PAGCOR from itself managing or operating the game. Mendoza, J . concurs.

Dissenting Opinion

DE LEON, JR., J.
Respondent PAGCOR maintains that petitioners have no standing to file a taxpayer's suit since there is no showing that these cases involve expenditure of public funds. In Kilosbayan Incorporated vs. Morato, we have categorically stated that taxpayers, voters, concerned citizens and legislators, as such, may bring suit only (1) in cases involving constitutional issues and (2) under certain conditions. Taxpayers are allowed to sue, for example, where there is a claim of illegal disbursement of public funds or where a tax measure is assailed as unconstitutional. Concerned citizens can bring suits if the constitutional question they raise is of transcendental importance which must be settled early. While herein petitioners and intervenor claim illegal disbursement of public funds by PAGCOR in the resumption of the operations of jai alai games, there is nothing on record to show involvement of any expenditure of public money on the part of PAGCOR. In fact, what is essentially raised as an issue is whether PAGCOR has the requisite franchise to operate jai alai games and whether it is authorized under its charter to enter into joint venture agreements with private corporations. More specifically, under the joint venture Agreement dated June 17, 1999 3 it is private respondent corporations BELLE and FILGAME which will provide infrastructure facilities to PAGCOR on a rent free basis. I cannot see how the Court could treat the subject petitions as taxpayers' suits when there is nothing, apart from petitioners' bare allegations, to prove that the operations of jai alai would involve expenditure of public

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funds. Neither does the pivotal issue raised relate to a constitutional question inasmuch as only the scope of PAGCOR's franchise, and not its validity, is assailed. The issue as to whether a member of Congress may bring suit in his capacity as a lawmaker, alleging impairment of any of the powers, rights and privileges belonging to Congress, is not novel. Citing the American cases of Coleman vs. Miller and Holtzman vs. Schlesinger, we declared in Philconsa vs. Enriquez that "to the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution." There is no dispute that the power to grant franchises rests within the legislative branch of government. In a legal or narrower sense, the term "franchise" is more often used to designate a right or privilege conferred by law. The view taken in a number of cases is that to be a franchise, the right possessed must be such as cannot be exercised without the express permission of a sovereign power, that is, a privilege or immunity of a public nature which cannot be legally exercised without legislative grant. Having the prerogative to grant franchises, Congress also has the power to revoke or repeal or alter franchises. Considering that whatever judgment may be rendered in the interpretation of the law defining the scope of PAGCOR's franchise would have a bearing on petitioners' prerogative, as members of Congress, to consider whether to modify, amend, alter, or repeal, through legislation, PAGCOR's franchise, I believe, that in limited sense, that petitioners have the requisite standing to bring these suits at bar. Respondent PAGCOR, nevertheless, insists that an action for injunction is not among the cases or proceedings originally cognizable by the Supreme Court. Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a particular act. It may be an action in itself brought specifically to restrain or command the performance of an act or it may be just a provisional remedy for and as an incident in the main action which may be for other reliefs. The action for injunction should not be confused with the ancillary and provisional remedy of preliminary injunction which cannot exist except only as an incident of an independent action or proceeding. In a main action for permanent injunction, a party may ask for preliminary injunction pending the final judgment. Notwithstanding procedural lapses as to the appropriateness of the remedies prayed for in the petitions filed before Us, however, this Court can take primary jurisdiction over the said petitions in view of the importance of the issues raised. In some instances, this Court has even suspended its own rules and excepted a case from their operation whenever the higher interests of justice so demanded. The object of all interpretation and construction of statutes is to ascertain the meaning and intention of the legislature, to the end that the same may be enforced. This meaning and intention must be sought first of all in the language of the statute itself. For it must be presumed that the means employed by the legislature to express its will are adequate for the purpose and do express that will correctly. If the language is plain and free from obscurity, it must be taken as meaning exactly what it says, whatever may be the consequences. Contrary to the majority opinion that PAGCOR's franchise is limited only to the management and operation of casinos, a cursory reading of the abovequoted legal provision would readily show that the extent and nature of PAGCOR's franchise is so broad that literally all kinds of sports and gaming pools, including jai alai, are covered therein. A sport is defined as "a game or contest especially when involving individual skill or prowess on which money is staked." Gaming, on the other hand, is defined as "the act or practice of playing games for stakes." P.D. No. 1869 has made express mention of basketball and football as example of gaming pools. Basketball and football, however, like jai alai are games of skills. Considering that under Section 11 of P.D. No. 1869, games of skill like basketball and football have been lumped together with the word "lotteries" just before the word "etc." and after the words "gaming pools," it may be deduced from the wording of the law that when bets or stakes are made in connection with games of skill, they may be classified as games of chance under the coverage of PAGCOR's franchise. The meaning of the phrase "et cetera" or its abbreviation "etc." depends largely on the context of the instrument, description and enumeration of the matters preceding the term and subject matter to which it is applied, and when used in a statute, the words should be given their usual and natural signification. Consequently, jai alai, otherwise known as "game of Basque pelota", while in itself is not per se a game of chance, may be categorized as a game of chance when bets are accepted as a form

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of gambling. It is a cardinal rule of statutory construction that when words and phrases of a statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what it says. Even if the Court is fully persuaded that the legislature really meant and intended something different from what it enacted, and that the failure to convey the real meaning was due to inadvertence or mistake in the use of language, yet, if the words chosen by the legislature are not obscure or ambiguous, but convey a precise and sensible meaning (excluding the case of obvious clerical errors or elliptical forms of expression), then the Court must take the law as it finds it, and give it its literal interpretation, without being influenced by the probable legislative meaning lying at the back of the words. In that event, the presumption that the legislature meant what it said, though it be contrary to the fact, is conclusive. While there is no specific mention of jai alai as among the games of chance which PAGCOR can operate under its franchise, the language of the law defining the scope of PAGCOR's franchise is broad enough to include the operations of jai alai as a game of chance. Where the franchise contains no words either defining or limiting the powers which the holder may exercise, such holder has, by implication, all such powers as are reasonably necessary to enable it to accomplish the purposes and object of its creation. It is well recognized that the principle of strict construction does not preclude a fair and reasonable interpretation of such charter and franchises, nor does it justify withholding that which satisfactorily appears to have been intended to be conveyed to the grantee. Considering that PAGCOR's franchise is broad enough to cover the operation and management of jai alai games as well as supervised betting activities in connection therewith, let us come to the question as to whether PAGCOR may enter into a joint venture agreement with the private corporations, BELLE and FILGAME, to operate, manage and conduct jai alai games as well as supervised betting activities both at the fronton site and selected off-fronton betting stations. PAGCOR's right to enter into management contracts is not limited to those relating to the efficient operation of gambling casinos under Section 11 of P.D. No. 1869 which reads: SECTION 11. Scope of Franchise. In addition to the rights and privileges granted it under the preceding section, this Franchise shall entitle the corporation to do and undertake the following: (1) enter into operating and/or managing contracts with any registered and accredited company possessing the knowledge, skill and expertise and facilities to insure the efficient operation of gambling casinos . . . A joint venture is an association of persons or companies jointly undertaking some commercial enterprise generally, all contribute assets and share risks. It requires a community of interests in the performance of the subject matter, a right, and governs the policy connected therewith, and duty, which may be altered by agreement to share in both profit and losses. In this jurisdiction, a joint venture is a form of partnership and is thus governed by the law on partnerships. Clearly, in Section 11 of P.D. No. 1869, the powers granted to PAGCOR is broad enough to include the power to enter into a joint venture agreement with private corporations like BELLE and FILGAME relating to the operation, management and conduct not only of gambling casinos but also of those relating to jai alai as legalized gambling. Where the language of the statute is clear, it is the duty of the court to enforce it according to the plain meaning of the word. There is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and, when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. When an act is expressed in clear and concise terms, and the sense is manifest and leads to nothing absurd, there can be no reason not to adopt the sense which it naturally presents. To go elsewhere in search of conjectures in order to find a different meaning is not so much to interpret the law as to elude it. Under the rule potestas delegata non delegari potest a delegated power cannot be delegated. This is based upon the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. However, the said rule is inapplicable in the

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case at bar. The legislative grant of franchise to PAGCOR has not accorded unto the latter legislative powers nor quasi-legislative powers. The joint venture Agreement was entered by PAGCOR with FILGAME and BELLE pursuant to the powers granted under P.D. No. 1869 to PAGCOR to "enter into, make, perform, and carry out contracts of every kind and for any purpose pertaining to the business of the corporation . . . with any person, firm or corporation." Under the joint venture Agreement, BELLE and FILGAME will provide financial requirements and technical assistance to PAGCOR in connection with the use of their operational facilities. PAGCOR however shall still manage, regulate and control all aspects of jai alai operations. The subject joint venture Agreement is in consonance with the powers granted to PAGCOR that it may "do anything and everything necessary, proper, desirable, convenient or suitable for the accomplishment of any of the purposes or attainment of any of the objects or the furtherance of any of the powers herein stated, either alone or in association with other corporations, firms or individuals." Finally, while on one hand, jai alai, as a form of legalized gambling under the control and supervision of PAGCOR, does not promote good morals, on the other hand it is expected to provide entertainment to the public and much needed revenues to the government. In balancing those two apparently conflicting interests, it must be stressed that courts are not supposed to pass upon and do not pass upon questions of wisdom or expediency of legislation, for it is not within their province to supervise and keep legislation within the bounds of propriety. That is primarily and exclusively a legislative concern. Any shortcoming of a statute is for the legislature alone to correct by appropriate enactment. Bellosillo, Kapunan and Quisumbing, JJ ., concur.

LABOR LAW
ABASOLO et.al. vs. NLRC G. R. No. 118475, November 29, 2000
Facts: Petitioners have been under the employ of LUTORCO for several years their employment was abruptly interrupted when TABACALERA took over LUTORCOS operations. Petitioners were caught unaware of the sudden change of ownership and its effect on the status of their employment due to the closure of LUTORCO as a result of the sale and turnover to TABACALERA. The Labor Arbiter dismissed the complaint finding that petitioners are not entitled to the benefits under Article 283 of the Labor Code since LUTORCO ceased to operate due to serious business losses and, furthermore, TABACALERA has assumed the sonority rights of the petitioners and other employment liabilities of LUTORCO. Affirming the dismissal of the complaints, the NLRC held that petitioners are not entitled to the protection of Art. 283 of the Labor Code since there was no closure of establishment or termination of services to speak of. It declared that there was no dismissal but a non-hiring due mainly to [petitioners] own violation . Moreover, the benefits of Art. 283 apply only to regular employees, not seasonal workers like petitioners. Issues: 1. Whether or not Article 283 of the Labor Code is applicable 2. Whether petitioners are regular employees, as defined by law

Held: 1. The employment of petitioners with respondent LUTORCO was technically terminated when TABACALERA took over the formers tobacco-redrying operations in 1993. The records speak of a sale to TABACALERA in 1993 under conditions evidently so concealed that petitioners were not formally notified of the impending sale of LUTORCOs tobacco re-drying operations to TABACALERA and its attendant consequences with respect to their continued employment status under TABACALERA. They came to know of the fact of that sale only when TABACALERA took over the said tobacco re-dying operations.

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2. Petitioners were regular employees of LUTORCO when their employment was terminated. The nature of ones employment does not depend solely on the will or word of the employer. Nor on the procedure for hiring and the manner of designating the employee, but on the nature of the activities to be performed by the employee, considering the employees nature of business and the duration and scope of work to be done. In the case at bar, while it may appear that the work of petitioners is seasonal, in as much as petitioners have served the company for many years , some for over 20 years, performing services necessary and indispensable to LUTORCOS business, serve as badges of regular employment. Moreover, the fact that petitioners do not work continuously for one whole year but only for the duration of the tobacco season does not detract from considering them in regular employment since in a litany of cases this Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period, but are merely considered on leave until reemployed.

Termination of Employment; Loss of Trust and Confidence NOKOM v. NLRC G.R. No. 140043, July 18, 2000
Facts: Carmelita Nokom was employed as a manager by Rentokil for its Healthcare Division. Later, Rentokils officers received information that fictitious invoices were sent to Rentokils clients whose contracts have already been terminated. The fictitious invoices were allegedly made to inflate the gross revenues of said Division to make up for the shortfall in its target revenues. Initial findings showed that Nokom was involved in the anomaly so she was placed on preventive suspension. Thereafter, Nokom admitted the irregularities and, in her written explanation, she said that she had no explanation and that she was leaving her fate up to management. During the hearing conducted by Rentokil management, Nokom failed to appear despite notice. . After the investigation, it was found out that Nokom was aware, tolerated and in fact participated in the production of fictitious invoices. Thus, Nokoms employment was terminated. Nokom filed a complaint for illegal suspension, illegal dismissal and non-payment of salaries against Rentokil before the Labor Arbiter and prayed for reinstatement, payment of backwages, damages and attorneys fees. LA ruled in favor of Nokom. On appeal, NLRC reversed the ruling of the LA. CA affirmed the NLRC decision holding that Nokom was legally dismissed for loss of confidence. Issue: 1. Whether the acts of Nokom constitute willful breach of trust that will justify her dismissal. 2. Whether she was afforded due process. Held: The dismissal is legal. To constitute a valid dismissal, two requisites must concur, namely: (a) the dismissal must be for any of the causes provided for in Article 282 of the Labor Code and (b) the employee must be afforded an opportunity to be heard and defend himself. 1. In the case at bar, Nokoms position demands a high degree of responsibility that necessarily includes unearthing of fraudulent and irregular activities. Nokoms failure to detect and report to Rentokil the fraudulent activities in her division as well as her failure to give a satisfactory explanation on the existence of the said irregularities constitute "fraud or willful breach of the trust reposed on her by her employer or duly authorized representative" one of the just causes in terminating employment as provided for by paragraph c, Article 283 of the Labor Code, as amended. Concomitantly, petitioner's actuations betrayed the utmost trust and confidence reposed on her by the respondent company. We cannot, therefore, compel Rentokil to retain the employment of herein petitioner who is shown to be lacking in candor, honesty and efficiency required of her position. Loss of confidence is a valid ground for dismissing an employee and proof beyond reasonable doubt of the employee's misconduct is not required to dismiss him on this charge. It is enough that there be 'some basis' for such loss of confidence, or that

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the employer has reasonable grounds to believe, if not entertain the moral conviction that the employee concerned is responsible for the misconduct and that the nature of his participation therein rendered him absolutely unworthy of the trust and confidence demanded of his position. 2. Due process was exercised by Rentokil since Nokom was given an opportunity to answer the accusations against her although she did not avail of the same.

Termination of Employment; Management Prerogative LEONARDO et.al. vs. NLRC GR NO.125303, JUNE 16,2000
Facts: Aurelio Fuerte was originally employed by defendant REYNALDO'S MARKETING CORPORATION as a muffler specialist, receiving P45.00 per day. He was later appointed as supervisor with an increased compensation of P122.00 a day. On the other hand, Danilo Leonardo was hired by defendant as an auto-aircon mechanic at a salary rate of P35.00 per day. His pay was increased to P90.00 a day when he attained regular status six months later. Fuerte alleges that he was he was informed by the company's personnel manager that he would be transferred to its Sucat plant due to his failure to meet his sales quota, and for that reason, his supervisor's allowance would be withdrawn. For a short time, complainant reported for work at the Sucat plant; however, he protested his transfer, subsequently filing a complaint for illegal termination. On his part, Leonardo alleges that he was also approached by the same personnel manager who informed him that his services were no longer needed. He, too, filed a complaint for illegal termination. Issue: Whether the dismissal based on the failure to meet the sales quota is legal. Held: The practice of a company in laying off workers because they failed to make the work quota has been recognized in this jurisdiction. (Philippine American Embroideries vs. Embroidery and Garment Workers, 26 SCRA 634, 639). In the case at bar, the petitioners' failure to meet the sales quota assigned to each of them constitute a just cause of their dismissal, regardless of the permanent or probationary status of their employment. Failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. This management prerogative of requiring standards may be availed of so long as they are exercised in good faith for the advancement of the employer's interest.

Termination of Employment; Management Prerogative APARENTE vs. NLRC G.R. No. 117652, April 27, 2000
Facts: Petitioner was an employee by private respondent corporation until he was terminated for alleged violation of company rules and regulations, which was premised from the fact that, sometime prior his termination, petitioner while driving without drivers license sideswiped a ten-year old girl using the companys truck. Hospital expenses was shouldered by the company but was not reimbursed by the insurance company. Thereafter, private respondent conducted an investigation of the incident where petitioner was given the opportunity to explain his side and to defend himself, and in result thereof, petitioner was dismissed from employment for having violated the company rules and regulations for blatant disregard of established control procedures resulting in company damages of considerable amount. Aggrieved, petitioner instituted a case for illegal dismissal against private respondent before the Labor Arbiter.

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Issue: Whether the dismissal is valid and lawful?

Held: The dismissal is valid. Petitioners dismissal was justified by the companys rules and regulations. It is recognized that company policies and regulations, unless shown to be grossly oppressive or contrary to law, are generally valid and binding on the parties and must be complied with until finally revised or amended, unilaterally or preferably through negotiation, by competent authority. The Court has upheld a company's management prerogatives so long as they are exercised in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. Also, under the Labor Code, in order that an employer may dismiss an employee on the ground of willful disobedience, there must be concurrence of at least two requisites: the employee's assailed conduct must have been willful or intentional, and the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge. Which are present in this case, as evidenced by the willful act of petitioner in driving without a valid driver's license, which is a clear violation of the companys rules and regulations.

Right of Self-Organization; Coverage PAPER INDUSTRIES CORPORATION OF THE PHILIPPINES vs. LAGUESMA G.R. No. 101738, April 12, 2000
Facts: Complainant Paper Industries Corporation of the Philippines (PICOP) is engaged in the manufacture of paper and timber products. It has over 9,000 employees, 944 of whom are supervisory and technical staff employees. More or less 487 of these supervisory and technical staff employees are signatory members of the private respondent PICOP-Bislig Supervisory and Technical Staff Employees Union (PBSTSEU). On August 9, 1989. PBSTSEU instituted a Petition for Certification Election to determine the sole and exclusive bargaining agent of the supervisory and technical staff employees of PICOP for collective bargaining agreement (CBA) purposes. The Secretary of the Labor issued a Resolution which upheld the Med-Arbiter's Order dated September 17, 1989, with modification allowing the supervising and staff employees in Cebu, Davao and Iligan City to participate in the certification election. During the pre-election conference on January 18, 1990, PICOP questioned and objected to the inclusion of some section heads and supervisors in the list of voters whose positions it averred were reclassified as managerial employees in the light of the reorganization effected by it. Following the submission by the parties of their respective position papers and evidence on this issue, the Med-Arbiter issued an Order, holding that supervisors and section heads of the complainant are managerial employees and therefore excluded from the list of voters for purposes of certification election. Issue: Whether the managerial employees are disqualified from joining or forming a union represented by co-respondent PBSTSEU, in view of a supervening event brought about by the changes in the organizational structure. Held: They are disqualified. In United Pepsi-Cola Supervisory Union v. Laguesma, we had occasion to elucidate on the term "managerial employees." Managerial employees are ranked as Top Managers, Middle Managers and First Line Managers. Top and Middle Managers have the authority to devise, implement and control strategic and operational policies while the task of First-Line Managers is simply to ensure that such policies are carried out by the rank-and-file employees of an organization. Under this distinction, "managerial employees" therefore fall in two (2) categories, namely, the "managers" per se composed of Top and Middle Managers, and the "supervisors" composed of First-Line Managers. Thus, the mere fact that an employee is designated manager" does not ipso facto make him one. Designation should be reconciled with the actual job description of the employee, for it is the job description that determines the nature of employment.

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A thorough dissection of the job description of the concerned supervisory employees and section heads indisputably show that they are not actually managerial but only supervisory employees since they do not lay down company policies. PICOP's contention that the subject section heads and unit managers exercise the authority to hire and fire is ambiguous and quite misleading for the reason that any authority they exercise is not supreme but merely advisory in character. Theirs is not a final determination of the company policies inasmuch as any action taken by them on matters relative to hiring, promotion, transfer, suspension and termination of employees is still subject to confirmation and approval by their respective superior. Thus, where such power, which is in effect recommendatory in character, is subject to evaluation, review and final action by the department heads and other higher executives of the company, the same, although present, is not effective and not an exercise of independent judgment as required by law.

Termination of Employment; Management Prerogative OSS SECURITY AND ALLIED SERVICES, INC. VS. NLRC 325 SCRA 157 G.R. NO. 112752 FEB. 9, 2000
Facts: Private Respondent Eden Legaspi worked as a lady security guard of OSS Security Agency from June 16, 1985 to January 16, 1986. On January 17, 1986 petitioner Vasquez acquired the assets and properties of OSS Security Agency and absorbed some of its personnel, including Legaspi. She was assigned to render security services at the VM condominium in Makati. In a memorandum addressed to petitioners company president, the building administrator of said condominium complained of the laxity of the guard in enforcing security measures. He requested to reorganize their guards assigned to the building. In compliance therewith, petitioner reassigned Legaspi and another lady security guard to other units or detachments where vacancy exists. Then again, Legaspi was reassigned to another company in Rizal. However, she did not report for duty at her new assignment. Legaspi filed her complaint for underpayment and constructive dismissed. The Labor arbiter rendered his decision declaring that Legaspis transfer was not sanctioned by law, hence illegal and tantamount to unjust dismissal. Private respondent appealed the decision to the NLRC who affirmed the decision of the Labor Arbiter. Hence, this petition. Issue: Whether the public respondent NLRC committed grave abuse of discretion amounting to lack or excess of jurisdiction in affirming the LAs ruling that the transfer of assignment of Legaspi by petitioner was illegal tantamount to unjust dismissal Held: The transfer of an employee ordinarily is within the ambit of management prerogatives. However, a transfer amounts to a constructive dismissal when the transfer is unreasonable, inconvenient, or prejudicial to the employee, and it involves a demotion in rank or diminution of salaries, benefits and other privilege. In the case at bar, nowhere in the record does it show that the transfer of OSS Security was anything but done in good faith, without grave abuse of discretion and in the best interest of the business. No Malice should be imputed form the fact that Legaspi was relieved of her assignment and, a day later, assigned a new post. When security guard is placed offdetail or on floating status, in security agency parlance, it means waiting to be posted, Legaspi has not even been off detail for a week when she filed her complaint. OSS Security, also proved that such transfer was effected in good faith to comply with the reasonable request of its client. Thus, there was no basis to order reinstatement and back wage inasmuch as Legaspi was not constructively dismissed. Neither is she entitled to the award of money claim for underpayment.

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CIVIL LAW
Partnership; Evidence HEIRS OF TAN ENG KEE vs. CA
Facts: Tan Eng Kee died September 13, 1984. His heirs filed suit against the decedent's brother Tan Eng Lay for accounting, liquidation and winding up of the alleged partnership formed after World War II between Tan Eng Kee and Tan Eng Lay. Allegedly, after the second World War, Tan Eng Kee and Tan Eng Lay, pooled their resources and industry together, entered into a partnership engaged in the business of selling lumber and hardware and construction supplies. They named their enterprise "Benguet Lumber" which they jointly managed until Tan Eng Kee's death. Petitioners claim that in 1981, Tan Eng Lay and his children caused the conversion of the partnership "Benguet Lumber" into a corporation called "Benguet Lumber Company", purportedly to deprive Tan Eng Kee and his heirs of their rightful participation in the profits of the business. The RTC declaring that Benguet Lumber as a joint venture akin to a particular partnership. The Court of Appeals reversed the judgment of the trial court. Hence, the present petition. Issue: Whether Tan Eng Kee and Tan Eng Lay were partners in Benguet Lumber.

Held: In order to constitute a partnership, it must be established that (1) two or more persons bound themselves to contribute money, property, or industry to a common fund, and (2) they intend to divide the profits among themselves. The agreement need not be formally reduced into writing, since statute allows the oral constitution of a partnership, save in two instances: (1) when immovable property or real rights are contributed, and (2) when the partnership has a capital of three thousand pesos or more. In both cases, a public instrument is required. An inventory to be signed by the parties and attached to the public instrument is also indispensable to the validity of the partnership whenever immovable property is contributed to the partnership. Undoubtedly, the best evidence would have been the contract of partnership itself, or the articles of partnership but there is none. Thus, we are asked to determine whether a partnership existed based purely on circumstantial evidence. A review of the record persuades us that the Court of Appeals correctly reversed the decision of the trial court. The evidence presented by petitioners falls short of the quantum of proof required to establish a partnership. Petitioners failed to prove that Kee contributed his resources to a common fund for the purpose of establishing a partnership. Furthermore, despite the forty years the partnership was allegedly in existence, Kee never asked for an accounting. The essence of a partnership is that the partners share in the profits and losses. A demand for periodic accounting is evidence of a partnership. Petitioners failed to show how much their father received, if any, as his share in the profits of Benguet Lumber Company for any particular period. Hence, they failed to prove that Tan Eng Kee and Tan Eng Lay intended to divide the profits of the business between themselves, which is one of the essential features of a partnership. Hence, the Supreme Court found that Kee was only an employee, not a partner. Nevertheless, petitioners would still want us to infer or believe the alleged existence of a partnership from this set of circumstances: that Tan Eng Lay and Tan Eng Kee were commanding the employees; that both were supervising the employees; that both were the ones who determined the price at which the stocks were to be sold; and that both placed orders to the suppliers of the Benguet Lumber Company. They also point out that the families of the brothers Tan Eng Kee and Tan Eng Lay lived at the Benguet Lumber Company compound, a privilege not extended to its ordinary employees. Where circumstances taken singly may be inadequate to prove the intent to form a partnership, nevertheless, the collective effect of these circumstances may be such as to support a finding of the existence of the parties' intent. In the case at bench, even the aforesaid circumstances when taken together are not persuasive indicia of a partnership.

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They only tend to show that Tan Eng Kee was involved in the operations of Benguet Lumber, but in what capacity is unclear. There being no partnership, it follows that there is no dissolution, winding up or liquidation to speak of. Hence, the petition must fail.

Partnership vs. Joint Venture

Note: The Supreme Court in the above case took the opportunity to discuss the difference between a joint venture and a partnership. A particular partnership is distinguished from a joint adventure, to wit: (a) A joint adventure (an American concept similar to our joint accounts) is a sort of informal partnership, with no firm name and no legal personality. In a joint account, the participating merchants can transact business under their own name, and can be individually liable therefor. (b) Usually, but not necessarily a joint adventure is limited to a SINGLE TRANSACTION, although the business of pursuing to a successful termination may continue for a number of years; a partnership generally relates to a continuing business of various transactions of a certain kind. A joint venture "presupposes generally a parity of standing between the joint coventures or partners, in which each party has an equal proprietary interest in the capital or property contributed, and where each party exercises equal rights in the conduct of the business." Nonetheless, in Aurbach, et. al. v. Sanitary Wares Manufacturing Corporation, et. al., we expressed the view that a joint venture may be likened to a particular partnership, thus: The legal concept of a joint venture is of common law origin. It has no precise legal definition, but it has been generally understood to mean an organization formed for some temporary purpose. It is hardly distinguishable from the partnership, since their elements are similar community of interest in the business, sharing of profits and losses, and a mutual right of control. The main distinction cited by most opinions in common law jurisdiction is that the partnership contemplates a general business with some degree of continuity, while the joint venture is formed for the execution of a single transaction, and is thus of a temporary nature. However, this observation is not entirely accurate in this jurisdiction, since under the Civil Code, a partnership may be particular or universal, and a particular partnership may have for its object a specific undertaking. It would seem therefore that under Philippine law, a joint venture is a form of partnership and should thus be governed by the law of partnerships. The Supreme Court has however recognized a distinction between these two business forms, and has held that although a corporation cannot enter into a partnership contract, it may however engage in a joint venture with others.

Mortgage; Accomodation Mortgagor; Redemption Price SPOUSES BELO vs. PHILIPPINE NATIONAL BANK and SPOUSES ESLABON G.R. No. 134330, March 1, 2001
Facts: Eduarda Belo owned an agricultural land. She leased a portion of the said tract of land to respondents spouses Marcos and Arsenia Eslabon in connection with the said spouses' sugar plantation business.The Eslabons obtained a loan from respondent PNB secured by a real estate mortgage on their own four residential houses, as well as on the agricultural land. The assent of Eduarda to the mortgage was acquired through a special power of attorney which she executed in favor of respondent Marcos Eslabon. Spouses Eslabon failed to pay their loan obligation, thus, extrajudicial foreclosure proceedings against the mortgaged properties were instituted by PNB. At the auction sale on June 10, 1991, PNB was the highest bidder of the foreclosed properties. PNB appraised Eduarda of the sale at public auction of her land as well as the registration of the Certificate of Sheriff's Sale in its favor, and the one-year period to redeem the land.

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Meanwhile, Eduarda sold her right of redemption to petitioners spouses Enrique and Florencia Belo under a deed of absolute sale of proprietary and redemption rights. Before the expiration of the redemption period, spouses Belo tendered payment for the redemption of the agricultural land in the amount of P484,482.96, which includes the bid price of PNB, plus interest and expenses. PNB rejected the tender of payment. It contended that the redemption price should be the total claim of the bank on the date of the auction sale and custody of property plus charges accrued and interests amounting to P2,779,978.72. Petitioners spouses disagreed and refused to pay the said total claim of PNB. Issues: 1. Whether the Special Power of Attorney, the real estate mortgage contract, the foreclosure proceedings and the subsequent auction sale involving Eduarda s property are valid. 2. Assuming they are valid, whether the petitioners are required to pay, as redemption price, the entire claim of respondent PNB. Held: 1. The subject SPA, the real estate mortgage contract, the foreclosure proceedings and the subsequent auction sale are valid and legal. The validity of the SPA and the mortgage contract cannot anymore be assailed due to petitioners' failure to appeal the same after the trial court rendered its decision affirming their validity. After the trial court rendered its decision granting petitioners their alternative cause of action, i.e., that they can redeem the subject property on the basis of the winning bid price of respondent PNB, petitioners did not anymore bother to appeal that decision on their first cause of action. It is an abuse of legal remedies for petitioners to belatedly pursue a claim that was settled with finality due to their own shortcoming. 2. Only the amount of the winning bidder's purchase together with the interest thereon and on all other related expenses should be paid as redemption price in accordance with Section 6 of Act No. 3135 The respondent bank however tries to renege on this contractual commitment by seeking refuge in the 1989 case of Sy v. Court of Appeals 33 wherein this Court ruled that the redemption price is equal to the total amount of indebtedness to the bank's claim inasmuch as Section 78 of the General Banking Act is an amendment to Section 6 of Act No. 3135, despite the fact that the extrajudicial foreclosure procedure followed by the PNB was explicitly under or in accordance with Act No. 3135. By invoking the said Act, there is no doubt that it must "govern the manner in which the sale and redemption shall be effected." Clearly, the fundamental principle that contracts are respected as the law between the contracting parties finds application in the present case, specially where they are not contrary to law, morals, good customs and public policy It is therefore our view and we hold that Section 78 of the General Banking Act, as amended by P.D. No. 1828, is inapplicable to accommodation mortgagors in the redemption of their mortgaged properties. While the petitioners, as assignees of Eduarda, are not required to pay the entire claim of PNB against the principal debtors, they can only exercise their right of redemption with respect to the parcel of land belonging to Belo, the accommodation mortgagor. Thus, they have to pay the bid price less the corresponding loan value of the foreclosed four (4) residential lots of the spouses Eslabon. PNB contends that to allow petitioners to redeem only the property belonging to their assignor would violate the principle of indivisibility of mortgage contracts. We disagree. Article 2089 of the Civil Code of the Philippines, provides that: A pledge or mortgage is indivisible, even though the debt may be divided among the successors in interest of the debtor or of the creditor. Therefore, the debtor's heir who has paid a part of the debt cannot ask for the proportionate extinguishment of the pledge or mortgage as the debt is not completely satisfied. The indivisibility concept does not apply to the right of redemption of an accommodation mortgagor and her assignees. From the wording of the law, indivisibility arises only when there is a debt, that is, there is a debtor-creditor relationship. But, this relationship is wanting in the case at bar in the sense that petitioners are assignees of an accommodation mortgagor and not of a debtor-mortgagor. Hence, it is fair and logical to allow the petitioners to redeem only the property belonging to their assignor, Belo.

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Sales; Lease; Rescission CENTRAL BANK OF THE PHILIPPINES vs. SPOUSES BICHARA G.R. No. 131074, March 27, 2000
Facts: Respondents, as the registered owners, sold the lots in question to petitioner. One of the pertinent provisions of the Deed of Sale states that the VENDORS undertake at their expense to fill the parcels of land with an escombro free from waste materials compacted to the street level upon signing of the Deed of Sale to suit the ground for the construction of the regional office of the Central Bank of the Philippines thereat. Despite respondents' failure to pay the capital gains tax and other transfer fees, a Transfer Certificate of Title (TCT) was nonetheless issued in petitioner's name. Despite the issuance of the title, petitioner failed to pay respondent. On its part, respondents did not fill up the lot with escombro despite several demands made by petitioner. Petitioner was thus constrained to undertake the filling up of the said lots, by contracting the services of BGV Construction. The filling up of the lots cost petitioner P45,000.00. Petitioner deducted the said amount from the purchase price payable to respondents. Respondents commenced an action for rescission or specific performance, with damages, against petitioner before the RTC. Petitioner tendered payment to respondents but the latter refused the tender in view of their complaint for rescission. Petitioner filed a motion for consignation before the trial court. The motion was granted. The trial court ordered the respondents to accept petitioners consignation. On appeal, the Court of Appeals reversed the said decision and ordered the rescission of the contract of sale and the reconveyance of the properties to respondents. Hence, this petition. Issue: Whether the rescission of the said contract of sale is proper.

Held: By law, the vendee is bound to accept the delivery and to pay the price of the thing sold at the time and place stipulated in the contract. In the case at bench, petitioner's obligation to pay arose as soon as the deed of sale was registered and a clean title was issued. However, petitioner justifies non-payment on respondents' breach of several stipulations in the contract. We have examined these alleged violations vis-avis the pertinent provisions of the deed of sale, keeping in mind that only a substantial breach of the terms and conditions thereof will warrant rescission. Whether a breach is substantial is largely determined by the attendant circumstances. Petitioner's argument was that it was not obliged to pay until respondents compact the lots. Taking into account the facts of the case, we find that particular argument of petitioner to be well-taken. The use to which the parcels of land was to be devoted was no secret between the parties. The consolidated estate, which incorporated the lots sold by respondents to petitioner, was intended as the site of petitioner's regional office. The project had its peculiar requirements, not the least of which was that since a substantial edifice was to be built on the property, the site had to be made suitable for the purpose. Thus, petitioner specified that the lots be filled up in the manner specified in paragraph 4 of the contract. The importance thereof could not have been lost on respondents. Evidently then, respondents were guilty of non-performance of said stipulation. The deed of sale expressly stipulated that the vendors were to undertake the filling. This was to be accomplished upon the signing of the contract and insofar as petitioner was concerned, respondents obligation was demandable at once. Respondents should not be allowed to rescind the contract where they themselves did not perform their essential obligation thereunder. It should be emphasized that a contract of sale involves reciprocity between the parties. Since respondents were in bad faith, they may not seek the rescission of the agreement they themselves breached.

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Sales; Inadequacy of the Price ABAPO vs. CA G.R. No. 128677, March 2, 2000
Facts: The late spouses Victoriano and Placida Abapo owned a parcel of land in Cebu. Of the 5 children the spouses left behind, only Santiago Abapo and Crispula Abapo-Bacalso have heirs who are currently the antagonists in this case. In 1967, Santiago and Crispula executed a deed of sale under pacto de retro on the land in favor of Teodulfo Quimada. The land was sold for P500 with right to repurchase within 5 years failing which the conveyance would become absolute and irrevocable without the necessity of drawing up a new deed. No redemption was done within the 5 year period. More than 7 years later, Quimada through a notarized deed of absolute sale sold the land to Crispula and her husband for P500. Since then until their death, the spouses Bacalso had possession, enjoyed the fruits of the land and paid the real estate taxes to the exclusion of Santiago. On Feb 1990, the heirs of Crispula executed an "extrajudicial declaration of heirs" and allotted unto themselves the land. On April 1990, Santiago instituted a petition for reconstitution of the original certificate of title over the land in the name of his father Victoriano. It was granted. Upon discovery of the said reconstitution of title, Crispula's heirs interposed a petition to surrender owner's copy of the reconstituted OCT in the hands of Santiago. The trial court denied such petition. Thus Crispula's heirs instituted a complaint for "Quieting of Title with Damages" against Santiago. Santiago assailed the due execution of both the deed of sale under pacto de retro and the deed of absolute sale. He vehemently swore that he never sold in 1967 his interest in the land. Issue: 1.Whether the deed of sale under pacto de retro is an equitable mortgage in view of the unusually inadequate consideration of P500. 2. Whether the deed of absolute sale is illegal and void. Held: 1. The price of P500 is not unusually inadequate. The extant record reveals that the assessed value of the land in 1970 was only P400. Thus, at the time of the sale in 1967 the price of P500 is undisputably over and above the assessed value of P400. Besides, the mere fact that the price is inadequate does not support the conclusion that the contract was a loan or that the property was not at all sold to Quimada. The price fixed in a sale with right to repurchase is not necessarily the true value of the land sold. The rationale is that the vendor has the right to repurchase the land. It is the practice to fix a relatively reduced price, although not a grossly inadequate one, in order to afford the vendor a retro every facility to redeem the land. Thus inadequacy of price is not sufficient to set aside a sale unless it is grossly inadequate or purely shocking to the conscience. 2. The deed of absolute sale having been executed and attested through the intervention of the notary public is a public document. As such, they are evidence of the facts in clear, unequivocal manner therein expressed. They have the presumption of regularity, which Santiago failed to overcome by clear, strong and convincing evidence.

Property; Extrajudicial Partition; Builder in Good Faith KILARIO vs. COURT OF APPEALS G.R. No. 134329, January 19, 2000
Facts: During the lifetime of Jacinto Pada, owner of the land in dispute, his halfbrother, Feliciano Pada obtained permission from him to build a house on the disputed land. When Feliciano died, his son survived him, who was in turn survived by his sons daughter, the petitioner herein.

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In 1951 an extrajudicial partition of the estate of Jacinto Prada was made among his heirs and executed in an unregistered private document. The heirs to whom the disputed land eventually belonged sold the property after sometime. One of the buyers demanded the petitioner to vacate the land. With the petitioners refusal, a complaint for ejectment was filed. Issues: 1. Whether or not the partition is invalid. 2. Whether the petitioners are builders in good faith

Held: 1. The extrajudicial partition is valid, albeit executed in an unregistered private document. No law requires partition among heirs to be in writing and be registered in order to be valid. The requirement in Sec. 1, Rule 74 of the Revised Rules of Court has for its purpose the protection of creditors and the heirs themselves against tardy claims and to serve as constructive notice to others. Thus, the intrinsic validity of partition not executed with the prescribed formalities is not undermined when no creditors are involved. The requirement of Article 1358 of the Civil Code that acts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property, must appear in a public instrument, is only for convenience, noncompliance with which does not affect the validity or enforceability of the acts of the parties as among themselves. And neither does the Statute of Frauds under Article 1403 of the New Civil Code apply because partition among heirs is not legally deemed a conveyance of real property, considering that it involves not a transfer of property from one to the other but rather, a confirmation or ratification of title or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance. The 1951 extrajudicial partition being legal and effective as among his heirs, there was a valid transfer of ownership rights over the involved property. 2. Considering that petitioners were in possession of the subject property by sheer tolerance of its owners, they knew that their occupation of the premises may be terminated any time. Persons who occupy the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that they will vacate the same upon demand, failing in which a summary action for ejectment is the proper remedy against them. Thus, they cannot be considered possessors nor builders in good faith. It is wellsettled that both Article 448 and Article 546 of the New Civil Code which allow full reimbursement of useful improvements and retention of the premises until reimbursement is made, apply only to a possessor in good faith. Verily, persons whose occupation of a realty is by sheer tolerance of its owners are not possessors in good faith. As such, petitioners cannot be entitled to the value of the improvements that they built on the said lot.

CRIMINAL LAW
PEOPLE v. CANONIGO G.R. No. 133649 August 4, 2000
Facts: Canonigo was 18 years old when he raped Carla Malanay, then under 12 yrs of age, in front of her sister (aged 5). In the information filed against him, it was stated that the victim was 12 years of age. However, it was not alleged that the crime of rape was committed in full view of a relative within the 3rd degree of consanguinity.. Nonetheless, the RTC found Canonigo guilty of the crime of statutory rape and sentenced him to death. From this decision, Canonigo appealed. Issue: Whether the trial court erred in imposing the death penalty since the information filed against the accused did not allege the qualifying circumstance that the rape was committed in full view of a relative within the third degree of consanguinity of the victim. Held: Yes. Canonigo should only be sentenced to reclusion perpetua. 21

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The circumstances under Sec.11 of RA No. 7659 are in the nature of special qualifying circumstances which, unlike generic aggravating circumstances which may be appreciated and proved even if not alleged, cannot be considered as such unless so alleged in the information even if proved. Consequently, the qualifying circumstance that Carla was raped in full view of a relative within the third degree of consanguinity cannot be considered against the accused. The reason for this is that the Constitution guarantees the right of every person accused in a criminal prosecution to be informed of the nature and the charge against him. Since the facts stated in the body of the information determine the crime for which the accused stands charged and for which he must be tried, every element of the criminal offense must be alleged in the complaint or information to enable the accused to suitably prepare for his defense. In the same vein, the trial court should not have considered the charge filed against accused-appellant as statutory rape. To effectively prosecute accused-appellant for statutory rape, its elements must be set out in the complaint or information to apprise the accused of the crime of which he is being charged. The gravamen of the offense of statutory rape is in having carnal knowledge with a girl under 12 years of age. In the case at bar, although it was established during the trial that Carla was only eleven (11) years old at the time the crime was committed, the information filed against the accusedappellant charged him with having carnal knowledge of a girl who is twelve (12) years of age. Consequently, the trial court erred when it held the accused-appellant liable for statutory rape. Aggravating Circumstances

PEOPLE vs. RIGLOS and RIGLOS G.R. No. 134763, September 4, 2000
Facts: Camilo Valdez was sitting at the terrace of house when respondent Lamberto Riglos arrived. Lamberto asked money from Camilo but the latter refused, and instead, told him to go home. Suddenly, Lamberto slapped Camilo on the face several times, which caused the latter to push Lamberto away. Lamberto then pulled Camilo's hand and the latter fell to the ground. Swiftly, Lamberto drew a .38 caliber gun from his waist and shot Camilo. The first shot missed Camilo. Lamberto fired a second shot hitting Camilo on the chest.. Camilo managed to slowly enter the house and proceed to their room while Lamberto just stayed at the terrace After the first shot, respondent Wilfredo, who was at a neighbor's house proceeded to the residence of Camilo. Then Wilfredo went to where Lamberto was and said: "Let us get inside and kill him, brother." The two entered the house and went to the bedroom. Upon seeing the wounded Camilo sitting on the bed, Lamberto and Wilfredo shot him several times. They trial court convicted the respondent of murder qualified by treachery with the aggravating circumstances of abuse of superior strength and dwelling and sentenced him to suffer the supreme penalty of death. Respondent appealed contending that the qualifying circumstances of treachery and abuse of superior strength are absent, since the act of aggression was preceded by a violent quarrel between him and the victim. Issue: 1. Whether the appreciation of the aggravating circumstances of treachery was proper. 2. Whether the appreciation of abuse of superior strength was proper. Held: 1. In the instant case, there are two stages of the act of aggression committed against the victim. The first one was preceded by a heated argument when the victim refused to give money to accused Lamberto, which led the latter to shoot the victim on the chest. The aggression against the victim, Camilo, had already ceased when after the second shot that hit him on the chest, he slowly retreated to the bedroom in their house. However, the subsequent act was definitely treacherous. Upon the arrival of accusedappellant Wilfredo, he uttered these words to Lamberto, "Let us get inside and kill him, brother", and then they immediately went inside the victim's house, and at the entrance of the door leading to the couple's bedroom, they saw the wounded Camilo sitting on the bed and shot him several times. The attack was a total surprise to the victim as he did not expect any from accused-appellant Wilfredo with whom he had no quarrel. Furthermore, the suddenness of the attack made it impossible for the victim to defend himself. The victim was totally defenseless when both accused attacked him. Treachery

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is to be appreciated even when the victim was warned of danger or initially assaulted frontally, but was attacked again after being rendered helpless and had no means to defend himself or to retaliate. Thus, treachery or alevosia clearly attended the killing of the victim, Camilo Valdez because the accused employed means, methods or forms in the commission of the crime which tend directly and specially to insure its execution, without risk to themselves arising from any defense which the victim might have made. 2. However, the trial court erred in considering the aggravating circumstance of abuse of superior strength. Where treachery qualifies the crime of murder, it absorbs abuse of superior strength and the latter cannot be appreciated even as a generic aggravating circumstance. Rape; Qualifying Circumstances

PEOPLE vs. CRUZ G.R. Nos. 128346-48, August 14, 2000

Facts: The Regional Trial Court of Cabanatuan City convicted Simeon B. Cruz of three (3) counts of rape and sentenced him to suffer the supreme penalty of death in each case for having committed the crime with the aggravating circumstance of relationship, the respondent being the father of the complainant. The criminal complaints in the case at bar alleged that the complainant was the daughter of the respondent. However, the same criminal complaints failed to allege that the private complainant was a minor or under eighteen (18) years of age at the time when each of the crimes of rape was committed against her. Issue: Whether the correct penalty was imposed.

Held: The trial court erred in imposing the supreme penalty of death on the respondent. Section 11 of Republic Act No. 7659 amending Article 335 of the Revised Penal Code provides: xxx xxx xxx The death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. . . . The attendant circumstances enumerated partake of the nature of qualifying circumstances since the same are punishable by the single indivisible penalty of death and not reclusion perpetua to death. It has been the rule that qualifying circumstances must be properly pleaded in the indictment. If the same are not pleaded but proved, they shall be considered only as aggravating circumstances. Due to the absence of allegation in each of the criminal complaints in these cases that the private complainant was a minor, the respondent can be held liable for three (3) counts of simple rape only and for which the impossible penalty is reclusion perpetua. Incomplete Self Defense

PEOPLE vs. LIBRANDO GR No. 132251 July 6, 2000

Facts: Librando and his 2 co-accused were convicted of murder. Appellants claim that there was incomplete self defense as the victim was the first one who tried to hit him. Issue: 1. Whether the mitigating circumstance of incomplete self defense should be appreciated. 2. Whether the nighttime and uninhabited place should be considered as only one mitigating circumstance. Held: 1.The Court, however, is not inclined to consider the mitigating circumstance of incomplete self defense in Librando's favor. To avail of the mitigating circumstance of

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incomplete self defense, there must be unlawful aggression on the part of the victim. In the case at bar, prosecution witness Aileen testified that it was in fact the said accusedappellant who delivered the first blow without any warning to the deceased. The severity of the injuries inflicted on the deceased as well as the fact that Librando who admitted that he was of bigger built than the deceased, could hardly present any evidence of injuries allegedly inflicted on him by the deceased belie his claim of self defense. 2. The trial court did not err in considering the nighttime and uninhabited place as just one aggravating circumstance. In the case of People vs. Santos 26 it has been held that if the aggravating circumstances of nighttime, uninhabited place or band concur in the commission of the crime, all will constitute one aggravating circumstance only as a general rule although they can be considered separately if their elements are distinctly perceived and can subsist independently, revealing a greater degree of perversity. The trial court's decision was affirmed.

Malversation of Public Funds ESTRELLA vs. SANDIGANBAYAN GR No. 125160 June 20, 2000
Facts: On July 1, 1975, petitioner was appointed as Municipal Cashier 2 in the Office of the Municipal Treasurer, Isulan, Sultan Kudarat, with a bond in the amount of P28,000.00. 3 Per Audit Assignment Order No. LGAD 86-1 dated January 28, 1986 issued by the Commission on Audit (COA), Regional Office XII, he was audited of his cash and accounts for the period from March 18 to 24, 1986 only. 4 For reasons unknown, the cash and accounts of the petitioner were not audited for the period from July 1, 1975, the date of his appointment, up to March 17, 1986. All in all, petitioner received cash advances totalling P249,829.25. Of the P249,829.25, petitioner was able to liquidate on November 20, 1985 the amount of P29,083.57 18 only. The amount of P2,395.69 resulting from the liquidation of petitioner's cash collections was added to P29,083.57, thus, petitioner's accountability was reduced to P218,349.99. After establishing the amount of the shortage as reflected in Exhibit "D", the OIC Municipal Treasurer submitted his progress report demonstrating further restitution of petitioner's disallowed cash advances and vouchers in the amount of P14,406.00 and P12,303.00 or a total of P26,709.00, 26 thereby further reducing his liability to P191,640.99. While petitioner admitted his accountability to be only P64,538.95, he doubted the accuracy of the said amount for the reason that in his perception, his liability was allegedly between P30,000.00 and P40,000.00 only. 27 Resultantly, petitioner was charged with malversation of public funds in the Information filed with respondent Sandiganbayan. The Sandiganbayan rendered its decision convicting petitioner. There being no modifying circumstances and applying the Indeterminate Sentence Law, the Court imposes on the accused the indeterminate penalty from TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of reclusion temporal as minimum to EIGHTEEN (18) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal as maximum, the fine equal to TWO HUNDRED EIGHTEEN THOUSAND THREE HUNDRED FORTY NINE PESOS AND NINETY-NINE CENTAVOS (P218,349.99), the amount malversed, and perpetual special disqualification. 30 Hence, this petition. Issue: Whether the Sandiganbayan erred in finding petitioner guilty beyond reasonable doubt. Held: Yes. Article 217 of the Revised Penal Code holds liable for malversation a public officer who shall appropriate public funds or property for which he is accountable, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property. Furthermore, the failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. The elements of malversation of public funds are (a) the offender is a public officer, (b) he had custody or control of the funds or property by reason of the duties of

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his office, (c) these funds or property were public funds or property for which he was accountable, and (d) that he appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them. 42 Anent the last element, we have held that to justify conviction for malversation of public funds, the prosecution has only to prove that the accused received public funds or property and that he could not account for them or did not have them in his possession and could not give a reasonable excuse for the disappearance of the same. 43 An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts which he has not been able to explain satisfactorily. Petitioner was not able to produce the missing amount of P191,640.99; and neither was he able to explain his failure to produce that amount. Aside from petitioner's feeble attempt to shift the blame to the audit team, nothing in the records of this case supports his allegation that the audit team had committed an error in the Report of Cash Examination.

REMEDIAL LAW
Civil Procedure; Amendment to Conform to Evidence MAUNLAD SAVINGS & LOAN ASSOCIATION, INC. vs. COURT OF APPEALS and NUBLA G.R. No. 114942, November 27, 2000
FACTS: Petitioner instituted a complaint for a sum of money against private respondent Nubla and his brother on the basis of a promissory note allegedly executed by them to secure a loan, which they failed to pay, and continuously defaulted. In their Answer the defendants admitted that they executed the promissory note but denied any liability thereunder, alleging that they did not receive any value out of the transaction nor did the said document reflect the real agreement between the parties. However, the said Answer was not under oath. Maunlad Savings presented its evidence relying on the admission by the Nublas of the genuineness and due execution of the subject promissory note, inasmuch as their Answer was not under oath as required by Section 8, Rule 8 of the Rules of Court. Subsequently, Nubla testified that the loan documents and the promissory note did not embody the real agreement of the parties because they signed blank documents on the understanding that they were signing as mere representatives of Ever-Rise, and not in their personal capacity. The petitioner raised no objection. The Nublas filed a Motion to Admit Amended Answer citing Section 5, Rule 10 of the Rules of Court, which allows the amendment of pleadings to conform to the evidence. Petitioner filed its opposition to the said motion. Both motions were denied ratiocinating that the proposed amendment in the amended answer will ultimately change or alter the theory of the defense and thus cannot be allowed under Section 3, Rule 10 of the Rules of Court. ISSUES: 1. Whether the amended answer of herein respondent, made after the presentation of evidence can be admitted, thus altering the theory of the case to the prejudice of the petitioner. 2. Whether the objection was timely made. HELD: 1. Under Sec. 7, Rule 8 of the Rules of Court, when the cause of action is anchored on a document, the genuineness or due execution of the said document shall be deemed impliedly admitted unless the defendant, under oath, specifically denies them, and sets forth what he claims to be the facts. Said rule should be read in conjunction with Sec. 9 of Rule 130 of the Revised Rules of Evidence which provides, in substance, that when the parties have reduced their agreement to writing they have made such writing the only repository and memorial of the truth, and whatever is not found in the writing must be understood to have been waived or abandoned, unless he puts in issue that there is a mistake or imperfection in the writing, or that it does not

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express the true agreement of the parties, or that the agreement is invalid or that there is an intrinsic ambiguity in the writing. In the instant case, while the specific denial in the original answer was not under oath and thus gave rise to the implied admission, private respondent, thru his testimony, was able to put in issue and present parol evidence to controvert the terms of the promissory note, which are essentially the bedrock of his defense. The presentation of the contrary evidence for and against imputations of genuineness and due execution undoubtedly cured, clarified or expanded, as the case may be, whatever defects in the pleadings or vagueness in the issues there might have been as presented in the original answer. 2. Petitioner made no timely objection when private respondent introduced parol evidence. The rule is that objections to evidence must be made as soon as the grounds therefor become reasonably apparent, otherwise the objection is waived and such evidence will form part of the records of the case as competent and complete evidence. Thus, the objections of petitioner Maunlad Savings on the subsequent hearings to no more than a belated attempt to remedy its neglectful act of prior implied consent to the presentation of parol evidence on the terms of the agreement between the parties.

Civil Procedure; Service of Summons BANCO DO BRASIL vs. THE COURT OF APPEALS G.R. Nos. 121576-78, June 16, 2000
Facts: An abandoned vessel was seized by the Bureau of Customs. Prior to the seizure, its authorized representative had entered into a salvage agreement with private respondent URBINO to secure and repair the vessel. To enforce its preferred salvors lien, URBINO filed with the RTC of Manila a Petition for Certiorari, Prohibition and Mandamus assailing the seizure. Private respondent amended its petition to include Banco Do Brasil as defendant being one of the claimants of the vessel. Upon motion of the private respondent, the trial court allowed summons by publication to be served upon defendants who were not residents and had no direct representative in the country. Private respondent testified during the presentation of evidence that, for being a nuisance defendant, petitioner caused irreparable damage to private respondent in the amount of $300,000. The trial court ruled in favor of the private respondent and awarded the damage sought. The petitioner questioned its liability for damages, on the ground that there was no valid service of summons as service was on the wrong party the ambassador of Brazil. Hence, it argued, the trial court did not acquire jurisdiction over petitioner. Petitioner now contends that the action filed against it is an action for damages, as such it is an action in personam which requires personal service of summons. Issue: Whether a valid service of summons was made upon the petitioner.

Held: It is invalid. When a defendant is a nonresident and he is not found in the country, summons may be served extraterritorially. However, extrajudicial service of summons apply only where the action is in rem or quasi in rem. This is so inasmuch as, in such actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. However, where the action is in personam jurisdiction over the person of the defendant is necessary. When the defendant is a non-resident, personal service of summons within the state is essential to the acquisition of jurisdiction over the person. This cannot be done, however, if the defendant is not physically present in the country, and thus, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case against him. It must be stressed that any relief granted in rem or quasi in rem actions must be confined to the res, and the court cannot lawfully render a personal judgment against the defendant. Clearly, the publication of summons effected by private respondent is invalid and ineffective for the trial court to acquire jurisdiction over the person of petitioner, since by seeking to recover damages from petitioner, private respondents action became in personam. Bearing in mind the in personam nature of the action, personal or, if not

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possible, substituted service of summons on petitioner, and not extraterritorial service, is necessary to confer jurisdiction over the person of petitioner and validly hold it liable to private respondent for damages. Thus, the trial court had no jurisdiction to award the damages.

Civil Procedure; Compromise CALLA vs. MAGLALANG G.R. No. 140276, February 9, 2000
Facts: Through the years, petitioners' occupancy and possession of their respective residential units were in the concept of an owners pursuant to the agreement, albeit verbal, that they had with Felipe Maglalang that their monthly payments shall be treated and considered as installment payments for the purchase of said units. When Felipe Maglalang died, herein petitioners continued to pay their monthly installments to the herein respondent, being one of the successors-in-interest of the late Felipe Maglalang. Subsequently, complaints for ejectment were filed allegedly by the respondent against each of the petitioners. When the case reached the Supreme Court through a Petition for Review on Certiorari filed by petitioners, the parties entered into a Compromise Agreement, which states in part: COMPROMISE AGREEMENT "In compliance with the oral agreement made between the herein petitioners and the respondent's deceased father during his lifetime, the latter agrees to relinquish and forever waives all his rights and interests including that of his siblings over the residential houses/units and presently occupied by the petitioners. "All their payments made in the past for more than twenty five (25) years shall be considered as installment payments and in full satisfaction of the purchase price thereof; xxx xxx xxx "Respondent undertakes not to disturb or interfere with the petitioners' actual occupation/possession of the subject residential houses/units. "That PARTIES forever waive all their causes of action against each other and consider the Judgment/Resolution/Order to be issued on this Compromise Agreement as final and executory. Issue: Whether the Compromise Agreement is legally acceptable. Held: The said Compromise Agreement is legally acceptable as nothing therein is contrary to law, morals, good customs and public policy, and the same having been freely and intelligently executed by and between petitioners and respondent, judicial approval thereof is in order.

Criminal Procedure; Arrests CUEVAS vs. MUOZ G.R. No. 140520, December 18, 2000
Facts: On Aug 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 and seven (7) counts of conspiracy to defraud. On Sept 13, 1999, the Philippine Dept. of Justice (RP DOJ) received a request for the provisional arrest of the respondent from the Mutual Legal Assistance Unit, International Law Division of the Hong Kong Dept. of Justice (HK DOJ) pursuant to Article 11(1) of the Agreement Between The Govt Of RP And The Govt Of Hong Kong For The Surrender Of Accused And Convicted Persons" (RP-HK Extradition Agreement). The RP DOJ forwarded the request for provisional arrest to the Anti-Graft Division of the NBI. On Sept 17, 1999, for and in behalf of the Govt of Hong Kong, the NBI filed an application for the provisional arrest of respondent with the RTC of Manila, which granted the application and issued the corresponding Order of Arrest. Respondent was arrested and detained at the NBI detention cell.

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Upon respondents petition, the Court of Appeals declared the Order of Arrest null and void on the following grounds: (1) there was no urgency to warrant the request for provisional arrest (2) 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; and, (3) the Order of Arrest was issued without the Judge having personally determined the existence of probable cause. Issue: Held: Whether the Order of Arrest is null and void.

The Order of Arrest is valid. 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 xxx.

and Article 11 of the RP-HK Extradition Agreement 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 xxx.

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 charged, was set to be heard by the Court of First Instance of Hong Kong on Sept 17, 1999. The HK 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 could be made. Also, considering the charges against the respondent, 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 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. Second. The request for provisional arrest of respondent and its accompanying documents are valid despite lack of authentication. There is no requirement under PD No. 1069 and in the RP-HK Extradition Agreement for the authentication of a request for provisional arrest and its accompanying documents. 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. 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." 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. 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, and formed the basis of the judge's finding of probable cause for the issuance of the warrant of arrest against respondent.

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Special Civil Actions; Certiorari BANCO FILIPINO SAVINGS & MORTGAGE BANK vs. COURT OF APPEALS GR No. 132703, June 23, 2000
Facts: Banco Filipino (BF) to filed, on Aug 16, 1995, an action for recovery of real properties before the RTC of Iloilo on the ground of breach of trust. After a protracted exchange of pleadings, the trial court dismissed the complaint. A petition for certiorari under Rule 65 before the Court of Appeals alleging that the trial courts decision was issued with grave abuse of discretion because it did not comply with the constitutional mandate on the form of decisions. However, the CA dismissed BFs petition on the ground, that the "petitioners recourse to Rule 65 of the Revised Rules of Court is patently malapropos." It reiterated the rule that a special civil action for certiorari may be resorted to only when there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law. Banco Filipinos failure to appeal by writ of error within the reglementary period and its belated recourse to a petition for certiorari under Rule 65 was interpreted by the Court of Appeals as a desperate attempt by Banco Filipino to resurrect what was otherwise already a lost appeal. Furthermore, the Court of Appeals debunked Banco Filipinos theory that the assailed order did not comply with the substantive requirements of the Constitution. Banco Filipino then filed with the Supreme Court its subject petition for certiorari under Rule 65 of the Revised Rules of Court. Issues: 1. Whether the present petition for certiorari before the Supreme Court is the proper remedy; whether the Court of Appeals committed grave abuse of discretion. 2. Whether the dismissal of the petition for certiorari before the Court of Appeals was proper Held: 1. Without need of delving into the merits of the case, this Court hereby dismisses the instant petition. For in filing a special civil action for certiorari instead of an ordinary appeal before this Court, Banco Filipino violated basic tenets of remedial law that merited the dismissal of its petition. First. Banco Filipinos proper remedy from the adverse resolutions of the Court of Appeals is an ordinary appeal to this Court via a petition for review under Rule 45 and not a petition for certiorari under Rule 65. We have said time and again that for the extraordinary remedy of certiorari to lie by reason of grave abuse of discretion, the abuse of discretion, must be so patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility. Nothing in the record of this case supports Banco Filipinos bare assertion that the Court of Appeals rendered its assailed resolutions with grave abuse of discretion. In other words, there being no grave abuse of discretion on its part, the Court of Appeals rendered the assailed resolutions in the proper exercise of its jurisdiction. Hence, even if erroneous, the Court of Appeals resolutions can only be assailed by means of a petition for review. The distinction is clear: a petition for certiorari seeks to correct errors of jurisdiction while a petition for review seeks to correct errors of judgment committed by the court. Errors of judgment include errors of procedure or mistakes in the courts findings. Where a court has jurisdiction over the person and the subject matter, the decision on all other questions arising in the case is an exercise of that jurisdiction. Consequently, all errors committed in the exercise of such jurisdiction are merely errors of judgment. Second. The availability to Banco Filipino of the remedy of a petition for review from the decision of the Court of Appeals effectively foreclosed its right to resort to a petition for certiorari. 2. The dismissal is proper. Certiorari cannot be used as a substitute for the lapsed or lost remedy of appeal. When Banco Filipino filed its petition for certiorari assailing the RTC order, the reglementary period for filing a petition for review before the Court of Appeals had already lapsed. It is true that this Court may treat a petition for certiorari as having been filed under Rule 45 to serve the higher interest of justice, but not when the petition is filed well

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beyond the reglementary period for filing a petition for review and without offering any reason therefor. Perfection of an appeal within the reglementary period is not only mandatory but also jurisdictional so that failure to do so renders the questioned decision final and executory, and deprives the appellate court of jurisdiction to alter the final judgment, much less to entertain the appeal.

Evidence; Impeachment of a Witness PEOPLE vs. CIRILO

Facts: Cirilo was convicted of murder based on the positive identification of eyewitness Panes as the person who shot to death the victim. She testified that during the night of the shooting incident the kerosene torch that she was holding illuminated the face of the appellant who was then aiming a shotgun at them. Appellant avers that the differences in the written affidavit and the testimony of the witnesses do not warrant his conviction. Issue: Whether the credibility of the witness may be impeached. Held: The credibility of a witness may not be impeached by simply pointing out the discrepancy in her affidavit and her testimony during the trial to the effect that her testimony mentions the kerosene torch as a means of illumination while her affidavit states that she saw appellant due to the bright moon. Under Section 13, Rule 132 of the Rules of Court, it is provided that: before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. In any event, this Court has ruled that discrepancies between the affidavit of a witness and his testimony in court do not necessarily discredit the witness because it is a matter of judicial experience that affidavits, being taken ex-parte, are almost always incomplete and often inaccurate. Besides, the testimonial discrepancies could have been caused by the natural fickleness of memory, which tends to strengthen, rather than weaken credibility as they erase any suspicion of rehearsed testimony. Decision affirmed.

Evidence PEOPLE vs. ALVAREZ and VILLAS G.R. No. 121769, November 22, 2000
Facts: The trial court declared accused ALVAREZ and VILLAS guilty of Murder beyond reasonable doubt, as principal. For insufficiency of evidence co-accused BUENAVENTURA VILLAS was acquitted. The appellants contend that their co-accused were acquitted by the trial court after it rejected the respective identifications made and uncorroborated testimony of Nenita, the prosecution witness. A fortiori, appellants claim they can not be convicted on the basis of the same uncorroborated testimony of the prosecution witness which the trial court has characterized as "undeserving of any belief for being inherently incredible," "beyond any common human experience," "inherently improbable," "patently incredible," "gravely doubtful and unconvincing" and "undeserving of faith and credence". Issue: Whether a conviction of an accused can be based upon a testimony which was the same basis for the acquittal of the co-accused. Held: Notably, the trial court did not accord full faith and credence to the identification made by the witness of erstwhile accused Buenaventura Villas as one of the perpetrators of the crime. That fact, however, does not entirely impugn her credibility as a witness relative to the other aspects of the case. The trial court found as sufficiently convincing the testimony of Nenita as regards her identification of the appellants as the perpetrators of the crime. The settled rule is that the testimony of a witness may be believed in part and disbelieved in part as the corroborative evidence or improbabilities

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of the case may require. Even where a witness has been found to have deliberately falsified the truth in some particulars, it is not required that the whole of his testimony be rejected.

Evidence; Credibility of a Witness PEOPLE vs. ESPERO G.R. No. 117749, December 1, 2000
Facts: Appellant was found guilty of murder. He contends that the lone prosecution eyewitness, Roderick, is biased for the reason that the deceased victim was his uncle and that he had a grudge against the appellant, and thus said witness wanted to exact revenge. He also contends that Roderick gave inconsistent testimonies. Issue: Whether the witness lacks credibility because of his relation to the victim and grudge against the accused Held: The kinship existing between the deceased victim and prosecution witness Roderick Perez as well as the latter's alleged hostile attitude toward the appellant does not militate against the credibility of the said prosecution eyewitness. It has been held that revenge is a normal reaction of one betrayed, harmed or otherwise of one who has lost a loved one, but it does not follow that the desire to avenge such betrayal, harm or loss would include implicating even innocent persons. After a thorough review of the case, We find no cogent reason to overturn the decision of the trial court finding the appellant guilty beyond reasonable doubt for killing Tababan. Prosecution eyewitness Roderick gave a clear and convincing account of the stabbing incident which sufficiently established beyond reasonable doubt the liability of the appellant for the death of the victim. His presence at the scene of the crime was not successfully disputed by the appellant. On the other hand, appellant's uncorroborated defense of alibi is not persuasive and the same pales in the light of the positive identification made by Roderick.

Evidence; Burden of Proof; Justifying Circumstance BALANAY vs. SANDIGANBAYAN

Facts: Balanay, a member of the PNP allegedly shot and killed Antabo, a detention prisoner, in order to stop him from escaping. He was charged with homicide. The prosecution presented only one witness in the person of Dr. Benlot who conducted the post mortem examination. He declared that in his opinion, the trajectory of the bullet was going downwards, and that the assailant, at the time he pulled the trigger, was in front of the deceased. Dagayluan and Eyas, both members of the PNP testified in favor of defendant, claiming that Balanay shot the victim while he was trying to escape. Balanay was found guilty by the Sandiganbayan. Issue: Whether the sole evidence, the testimony of the lone prosecution witness can prove the defendants guilt beyond reasonable doubt. Held: The sole evidence is enough. It is a settled jurisprudence that in criminal cases the prosecution has the onus probandi in establishing the guilt of the accused. However, once the defendant admits the crime charged but raises a justification for its commission, the burden of proof is shifted to him to prove justification in order to relieve himself of any criminal liability or to mitigate its gravity. To prove justification, the defendant must rely on the strength of his own evidence and not on the weakness of the prosecution, for even if it were weak, it could not be disbelieved after the accused had admitted the killing. In the instant case, by invoking the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal Code, petitioner had the burden of proving that: (a) as the offender, he acted in the performance of a duty, and (b) the injury or offense committed was the necessary consequence of the due performance or lawful exercise of

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such duty. Sadly, however, he failed to prove that these requisites were present to justify his killing of Antabo. His evidence is weak considering that the defense witnesses had a motive to testify in his favor for they were his co-employees for almost ten years. They were biased in favor of the petitioner. A witness is said to be biased when his relation to the cause or to the parties is such that he has an incentive to exaggerate or give false color to his statements, or to suppress or to pervert the truth, or to state what is false. Bias is that which excites the disposition to see and report matters as they are wished for rather than as they are. Corroborative evidence in defense of an accused, if tainted with bias, weakened his defense.

Evidence; Credibility of a Witness; Alibi DITCHE vs. COURT OF APPEALS and TAM G.R. No. 110899, March 7, 2000
Facts: At around 6:00 o'clock in the evening, Tam, his wife, son and a farm helper were on their way home. While riding a motorcycle driven by Tam they were ambushed at Bgy. San Roque. Tam continued to negotiate the road amid the gunfire. Ten meters away from the ambush site, Tam looked back and this time he saw 4 men firing and chasing them. He positively identified 2 of the 4 men as petitioner Ditche and the now deceased Espaa. Petitioner's defense is basically alibi. His testimony was corroborated by defense witness Gilbuena, his Barangay Secretary. On cross-examination, witness Gilbuena admitted that petitioner Ditche requested him to testify on his behalf. The trial court convicted petitioner of Frustrated Murder. On appeal, the Court of Appeals modified the trial courts decision, in that the petitioner is only guilty of Attempted Murder. Petitioner filed a Motion for Reconsideration and a Motion for New Trial praying that the case be remanded to the lower court for the reception of the testimonies of new witnesses to the effect that at the time relevant to this case, they were residing within the vicinity of the ambush site and that when the shooting incident took place, it was already dark as it was already, in their estimate, 7:00 o'clock and not 6:00 o'clock in the evening as declared by the prosecution witnesses. The Court of Appeals denied both Motion for Reconsideration and Motion for New Trial. Issue: 1. Whether the Motion for New Trial should be granted on the basis of allegedly newly discovered evidence. 2. Whether the defense of alibi should prosper. Held: 1. It was correctly dismissed. Not only is such allegedly newly discovered evidence necessarily predicated on the alleged incredulousness of the prosecution witness, whose credibility has in fact already been determined by the trial court, but more importantly, it merely attempts to corroborate the earlier defense of the petitioner on the alleged impossibility of positive identification. Hence, the additional evidence sought to be presented by the defense is not really a newly discovered evidence as contemplated by law and therefore will not change the result of the case. The findings of the trial court on the credibility of witnesses deserve great weight, given the clear advantage of a trial judge over an appellate court in the appreciation of testimonial evidence. Considering that the testimonies of the prosecution witnesses were straightforward, consistent and replete with details, aside from the fact that there is nothing in the record which shows that the witnesses were moved by any improper motive, the presumption is that the witnesses were not biased and their testimonies are entitled to full faith and credence. 2. We reject the alibi of petitioner that he was in his house preparing the minutes of the Association of Barangay Council of Asturias. When averring alibi, two essential requirements must be strictly met in order that the same may be of value to the defense, namely, (1) that the accused was not present at the scene of the crime at the time of its commission, and (2) that it was physically impossible for him to be there at the time.

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Hence, for the defense of alibi to prosper, it is not enough to prove that accused was somewhere else when the offense was committed; it must likewise be demonstrated that he was so far away that it was not possible for him to have been physically present at the place of the crime or its immediate vicinity at the time of its commission. Alibi is inherently a weak defense which should be rejected where the accused was positively identified by an eyewitness to the commission of the offense. The Court of Appeals correctly convicted Ditche more particularly for attempted murder inasmuch the injury sustained by the victim was not of such serious nature as would have produced death.

Evidence; Credibility PEOPLE vs. QUIBIDO G.R. No. 136113, August 23, 2000
Facts: Montemayor and his co-accused Quibido, was charged of the crime of robbery with homicide. Berganio, one of the accused, disclosed to the police his knowledge involving the killing of Sofio Verguela when he was arrested. He confessed that he was in the company of herein appellants when the said crime was committed. Berganio agreed to testify for the prosecution upon advice of his father after having been assured of immunity from the instant criminal complaint by the prosecution. True to his undertaking, he narrated during the trial a detailed account of the facts and circumstances before, during and after the commission of the crime, subject of the instant criminal case. After analyzing the evidence, the trial court found as follows: It is clear from the testimony of prosecution witness Berganio that he was certain that Montemayor as one of those who robbed and killed Sofio Verguela. Thus, the defense of alibi clearly appears nothing but a mere fabrication designed to exculpate him of the crime charged. Quibido did not put up a defense; instead, he opted to escape from detention. His escape even during the pendency of the case is therefore a clear indication of his guilt. Issues: 1. Whether the testimony of Berganio, a co-conspirator is credible; 2. Whether the defense of alibi is to appreciated.

Held: It is a well-settled rule that testimonial evidence to be believed must not only proceed from the mouth of a credible witness but must foremost be credible in itself. The test to determine the value or credibility of testimony of a witness is whether or not such is in conformity with common knowledge and consistent with the experience of mankind. The fact that the prosecution witness may have been a co- conspirator in the commission of the offense is not in itself sufficient to dilute the credibility of, much less a ground to disregard altogether, his testimony. The general rule is that the testimony of a co-conspirator is not sufficient for conviction unless supported by other evidence. The reason is that it comes from a polluted source. It must be received with caution because, as is usual with human nature, a culprit, confessing a crime, is likely to put the blame as far as possible on others rather than himself. By way of exception, the testimony of a co-conspirator may, even if uncorroborated, be sufficient as when it is shown to be sincere in itself, because given unhesitatingly and in a straightforward manner, and is full of details which by their nature could not have been the result of deliberate afterthought. 2. The trial court correctly rejected the defense of alibi of the appellant for the reason that he was positively identified by Berganio who does not appear to have any motive against him to fabricate evidence. Also, the distance of the alleged whereabouts of the appellant in relation to the scene of the crime does not preclude any doubt on the physical impossibility of his presence at the locus criminis or its immediate vicinity at the time of its commission. Decision affirmed.

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Evidence; Child Witness PEOPLE vs. LIBRANDO, SURDILLAS and PURISIMA G.R. No. 132251, July 6, 2000
Facts: On their way home, Edwin, his daughter Aileen ,and a relative, Fernando, traversed a hilly portion of a trail, when they met accused-appellants. The three men took turns hitting Edwin with pieces of wood until the latter fell and died. Aileen had no trouble identifying the three accused since her father was carrying a lighted torch at the time he was assaulted. Although the torch fell to the ground when the deceased was hit by the three accused, the torch continued to burn providing adequate illumination for the child to identify her father's assailants. When the three men were asked to participate in a police line up during which Aileen identified the assailants. Librando testified that it was Edwin who started the to swing a piece of wood at him when he chanced upon the latter on his way home with his co-accused. He claims that his co-accused did not have a hand in the killing of the deceased Edwin, and that they merely happened to pass by on their way home at the scene of the crime. Surdillas admitted that Fernando was present at that time but claimed that the child, Aileen, was not around. The trial court did not give credence to the story of the accused-appellants and convicted them of the crime charged on the basis of the testimony of Aileen. Issue: Whether or not the testimony of the child witness should be given credence. Held: Settled is the rule that the factual findings of the trial court will not be disturbed on appeal since it is in a better position to appreciate the conflicting testimonies of the witnesses, having observed their deportment and manner of testifying unless certain facts of substance and value have been overlooked which, if considered, might affect the result of the case. It is well established that any child regardless of age can be a competent witness if he can perceive and perceiving can make known his perception to others and that he is capable of relating truthfully facts for which he is examined. The child's competence as a witness are shown by his: (a) capacity of observation; (b) capacity of recollection; and (c) capacity of communication. As noted by the trial court, Aileen during the trial was not only a picture of innocence and honesty but was possessed with a strong power of observation and recall. When asked to identify the three (3) accused, she pointed to each of the accused, identifying them by their nicknames, with nary a hesitation. Clearly, Aileen's lone testimony is sufficient to sustain a conviction. We see no reason how the non-presentation of Fernando as a witness affects the veracity of the child's testimony in any way. After all, the testimony of a single witness, if positive and credible, is sufficient to sustain a conviction even in the absence of corroboration unless such corroboration is expressly required by law. Truth is established not by the number of witnesses but by the quality of their testimonies.

LEGAL ETHICS
Lawyers Conduct; Direct Contempt BUGARING vs. ESPAOL G.R. No. 133090, January 19, 2001
Facts: Court of Appeals affirmed the decision of the Regional Trial Court of Cavite, declaring petitioner Efren Bugaring guilty in direct contempt of court. Petitioner argued that while it might appear that he was carried by his emotions in espousing the case of his client by persisting to have his documentary evidence marked despite the respondent judge's contrary order he did so in the honest belief

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that he was bound to protect the interest of his client to the best of his ability and with utmost diligence. Issue: 1. Whether the petitioner was in contempt of court. 2. Whether the penalty imposed was correct. Held: 1. The Court cannot help but notice the sarcasm in the petitioner's use of the phrase "your honor please." For, after using said phrase he manifested utter disrespect to the court in his subsequent utterances. Surely this behavior from an officer of the Court cannot and should not be countenanced, if proper decorum is to be observed and maintained during court proceedings. Indeed, the conduct of petitioner in persisting to have his documentary evidence marked to the extent of interrupting the opposing counsel and the court showed disrespect to said counsel and the court, was defiant of the court's system for an orderly proceeding, and obstructed the administration of justice. The power to punish for contempt is inherent in all courts and is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders, and mandates of the court, and consequently, to the due administration of justice. Direct contempt is committed in the presence of or so near a court or judge, as in the case at bar, and can be punished summarily without hearing. Hence, petitioner cannot claim that there was irregularity in the actuation of respondent judge in issuing the contempt order inside her chamber without giving the petitioner the opportunity to defend himself or make an immediate reconsideration. The records show that petitioner was cited in contempt of court during the hearing in the sala of respondent judge, and he even filed a motion for reconsideration of the contempt order on the same day. The Court of Appeals aptly stated:
But "a lawyer should not be carried away in espousing his client's cause" (Buenaseda v. Flavier, 226 SCRA 645, 656). He should not forget that he is an officer of the court, bound to exert every effort and placed under duty, to assist in the speedy and efficient administration of justice pursuant to Canon 12, Canons of Professional Responsibility (Gomez v. Presiding Judge, RTC, Br. 15, Ozamis City, 249 SCRA 432, 439). He should not, therefore, misuse the rules of procedure to defeat the ends of justice per Rule 10.03.

2. Although respondent judge was justified in citing petitioner in direct contempt of court, she erred in imposing a fine in the amount of P3,000.00 which exceeded the ceiling of P2,000.00 under SC Adm. Circ. No. 22-95 which took effect on November 16, 1995. It was not established that the fine was imposed in bad faith. The Court of Appeals thus properly ordered the return of the excess of P1,000.00. Aside from the fine, the three days imprisonment meted out to petitioner was justified and within the 10-day limit prescribed in Section 1, Rule 71 of the Rules of Court, as amended. It is our view and we hold, therefore, that the Court of Appeals did not commit any reversible error in its assailed decision

Judicial Conduct MANIO v. FERNANDO A.M. No. RTJ-00-1589, September 29, 2000
Facts: Jeanet Manio charged Judge Fernando with "giving me a hard time" by freezing "all my accounts (time deposits and Savings Account) at the bank," thus preventing her from withdrawing money needed "to buy a parcel of land." Because of her complaint against respondent Judge, the latter filed a case for perjury against her. To her surprise, a warrant of arrest was served upon her. Thereafter, Manio requested that her complaint against respondent Judge be dismissed. In another letter dated on the same day, she stated that she is withdrawing her complaint since it was out of ignorance and her anger at respondent Judge that she complained against him. The case was referred to a consultant of the Office of the Court Administrator (OCA) to conduct the necessary investigation, report and recommendation. However, no investigation ensued since on the dates the case was set for hearing, complainant did not appear.

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Issue: Whether Judge Fernando may be held liable for misconduct in office. Held: There being no evidence upon which Judge Fernando may be held liable for misconduct in office, the consultant of the OCA recommended the dismissal of the complaint against respondent Judge Fernando. Under the circumstances, we have no other recourse except to approve the well-taken recommendation of the investigator and dismiss the case. There is no evidence against respondent Judge.

Judicial Conduct; Issuance of Order of Release SANTIAGO vs. JUDGE JOVELLANOS A.M. No. MTJ-00-1289, August 1, 2000
Facts: Complainant Jesusa M. Santiago alleges that she is the private complainant in several criminal cases, all entitled: "People of the Philippines vs. Violeta Madera," Upon failure of the accused to appear at the scheduled hearing of the criminal cases, she was arrested on July 2, 1996 pursuant to a bench warrant issued against her and detained at the municipal jail of San Ildefonso, Bulacan. She was released the following day pursuant to the Order of Release dated April 3, 1996 issued by respondent Judge Jovellanos. Complainant Santiago questions the propriety of the said Order of Release on two (2) grounds: first, the authority of Judge Jovellanos to issue the said Order of Release and, second, the date of issuance thereof. Santiago points out that Madera was arrested and detained in San Ildefonso, Bulacan and her cases were pending before the MTC of said municipality but it was respondent judge from the MCTC of Alcala-Bautista, Pangasinan which issued the Order of Release. Also, while Madera was arrested on July 2, 1996, the Order of Release was dated April 3, 1996. An investigation was ensued against Judge Jovellanos and the investigating committee found out that the judge deliberately lied when he said he cancelled the property bond posted by the accused for her failure to register the property within ten (10) days to the proper office. No property bond had reached the Court that issued the warrant of arrest. Judge Jovellanos had taken advantage of his position as Presiding Judge, MCTC, Alcala-Bautista, Pangasinan, knowing fully well that he issued an order for the release of a detained person, even without the approved property bond. Issue: Whether Judge Jovellanos issuance of the Order of Release was proper.

Held: This Court agrees with the factual findings of the investigating judge and the Office of the Court Administrator. In Victorino Cruz v. Judge Reynold Q. Yaneza, Section 35 of BP Blg. 129 and Sections 17 and 19 of Rule 114 are to be construed and applied in conjunction with each other. The abovecited rules do not give the Metropolitan Trial Judge blanket authority to grant applications for bail. There are prerequisites to be complied with. First, the application for bail must be filed in the court where the case is pending. In the absence or unavailability of the judge thereof, the application for bail may be filed with another branch of the same court within the province or city. Second, if the accused is arrested in a province, city or municipality other than where the case is pending, bail may be filed with any regional trial court of the place. If no judge thereof is available, then with any metropolitan trial judge or municipal circuit trial judge therein. It is clear from this Court's disquisition in Yaneza that Judge Jovellanos' reliance on Section 19, Rule 114 of the 1985 Rules of Criminal Procedure is misplaced. Yaneza, in fact, only highlights that Judge Jovellanos, contrary to prescribed procedures, approved the applications for bail of accused whose cases were not only pending in other courts but who were likewise arrested and detained outside his territorial jurisdiction. It also does not appear from the records of these cases that the judges having jurisdiction over the accused were absent or otherwise unavailable to act upon their applications for bail. Worse, Judge Jovellanos ordered the release of Madera without the corresponding bail bond being posted. Judge Jovellanos' invocation of good faith and his plea that he was only moved by humanitarian considerations cannot excuse his conduct. We have often stressed that

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"as an advocate of justice and a visible representation of the law, a judge is expected to keep abreast with and be proficient in the interpretation of our laws. A judge should be acquainted with legal norms and precepts as well as with statutes and procedural rules. Unfamiliarity with the Rules of Court is a sign of incompetence which goes against Canon 3, specifically Rule 3.01, of the Code of Judicial Conduct. Having accepted the exalted position of a judge, Judge Jovellanos owes the public and the court he sits in proficiency in the law. He must have the basic rules at the palm of his hands as he is expected to maintain professional competence at all times.

Disbarment UI vs. ATTY. IRIS BONIFACIO ADM. CASE No. 3319, June 8, 2000
Facts: Complainant Leslie Ui was married to Carlos Ui. They had four children. Sometime in December 1987, however, complainant found out that her husband, Carlos Ui, was carrying on an illicit relationship with respondent Atty. Iris Bonifacio, a graduate of the College of Law of the University of the Philippines was admitted to the Philippine Bar in 1982 with whom he begot a daughter sometime in 1986, and that they had been living together. This illicit relationship was admitted by Carlos to his wife. Consequently, complainant went to respondents office and introduced herself as the legal wife of Carlos. Respondent, on the other hand, told the complainant that her relationship with the complainants husband was over. However, after quite sometime, complainant learned that the illicit relationship continues and that respondent had another child. A complaint for disbarment, was then filed on August 11, 1989 by the complainant against respondent Atty. Iris Bonifacio before the Commission on Bar Discipline of the Integrated Bar of the Philippines on the ground of immorality, more particularly, for carrying on an illicit relationship with the complainant's husband, Carlos Ui. It is respondent's contention that her relationship with Carlos Ui is not illicit because they were married abroad and that after June 1988 when respondent discovered Carlos Ui's true civil status, she cut off all her ties with him. Respondent averred that Carlos Ui never lived with her in Alabang, and that he resided in, San Juan, Metro Manila. It was respondent who lived in Alabang in a house which belonged to her mother, Rosalinda L. Bonifacio; and that the said house was built exclusively from her parents' funds. The Board of Governors of the Integrated Bar of the Philippines dismissed the complaint for lack of merit. Atty. Iris Bonifacio was, however reprimanded. Issue: Whether the alleged illicit relationship with a married man constitutes grossly immoral conduct. Held: We agree with the findings. A lawyer may be disbarred for "grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude". A member of the bar should have moral integrity in addition to professional probity. It is difficult to state with precision and to fix an inflexible standard as to what is "grossly immoral conduct" or to specify the moral delinquency and obliquity which render a lawyer unworthy of continuing as a member of the bar. The rule implies that what appears to be unconventional behavior to the straightlaced may not be the immoral conduct that warrants disbarment. Immoral conduct has been defined as "that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community." In the case at bar, it is the claim of respondent Atty. Bonifacio that when she met Carlos Ui, she knew and believed him to be single. Respondent fell in love with him and they got married and as a result of such marriage, she gave birth to two (2) children. Upon her knowledge of the true civil status of Carlos Ui, she left him. Simple as the facts of the case may sound, the effects of the actuations of respondent are not only far from simple, they will have a rippling effect on how the standard norms of our legal practitioners should be defined. Perhaps morality in our liberal society today is a far cry from what it used to be before. This permissiveness

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notwithstanding, lawyers, as keepers of public faith, are burdened with a higher degree of social responsibility and thus must handle their personal affairs with greater caution. The facts of this case lead us to believe that perhaps respondent would not have found herself in such a compromising situation had she exercised prudence and been more vigilant in finding out more about Carlos Ui's personal background prior to her intimate involvement with him. Surely, circumstances existed which should have at least aroused respondent's suspicion that something was amiss in her relationship with Carlos Ui, and moved her to ask probing questions. All these taken together leads to the inescapable conclusion that respondent was imprudent in managing her personal affairs. However, the fact remains that her relationship with Carlos Ui, clothed as it was with what respondent believed was a valid marriage, cannot be considered immoral. For immorality connotes conduct that shows indifference to the moral norms of society and the opinion of good and respectable members of the community. Moreover, for such conduct to warrant disciplinary action, the same must be "grossly immoral," that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. We have held that "a member of the Bar and officer of the court is not only required to refrain from adulterous relationships . . . but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards." Respondent's act of immediately distancing herself from Carlos Ui upon discovering his true civil status belies just that alleged moral indifference and proves that she had no intention of flaunting the law and the high moral standard of the legal profession.

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