Evidence Finals - Full Text Cases

7/16/2019 Evidence Finals - Full Text Cases

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LIST OF CASES IN EVIDENCE

(Presentation of Evidence, Authentication,

Offer and Objection, Weight and Sufficiency)

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1. People v. Estenzo 72 SCRA 428 (1976)

2. People v. Molo 88 SCRA (11 January

1979)

3 Ysmael v. Hashim 48 Phil. (18 March 1927)

4. Dela Paz v. IAC 154 SCRA 65 (1987)

5. Villalon v. IAC 144 SCRA 443 (1986)

6. People v. Resabal 50 Phil. 780 (1927)

7. Pp vs. Babiera G.R. No.28871, 19September 1928

8. Pp vs. Julian Sumicad G.R. No.L-35524, 18March 1932

9 People v. Odencio 88 SCRA (9 January

1979)

10. People v. Del Castillo 25 SCRA 716 (1968)

11. People v. Rivera 200 SCRA 786 (1991)

12. People v. Sandal 54 Phil. 883 (1930)

13. Bartolome v. IAC 183 SCRA 102 (1990)

14. Pacific Asia v. NLRC 161 SCRA 122 (1988)

15. Zalamea v. Court of Appeals 228 SCRA 23 (1993)

16. Philippine Realty v. Firematic 522 SCRA 493 (27 April 2007)

17. Aznar v. Citibank 519 SCRA 287 (28March 2007)

18. Heirs of Arcilla vs. Teodoro G.R. No.162886, 11 August 2008

19. Heirs of Medina vs. Natividad G.R. No.177505, 27 November2008

20. Heirs of Lacsa v. CA 197 SCRA 234 (1991)

21. Vda. de Oñate v. CA 250 SCRA 283 (1995)

22. Hrs. of Santioque v. Calma 505 SCRA 665 (2006)

23. Sps. Tan vs. Republic G.R. No.177797, 4December 2008

24. People v. Libnao 395 SCRA 407 (30January 2003)

25. Pp vs. Romil Marcos 21 August 1999

26. Catuira vs. CA G.R. No. 105813, 12September 1994

27 Macasiray, et al. vs. Pp G.R. No.94736, 26 June1998

28. Doronio, et al. vs. Doronio G.R. No.169454, 27 December2007

29. Lopez vs. Valdez G.R. No.L-9113, 24 D

ecember 1915

30. Victorias Milling vs. Ong Su

31. People v. Lorenzo 240 SCRA 624 (1995)

32. Abarquez v. People 479 SCRA (20 January2006)

33. Heirs of Reyes v. CA 519 SCRA 250 (28 March 2007)

G.R. No. L-41166 August 25, 1976

PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIOCERBO, petitioners,vs.

HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo,and GREGORIO OJOY respondents.

ANTONIO, J.:p

Certiorari and prohibition with prayer for preliminary injunction to nullifythe Order of respondent Judge, dated July 30, 1975, sustaining the procedureproposed by defense counsel that, in lieu of the testimony of the witnessesfor the accused on direct examination in open court, he was filing theiraffidavits, subject to cross-examination by the prosecution. Per Resolutiondated August 22, 1975, this Court issued a temporary restraining orderenjoining the respondent Judge from enforcing the questioned Order.

In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus

Gregorio Ojoy, accused" , of the Court of First Instance of Iloilo, Branch III,after the accused himself had testified in his defense, his counsel manifestedthat for his subsequent witnesses he was filing only their affidavits subject tocross-examination by the prosecution on matters stated in the affidavits andon all other matters pertinent and material to the case. Private prosecutorAtty. Amelia K. del Rosario, one of the petitioners here, objected to theproposed procedure but this notwithstanding, respondent Judge gave hisconformity thereto and subsequently issued the questioned Order.Contending that respondent Judge gravely abused his discretion because theaforesaid Orders violates Sections 1 and 2 of Rule 132 of the Revised Rules of Court, which requires that the testimony of the witness should be givenorally in open court, and there is no appeal nor any plain, speedy andadequate remedy in the ordinary course of law, petitioners instituted thepresent petition.

We grant the petition.

Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court clearly require that the testimony of a witness shall be given orally inopen court. The afore-cited Sections 1 and 2 provide:

SECTION 1. Testimony to be given in open court . — Thetestimony of witnesses shall be given orally in opencourt and under oath or affirmation.

SEC. 2. Testimony in superior courts to be reduced towriting.- In superior courts the testimony of eachwitness shall be taken in shorthand or stenotype, thename, residence, and occupation of the witness beingstated, and all questions put to the witness and hisanswers thereto being included. If a question put isobjected to and the objection is ruled on, the nature of the objection and the ground on which it was sustainedor overruled must be stated, or if a witness declines to

answer a question put, the fact and the proceedingstaken thereon shall be entered in the record. Atranscript of the record made by the officialstenographer or stenotypist and certified as correct byhim shall be prima facie a correct statement of suchtestimony and proceedings.

Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions,respectively, of Sections 77 and 78 of Rule 123, of the Old Rules of Court.Section 77 in turn was taken from Section 381 of Act No. 190, 1 while Section78 from Section 32 of General Order No. 58. 2

The main and essential purpose of requiring a witness to appear and testifyorally at a trial is to secure for the adverse party the opportunity of cross-examination. "The opponent", according to an eminent authority, 3demandsconfrontation, not for the Idle purpose of gazing upon the witness, or of beinggazed upon by him, but for the purpose of cross-examination which cannot

be had except by the direct and personal putting of questions and obtainingimmediate answers." There is also the advantage to be obtained by thepersonal appearance of the witness before the judge, and it is this it enablesthe judge as the trier of facts "to obtain the elusive and incommunicableevidence of a witness deportment while testifying, and a certain subjectivemoral effect is produced upon the witness. 4 It is only when the witnesstestifies orally that the judge may have a true idea of his countenance,manner and expression, which may confirm or detract from the weight of histestimony. 5 Certainly, the physical condition of the witness will reveal hiscapacity for accurate observation and memory, and his deportment andphysiognomy will reveal clues to his character. These can only be observedby the judge if the witness testifies orally in court. Indeed, the great weight given the findings of fact of the trial judge in the appellate court is basedupon his having had just that opportunity and the assumption that he tookadvantage of it to ascertain the credibility of the witnesses. This has beenexplained by Chief Justice Appleton, thus:

The witness present, the promptless andunpremeditatedness of his answers or the reverse, theirdistinctness and particularity or the want of theseessentials, their incorrectness in generals or particulars,their directness or evasiveness are soon detected. ... Theappearance and manner, the voice, the gestures, thereadiness and promptness of the answers, the evasions,the reluctance the silence, the contumacious silence, thecontradictions, the explanations, the intelligence or thewant of intelligence of the witness, the passions whichmore or less control-fear, love, have, envy, or revengeare all open to observation, noted and weighed byjury. 6



2

Thus, Section 1 of Rule 133 of the Rule 7 requires that in determining thesuperior weight of evidence on the issues involved, the court, aside from theother factors therein enumerated, may consider the "witness manner of testifying" which can only be done if the witness gives his testimony orally inopen court". If a trial judge prepares his opinion immediately after theconclusion of the trial, with the evidence and his impressions of thewitnesses fresh in his mind, it is obvious that he is much more likely to reacha correct result than if he simply reviews the evidence from a typewrittentranscript, without having had the opportunity to see, hear and observe theactions and utterances of the witnesses.

There is an additional advantage to be obtained in requiring that the direct testimony of the witness be given orally ill court. Rules governing the

examination of witnesses are intended to protect the rights of litigants and tosecure orderly dispatch of the business of the courts. Under the rules, onlyquestions directed to the eliciting of testimony which, under the generalrules of evidence, is relevant to, and competent to prove, the issue of the case,may be propounded to the witness. A witness in testify only on those factswhich he knows of his own knowledge. Thus, on direct examination, leadingquestions are not allowed, except or, preliminary matters, or when there isdifficult in getting direct and intelligible answer from the witness who isignorant, a child of tender years, or feebleminded, or a deaf mute. 8 It isobvious that such purpose may be subverted, and the orderly dispatch of thebusiness of the courts thwarted if trial judges are allowed, as in the case at bar, to adopt any procedure in the presentation of evidence other than what is specifically authorized by the Rules of Court.

WHEREFORE, in view of the foregoing, the petition for certiorari is herebygranted and the order of respondent Judge, dated July 30, 1975, in CriminalCase No. 2891 is hereby set aside, and the temporary restraining order

issued on August 22, 1975 is hereby made permanent, without anypronouncement as to costs.

Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.

EN BANC

G.R. No. L-44680 January 11, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.DOMINADOR MOLO, defendant-appellant.

PER CURIAM:

Automatic review of the death sentence with accessory penalties imposed onSeptember 3, 1976 upon accused-appellant Dominador Molo by Hon. Job B.Mandayag of the Court of First Instance of Romblon, 11th Judicial District, inCriminal Case No. 571 for the murder of Venancio Gapisa on 9 April 1976 at Sitio Dacotan, Barrio Tambac, Romblon, Romblon.

The above-named accused was charged with murder in an Information filedby Asst. Provincial Fiscal Cesar M. Solis, on May 31,1976, as follows:

The undersigned Assistant Provincial Fiscal of Romblonaccuses DOMINADOR MOLO of the crime of MURDERcommitted as follows:

That on or about the 9th day of April 1976, at around8:00 o'clock in the evening, at sitio Dacotan, barrio of Tambac municipality of Romblon, province of Romblon,Philippines and within the jurisdiction of this HonorableCourt, the above-named accused with treachery andtaking advantage of superior strength, did then and

there wilfully, unlawfully and feloniously attack andassault one Venancio Gapisa, with the use of a bolo as aconsequence of which he sustained mortal injuries that resulted in his death thereafter.

That the killing was attended with the followingaggravating circumstances:

(A) Dwelling, for the crime was committed in the houseof the offended party who has not given anyprovocation at all.

(B) Recidivism in view of the fact that the accused hasbeen charged for (1) Frustrated Murder before theCourt of First instance of Mindoro in Criminal Case V-542 entitled People va. Dominador Molo and convictedthereof on September 2, 1950; and (2) Murder, before

the Court of First Instance of Romblon in Criminal CaseNo. 862 entitled People vs. Dominador Molo andconvicted thereof on July 27, 1961.

(C) Reiteration, since he has been charged andconvicted before different courts in the followingcriminal cases:

(1) Grave Slander, before the Court of First Instance of Romblon in Criminal Case No. V-669 and convicted onJune 5, 1957.

(2) Less Serious Physical Injuries, before the MunicipalCourt of Romblon, Romblon in Criminal Case No. 839and convicted on October 9, 1959.

(3) Qualified Trespass to Dwelling, before the MunicipalCourt of Romblon, Romblon in Criminal Case No. 845and convicted on February 25, 1960.

(4) Robbery, before the Court of First Instance of Davaoin Criminal Case No. 9982 and convicted on March 1,1967.

That as a consequence of the aforementioned act committed by the accused. the heirs of the deceased areentitled to recover civil damages pursuant to theprovisions of law.

CONTRARY TO LAW.

Romblon, Romblon, May 31,1976.

(SGD.) CESAR M. SOLISAssistant Provincial Fiscal

At the trial, the prosecution presented the testimonies of — (1) the victim'swife, Simeona Gapisa, an eye-witness to the alleged murder; (2) AlejandroGapisa, a son of the victim who went to the rescue of his father after he wasstabbed by accuse-appellant and was able to talk with him before hesuccumbed to several bolo wounds; (3) Roman man a neighbor of Alejandro;and (4) Dr. Victorio Benedicto, who performed the autopsy and accomplishedthe Autopsy Report, Exhibits "A" and "A.1 The accused, who offered alibi as adefense, presented his testimony and that of his wife. Barbara Mingo, andPolice Patrolman Rodolfo Manunggay and Exhibits 1, a bolo and 1-a,scabbard.

The operative facts of the case and the circumstances surrounding theapprehension and investigation of the accused now appellant established bythe evidence on record are as follow.

In the evening of April 9, 1976 at about 8:00 p.m. at Sitio Dacotan, BarrioTambac, Municipality of Romblon, Venancio Gapisa and Simeona Rapa-Gapisa, husband and wife, retired to sleep. The couple lived in a typical hut made of bamboo flooring and dilapidated burl walling surrounded by fruit.bearing banana plants. Venancio Gapisa immediately fell asleep because hewas tired from clearing the fields, and besides, had drunk tuba on that day.He slept near the door lying on his right side. 1

Not long after the couple had retired, Simeona, who had not yet fallen asleep,heard an indistinct sound of murmur and gnashing of teeth. Although shewas seized by fear, she managed to peep through the dilapidated buri walland saw accused Dominador Molo attired only in short pants. He was alone.Trembling, she immediately lighted a kerosene lamp and placed it on top of the trunk nearby. She tried to awaken her husband, but the latter did not respond. 2

Meanwhile, the accused had already climbed up the house which was only aflight of two steps. The accused forcibly pushed the sliding door and bargedinto the house. He inquired from Simeona where Venancio was and shereplied that he was asleep. Finding Venancio sleeping near the door, heimmediately grabbed his left wrist and started hacking at the sleeping oldman. Rudely awakened, Venancio quickly stood up and with his right handreached for his bolo which was atop the table nearby; but he was not able toretaliate in as much as Dominador Molo was quick to hack at him again.Fearing for her own life, Simeona rushed out of the house through the door of the unfinished kitchen to summon help from her son, Alejandro Gapisa, whowas at Roman Mangaring's house some 100 meters away. Trembling, shetold him that his father was boloed by Boslo, the name by which accused-appellant was known in their locality. 3

Upon being informed, Alejandro and Roman ran towards the house of Venancio, followed by Simeona. Upon arrival, they saw Venancio bleedingprofusely and in weakened condition. He was sitting on the floor of thekitchen, defecating in his pants. When Alejandro took him in his arms,Venancio told him that he was boloed by Boslo. Roman Mangaring who waspresent also inquired from Venancio who his assailant was and elicited theanswer, "Boslo". 4 Venancio was then rushed to the hospital and arrivedthere at about 1:50 a.m. He expired a few minutes after. 5

An autopsy of the victim disclosed that he died of hemorrhage from multipleincised wounds. The wounds sustained were:

1. Incised wound, 10 cms. in length, gaping about 4 cms.,slanting in position with the lower portion locatedanteriorly, penetrating the bone, at the anterolateralaspect of the distal 3rd of the left arm.

2. Incised wound, about 10 cms. in length, gaping,

slanting in position, with the lower and locatedanteriorly, penetrating the bone, located 3 cms. belowthe wound mentioned above.

3. Incised wound, about 10 cms. in length, gapingslightly at the anterolateral aspect of the neck, left side,slanting, with the lower and located anteriorlypenetrating the muscle layer.

4. Incised wound, about 10 cms. gaping, slightly slantingwith the lower end located anteriorly, located 3 cms.below the 3rd wound, fracturing the clavicle, the costo-chondral portion of the 2nd rib and the lateral portionof the sternum, left side.



3

5. Incised wound, 8 cms. in length, gaping about 4 cms.,slanting with the lower end located anteriorly,penetrating the bone, located at the lower end of thedistal 3rd of the right arm, anterolateral portion.

6. Incised wound, 5 cms. in length, gaping slightly,slanting with the lower end located anteriorly,penetrating the bone, at the; upper 3rd of the right forearm, anterolateral aspect.

7. Incised wound, 4 cms., superficial, at the anteriorportion of the neck,

8. Incised wound 4 cms., superficial, right medial aspect,

upper 3rd, right forearm.

Internal Findings:

Wound No. 4 penetrated the apex of the left lunginflicting a small wound, about 2-3 cms. causingminimal bleeding.

The Cause of Death: Hemorrhage from multiple incised wounds. 6

The following morning an investigation of the fatal incident was conducted.Pat. Manuel Marino in the presence of Patrolmen Montojo and AntonioMadali took the statement of Simeona Gapisa, who Identified DominadorMolo as the assailant of her deceased husband. 7 Thereafter, PC soldiers andpolicemen were dispatched to the house of Dominador Molo some one and ahalf (1-1/2) kilometers away from the scene of the killing. Dominador Molowas placed under arrest and brought by the arresting officers to thepoblacion. Investigated at the PC barracks, Molo denied having committedany wrong and having gone to the place of Venancio Gapisa. 8

On April 23, 1976, after additional statements of Alejandro Gapisa, RomanMangaring and Florencio Guarte were secured, a criminal complaint wasfiled in the Municipal Court of Romblon. 9 The preliminary examination wasconducted by Mayor Peter M. Montojo, for and in the absence of themunicipal judge. Thereafter, he issued an order confirming the detention of accused who was then detained in the Municipal jail of Romblon, there being"... reasonable ground to believe that the offense was committed and that theaccused is probably guilty thereof. 10The accused waived the second stage of the preliminary investigation. 11 On May 31, 1976, an information, asadverted to above, was filed against Molo accusing him of the crime of murder. 12

After trial, the court a quo — relying on the testimony of Simeona Gapisa whowas an eye- and ear-witness to the incident and the corroboratingtestimonies of Alejandro Gapisa and Roman Mangaring, who testified on theantemortem statements of the victim Identifying accused as the assailant;discounting the defense of alibi put forth by the accused and his wife;appreciating the qualifying circumstance of treachery and the aggravatingcircumstances of dwelling, recidivism and reiteration alleged in theInformation, and a mitigating circumstance, voluntary surrender, sentencedthe accused on September 3, 1976, as follows:

WHEREFORE, this Court renders judgment findingaccused Dominador Molo guilty beyond reasonabledoubt of the crime of murder, charged in theinformation and, since after off-setting the lonemitigating circumstance of voluntary surrender withthe aggravating circumstance of either dwelling,recidivism or reiteration there remains two aggravatingcircumstances, sentencing him to suffer the supremePenalty of death. He is further adjudged to pay the heirs

of the deceased Venancio Gapisa, the sum of TwelveThousand Pesos (P 12,000), and to pay the cost.

SO ORDERED. 13

Accused-appellant thru Atty. Pedro Q. Quadra, counsel de oficio now seeksacquittal on the basis of two assigned erors, to wit -

1. Appellant was convicted upon proof not beyondreasonable doubt;

2. Identification of the appellant was not proven beyondreasonable doubt. 14

1. In support of the first, he argues that while proof of motive is unnecessaryif the evidence of Identification is convincing — citing People vs. Cunanan, 19SCRA 769; People vs. Portugueza, 20 SCRA 901; People vs. Jamero, 24 SCRA206; and People vs. Guardo, 24 SCRA 851 — there is, he claims, a total want

of motive on appellant's part, as admitted by the victim's wife, SimeonaGapisa, and son, Alejandro Gapisa. 15

2. In support of the second assigned error, appellant contents that hisIdentity as the assailant was not established beyond reasonable doubt,because of — (a) alleged inconsistencies and incredible assertions inSimeona's testimony; (b) physical conditions which rendered it impossiblefor her to recognized accused-appellant; (c) her alleged admission that shepointed to accuse-appellant as the assailant because he was a hated criminalin their locality; and (d) that the so-called dying declarations should not havebeen accorded credence, because the victim could not have Identified hisassailant. 16

Solicitor General Estelito P. Mendoza - who was assisted by Assistant Solicitor General Reynato Puno and Solicitors Romeo S. dela Cruz - after

refuting the foregoing assignment of errors submits the followingconclusions as to the nature of the offense committed, the qualifying andaggravating circumstances that attended the commission thereof, and, that the accused is not entitled to the mitigating circumstance of voluntarysurrender, thus —

xxx xxx xxx

Since the attack was commenced while Venancio Gapisawas asleep and therefore he could not make a defense,the killing was attended with treachery. Treacheryqualifies the killing into murder. (Article 248, RevisedPenal Code).

Dwelling is an aggravating circumstance because thekilling was done in the house of Venancio Gapisa whohad not given provocation. (Art. 14 (3), Revised PenalCode).

Other aggravating circumstances are recidivism andreiteration. (Article 14, paragraphs 9 and 19, RevisedPenal Code). Accused-appellant had been previouslyconvicted of murder, frustrated murder, grave slander,less serious physical injuries, qualified trespass todwelling and robbery. (pp. 10-12, tsn., July 12, 1976).

Accused-appellant is not entitled to the mitigatingcircumstance of voluntary surrender. He did not surrender to the authorities. As admitted by him, hewas arrested by a combined force of policemen andPhilippine Constabulary agents at his residence the day

after the killing. (p, 6, tsn., July 29,1976).

Since there are three aggravating circumstances and nomitigating circumstance, the penalty properlyimposable upon accused-appellant is death. 17

and recommends that the finding of guilt for the offense of murder and thedeath sentence imposed upon appellant be affirmed in toto. 18

Now, to consider the merits of the alleged errors.

1. Re the claim that there is no proof of motive on appellant's part. This errormay be subsumed under and/or discussed together with the second, since it admits that motive need not be shown where there is positive Identification,which, as We shall explain later, happened in this case. However, by way of traverse, We find the following observations of the Solicitor General well-taken, and therefore well worth adopting.

xxx xxx xxx

Appellee concedes that it has failed to show any motiveof accused- appellant in killing Venancio Gapisa.

Both Simeona Gapisa and Alejandro Gapisa venturedrobbery as the motive of accused-appellant (pp. 34, 44,tsn., July 12, 1976). They could not, however, state howmuch money was taken, from whom it was taken andhow it was taken (pp. 34-38, 44-45, tsn., July 12,1976).

Lest it be thought that Simeona Gapisa and AlejandroGapisa gave false testimony, thus rendering themselvesuntrustworthy witnesses, it should be pointed out that when they mentioned robbery as the possible motive of accused-appellant, Alejandro Gapisa made it clear that was only his "surmise" (p. 34, tsn., July 12, 1976) while

Simeona Gapisa qualified her assertion with the word"maybe" (p. 44, tsn., July 12, 1976). They were not committal or categorical about the matter.

Aside from robbery, there was no other possible motiveof accused-appellant. Both Simeona Gapisa andAlejandro Gapisa admitted that accused-appellant hadno grudge against Venancio Gapisa and his family andvice-versa (pp. 33-34, 53-54, tsn., July 12, 1976).

But even in the absence of proof of motive, theconviction of accused- appellant can stand inasmuch ashe had been positively Identified by Simeona Gapisaand by the deceased himself through his dyingdeclaration. Motive need not be shown when there ispositive Identification. (People vs. Feliciano, 58 SCRA383; People vs. Dorico, 54 SCRA 172). 19

xxx xxx xxx

2. Re the contention that his Identity as assailant was not established beyond reasonable doubt.

(a) That there are inconsistencies and incredible assertions in Simeona'stestimony .Simeona Gapisa — who was present when accused-appellant attacked her husband Venancio with a bolo — testified on direct and re-direct examinations by Assistant Provincial Fiscal Cesar M. Solis and on crossand recross examinations by Atty. Alexander Mortel, counsel de oficio of accused, thus —

xxx xxx xxx

Fiscal Solis:



4

Q — By the way, when you first heard the unusual sound since youwere still awake, what did you do?

A — I lighted a lamp, I first lookedat him by peeping thru the wall of our house and once I hadrecognized his face as that of Dominador Molo I lighted a lamp.

Q — Was it only the face of Dominador Molo that yourecognized outside?

A — Yes, and he was alone.

Q — What about his body, did yourecognize that body belong toDominador Molo?

A — I could see and that was thevery body of his including his facebecause it was bright.

Q — What provides the brightnessthat allowed you to recognize himoutside the house?

A — The moon was bright.

Q — Now, aside from the unusualmurmuring sound, did you hear

the sound of grinding teeth?

A — In fact that was what he haddone he was murmuring and at thesame time sounding like grindingteeth.

Q — Now, after you lighted a lampwhat else did you do inside?

A — I stood up and stepped backbecause he had come up into thehouse.

Q — Did you not wake up yourhusband?

A — I had but he did not notice.

Q — Now, what did you do withthe lamp after you lighted it?

A — I placed it on top of our trunkwhich was towards our head.

Q — Now, how did you know that Dominador had gone up thehouse?

A — Because I saw him going upinto our house.

Q — When he went up the house,what did he do?

A — Once up the house he held myhusband by the arm and suddenlypulled out his bolo from his backand hacked him. 20

xxx xxx xxx

Q — How long have you knownhim?

A — Since he was a boy and untilhe grew up.

Q — By the way, by what affiliation(sic, should be appelation orname) is he known in yourlocality?

A — Boslo.

Q — If that Dominador Molo theaccused in this case known asBoslo is present in the court room,will you be able to point him out inthe court?

A — He is here he is the onesitting.

Q — Could you not be mistaken?

A — That is true, it was his veryappearance who is looking up inthe ceiling. 21

xxx xxx xxx

Atty. Mortel:

Q — Nevertheless, because themoon was a quarter moon onlythat night April 9 the illuminationany object that could be seen isquite pale not so bright as if therewas an alladin lamp, correct?

A — Yes.

Q — And as a matter of fact when

this person whom you said wasmaking murmuring sounds whenyou peeped through your windowhe was being illuminated by thebeam of the light of the moon andhis face seems to be a yellowishand as clear as if there is an alladinlamp, correct?

A — But I know that he was thevery one I recognized his face and he is far from the banana plantation and the Moon lights very well on him.

Q — When the moon lighted verywell on him his color was

yellowish was it not?A — It was indeed his appearancethat I saw and that is exactly howhe looked.

Q — And When you looked at himthe first time that night he lookedlie Dominador Molo?

A — It was his very ownappearance, his appearance neverchanged.

Q — And when you saw him youlighted a lamp, is that right?

A — I lighted a lamp because he

was already there and I was afraidof what he had done to us.

Q — You mean from the very first time that you saw him he wasmaking murmuring sounds youwere already afraid that he woulddo something bad against you andyour husband?

A — Yes, I was already afraid andmy skin seemed to shiver. 22

xxx xxx xxx

Q — And so when your husbandwas or rather when your housethat night of April 19 was entered

into by a person makingmurmuring sounds outside andboloed to death your husbandthere was no other conclusion that you made but that it must be Boslothe killer?

A — Yes, in fact he was the very oneit was his very looks. 23

Fiscal Solis:

Q — And who pushed open that door of yours, was it DominadorMolo or a witch?

A — He was Dominador Molo, it was his very looks of the same

person who pushed the shutter of the door.

Q — What made you sure that thelooks of that person was the onewho pushed open the door andwent inside and hacked yourhusband?

A — He was the one it was his verylooks and I saw that it is his looks.

xxx xxx xxx



5

Q — Now, what is this basis forpositively telling us that isDominador Molo who killed yourhusband was it because of rumorcirculating in the locality of Cogonand that the assailant as to beDominador Molo because he haskilled or because you saw thenDominador Molo committing theact against your husband?

A — Not only what was given tome by way of information from

other people but because of what Iactually saw with my eyes. 24

xxx xxx xxx

Atty. Mortel:

Q — Now, according to you whenthe door was pushed open theperson entered and he has thelooks of that fellow whom you arepointing to as Dominador Molo, isthat correct?

A — He is the very one.

Q — And not only that person whoentered the looks of that

Dominador Molo the accused inthis case but he also has the height that looks like the height of Dominador Molo, is that correct?

A — Yes and he had his shirt off and shorts on.

Q — And he has that looks andbuilt of Dominador Molo, is that correct?

A — Yes, that is his very appearance and could not bealtered anymore. 25

xxx xxx xxx

Appellant contents that inconsistencies exist between Simeona's statement given to the police and her foregoing testimony in court, relative to — 1) theprecise moment when Simeona recognized the accused, 26 and 2) whetherthere was a conversation between Simeona and the accused. 27

The records show, however, that the alleged statement given to the policewas neither offered as evidence nor shown to witness in order to enable herto explain the discrepancies if any in accordance to Section 16, Rule 132 of the Rules of Court. The proper bast was, therefore, not laid to impeachSimeona's testimony on the basis of alleged inconsistent statements whichshe allegedly made before the police. 28

At any rate, We find the alleged inconsistencies inconsequential.Inconsistencies on minor details or on matters that are not of materialconsequence as to affect the guilt or the innocence of the accused do not detract from the credibility of the witnesses. 29 The discordance in theirtestimonies on collateral matters heightens their credibility and shows that

their testimonies were not coached or rehearsed.30

Far from being evidenceof falsehood, they could justifiably be regarded as a demonstration of goodfaith. 31

It is also contended that the testimony of Simeona contains inconsistent averments. According to accused-appellant Simeona claimed that she wasable to Identify him because of the lamp which was then lighted but that shealso declared that the light was put out when the door was opened becauseof the sudden gust of wind. 32 To support this contention, he quotedSimeona's testimony:

Q — And when the door waspushed open there was a suddengust of wind that entered thehouse, correct?

A — There was a consequence of the sudden entry.

Q — And with that sudden entryand gust of wind carried by thisfellow the light was snuffed out,correct?

A — Yes. (P. 51, tsn., July 12,1976).

A review of the transcript of the testimony shows that the foregoing is aninaccurate representation of Simeona's testimony. For she clarified that herhusband was already boloed before the light was snuffed out. Thus, shetestified on cross-examination:

Atty. Mortel:

Q — And with that sudden entryand gust of wind carried by that fellow the light was snuffed out,correct?

A — Yes.

Q — And in the darkness insidethis fellow who entered the housebegan stabbing and boloing yourhusband, correct?

A — My husband was already boloed when the light was put out

because upon entrance he instantly took hold of my husband's arm and started hacking him all over. 33

xxx xxx xxx

On re-direct examination, she declared —

Fiscal Solis:

Q — Now, you admitted on crossexamination that the lamp was put out now how were you able toknow that your husband hadattempted to hold his bolo with hisright hand and while in that position he was hacked twice by abolo by the accused DominadorMolo?

A — That stage occurred when thelight was still on so it was still bright. 34

Appellant also alleges that her testimony contains incredible assertions, i.e.that it was very unusual that she remained silent while witnessing the attackon her husband. 35

But the transcripts show that appellant's own counsel below, Atty. AlexanderMortel, during the cross-examination, provided the answer to this misgiving :

xxx xxx xxx

Q — When the door was pushedopen did you not shout?

A — No, because I was afraid.

Q — Afraid of what?

A — I was afraid because I did not shout for fear that he might bolome.

Q — You were tongue-tied?

A — Yes.

Q — Because of fear?

A — Yes.

Q — Terrible fear?

A — Yes, it was terrible fear

because my body trembled . Q — To such extent that you wereshocked?

A — Yes. 36

Appellant also argues that Simeona's account is contrary to physical facts. Heclaims that if, as she testified, the victim was lying down when attacked, hewould sustain stab, not incised wounds. He explains that the naturaltendency of a person attacking another who is lying down with a bolo wouldbe to thrust the bolo towards the body and not hack him. 37 This claim iswithout merit. The Solicitor General's explanation on this point is well-taken.To simply thrust a bolo at a lying person is not as forceful as to hack him withit. The first is an awkward if not difficult movement, but the second is naturaland can be done with facility. 38

(b) That conditions rendered it impossible for Simeona to recognize accused-

appellant . It is contended that Simeona could not have recognized accused-appellant while he was at the foot of the stairs because the banana plantsobstructed the light cast by the moon. 39

This, again, is without merit. Simeona testified that the banana plants did not obstruct the light cast by the moon and the defense did not disprove this fact:

xxx xxx xxx

Atty. Mortel:

Q — And because of the bananaplantation that is covering youryard this quarter moon, the



6

illumination thereof is obstructinga little by this banana plantation?

A — But the bananas are not directly obstructing the door of our house because they are standingtowards the footpath the part of our house was not obstructed of thelight cast by the moon .

Q — Except by the footpath andthe surrounding premises of theeast side of the house is shadedbecause the banana plantation arethere to obstruct the illuminationof the moon, correct?

A — No, the light coming from themoon could not be obstructed anymore by that plantationbecause the main door of our houseis fronting a yard.

Q — Nevertheless, because themoon was a quarter moon onlythat night April 9 the illuminationto any object that could be seen isquite pale not so bright as if therewas an alladin lamp, correct ?

A — Yes.

Q — And as a matter of fact whenthis person whom you said wasmaking murmuring sounds whenyou peeped through your windowhe was being illuminated by thebeam of the light of the moon andhis face seems to be a yellowishand as clear as if there is an alladinlamp, correct?

A — But I know that he was thevery one I recognized his face and he is far from the banana plantation and the moon lights very well on him.

Q — When the moon lighted verywell on him his color wasyellowish was it not?

A — It was indeed his appearancethat I saw and that is exactly howhe looked.

Q — And when you looked at himthe first time that night he lookedlike Dominador Molo?

A — It was his very ownappearance his appearance neverchanged. 40

Indeed, Simeona had no difficulty in recognizing the accused, consideringthat their house was only elevated by two steps and at the time she saw him

through the dilapidated burl wall he was already at the foot of the stairs. 41

(c) That Simeona pointed to the accused as the killer because he was a hated criminal in the locality . 42 Appellant contends that Simeona pointed to him asthe assailant because he was a hated criminal in the locality - not because hewas properly Identified as the one who attacked the victim. This claim has nobasis in the records. For the testimony of Simeona shows that she was certainof accused-appellant's Identity as assailant and that at one point accused-appellant even inquired from her where her husband was, thus —

xxx xxx xxx

Fiscal Solis:

Q — And who pushed open that door of yours, was it DominadorMolo or a witch?

A — He was Dominador Molo, it was his very looks of the sameperson who pushed the shutter of the door.

Q — What made you sure that thelooks of that person was the onewho pushed open the door andwent inside and hacked yourhusband?

A — He was the one it was his verylooks and I saw that it is his looks.

xxx xxx xxx

Q — Now, what is this basis for positively telling us that it isDominador Molo who killed your husband was it because of rumor circulating in the locality of Cogonand that the assailant as to beDominador Molo because he haskilled or because you saw thenDominador Molo committing theact against your husband?

A — Not only what was given to meby way of information from other

people but because of what I actually saw with my eyes.

xxx xxx xxx

Atty. Mortel:

Q — Now, according to you whenthe door was pushed open theperson entered and he has thelooks of that fellow whom you arepointing to as Dominador Molo, isthat correct.

A — He is the very one.

Q — And not only that person whoentered has the looks of

Dominador Molo the accused inthis case but he also has the height that looks like the height of Dominador Molo, is that correct?

A — Yes and he had his shirt off and shorts on.

Q — And he has that looks andbuilt of Dominador Molo, is that correct?

A — Yes, that is his very appearance and could not bealtered anymore.

xxx xxx xxx

Court: In your entire testimonyyou did not mention of anyconversation of Dominador Moloas soon as he went up the house,did you not talk to him, did you not converse with him?

A — No, because he suddenlyrushed our house.

Q — And did he not ask you whereis your husband and answered there he is?

A — That was it he was also askingas he entered.

Q — So it is clear that you had a

conversation with him?

A — Yes.

Q — And that is what you stated inthe police?

A — Yes, sir. 43

(d) Re the dying declarations. Appellant claims that the same should not beaccorded credence because the victim could not have recognized hisassailant, since as testified by Simeona he was asleep when attacked. 44 Againthis is inaccurate. It was only at the initial stage of the attack when the victimwas asleep, because he was awakened by the first blows and stood up todefend himself Simeona declared:

xxx xxx xxx

Fiscal Solis:

Q — How many times did you seeDominador bolo your husband onthe left arm?

A — I saw him boloed my husbandtwice on the left arm and when my husband noticed that he was beinghacked he reached for his bolo withhis right arm to which instanceDominador Molo noticing that hewas going to use a bolo Dominador hacked him again on the right arm.



7

Q — Was your husband able totake hold of his bolo?

A — He was able to take hold of the handle only because at thisinstance he was hacked byDominador and so the bolo fellfrom his hands.

Q — What hand did your husbanduse in taking hold of his bolo?

A — Right arm (sic: shouldbe hand ).

xxx xxx xxx

Q — But was your husband able torise from where he was lying to get that bolo?

A — He was able to rise but he wasalready weak because his left armwas already wounded. 45

The statements of Venancio Identifying Dominador Molo as hisassailant to Alejandro, his son, and Roman, his neighbor are dyingdeclarations. Alejandro Gapisa testified:

xxx xxx xxx

Q — What was the position when

you found him there?A — He was sitting.

Q — What else if any did youobserve of your father?

A — When I came up hesaid, "Ando I have wounds because I was boloed by Boslo. "

Q — What was his actual physicalsituation when he uttered thesewords?

A — He was already weak, hisbody was weak.

Q — How did you observe that he

was already very weak, that hewas already weak physically?

A — Because his wounds are bigand many.

Q — Was it bleeding?

A — It was bleeding but the flow of the blood had declined since they had been drained of blood.

Q — In your observation was hedying or not?

A — He was about to die.

Q — Now, since he had wounds

what did you do with theseinjuries?

A — Upon arrival I tied hiswounds.

Q — Which injuries did you bind,what did you tie?

A — The wounds in the armbecause it was dangling.

Q — Which arm the left or theright?

A — The left.

Q — What about the right arm?

A — It had also many wounds.

Q — What was your father doingthere, in that kitchen?

A — He was sitting.

Q — Was he doing anything elsefrom sitting ?

A — I think he was defecating as aresult of the pain.

Q — Did he have his pants on?

A — Yes. 46

Ad Roman Mangaring declared:

xxx xxx xxx

A — I was talking to him as to whoboloed him.

Q — And his answer to you wasBoslo?

A — Yes.

Q — He called his assailant asBoslo?

A — Yes. 47

Considering the nature and extent of the wounds, eight in all, Venancio must have realized the seriousness of his condition and it can therefore be inferredthat he made the incrimination under the conciousness of impendingdeath, 48 which, in fact, supervened barely 4-1/2 hours after he was boloed.

In resume then the credible and unimpeached testimonies of the victim'swidow, Simeona Gapisa, who was an eye-witness to the fatal incident, andthat of Alejandro Gapisa, the victim's son, and Roman Mangaring, a neighbor,who both testified on the ante-mortem statements of the victim, establish theguilt of accused-appellant beyond reasonable doubt of the crime of murderqualified by treachery, and aggravated by circumstances of dwelling,recidivism and reiteration, it appearing that accused has been convicted byfinal judgment of murder, frustrated murder, grave slander, less seriousphysical injuries, qualified trespass to dwelling and robbery, and, had servedsentences for said crimes.

We agree with the Solicitor General that appellant is not entitled themitigating circumstance of voluntary surrender. For in order that the samemay be properly appreciated in favor of the accused, it must appear that — a) he had not been actually arrested; b) he surrendered himself to a person inauthority or his agent; and c) his surrender is voluntary, whichcircumstances are not present in this case. 49 For appellant admitted that onthe day after the killing, police authorities surrounded his house and arrestedhim. The fact that he did not try to escape or did not resist arrest after he wastaken into custody by the authorities, does not amount to voluntarysurrender. 50

A word about the penalty. It appears that accused-appellant is an incorrigiblecriminal with clearly anti-social proclivities against which the communityhas the need if not the right , to defend itself. Where, as in this case, thereformative end of punishment seems to have failed in amending his criminaltendencies — he was convicted for frustrated murder in Criminal Case V-

542, Mindoro on September 2, 1950; murder in Criminal Case No. 862,Romblon on July 27, 1961; grave slander in Criminal Case No. V-669,Romblon, on June 5, 1957; less serious physical injuries, before the MunicipalCourt of Romblon, Romblon in Criminal Case No. 839 on October 9, 1959;qualified by trespass to dwelling, before the Municipal Court of Romblon,Romblon in - Criminal Case No. 845 on February 25, 1960 and robbery,before the Court of First Instance of Davao in Criminal Case No. 9982 onMarch 1, 1967 — the imposition of the supreme penalty, is not only justified by the facts of this case, but is required as a measure of socialdefense. Society had given accused-appellant several chances. It would seemthat compassion had not reformed him but had instead made him a hardenedcriminal and a menace to his fellow men. To spare his life is to endanger thelives and properties of others.

WHEREFORE, judgment is hereby affirmed IN TOTO, without pronouncement as to costs.

SO ORDERED.

EN BANC

G.R. No. L-26247 March 18, 1927

JUAN YSMAEL & CO., INC., plaintiff-appellant,vs.NAGEEB T. HASHIM and AFIFE ABDO CHEYBAN GORAYEB, defendants. AFIFE ABDO CHEYBAN GORAYEB, appellant.

OSTRAND, J.:

The complaint in the present case sets forth two causes of action.For its first cause of action the plaintiff alleges, in substance, that the defendant NageebT. Hashim on September 21, 1916, executed a chattel mortgage in favor of

said plaintiff for the sum of P13,160.87, with interest at 8 per cent perannum, the mortgage falling due on September 21, 1917; that the saiddefendant having failed to make payment in accordance with the termsagreed upon, the chattel mortgage was foreclosed and the mortgage propertysold by the sheriff on January 15, 1921; that the proceeds of the saleamounted to the sum of P2,100 only, thus leaving a balance of P11,060.87,which, with thecorresponding interest at the rate of 8 per cent per annumfrom September 21, 1916, until January 9, 1925, now amounts to the sum of P19,134.32, for which amount judgment is prayed.

For the second cause of action, the plaintiff alleges that the defendant NageebT. Hashim has been indebted in the sum of P14,646.47 to the HashimCommercial & Trading Company, Ltd., a limitedcopartnership, organizedunder the laws of the Philippine Islands and that, for good and valuableconsideration, the said Hashim Commercial & Trading Company, Ltd.,



8

assigned the amount due it on saidindebtedness to the plaintiff on October 3,1921, together with its other bills receivable, fixtures, cash on hand in banks,and its entire stock of goods; that the plaintiff has in vain demanded payment from the defendants and now asks judgment against them for said sum of P14,060.47. The plaintiff also prayed for a writ of attachment of the propertyof the defendants, which prayer was granted.

The defendant Hashim in his answer admits all of the allegations of thecomplaint and consents to the rendition of the judgment in conformitytherewith. The defendant Afife Abdo Cheyban Gorayeb in her answer admitsthat the plaintiff is a corporation duly organized and existing under the lawsof the Philippine Islands and that thedefendants are huband and wife, but deny all other allegationscontained in the complaint and set up as a special

defense that the action is the result of a conspiracy between Hashim and hisrelations, the stockholders is Juan Ysmael & Co., Inc., to defraud her of thealimony granted her in civil case No. 19115 of the Court of First Instance of Manila. She also alleges that she has suffered damages in the sum of P20,000by reason of the preliminary attachment upon said real property belongingto her exclusively.

Upon trial the Court of First Instance rendered judgment in favor of theplaintiff for the full amount demanded under the first cause of action, but dusmissed the second cause of action on the ground that the plaintiff hadfailed to show that the credit upon which said cause of action is based hadbeen legally assigned to it. Both the plaintiff and the defendant Gorayebappealed from this judgment.

The plaintiff-appellant assigns as error the finding of the trialcourt that theindebtedness of the defendant Nageeb T. Hashim to the Hashim Commercial& Trading Co., Ltd., in the amount of P14,646.47, was assigned by the latter to

the Asia Banking Corporation and not to the plaintiff Juan Ysmael & Co., Inc.,and that the court likewise erred in dismissing the second cause of actionalleged in the complaint. This contention is principally based on a resolutionof the stockholders of the Hashim Commercial & Trading Co., Ltd., adopted onOctober 3, 1921, the last three paragraphs of which reads as follows:

Whereas, Messrs. Juan Ysmael & Co., Inc., owners of 1678 shares of the stock of this company, have arranged for the suspension of theforeclosure proceedings began as mentioned above, and agree toassume the obligation of this company with the Asia BankingCorporation as stated in the deed dated March 8th, 1921, oncondition that this company transfer to Juan Ysmael & Co., Inc. itsentire stock of goods, cash on hand and in banks, bills receivable,fixtures, and to have access to the books whenever required bythem;

Now, therefore, be it resolved that Mr. A. T. Hashim, President and

General Manager of this company, be and hereby is, authorized inan irrevocable manner to transfer in favor of Messrs. Juan Ysmael& Co., Inc., its entire stock of goods, cash on hand and in banks,bills receivable, fixtures and to have access to the books wheneverrequired by them; and be it further.

Resolved that the said Mr. A. T. Hashim be and hereby isauthorized in an irrevocable manner to execute, acknowledge, anddeliver all such documents and intruments in writing as may benecessary to effectuate the foregoing purpose.

It does not appear that the assignment authorized by this resolution wasever made and on November 2, 1921, the same stockholders, together withJuan Ysmael & Co., Inc., also a stockholders, adopted another resolutionwhich practically revoked the resolution of October 3, 1921 and which readsas follows:

Whereas, on October 3rd, 1921, A. T. Hashim was authorized bythe stockholders of Hashim Commercial & Trading Co., Ltd., totransfer the entire stock of the Company, cash on hand, billsreceivable, and fixtures, to Juan Ysmael & Co., Inc., and

Whereas, subsequently, it appeared advisable to A. T. Hashim that the transfer of said stocks of goods, etc., should be made to theAsia Banking Corporation, who would then make Juan Ysmael &Co., Inc., its agent, for the purpose of disposing the same, and

Whereas, a transfer was made to the Asia Banking Corporation, inthe form of an agreement entered into between the Asia BankingCorporation, Juan Ysmael & Co., Inc., and Hashim Commercial &Trading Co., Ltd., thru their proper representatives, on the 31st day of October, 1921.

Now, therefore, be it resolved that the transfer made by A. T.Hashim, as aforesaid, to the Asia Banking Corporation, of all goods,

wares and merchandise, as per said agreement, be and the sameapproved, and transfer ratified.

As will be seen the only assignment actually effected was that to the AsiaBanking Corporation. The court below was, therefore, justified in dismissingthe second cause of action and if so, the plaintiff's second assignment of errorto the effect that the bond in the sum P20,000 fixed by the court below forthe discharge of the writ of attachment was inadequate, is also without merit.We may say in passing that the authorities cited in support of the first assignment of error have reference to equitable assignments and are not inpoint. Upon the facts shown by the record, Juan Ysmael & Co., Inc. might,perhaps, have compelled the Hashim Commercial & Trading Co. to execute anassignments of the credit in controversy, byt it does not follow that the samefacts would constitute a valid assignment as against third parties and that the

prospective assignee may maintain an action against the debtor for thecollection of the credit without a formal assignment of such dredit. Thedebtor has the right to demand that the person who sues him for the debt shall be the real party in interest and shall show a valid title to the chose inaction; a mere equitable right to the assignment thereof is not sufficient. Bothunder article 51 of the Code of Commerce and under paragraph 6 of article1280 of the Civil Code, a formal assignment of a credit of over three hundredpesos must be in writing. The formalities for sales of choses in action aregoverned by paragraph 4 of section 335 of the Code of Civil Procedure.

The defendant-appellant makes the following assignments of error:

I. The trial court erred in rendering judgment upon the first causeof action in favor of the plaintiff and against the defendant andappellant, jointly and severally, with her husband A. T. Hashim forthe sum of P19,134.32, with interest on P11,060.87 thereof at 8per cent per annum from the 10th day of January,1925.

II. The trial court erred in prohibiting appellant from inquiringintothe details of the account set forth in Exhibit 3.

III. The trial court erred in refusing to receive the testimony of thedefendant N. T. Hashim, that of A. T. Hashim, and that of K.N.Hemady in the former action No. 19569 (G. R. No. 21345).

IV. The trial court erred in preventing defendant and appellant from representing proofs in support of the allegations of heranswer and special defenses.

There is some merit in all of these assignments, except the third. The court below undoubtedly erred in denying the defendant-appellant the

opportunity to inquire into the sources of the entries found in the plaintiff'sbooks of account in relation to the indebtedness of the defendants; the fact that such sources might have been examined in civil case No. 19569 of theCourt of First Instance of Manila cannot be regarded as a bar to a reasonableinquiry into the character of the debt in the present case. The issues in thetwo cases are entirely different; the former case dealt with the validity of achattel mortgage, while in the present case, wer are dealing with the amount of the defendant's indebtedness to the plaintiff. For much the same reasons,the defendant-appellant should have been permitted to present evidence insupport of her special defense of conspiracy.

The third assignment of error cannot be sustained. In offering in evidence thetestimony given by Mr. Hemady and the Hashims in the earlier case, thedefendant-appellant did not claim that said testimony contained admissionsagainst interest by the parties to the action or their agents; if such had beenthe case, the testimony would have been admissible without the laying of afoundation and without the witnesses having testified in the case at bar. But

the purpose of the offer of the testimony was evidently to impeach thetestimony of the same witnesses in the present case and if so, a foundationshould have been laid by calling the attention of the witnesses to the formerstatements so as to give them opportunity to explain before the statementswere offered in evidence.

In discussing their first assignment of error, counsel for the defendant-appellant insist that, taking into consideration the facts of the case and thecircumstances preceeding the same, it is obvious that the case is "fraudulent and that even if the indebtedness claimed were over a true indebtedness,either the same had been paid or payment thereof waived." This contentionis not entirely without foundation and though we cannot fully agree withcounsel, we do think that, in view of the very apparent unreliability of someof the oral evidence presented, the plaintiff's recovery on its first cause of action should be limited to the amount shown by its books of account.

On December 31, 1924, the plaintiff's ledger showed a balance of P12,238.02

against the defendant Hashim, and it does not appear that he has incurredany further indebtedness to the plaintiff since that date. The plaintiff explainsthat the amount claimed in excess of the sum shown by the ledger representsinterest at the rate of 8 per centper annum, but under the circumstances of the case, we cannot give much weight to this explanation. It clearly appearsthat the chattel mortgage debt, upon which the plaintiff's first cause of actionis based, is included in the ledger account and it may properly beconsideredas merged therein. It also appears that the account was balanced at the endof the years 1920, 1922 and 1924, and considering the fact that the plaintiff corporation is a well conducted business organization, it seems ratherimprobable that, in striking its book balances, it would have overlooked theimportant item of interest if any interest on the book account in question hadbeen agreed upon.

The judgment appealed from is, therefore, modified by reducing theplaintiff's recovery to the sum of P12,238.02, with interest at the rate of 6 percent per annum from January 13, 1925, the date of the filing of the complaint.In all other respects said judgment is affirmed without costs in this instance.So ordered.

Johnson, Street, Malcolm, Villamor, Romualdez and Villa-Real, JJ., concur.

G.R. No. 71537 September 17, 1987



9

EMILIO DE LA PAZ, JR., ENRIQUE DE LA PAZ, MANUELA DE LA PAZ,NATIVIDAD DE LA PAZ, MARGARITA DE LA PAZ and ZENAIDA DE LAPAZ, petitioners,vs.HON. INTERMEDIATE APPELLATE COURT, ADELAIDA S. TRINIDAD,CONRADO P. SANTOS, JR., CESAR P. SANTOS, FELICITAS S. DE LEON,PONCIANITO P. SANTOS, SR., EVANGELINE S. TANSINGCO, ANTONIO P.SANTOS, and JAIME P. SANTOS, respondents.

GUTIERREZ, JR., J.:

The petitioners have lumped in one amended petition an original action forcertiorari to set aside the decision of the Regional Trial Court, Branch 71 at Antipolo, Rizal, in Civil Case No. 164-A and a petition for review to nullify thedecision of the Intermediate Appellate Court in AC-G.R. SP No. 05472.

The records show the following incidents which transpired prior to the filingof the instant petition.

On May 12, 1983, Loreto de la Paz filed a complaint against the petitionerswith the Regional Trial Court of Rizal for a judicial declaration of ownershipof a 43,830 square meter parcel of land covered by Original Certificate of Title No. 901 of the Register of Deeds, Rizal in the name of Ponciano de la Pazwith damages. The case was docketed as Civil Case No. 164-A.

Loreto alleged that the subject parcel of land was among the propertiesadjudicated to her and her mother as a result of a partition submitted by theheirs of Ponciano de la Paz and approved by the court in Civil Case No. 1399of the Court of First Instance of Rizal. The subject matter of Civil Case No.1399 was Ponciano's testate estate.

In their answer, the petitioners denied that the disputed lot was among theproperties adjudicated to Loreto and her mother. They claimed that theparcel of land was not accounted for in the probate proceedings but isactually community property of the parties.

The parties, except for petitioner Enrique de la Paz, were admittedlycompulsory heirs of Ponciano de la Paz who died in 1916. Loreto was theonly legitimate child of Ponciano while: 1) Emilio de la Paz, Jr., is the son of Emilio, a recognized natural child of Ponciano; 2) Manuela de la Paz is therecognized natural child of Ponciano; 3) Natividad de la Paz is the daughterof Emilio, recognized natural child of Ponciano; 4) Margarita de la Paz is thedaughter of Wenceslao, a recognized natural child of Ponciano; and 5)Zenaida de la Paz, is the daughter of Augusto, another recognized naturalchild of Ponciano. As regards petitioner Enrique de la Paz, Loreto denied hisclaim that he is one of the heirs of Ponciano. The petitioners, however, allegethat he is also a compulsory heir of Ponciano, he being the son of Ponciano dela Paz, Jr., the eldest child of the decedent.

The parties failed to arrive at an amicable settlement during pre-trial. Hence,trial on the merits followed.

Loreto took the witness stand. She finished her direct testimony on March12, 19984.

On April 25, 1984, the petitioners' counsel began his cross-examination of Loreto. The cross-examination was, however, not completed. The petitioners'counsel moved in open court for the continuance of the cross-examination onthe ground that he still had to conduct a lengthy cross-examination. (p. 17,Court of Appeals' rollo).

On May 18, 1984, Loreto's counsel filed a motion for "correction of transcript" due to some errors in the transcript of stenographic notes takenduring the direct testimony of Loreto. The motion was granted.

This order granting the correction prompted the petitioners'' counsel to

manifest that he would not be able to undertake the cross-examination of thewitness as scheduled. He asked for the postponement of the May 23, 1984hearing. The trial court postponed the trial of the case to May 31, 1984 andlater to July 5, and 11, 1984. (p. 16, Court of Appeals' rollo)

On August 13, 1984, trial resumed. The petitioners' counsel, however, askedfor still another postponement of the cross-examination to give him a chanceto go over the stenographic notes. In an order of the same date, the hearingwas again postponed. (p. 17, Court of Appeals' rollo)

During the scheduled trial on September 14, 1984, neither the petitioners,nor their counsel appeared despite due notice. Loreto's counsel, therefore,filed a motion that she be allowed to present evidence ex parte before acommissioner. The motion was granted and Loreto presented additionalevidence ex parte in the afternoon of the same day. On this same date, shefinished the presentation of her evidence and submitted her case fordecision.

Despite this development, the petitioners upon their motion were allowed tocross-examine Loreto.

On the scheduled hearing set on September 18, 1984, the petitioners' counselfailed to appear, and the cross-examination of Loreto was deferred for thefourth (4th) time. (p. 17, Court of Appeals' rollo)

Finally, on November 7, 1984, the petitioners' counsel resumed hisrepeatedly postponed cross-examination of Loreto. The cross-examinationwas, however, cut short and rescheduled again on motion of the petitioners'counsel.

Unfortunately, Loreto died on December 1, 1984. An amended complaint wasfiled for the purpose of substituting the respondents, herein, they being thechildren and heirs of Loreto.

At the resumption of the trial on January 21, 1985, the petitioners movedverbally to strike off the record the entire testimony of Loreto. The motionwas denied. A verbal motion for reconsideration was likewise denied.

In view of the petitioners' manifestation that they will appeal the ruling theappellate court, the trial court issued on January 24, 1985 a more detailedorder denying the motion to strike off the record Loreto's testimony. (p. 17,Court of Appeals' rollo).

On February 11, 1985, the trial court issued another order allowing, among

other things, the private respondents to present their exhibits. A controversyas to the contents of this February 11, 1985 order will be discussed later.

On February 18, 1985, the petitioners filed a petition with the IntermediateAppellate Court to annul the lower court's orders dated January 24, 1985 andFebruary 11, 1985 and to prohibit the court from further proceeding in CivilCase No. 164-A. The petition for certiorari and prohibition was docketed asAC-G.R. SP. No. 05472.

This petition notwithstanding, the lower court continued the proceedings inCivil Case No. 164-A. Thus, on March 29, 1985, the lower court promulgated adecision in Civil Case No. 164-A declaring the private respondents, thechildren and heirs of Loreto, as the true owners of the subject parcel of land.Damages were also awarded in favor of the private respondents. Thedispositive portion of the decision reads:

IN VIEW OF THE FOREGOING, JUDGMENT is hereby

rendered(a) Declaring plaintiffs as the true and lawful owners of the parcel of land covered by Original Certificate of TitleNo. 901 of the Register of Deeds of Rizal;

(b) Ordering the defendants to surrender the owner'sduplicate copy of Original Certificate of Title No. 901;

(c) Directing the Register of Deeds of Rizal, PasigBranch to cancel Original Certificate of Title No. 901 andto issue a new one in the names of the plaintiffs;

(d) Ordering the defendants jointly and severally to payto the plaintiffs Five Hundred Thousand Pesos(P500,000.00) as actual damages, Five HundredThousand Pesos (P500,000.00) as moral damages, FiveHundred Thousand Pesos (P500,000.00) as exemplary

or corrective damages, Fifty Thousand Pesos(P50,000.00) as attorney's fees, plus the costs; and

(e) Dismissing the defendants counterclaim. (pp. 13-14,rollo)

On June 20, 1985, the appellate court also rendered a decision in AC-G. R. SPNo. 05472. The petition was denied due course and dismissed. A motion forreconsideration was denied for lack of merit.

Initially, the petitioners filed only a petition to review on certiorari theappellate court's decision and resolution respectively.

Upon motion of the petitioners, we admitted the amended petition whichnow seeks to annul the decision of the lower court in Civil Case No. 164-Aaside from setting aside the appellate court's decision and resolution in AC-G.R. SP No. 05472.

In another resolution dated January 20, 1986, we gave due course to thepetition and considered the respondents' comments as answer.

We first review the challenged decision and order of the appellate court. Thepetitioners contend that the appellate committed grave abuse of discretionwhen it sanctioned the trial court's orders which denied the striking out of the testimony of original plaintiff Loreto de la Paz from the record.

A motion to strike off testimony from the record is an interlocutory order.Well-settled is the rule that interlocutory orders may not be subjects of apetition of certiorari unless issued in patent abuse of discretion. (See Villalon,Jr. v. Intermediate Appellate Court, 144 SCRA 443; Bautista v. Sarmiento, 138SCRA 587).

We see no grave abuse of discretion on the part of the trial court when it issued the questioned order. True, we have consistently ruled on the natureof the right of cross-examination, to wit:

The right of a party to confront and cross-examineopposing witnesses in a judicial litigation, be it criminalor civil in nature, or in proceedings beforeadministrative tribunals with quasi-judicial powers, is afundamental right which is part of due process. (SavoryLuncheonette v. Lakas ng Manggagawang Pilipino, et al.,1975, 62 SCRA 258).

xxx xxx xxx

The right of a party to cross-examine the witness of hisadversary in invaluable as it is inviolable in civil cases,no less than the right of the accused in criminal cases.The express recognition of such right of the accused in



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the Constitution does not render the right thereto of parties in civil cases less constitutionally based, for it isan indispensable part of the due process guaranteed bythe fundamental law. ... Until such cross-examinationhas been finished, the testimony of the witness cannot be considered as complete and may not, therefore, beallowed to form part of the evidence to be consideredby the court in deciding the case. (Bacrach Motor Co.,Inc., v. Court of Industrial Relations, 86 SCRA 27 citingSavory Luncheonette v. Lakas ng ManggagawangPilipino, et al., supra, Ortigas, Jr. vs. Lufthansa GermanAirlines, 64 SCRA 610)

But we have also ruled that it is not an absolute right which a party candemand at all times. This Court has stated that:

xxx xxx xxx

the right is a personal one which may be waivedexpressly or impliedly by conduct amounting to arenunciation of the right of cross-examination. Thus,where a party has had the opportunity to cross-examinea witness but failed to avail himself of it, he necessarilyforfeits the right to cross-examine and the testimonygiven on direct examination of the witness will bereceived or allowed to remain in the record.

The conduct of a party which may be construed as animplied waiver of the right to cross-examine may takevarious forms. But the common basic principleunderlying the application of the rule on implied waiveris that the party was given the opportunity to confront and cross-examine an opposing witness but failed totake advantage of it for reasons attributable to himself alone.

xxx xxx xxx

The case of the herein petitioner, Savory Luncheonette,easily falls within the confines of the jurisprudencegiven above. Private respondents through their counsel,Atty. Amante, were given not only one but five opportunities to cross-examine the witness, Atty.Morabe, but despite the warnings and admonitions of respondent court for Atty. Amante to conduct the cross-examination or else it will be deemed waived, anddespite the readiness, willingness and insistence of thewitness that he be cross-examined, said counsel by hisrepeated absence and/or unpreparedness failed to doso until death sealed the witness' lips forever. By suchrepeated absence and lack of preparation on the part of the counsel of private respondents, the latter lost theirright to examine the witness, Atty. Morabe, and theyalone must suffer the consequences. The mere fact that the witness died after giving his direct testimony is noground in itself for excluding his testimony from therecord so long as the adverse party was afforded anadequate opportunity for cross-examination but through fault of his own failed to cross-examine thewitness. (Savory Luncheonette v. Lakas ngManggagawang Pilipino,supra; at pp. 263-267)

In the case at bar, the petitioners' failure to cross-examine Loreto wasthrough no fault of the respondents. As can be gleaned from the record,

Loreto was available for cross-examination from the time she finished herdirect testimony on March 12, 1984 to November 7, 1984, the last scheduledhearing of the case before her death on December 1, 1984. The petitionersnot only kept on postponing the cross-examination but at times failed toappear during scheduled hearings. The postponement of the trial on May 23,1984 to a later date duet o the correction of the stenographic notes of Loreto's testimony may be justified, but the same cannot be said for thesubsequent posponements requested by the petitioners. The scheduled trialsbefore November 7, 1984, did not push through, because of the petitioners'fault. It may also be recalled that at the scheduled hearing on September 14,1984 neither the petitioners nor their counsel appeared leading to thepresentation of evidence ex parte. And also during the scheduled hearing onSeptember 18, 1984, when the petitioners were allowed to cross-examineLoreto despite the fact that the case was already deemed submitted fordecision, the petitioners again failed to appear.

Under these circumstances, we rule that the petitioners had waived their

right to cross-examine Loreto. Through their own fault, they lost their right to cross-examine Loreto. Her testimony stands.

As regards the petition to set aside the trial court's decision, the pivotal issuehinges on the contents of the February 11, 1985 order. The petitioners arguethat Presiding Judge Benedicto "arbitrarily and whimsically changed without notice to either party, the tenor of the order it dictated in open court, apart from injecting facts that did not and could not have transpired on February11, 1985, acts apparently calculated to deprive petitioners, as in fact theywere deprived petitioners, as in fact they were deprived of their right topresent evidence in their behalf." (p. 38, Rollo).

According to the petitioners, the trial court issued two conflicting versions of the February 11, 1985 order. The order dictated in open court on February11, 1985 states:

In view of the manifestation of the counsel for theplaintiff that he is formally re-offering in evidence alldocumentary exhibits and testimonial evidencepresented and it appearing that the transcript takenduring the ex-parte hearing is already available andavailed of by counsel for the defendant, he is herebygiven ten (10) days from today to file his objectionsafter which this case will be deemed submitted forresolution. In view of the fact that he will appeal the

order of this court denying his motion to strike out fromthe record, the testimony of the plaintiff, Loreto de laPaz, the presentation of the evidence of the defendantsis hereby held in abeyance. (p. 29, Court of Appeals'rollo)

while the signed order dated February 11, 1985 states, to wit:

In view of the manifestation of the counsel for theplaintiff that he is formally re-offering in the evidenceall documentary exhibits and testimonial evidencepresented and after their admission he will rest his caseand it appearing that the transcript taken during the ex-parte hearing has been long available and availed of bycounsel for the defendants, he is hereby given ten (10)days from today to file his objections thereto afterwhich action will be taken on the admission of said

exhibits. The said period having lapsed without defendants' counsel filing his comments on theadmission of the exhibits A to Z and the sub-markedexhibits are admitted in evidence for Plaintiffs,Defendants' counsel forthwith manifested that he willappeal to the Intermediate Court of Appeals (sic) theruling of this Court denying his Motion to Strike off fromthe records the entire testimony of Plaintiff Loreto de laPaz who was partly cross-examined already but whodied thus his cross examination could not be completed.Said counsel then refused to present evidence in behalf of defendants on the ground that he intended to appealas already alluded above the Order of this court denyingthe Motion in question. The court has ruled in its Orderof January 21, 1983 that inspite of the attitude of Counsel the trial shall proceed as scheduled.

Thus, at the hearing today said Counsel failed toproceed with the trial to present his evidence. This caseshall be deemed submitted for Resolution. (p. 31, Court of Appeals' rollo)

It is to be noted that in the dictated version of the February 11, 1985 order,the petitioners were given ten (10) days from February 11, 1985 to file theirobjections after which the case will be submitted for resolution and that thepresentation of evidence for the petitioners was held in abeyance.

However, in the other version, the case was declared as already deemedsubmitted for resolution.

It is this second version of the February 11, 1985 order which the trial court used as justification for its promulgation of the March 29, 1985 decision inCivil Case No. 164-A.

The record clearly shows that this second version of the February 11. 1985order was issued without the knowledge of the parties. In fact, on March 14,1985, the respondents filed an urgent motion to consider the case submittedfor decision with the following allegations: 1) that in the hearing of February11, 1985, the petitioners were required to submit their comment or objectionto respondents' offer of evidence and they were given ten (10) days from thesaid date within which to do so, and thereafter to present their evidence; and2) that notwithstanding the lapse of more than thirty (30) days, therespondents have not submitted their comment or objection to petitioners'offer of evidence much less have they take any move to present theirevidence. (pp. 32033, Court of Appeals' rollo). the respondents would not have filed this motion if the case was already deemed submitted for decisionpursuant to the second version of the February 14, 1985 order. Furthermore,the respondents do not rebut these allegations.

The trial court committed a grave abuse of discretion in issuing the orderdated February 11, 1985, the contents of which conflict with another order of

the same date dictated in open court during the hearing of the case onFebruary 11, 1985.

The issuance of this second version of the February 11, 1985 orderprejudiced the petitioners' cause. They were deprived of their right topresent evidence in their behalf.

Consequently, the decision of the trial court in Civil Case No. 164-A must bedeclared null and void,

Another issue raised by the petitioners centers on whether or not the trialcourt committed grave abuse of discretion in rendering judgment in CivilCase No. 164-A despite the pendency of the petition which sought to inhibit it from further proceeding with the case.



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The appellate court did not restrain the trial court until April 22, 1985 afterthe petitioners presented the certified copy of the February 11, 1985 order.(p. 35, Court of Appeals rollo). The trial court did not abuse its discretion orcommit reversible error. It is within its sound discretion to either proceedwith the case in the absence of the prayed-for restraining order to refrainfrom acting on the case until the higher court decides the matter elevated. toit. the circumstances of each case dictate what action shall be take.

The final issue raised by the petitioners is with regard to the damagesawarded the respondents by the trial court.

In their complaint, the respondents asked for the following damages: 1) at least P150,000.00 as actual damages; 2) P200,000.00 as moral damages; and3) P50,000.00 as attorney's fees plus exemplary damages which may bedeemed just and equitable in the premises. The trial court awarded to therespondents the following: P500,000.00 as actual damages; P500,000.00 asmoral damages; P500,000.00 as exemplary damages; P50,000.00 asattorney's fees and costs.

The questioned decision, however, is silent as to how the court arrived at these damages. Nowhere in the decision did the trial court discuss the merit of the damages prayed for by the petitioners. There should be clear factualand legal bases for any award of considerable damages. (See Rubio v. Court of Appeals, 141 SCRA 488).

WHEREFORE, the amended petition is partly DENIED in that the questioneddecision and resolution of the Intermediate Appellate Court, now court of Appeals in AC-G. R. SP No. 05472 are AFFIRMED. The petition is GRANTED inpart. The questioned decision of the then Court of First Instance of Rizal inCivil Case No. 164-A is SET ASIDE as null and void. The successor RegionalTrial Court is directed to conduct further proceedings and to receive theevidence of the petitioners in Civil Case No. 164-A.

SO ORDERED.

G.R. No. 73751 September 24, 1986

ROMAN R. VILLALON, JR., ROMAN R.C. III, ROMAN F.C. IV, ROMAN A.C. V.,JOSE CLARO C. and ARSENIO ROY C., all surnamed VILLALON, petitioners,vs.HON. INTERMEDIATE APPELLATE COURT (FOURTH SPECIAL CASESDIVISION), HON. INOCENCIO D. MALIAMAN (PRESIDING JUDGE OFREGIONAL TRIAL COURT, BRANCH XXIX AT SAN FERNANDO, LA UNION),CATALINA NEVAL . DE EBUIZA, CHILDREN OF PATROCINIO EBUIZA(JUSTINA, MARIANO, FELICIDAD, FRANCISCO, EUGENIA, MARIA,MARCIANA, and SIMEON, all surnamed EBUIZA), respondents.

R E S O L U T I O N

MELENCIO-HERRERA, J.:

On May 16, 1979, Civil Case No. 2799 for "Annulment of Deed of AbsoluteSale, Recovery of Possession and Damages" was filed by private respondent Catalina NEVAL Vda. de Ebuiza, mother of the other private respondents allsurnamed Ebuiza, against petitioner Atty. Roman R. Villalon, Jr. (briefly,petitioner Villalon) and his sons, before the then Court of First Instance of LaUnion (the Trial Court), for the recovery of a parcel of land located at Urbiztondo, San Juan. La Union.

The property involved was also the subject of a Disbarment Case (Adm. CaseNo. 1488) previously filed on July 22, 1975 with this Court by privaterespondent Francisco EBUIZA, charging petitioner Villalon with falsificationof a deed of absolute sale of that property in his and his sons' favor, but which petitioner Villalon claimed to have been his contingent fee for the

professional services he had rendered to EBUIZA's parents for successfullyhandling Civil Case No. 1418 entitled "Paulino Ebuiza, et all vs. PatrocinioEbuiza, et al." before the then Court of First Instance of La Union, Branch II.The Disbarment Case was referred by this Court to the Office of the SolicitorGeneral for investigation, report and recommendation where testimonialevidence was received. The case still pends thereat.

In the course of the trial of the Civil Case, petitioners introduced in evidencethe testimonies of some of the private respondents, namely, NEVAL, EBUIZA,and Justina Ebuiza San Juan (NEVAL, et als.), in the Disbarment Case for thepurpose of impeaching their testimonies in the Civil Case.

Private respondents filed a Motion to Strike from the records of the Civil Caseall matters relating to the proceedings in the Disbarment Case. Overpetitioners' opposition, on September 20, 1985, the Trial Court issued itsquestioned Order granting the Motion to Strike. The dispositive portion of said Order reads:

WHEREFORE, finding the motion to be well-taken, andas prayed for in the motion, all direct references to theproceedings in the disbarment case against Atty.Villalon, Jr. are hereby ordered striking (sic) out fromthe records and henceforth, further references to suchmatters are barred.

The Trial Court opined that the admission of the contested evidence wouldviolate Section 10, Rule 139 of the Rules of Court providing that "proceedingsagainst attorneys shall be private and confidential". It maintained that petitioner Villalon "is not at liberty to waive the privilege of confidentiality"of the proceedings in the Disbarment Case considering the public interest involved "even if it would serve his interest," and that Section 10, Rule 139provides no exception.

Their Motion for Reconsideration having been denied on October 17, 1985,petitioners, resorted to a Petition for Certiorari, Prohibition, and mandamusbefore the respondent Appellate Court to nullify the Order of September 20,1985 and to require the Trial Court to allow -the impeaching evidence toremain in the records of the Civil Case.

On February 3, 1986, respondent Appellate Court denied due course anddismissed the Petition holding that "rulings of the trial court on proceduralquestions and admissibility of evidence during the course of the trial areinterlocutory in nature and may not be the subject of separate appeal orreview on certiorari." Moreover, it reasoned out that, assuming the TrialCourt erred in rejecting petitioners' proffered evidence, their recourse is tomake a formal offer of the evidence under Rule 132, Section 35 of the Rules.

The reconsideration of said ruling sought by petitioners was denied for lackof merit on February 19,1986.

Petitioners now avail of this Petition for Review on certiorari praying amongothers, for the annulment of respondent Appellate Court's Decision, whichsustained the Trial Court Orders of September 20, 1985 and October 17,1985, for having been issued with grave abuse of discretion.

We find merit in the Petition.

Petitioners introduced the testimonies of private respondents' witnesses inthe Disbarment Case for purposes of impeaching their credibility in the CivilCase. 1 Petitioners claim that private respondents' witnesses "have givenconflicting testimonies on important factual matters in the disbarment case,which are inconsistent with their present testimony and which wouldaccordingly cast a doubt on their credibility." 2 That is a defense toolsanctioned by Sections 15 and 16 of Rule 132 providing:

Sec. 15. Impeachment of adverse party's witness.-Awitness may be impeached by the party against whomhe was called, by contradictory evidence, by evidencethat his general reputation for truth, honesty, orintegrity is bad or by evidence that he has made at othertimes statements inconsistent with his present testimony, but not by evidence of particular wrongfulacts, except that it may be shown by the examination of the witnesses, or the record of the judgment, that he hasbeen convicted of an offense.

Sec. 16. How witness impeached by evidence of inconsistent statements. -Before a witness can beimpeached by evidence that he has made at other timesstatements inconsistent with his present testimony, thestatements must be related to him, with thecircumstances of the times and places and the personspresent, and he must be asked whether he made suchstatements, and if so; allowed to explain them If thestatements be in writing they must be shown to thewitness before any question is put to him concerningthem .

By issuing its Order to strike, the Trial Court deprived petitioners of theirright to impeach the credibility of their adverse parties' witnesses by provingthat on former occasions they had made statements inconsistent with thestatements made during the trial, despite the fact that such statements arematerial to the issues in the Civil Case. The subject matter involved in thedisbarment proceedings i.e., the alleged falsification of the deed of absolutesale in petitioners' favor, is the same issue raised in the Civil Case whereinthe annulment of the said deed of absolute sale is sought.

Admittedly, said Order is interlocutory in character. However, since it wasissued in patent abuse of discretion, certiorari lies. certiorari may be availedof to contest an interlocutory order to correct a patent abuse of discretion bythe lower Court in issuing the same. 3 It may also be applied for when thebroader interests of justice so require or when ordinary appeal is not anadequate remedy, 4 as in this case. The offer of evidence, suggested byrespondent Appellate Court as a remedy open to petitioners, whileprocedurally correct, would be inadequate and ineffective for purposes of impeachment. The broader interests of justice would then require that petitioners be given sufficient latitude to present and prove their impeachingevidence for judicial appreciation.

While proceedings against attorneys should, indeed, be private andconfidential except for the final order which shall be made public, 5 that confidentiality is a privileged/ right which may be waived by the very lawyerin whom and for the protection of whose personal and professionalreputation it is vested, pursuant to the general principle that rights may bewaived unless the waiver is contrary to public policy, among others. 6 In fact,

the Court also notes that even private respondents' counsel touched on somematters testified to by NEVAL in the disbarment proceedings and which werethe subject of cross examination.

ACCORDINGLY, the Court hereby SETS ASIDE respondent Appellate Court'sDecision dated February 3, 1986, and Resolution dated February 19, 1986,and directs the Regional Trial Court of La Union, at San Fernando, to allowthe testimonies of private respondents (plaintiffs below), more specificallythose of Catalina Neval Vda. de Ebuiza, Francisco Ebuiza and Justina EbuizaSan Juan, given in Administrative Case No. 1488 and all other referencesthereto to remain in the records of Civil Case No. 2799 entitled "CatalinaNeval Vda. de Ebuiza, Plaintiff, versus Roman R. Villalon, Jr., et al.,Defendants; Children of Patrocinio Ebuiza: Justina, et al., all surnamed EbuizaIntervenors. "



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The Temporary Restraining Order heretofore issued is hereby lifted.

SO ORDERED.

EN BANC

G.R. No. 26708 September 29, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,vs. ALEJO RESABAL, defendant-appellant.

VILLAMOR, J.:

The evidence shows, as an indisputable fact, that in the early morning of April 25, 1926, one Primo Ordiz died at his own home in the barrio of Bogo,municipality of Maasin, Leyte, form the effects of an internal hemorrhagecaused by a sharp wound in the left lung, as appears from the deathcertificate, marked Exhibit A.

As a consequence of this, an information was filed with the Court of First Instance of Leyte in Maasin, reading as follows:

That on or about April 25, 1926, in the municipality of Maasin,Province of Leyte, Philippine Islands, the said accused, willfully,unlawfully and criminally, with treachery and evident premeditation, conspiring amongst themselves and acting incommon agreement and taking advantage of nocturnity, mutuallyaiding each other, opened the window and killed Primo Ordiz bymeans of a shot from a 'Smith' 38 caliber revolver, inflicting a

wound in the upper part of the left nipple, which produced theinstant death of said Primo Ordiz.

Contrary to law.

The judge who tried the case, after having carefully analyzed the evidence,reached the conclusion that the crime committed by the accused AlejoResabal is that of murder, provided for and penalized in article 403 of thepenal Code, with the aggravating circumstances of evident premeditation,nocturnity and dwelling, and imposed on the accused the death penalty, withthe accessories of article 53 in case of pardon, and to pay the deceased's heirsthe sum of P1,000 by way of indemnity, with he costs of the action. He alsoordered that the present case be brought to this court for review, as providedfor in section 50 of General Orders No. 58.

Counsel for the defense alleges that the trial court erred in not ignoringGlicerio Orit's testimony, and in no acquitting the accused Alejo Resabal onthe ground of reasonable doubt.

The Attorney-General in turn asks that the judgment rendered, being inaccordance with the evidence and the law, be affirmed with the costs against the appellant.

Glicerio Orit testified that on the morning of April 25, 1926, the accused,armed with a revolver, invited him to Primo Ordiz's house in order to kill thelatter, and on arriving at said house, the accused went into the ground,approached one of the windows of the house less than a meter and a half inheight, opened it and looked in. At that moment the witness left the place,and at a distance of 15 brazas heard an explosion. Glicerio Orit's testimony asto the explosion is corroborated by the declaration of the boy Jose Ordiz, whoslept with his uncle Primo Ordiz, to the effect that early in the morning of that day he was awakened by the noise of an explosion and saw his unclePrimon Ordiz vomiting blood and unable to speak.

It is unquestionable, from the testimony of these two witnesses and the

result of the autopsy, and above all from the finding of the revolver Exhibit B,that the weapon exhibited at the trail of the case. This revolver was hiddenby the accused on the land cultivated by the witness Carmelo Ordiz, to whomthe accused revealed it, and who, through fear of the police, transferred it tothe neighboring lot, burying it at the foot of a tree called "mabago." Byfollowing the directions of this witness, Carmelo Ordiz, the chief of police,who investigated the case, found the revolver wrapped in two pieces of clothExhibits C and C-1. The revolver was loaded with two bullets and an emptyshell, and had a rusty barrel. It must be noted that Exhibit C-1 appears to be apiece of cloth from a pair of drawers, and the chief of police who searched thehouse where the accused lived, found a piece of a pair of drawers in a trunkthat was in the kitchen. Upon examination of said Exhibits F and C-1 by thiscourt, it was found that these two pieces of cloth Exhibit F and C-1 made acomplete pair of drawers, all of which shows that the accused tore the pieceof cloth Exhibits C-1 from an old pair of drawers in order to wrap up therevolver before putting it in the place indicated by the witness Carmelo

Ordiz.This witness testified, furthermore, that on the night of April 24, 1926, theaccused believing him to be still an enemy of the deceased Primo Ordiz, andshowing him the revolver Exhibit B, invited him to accompany him to doaway with Primo Ordiz. On the other hand, the witness Vicente Ambalongcorroborates Glicerio Orits testimony to the effect that early in the morningof April 25, 1926, the accused went to the house where the latter wassleeping to awaken him, and that he then saw the accused on the staircase,calling to said Glicerio Orit.

And what is the motive of the crime? According to the evidence presented bythe prosecution, some twenty days before the incident the accused had adisagreement with the deceased because of the carabao that destroyed somecoconut trees belonging to the deceased Primo Ordiz. The accused requested

the deceased to return the carabao that was under his care, but the deceasedrefused to do so before he was paid the value of the trees destroyed. Thisnaturally produced resentment, which, among country people, is sufficient cause for the commission of the act charged in the information.

The defense of alibi set up by the accused is not, in our opinion, sufficient tooverthrow the evidence of the prosecution; for taking into consideration theshort distance between the deaceased's house and that in which the accusedslept on the night of the incident, the accused could easily have gone out of his house and returned later, without having been noticed by his companionsin the house, namely, his wife, his mother-in-law, and his sister-in-law, asidefrom the natural interest these have in testifying in the accused's favor.

The defense argues that Glicerio Orit is not a credible witness, because of hishaving been excluded from the information to be used as a witness for theprosecution; and, because, moreover, of the contradiction in his testimony at the preliminary investigation and during the trial. We are of the opinion that the mere fact of having been excluded from the information to be used as awitness for the Government, does not prevent this witness from telling thetruth in this case, especially in the absence of proof showing the interest hemight possibly have in testifying against the accused. Neither is the apparent contradiction which may be noted in his declarations before the court of thejustice of the peace, and before the court of first instance sufficient todiscredit his testimony, for the simple reason that this witness was not givenample opportunity, by a reading to him of his declarations before the court of the justice of the peace, to explain the discrepancies noted by counsel for theaccused. The mere presentation of Exhibit 1, without said declaration havingbeen read to the witness while he testified in the Court of First Instance, is noground for impeaching his testimony. (U. S. vs. Baluyot, 40 Phil., 385, 406.)

The defense also impeaches Carmelo Ordiz's testimony considering theinvitation which the accused extended to him as improbable, knowing that hewas a cousin of the deceased Primo Ordiz. Under ordinary circumstances,such an attitude would appear improbable, but not so if it is considered that the accused invited the witness in the belief that the latter was still an enemyof the deceased, on account of certain disagreements they had over someland.

The defense also contends that the conduct of the accused in going with hisfamily to the deceased's house on the morning of April 25, 1926, helping inthe preparations for the burial, is incompatible with his being a criminal. It is,indeed, an old belief that the fear of the suspected party to touch the corpsewas a sign of guilt. But experience has shown that some criminals have goneto the extreme that the accused did, to avoid all suspicion of guilt.

The evidence in the record shows that guilt of the accused beyond areasonable doubt, and he deserves the penalty provided for in article 403 of

the Penal Code. The crime committed is murder, qualified by treachery for, inthe commission of the crime, the accused employed ways, means, and formsthat tended directly and especially to assure, it, without risk to his personfrom any defense the assaulted party might make.

The trial court imposed the death penalty on the accused, by reason of theaggravating circumstances of evident premeditation, nocturnity, anddwelling, without any mitigating circumstances to offset them. On this point the opinion of the court is divided, with the result that we cannot impose onthe accused the maximum penalty, or death, in accordance with Act No. 3104,because the vote of the members of the court who took part in the discussionof the case, as to the justice of the imposition of the death penalty was not unanimous. And, it being so, it is unnecessary to discuss in detail thepresence of the said aggravating circumstances.

In virtue whereof, we are of the opinion, and so hold, that the accused isguilty of the crime of murder, committed with treachery, on the person of

Primo Ordiz, and with the modification of the judgment on review, thepenalty of cadena perpetua is imposed on the accused, with the accessories of Article 54 of the Penal Code, the judgment of the trial court being affirmed inall other respects, with the costs against the appellant. So ordered.

EN BANC

G.R. No. 28871 September 19, 1928

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,vs.CLEMENTE BABIERA, JUSTO BABIERA and DOMINGA BORES, defendants-appellants.

VILLA-REAL, J.:

This is an appeal taken by Clemente Babiera, Justo Babiera and DomingaBores from the judgment of the Court of First Instance of Iloilo finding themguilty of the crime of murder, the first as principal, and the last two asaccomplices, sentencing the former to life imprisonment with the accessoriesof article 54 of the Penal Code, and each of the latter to fourteen years, eight months and one day cadena temporal , with the accessories of article 54 and59 of the Penal Code, respectively, and all three to indemnify the family of thedeceased Severino Haro in the sum of P1,000 jointly and severally, and eachof them to pay one-third of the costs of the action in the justice of the peacecourt and the Court of First Instance.

The six alleged errors assigned by the accused as committed by the trialcourt in its judgment may be shifted down to the following propositions:



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1. That the evidence adduced at the trial by the prosecution has not established the guilt of the defendants-appellants beyond a reasonabledoubt.

2. The Exhibit I of the prosecution is not an ante-mortem declaration and istherefore inadmissible as evidence.

3. That the offended party's quarrelsome disposition can be proved in thetrial to determine who began the attack.

Before discussing the evidence adduced by both parties and determining itsweight and probatory value, it is well to decide the questions raised by theappellants on the admissibility of evidence.

The first question of this nature refers to the character of the document Exhibit I, which is a statement made by Severino Haro in Saint Paul's Hospitalof Iloilo on the morning after the crime was committed.

Although said statement in itself is inadmissible as an ante-mortem declaration, inasmuch as there is nothing to show that at the time hemade it Severino Haro knew or firmly believed that he was at the point of death, nevertheless, having ratified its contents a week later when he wasnear death as a result of his wounds, said declaration is admissible as a part of that which he made ante-mortem "A statement made under circumstanceswhich would not render it admissible as a dying declaration becomesadmissible as such, it is held, if approved or repeated by the declarant afterhe had abandoned all hope of recovery." (30 Corpus Juris, 257.)

Passing now to a consideration of the evidence, the prosecution tried toproved the following facts:

Justo Babiera was the owner of two parcels of land situated in themunicipality of Oton, Province of Iloilo, Philippine Islands. On October 19,1922 Justo Babiera executed a contract of sale with the right of repurchase infavor of Basilio Copreros whereby he sold the two parcels of land to the latterfor the sum of P124 with the condition that if the vendor did not repurchasethem on or before August 1, 1923, the sale would become absolute andirrevocable (Exhibit F). The period for repurchase having expired, BasilioCopreros took possession of said two parcels of land, and on March 24, 1927,made application to the registrar of deeds for the Province of Iloilo for theregistration of the consolidation of his title to said parcels. On the 26th of thesaid month, Basilio Copreros leased said parcels to Severino Haro, municipalpresident of Oton (Exhibit G and G-1). In view of this, on March 31, 1927,Justo Babiera filed a complaint against Basilio Copreros in the justice of thepeace court of Oton for the recovery of the possession of said two parcels of land. The complaint having been dismissed on April 19, 1927 on the groundthat it did not allege facts sufficient to constitute a cause of action, JustoBabiera appealed to the Court of First Instance of Iloilo (Exhibit M). Later on,

said Justo Babiera asked for the dismissal of the complaint for unlawfuldetainer and filed another one for the recovery of property (Exhibit F).Inasmuch as Severino Haro was already in possession of the aforesaid twoparcels of land as lessee, he bore all the expenses in the case of unlawfuldetainer as well as in that for recovery of the property.

Fermin Bruces was Severino Haro's copartner on shares in said lands. About the month of May, 1927, Justo Babiera accompanied by his copartner onshares, Rosendo Paycol, went to where Fermin Bruces was plowing andasked the latter: "Who told you to plow here?" Fermin Bruces replied:"Severino Haro." Then Justo Babiera asked him: "If this Severino tells you tokill yourself, will you do it?" "Of course not," answered Fermin Bruces. Afterthis interchange of words Justo Babiera told Fermin Bruces to stop plowingand to tell his master, Severino Haro, to come and plow himself. FerminBruces informed Severino Haro of the incident, and in answer the latter onlytold him not to mind it, but to go on plowing.

On another occasion while Fermin Bruces was transplanting rice on the samelands, Clemente Babiera and Rosendo Paycol arrived and told him that if hecontinued working they would pull out someone's intestines. Fermin Brucesalso informed Severino Haro of these threats, who as before, told him not tomind them, but to go on sowing.

On July 23, 1927, Jose Haro, brother of Severino Haro, visited his land in thebarrio of Bita, which was under the care of Victoriano Randoquile. He wastold by the latter that he lacked palay seeds. At that time, Rosendo Paycolwas in his field, Jose Haro and Victoriano Randoquile approached him andasked him to give them some seeds. Rosendo Paycol answered that he couldnot do so because he needed what he had for his own farms. Haro andRandoquile then asked him: "Which fields do you mean?" "The fields overwhich Copreros and Babiera are in litigation," answered Rosendo Paycol.Surprised at this answer, Jose Haro told Rosendo Paycol that what he saidcould not be because the lot in dispute was leased to his brother SeverinoHaro. Rosendo Paycol replied that attorney Buenaventura Cordova had toldClemente Babiera and Justo Babiera that Severino Haro would never be ableto reap or enjoy the fruits of the land, because if they did not win the suit byfair means they would win it by foul.

Ever since he had leased said land Severino Haro visited it rather often,especially during the months of June and July, which is the sowing season,trying always to return to town early. To go to the land, which was in thebarrio called Bita, there was but a beaten path that passed by the house of Rosendo Paycol, copartner on shares of Justo Babiera, where the latter andhis family lived.

On August 21, 1927, Severino Haro, as usual, went to visit his land in thebarrio of Bita, accompanied by Gregorio Torrija, Benito Carreon and PedroTauro. On arriving there Fermin Bruces, his copartner on shares, told him

that the day before he had found Clemente Babiera's cow grazing on that land. It happened at that moment Clemente Babiera and Dominga Bores werepassing by. Severino Haro then informed Clemente Babiera of what his cowhad done on the former's land and told him to take better care of his cow infuture and not to let it run loose. He then ordered Fermin Bruces to take theanimal to where the Babiera family lived. Severino Haro was not able toreturn to town until almost 7 o'clock in the evening. As it was already dark,he and his companions had to make use of a torch made out of split bambooto light them on their way. Severino Haro went ahead, followed by PedroTauro, who carried the torch, some 8 brazas behind, with Gregorio Torrijaand Benito Carreon following. On Coming to a place in the road near RosendoPaycol's house, Clemente Babiera suddenly sprang from the cogon grass,went after Severino Haro and struck him with his bolo in the back. On

turning his head to see who had attacked him Severino Haro receivedanother bolo blow in the forehead near the right eyebrow. In trying to defendhimself with his hand he was wounded between the index finger and thethumb. He then tried to grasp his assailant but did not succeed and he fell tothe ground. Then Justo Babiera appeared and placing himself upon SeverinoHaro's stomach, held the latter's hands. Later, Dominga Bores appeared onthe scene and held both knees of the wounded man. When Justo Babieraarrived, a voice was heard saying: "Hold him, papa," and at the same time,Severino Haro's voice was heard saying: "Help! help!" Pedro Tauro wished tocome near in order to help Severino Haro, but Clemente Babiera raised hisbolo in the air and kept on brandishing it to warn everybody off. PedroTauro, in fear, stepped back, dropping the torch he carried. Not far fromthere were also Buenaventura Gabalfin and Gregorio Paycol, who threatenedto kill Severino Haro's companions if they helped him. After the torch hadbeen extinguished they heard a voice which they recognized as SeverinoHaro's saying: "Uncle Justo, have patience with me, for I have done no

wrong." Then they heard another voice, that of Dominga Bores, which said:"Here is the revolver; let us return." Before the assailants left two or threerevolver shots were heard. When Severino Haro's companions saw that theirassailants had already departed, they drew near to where Severino laystretched out to see what had happened to him. Severino Haro told them not to fear for he did not feel as if he were going to die, and calling his copartneron shares, Fermin Bruces, directed him to bring a cot and take him to town.Pedro Tauro and Gregorio Torrija did as Severino Haro wished, and onarriving at the barrio of Santa Monica, they by chance came upon a truck inwhich were some policemen. They place the wounded man in the same truckand took him to Saint Paul's Hospital in the City of Iloilo. When Severino Harowas taken to the town he did not have his revolver and the cartridge belt,without the holster, was found by Gregorio Torrija near where the incident took place.

When Severino Haro was already in Saint Paul's Hospital he was examinedby Dr. Mariano Arroy, who issued a certificate stating that he found the

following wounds: Three on the right frontal regions; one on the right forehead taking in the soft parts up to the auditory arch; on the right palmararch; another on the left arm; a deep one reaching down to the spinal columnon the four slight wounds on the right thigh; the ones on the forehead andthe dorsal region being mortal of necessity. All the wounds were caused, inthe doctor's opinion, by a sharp-edged and pointed weapon, and while thecombatants were on the same plane, except the wounds on the middle of thecalf which must have been caused while the assaulted party was on a lowerplane than his assailant, and the wounds on the right thigh, which must havebeen inflicted while the assailant was on a horizontal plane.

On the same morning, August 22, 1927, and in the same hospital, SeverinoHaro made a sworn statement before the deputy fiscal, Edmundo S. Piccio(Exhibit I), relating the occurrence and mentioning the persons who werepresent. This sworn statement was ratified by him before the same deputyfiscal on the 27th of the said month and year when he had given up all hope

of recovery.In this statement, Exhibit I, Severino Haro, among other things, said thefollowing:

"Without warning, I received a slash on the left shoulder. On turning back myface, I saw Clemente Babiera, and he then gave me another slash on theforehead just above the right eyebrow. At that moment I also received a cut on the right hand, because on receiving the blow on the forehead I defendedmyself with that hand. I then grasped him because I could no longer support myself due to my two wounds. Then I fell. When I fell, Clemente Babiera'sfather placed himself upon my stomach, while his (Clemente's) wife sat onmy feet, while Justo Babiera, Clemente's father, grasped my two hands andsaid to me, "There, now draw your revolver" addressing me. I shouted to mycompanion for help, for I felt I would die and while they approached,Clemente Babiera turned upon them, and said: "Do not approach for youhave nothing to do with this. Whoever comes near gets a slash from this

bolo." I shammed death and when they left me, and upon seeing that neitherClemente, nor his father, nor his wife remained, my three companions cameup to me from their hiding places. One Aunario, copartner on shares of JoseAbada, who lived near there, also came up to me, and later, Fermin."

In his ante-mortem declaration made on the 27th of August, 1927 before thesame deputy fiscal, Severino Haro, among other things, said the following:

"They repeatedly passed their fingers over my upper lip and at the same timesee if I still breathed; they felt and opened my eyelids and then inserted afinger in my pupil, because they believed that if I was insensible, I wasalready dead. They knelt on my stomach and one knelt on my lower limbs,and made a pass with something, which seems to me was bamboo or a bolo,over the anterior surface of my calf, and Dominga then took the revolverfrom me. I got up because I was afraid Dominga would shoot me and when I



14

attempted to escape Clemente Babiera pursued me and gave me another cut on the left side of the waist, and I think the blow struck the ammunition belt,and if it had not been for the belt it would have severed my waist."

The defense tried to prove the following facts:

On the afternoon of August 21, 1927 Clemente Babiera went to a place calledCaboloan, passing by the house of one Oper, located in the barrio of Bita,Oton, Iloilo. While he was in Oper's house, his father Justo Babiera arrived,and some moments later Severino Haro also arrived, and at once said to him:"Clemente, why do you leave your cow loose?" Clemente denied theimputation and said that his cow was tied. Severino Haro insisted, and addedthat said animal had damaged his sugar-cane plantation, and therefore,Fermin Bruces, his copartner on shares caught and tied it, by his order, to amango tree. Clemente Babiera answered that he left the case in his hands andthat he could charge him what he would, for the damages occasioned by hiscow. As Severino Haro charged him P2 for the damage, Clemente told himthat at the moment he had no money, but that on the following day he wouldget money from the town market and pay him. Severino Haro accepted thepromise and left. Clemente Babiera in turn retired to his house, together withDominga Bores and his father, and upon reaching a coconut palm they met Fermin Bruces, copartner on shares with Severino Haro, who told them that he had already tied up the cow as per his master's order. At about 7 o'clock inthe evening while Clemente Babiera was in his house conversing with hisfather about the land which they had in Caboloan, which was attached by theGovernment, he suddenly heard a commotion; he went to the porch of thehouse to see what had happened and saw a number of persons coming onecarrying a light and another leading his cow by rope. Clemente Babiera toldhis father what he saw and went out to meet said persons, and sawBuenaventura Cabalfin leading his cow by the rope and Severino Haro

followed by his companions Pedro Tauro, Gregorio Torrija, Benito Carreon,Margarito Mediavilla and Fermin Bruces. Clemente Babiera then askedSeverino Haro: "Why are you taking my cow away? Haven't I promised to payyou tomorrow the loss caused by the animal? If you have no confidence inme, then prepare a receipt showing that tomorrow without fail, I will payyou." In reply, Severino Haro only said to Buenaventura Cabalfin: "Get on,proceed." Clemente Babiera took hold of the rope by which the cow was led,and said: "Buenaventura, stop!" Severino Haro then grasped ClementeBabiera by the hand and pulled him to one side. Clemente Babieradisengaged himself from Severino Haro's grasp, but Margarito Mediavillastruck him with a bolo at the base of his little finger. Feeling himself wounded, Clemente Babiera tried to unsheathe his bolo intending to returnthe blow to Margarito Mediavilla but failed to do so, because he heardsomeone say: "Shoot him!" Immediately thereafter he saw Severino Harowith revolver unholstered, and without any loss of time he went up to thelatter and at that moment shots were heard. Clemente Babiera then began to

slash blindly right and left without considering what he was at, catchingSeverino Haro in the back, as a result of which the latter fell to the ground onhis back. Clemente Babiera threw himself upon him, held him down so hecould not get up, and asked him: "Where is your revolver?" Severino Haroanswered that he did not have it. Then Clemente Babiera raised SeverinoHaro's hands and felt his back, but did not find the revolver. Justo Babiera,Clemente's father, then appeared, and was told by his son: "Papa, hold him,while I search for his revolver." When Clemente Babiera saw Fermin Bruceshe thought that the latter meant to attack him because he had one handbehind, where he carried his bolo, so Severino turned on him, but his wife,Dominga Bores, restrained him telling him not to approach. One Nario alsowanted to approach in order to defend Severino Haro but dared not do so inview of Clemente Babiera's threats. After having made fruitless search forSeverino Haro's revolver, Clemente Babiera, his father, and his wife went back to their house.

After charging Rosendo Paycol with the care of the children, the three went

to town and passed the night in Florencio Mayordomo's house. On thefollowing morning Dominga Bores went to attorney Buenaventura Cordova'shouse and informed him of what had happened. Buenaventura Cordova thenwent to Florencio Mayordomo's house and told Dominga Bores to return tothe place of the incident in order to look for the revolver and deliver it to theConstabulary if she found it. Then he accompanied Clemente Babiera to theoffice of Captain Gatuslao of the Constabulary at Fort San Pedro, to whomthey delivered the holster of the revolver and the three shells they hadpicked up on the night of the incident. Dominga Bores having found therevolver in a furrow near the place of the crime took it to Iloilo and deliveredit to Captain Gatuslao of the Constabulary between 9 and 10 o'clock in themorning.

Dr. Jose Gonzales Roxas, Constabulary physician, treated Clemente Babiera'swound and certified that the same was 2 centimeters long and half acentimeter deep and was situated at the base of the little finger of the right

hand, taking in the cellular tissue of the skin and the exterior ligament of thewrist.

In rebuttal, the prosecution tried to prove that at about half past five in themorning of August 22, 1927, Dominga Bores was seen in the ground floor of the provincial government building of Iloilo, carrying a package under herarm and from there she went to the public market of Iloilo.

There is no question that Severino Haro had leased from Basilio Coprerostwo parcels of land the ownership of which had passed to him due to JustoBabiera's failure to repurchase them within the stipulated period. Nor isthere any question that the latter tried to recover them, first, by an accion publiciana (action for unlawful detainer), and then by an action for therecovery of possession. There is likewise no question that Severino Haro paidthe expenses of the defendant Basilio Copreros for the reason that he was

already in possession of said lands as lessee. There is also no question that Clemente Babiera's cow damaged the plantings of Fermin Bruce, for whichreason the letter caught said cow, tied it, and notified his master of thematter when the latter went to visit the lands leased by him. Neither is thereany question that there was an agreement between Clemente Babiera andSeverino Haro whereby the latter ordered his copartner on shares FerminBruces, to take the cow near Clemente Babiera's house and tie it up there. Inlike manner there is no question that at about 7 o'clock in the evening of August 21, 1927, when Severino Haro and his companions were returning tothe town of Oton, and upon their coming near Rosendo Paycol's house, inwhich were Clemente Babiera, his father Justo Babiera, and his mistressDominga Bores, said Severino Haro had an encounter with Clemente Babierain which Severino Haro received several wounds in consequence of which he

died a week later in Saint Paul's Hospital of Iloilo.

The only question to determine in the present appeal is whether, as theprosecution contends, Severino Haro was suddenly and treacherouslyattacked by Clemente Babiera, aided by his father and his mistress DomingaBores; or, as the defense contends, Severino Haro notwithstanding theagreement between himself and Clemente Babiera by which the latter was toindemnify him for the damages caused by his cow, wanted to take the animalto town; that in trying to prevent it, Clemente Babiera was grasped by thehand by Severino Haro and pulled to one side; that in disengaging himself Clemente Babiera received a bolo cut from Margarito Mediavilla that wounded the little finger of his right hand; and that Severino Haro thenunsheathed his revolver and fired several shots, in view of which ClementeBabiera struck right and left with his bolo, thus causing the former's wounds.

In order to decide the question thus raised, it is necessary to take intoaccount all the circumstances, previous, coetaneous and subsequently to the

incident in question, and to determine who had, or could have had, motivesto assault the other.

We have seen that Justo Babiera sold two parcels of land to Basilio Copreroswith the right of repurchase, and that, having failed to repurchase themwithin the period stipulated, the title thereto was consolidated, in thepurchaser, who leased them to Severino Haro, the latter taking possession of them. Justo Babiera restored to every lawful means to regain possession of said parcels of land, first by an accion publiciana, which failed, and then by anaction for the recovery of possession. Severino Haro paid the expenses of Basilio Copreros in order to carry on the suits. Such interested interventionon Severino Haro's part without doubt must have vexed Justo Babiera, for inthe month of May 1927, he went with his copartner on shares, RosendoPaycol, to where Fermin Bruces, Severino Haro's copartner, was plowing, andasked him who had ordered him there, and when Fermin Bruces answeredthat it was Severino Haro, Justo asked him whether he would commit suicide

if told to do so by said Severino Haro, and then told him to tell his master togo and plow himself. Later on, Clemente Babiera, Justo Babiera's son,accompanied by his copartner Rosendo Paycol, seeing that Fermin Bruceswent on working the land, told him that if he continued plowing, Clementewould pull out someone's intestines. If all these threats are true, as webelieve they are, then Justo Babiera and Clemente Babiera must have borneSeverino Haro deep resentment, doubtless believing that it was due to himthat they could not recover their two parcels of land, and this was sufficient and adequate to move them, upon the failure of lawful means, to resort toviolence.

It has been contended by the defense that the defendant-appellant, ClementeBabiera, only acted in defense of his life and property, having been obliged toresort to arms on seeing his life endangered, contending that the provocationconsisted in that after Severino Haro had agreed to an indemnity of P2 forthe damage caused, the latter wanted to take Clemente Babiera's cow to thetown, and that the attack consisted in that Margarito Mediavilla gave him a

bolo blow on the little finger of the right hand, and that Severino Harothreatened him with his revolver and fired several shots at him.

Examined in the light of the ordinary conduct of men, Severino Haro's allegedattitude, in having tried to take Clemente Babiera's cow after having agreedto accept P2 for the damages, and having ordered that the animal be returnedto its owner, is highly illogical, and not a scintilla of evidence has beenpresented to explain this change of determination, as unexpected as it isunreasonable.

With respect to the allegation that Margarito Mediavilla and Severino Harobegan the attack, inasmuch as it has not been proved that they were theinstigators, it cannot be conceived that they committed said unlawfulaggression, for he who has no reason to provoke, has no reason to attackunlawfully.

The defense also attempted to prove that Severino Haro was of aquarrelsome disposition, provoking, irascible, and fond of starting quarrelsin the municipality of Oton, but the trial judge would not permit it.

While it is true that when the defense of the accused is that he acted in self-defense, he may prove the deceased to have been of a quarrelsome,provoking and irascible disposition, the proof must be of his generalreputation in the community and not of isolated and specific acts (UnderhillCriminal Evidence, par. 325, p.570), such as the accused Clemente Babieratried to prove, and hence the lower court did not err in not admitting suchproof. But even if it had been proved by competent evidence that thedeceased was of such a disposition, nevertheless, it would not have beensufficient to overthrow the conclusive proof that it was the said accused whotreacherously attacked the deceased.



15

Another circumstance which shows the falsity of the theory of the defense isthat of having made Buenaventura Cabalfin take part as the person whomSeverino Haro employed to lead Clemente Babiera's cow. If Severino Haro'scopartner, Fermin Bruces, whom he had told to return said cow to ClementeBabiera was with his master on that night, together with other companions,what need was there of said Severino Haro's employing the services of another person and one not belonging to his group? The plan of the defensenecessitated a provocation and to that end they conceived the idea of thebreach of the supposed agreement on the return of the animal through thepayment of an indemnity of P2, making use as an instrument of one on whomthe defense could depend to serve as witness, and there was no one bettersuited for such a purpose than Buenaventura Cabalfin who according to thewitnesses for the prosecution, was at the place of the crime with Gregorio

Paycol threatening the deceased's friends if they offered to help him.

To rebut the evidence of the prosecution that Dominga Bores was the onewho by order of Clemente Babiera took Severino Haro's revolver from himon the night in question, the defense tried to prove that on the followingmorning attorney Buenaventura Cordova, a relative of the Babieras, toldDominga Bores to return to the place of the incident and look for saidweapon, and that she found it in a furrow near the place and took it to theoffice of the Constabulary in Iloilo between 9 and 10 o'clock in the morning.But the rebuttal evidence of the prosecution disproved this contention andshowed that Dominga Bores did not have to look for the revolver in the field,since at half past five in the morning she was already in the provincialbuilding of Iloilo carrying a package under her arm.

With regard to the small wound at the base of the little finger of the right hand which Clemente Babiera showed to the Constabulary physician ashaving been caused by Margarito Mediavilla, we are convinced that the latter

was not in the company of Severino Haro on the night in question and couldnot have inflicted such a wound. Bearing in mind the plan of the defense, it may safely be said that in order to cast an appearance of reality on theconcocted plea of an unlawful attack and self-defense, Clemente Babierainflicted on himself the slight wound; since, if in order to escape militaryservice there were men who mutilated themselves, who would not woundhimself slightly in order to escape a life penalty?

The facts related above have been proven beyond a reasonable doubt andconstitute the crime of murder defined in article 403 of the Penal Code, therebeing present at the commission of the crime, the qualifying circumstance of treachery, consisting in the accused Clemente Babiera having attackedSeverino Haro suddenly while the latter had his back turned, inflictingvarious wounds on his body as a result of which he died a week later, saidClemente Babiera being criminally liable as principal by direct participation.

Justo Babiera and Dominga Bores are also liable but as accomplices, because,

while they did not take a direct part in the infliction of the wounds that caused Severino Haro's death, or cooperated by acts without which theycould not have been inflicted, or induced Clemente Babiera to inflict them,yet they took part in the commission of the crime by simultaneous actsconsisting in the former having mounted Severino Haro's body and helddown his hands, while the latter sat on his knees while he lay stretched out on the ground in order to allow Clemente Babiera to search the body for hisrevolver, Justo Babiera and Dominga Bores cannot be held as accomplices of the crime of murder, inasmuch as it does not appear to have been proventhat they knew the manner in which Clemente Babiera was going to assault Severino Haro, in accordance with the provision of article 79 of the PenalCode, to the effect that the circumstances which consist in the materialexecution of the act, or in the means employed to accomplish it, shall serve toaggravate or mitigate the liability of those persons only who had knowledgeof them at the time of the act or their cooperation therein. Although in theinstant case the treachery is not considered a generic aggravating, but a

qualifying circumstance, nevertheless, it does not fail to produce a specialaggravation.

To graduate the penalty, we are not to consider any modifying circumstanceof the criminal liability, for while it is true that Clemente Babiera tookadvantage of the darkness of nighttime, this circumstance is included intreachery, inasmuch as, considering the fact that Severino Haro was followedby several companions, the accused would not have been able to concealhimself in the cogon grass nor attack the deceased from behind without being seen in time and prevented from executing his criminal purpose hadnot been for the darkness of the night.

The penalty provided by law for the crime of murder namely, that of cadenatemporal in its maximum degree to death must therefore be imposed uponClemente Babiera in its medium degree, that is, life imprisonment.

The penalty provided for in article 404 of the Penal Code for the crime of homicide is reclusion temporal in its full extent, and the one next loweris prision mayor in its full extent, which is the penalty that must be imposedon Justo Babiera and Dominga Bores as accomplices in the crime of homicide(art. 67, Penal Code). In graduating the penalty, the aggravatingcircumstances of nocturnity must be taken into consideration, without anyextenuating circumstances to offset it, and therefore said penalty of prisionmayor must be imposed in its maximum degree, that is, ten years and 1 day.

As there are three persons civilly liable, one as principal in the crime of murder and two as accomplices in that of homicide, we must fix the share, forwhich each must answer, of the P1,000 fixed by the trial court, in accordancewith the provision of article 124 of the Penal Code, that is, P600 for ClementeBabiera and P400 for Justo Babiera and Dominga Bores, each of the latterbeing liable solidarily between themselves for their share, and subsidiarily

liable for the share of the former and the former for the share of the latter,according to the provision of article 125 of the same Code.

By virtue whereof, the appealed judgment is hereby modified, and it is heldthat Justo Babiera and Dominga Bores are guilty of the crime of homicide asaccomplices and each sentenced to ten years and 1 day prision mayor, and topay the sum of P400 jointly and severally, and Clemente Babiera to pay thesum of P600, the former to be subsidiarily liable for the latter's share, and thelatter for the former's share, payment to be made to the heirs of the deceasedSeverino Haro, the appealed judgment being affirmed in all other respectswith the proportional costs against each. So ordered.

EN BANC

G.R. No. L-35524 March 18, 1932

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,vs.JULIAN SUMICAD, defendant-appellant.

STREET, J.:

This appeal has been brought to reverse a judgment of the Court of First Instance of the Province of Occidental Misamis, finding the appellant, JulianSumicad, guilty of the offense of homicide and sentencing him to undergoimprisonment for twelve years and one day, reclusion temporal , andrequiring him to indemnify the family of the deceased in the amount of P1,000, as well as to pay the costs of prosecution.

On February 23, 1931, the accused, a resident of Buenavoluntad, in the

municipality of Plaridel, Occidental Misamis, was engaged with others in thegratuitous labor of hauling logs for the construction of a chapel in the barrioabove-mentioned. At about 5.30 o'clock in the afternoon on the daymentioned, when the laborers were resting from the work of the day, oneSegundo Cubol happened to pass the place where the accused was sitting.Prior to this date the accused had rendered five and one-half days service toCubol, and as the latter passed, the accused said to him, "Segundo, pay me forthe five and one-half days work for which you owe me." Cubol replied, "What debt!," an exclamation which was followed by an insulting expression. At thesame time he struck the accused with his fist. The accused arose from the logupon which he was sitting and moved backward, trying to escape, but Cubolpursued him and continued striking him with his fists. As the accusedreceded he found himself cornered by a pile of logs, the wings of whichextended out on either side, effectually preventing any further retreat. AsCubol pressed upon him, the accused drew his bolo and delivered a blow onCubol's right shoulder. Upon this Cubol lunged at the accused with the

evident intention of wresting the bolo from the accused. To prevent this theaccused struck two other blows with the bolo, inflicting two deep cuts onCubol's forehead above the left eye. One of these blows broke through thecranium. The other made a cut extending from the left eyebrow to the noseand upper lip. Upon finding a seat on a log nearby. A witness, namedFrancisco Villegas, who came up in a moment, after learning something about the matter, asked Cubol whether he had struck the accused blows with hisfist. Cubols replied that he had. The witness Villegas then turned to theaccused, who was standing a short distance away, and told him to put up hisbolo and go to the poblacion. Acting upon this suggestion the accusedimmediately repaired to the office of the justice of the peace and surrenderedhimself to the authorities. Cubol lived only an hour or so, and died from theeffect of the wounds received. In one of the pockets of the deceased a knifewas found, and the accused testified that, when he struck the deceased withhis bolo, the latter was attempting to draw a knife from his pocket.

The accused was 25 years of age when this case was tried, has a height of 5

feet and 1-½ inches, and weight of 105 pounds. The deceased appears tohave been taller, larger and stronger man. The evidence shows that thedeceased was quarrelsome and in the habit of making frequent trouble byfighting in the places where he happened to be present with others. In thelocal courts he had been convicted and sentenced to jail for assault andbattery in two different cases. In another case he was convicted of the offenseof inflicting minor physical injuries, being sentenced to imprisonment for onemonth and one day. In still another case he had been convicted of theft andsentenced to imprisonment for the same period of one month and one day.The proof leaves no reason to doubt that the deceased was hot-tempered andthat he had the reputation of being a trouble maker. It is a safe inferencefrom this proof — and there is nothing to the contrary, — that the deceasedwas with good reason considered by his neighbors to be a dangerous man.

From the facts above stated it is evident that the quarrel which resulted inthe death of Segundo Cubol was of his own making, and that the accused wasnot materially to blame in bringing about the trouble. Two of the elements of self-defense were therefore clearly present, namely, that the deceased wasthe aggressor and that there was lack of sufficient provocation on the part of the accused. The only further question that can therefore arise in discussionthe criminal liability of the accused is whether there was reasonablenecessity for the means employed by him to prevent or repel the aggressionto which he was subjected. Upon this point it will be noted that, when theaggression was begun by the deceased, the accused retreated until he wascornered in the angle of a pile of logs. His further retreat was this effectuallycut off both in the rear and at the sides. In response to the blows which thedeceased delivered with his fists, the accused first delivered a cut on the left shoulder of the deceased; but, if we rightly interpret the transcript of therecord on this point , the sanitary officer who exclaimed the body of thedeceased meant to say that this wound alone could not have resulted in



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death. This we consider to be the decisive turning point in the case. Uponreceiving that cut the deceased should have been admonished that furtheraggression on his part would be met by determined resistance and that anyfurther advance would be at grave peril to himself. Instead of acting uponthis warning, the deceased pressed forward in the attempt to possess himself of the bolo, the only means of defense then at the command of the accused.

Under these circumstances what might the accused have been reasonablyexpected to do. Was he to surrender the weapon to his assailant, a larger andstronger man than himself, who was now infuriated by the blood that hadbeen drawn from his shoulder? Or was he justified in keeping the weapon inhis hands and, as an ultimate resort, in using it as a means for his owndefense? Our reply is that he was justified in pursuing the latter alternative;

for it would probably have been an act of suicide to permit that weapon topass into the hands of his assailant. In judging a question of this kind thereputation of the deceased for violence is pertinent, for it tends to show that when the fatal blows were struck the accused had reasonable grounds forbelieving that he was in grave peril to life or limb.

It is undoubtedly well established in jurisprudence that a man is not, as arule, justified in taking the life of one who assaults him with his fist only,without the use of a dangerous weapon. The person assaulted must, in suchcase, either resist with the arms that nature gave him or with other means of defense at his disposal, short of taking life. But that rule contemplates thesituation where the contestants are in the open and the person assaulted canexercise the option of running away. It can have no binding force in the casewhere the person assaulted has retreated to the wall, as the saying is, anduses in a defensive way the only weapon at his disposal. One is not required,when hard pressed, to draw fine distinctions as to the extent of the injurywhich a reckless and infuriated assailant might probably inflict upon him

(Browell vs. People, 38 Mich., 732). And it was not incumbent on the accusedin this case, when assailed by a bully of known violent disposition, who waslarger and stronger than himself. On the contrary, under the circumstancesstated, he had the right to resist the aggression with the bolo, and if heunfortunately inflicted a fatal blow, it must be considered to have been givenin justifiable self-defense. Upon this point it may be recalled that thedeceased, when asked about the circumstances of the homicide, admittedthat he himself was the aggressor; and it is noteworthy that he used no wordplacing blame upon the accused.

We are of the opinion that all the elements necessary to constitute justifiableself-defense were present in this case and the accused should have beenacquitted.

The judgment appealed from will therefore be reversed and the appellant absolved from the information, with costs of both instances de oficio. Soordered.

G.R. No. L-31961 January 9, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.FLORENCIO ODENCIO and GUIAMELON MAMA, accused-appellants.

AQUINO, J.:

Florencio Odencio and Guiamelon Mama appealed from the decision of theCourt of First Instance of North Cotabato, finding them guilty of two separatecrimes of murder, sentencing each of them to two reclusion perpetuas, andordering them to pay P12,000 to the heirs of Prowa Talib and P12,000 to theheirs of Kadir Oranen (Criminal Case No. 5276).

According to the prosecution, at about seven o'clock in the evening of June

29, 1968, while Prowa Talib (Palua Talib), a forty-year old farmer, was in theyard of his house located at Barrio Simsiman, Pigcawayan, North Cotabato,handing a pot of rice to his wife, Setie Mamalintao, who was near the stairs,he was felled down by a volley of shots.

Setie rushed to the aid of her husband. When she looked in the directionwhere the gunshots emanated, she saw Guiamelon Mama holding a gun neara coconut tree around six brazas away. Then, she heard another volley of shots. She saw Florencio Odencio (Poren), also holding a gun near anothercoconut tree around ten meters away in the yard of the house of herneighbor, Daongan Karaing. She noticed that Kadir Oranen, who was nearby,had fallen to the ground around three arms' length from Daongan's house.Kadir died instantly.

Setie had known for a long time Florencio and Guiamelon who were friendsand neighbors also residing in Barrio Simsiman. Setie and Guiamelon hadcultivated adjacent farmlands.

While Setie was comforting her husband, he allegedly told her that he wasgoing to die. He directed her to remember what had happened to him andthat they had seen Guiamelon Mama and Poren armed with guns. Prior tothat shooting incident, Prowa Talib had reported to the barrio captain that Florencio Odencio had stolen his lumber.

The two assailants fled westward. At the time the incident occurred, JapalRongot was on his way to Talib's house. He encountered Guiamelon andJoseph Odencio with both of whom he was well acquainted. He askedGuiamelon why there were gunshots but the latter did not make any reply.Upon reaching Talib's house, Rongot saw Setie crying and holding Talib onher lap. Setie told him that Talib was shot by Guiamelon and she pointed tohim Oranen's corpse which was about two arms' length from Talib.

Ngelam Towa (Nilan Tuwa), another neighbor and the uncle of Setie heard,the gunshots on the occasion in question. He hastened to Talib's house. Setietold him that Guiamelon Mama had shot Talib. She advised her uncle not touse his flashlight because Guiamelon was still in the vicinity. Setie also toldTowa that Florencio Odencio had shot Oranen. Towa left Talib's house inorder to get assistance from his father-in-law. While crossing the trail hisflashlight focussed on Florencio Odencio with two companions leaving thescene of the crime.

Policemen arrived at Talib's house. Setie informed them that Guiamelon wasthe gunwielder. They brought Talib to a medical clinic where he wasinterrogated by Patrolman Joaquin Sañada Talib told Sañada that hisassailants were Guiamelon, Florencio Odencio and Florencio's father, Joseph

Odencio. Due to the critical condition of Talib(nagaagonto), he was not ableto sign his dying declaration (Exh. B) as taken down by Patrolman SañadaTalib was brought to the hospital. He died on the following day.

In that unsigned antemortem declaration, Talib revealed that FlorencioOdencio suspected that he and Oranen had masterminded the theft of JosephOdencio's two carabaos, and that, on the other hand, Guiamelon suspectedTalib of having stolen the carabao of Damiog, the father-in-law of Guiamelon.It was stated further in the same dying declaration that Talib had toldPatrolman Sañada that he wanted to sign it but that he could not do sobecause of the wound in his arm. Talib also articulated his belief that he wasgoing to die because he could hardly breathe and his wound was painful.

On July 1, 1968 or within forty-eight hours after taking Talib's unsignedantemortem statement, Sañada executed an affidavit reciting thecircumstances surrounding the taking thereof. Sañada testified in court onTalib's dying declaration.

The autopsy disclosed that Talib sustained eight gunshot wounds in the backor posterior chest wall. No autopsy was performed on the body of Oranenwho, as noted above, died at the scene of the crime.

On July 1, 1968, a complaint for double murder was filed in the municipalcourt against Guiamelon, Florencio Odencio, Joseph Odencio and AngelicoAposaga, Poren's father-in-law. They waived the second stage of thepreliminary investigation. On September 19, 1968, an information was filedin the Court of First Instance against Guiamelon Florencio Odencio andJoseph Odencio, The trial court acquitted Joseph and convicted onlyFlorencio and Guiamelon.

In his defense, Florencio, a thirty-two year-old farmer, denied that he shot Talib and that he had a misunderstanding with Oranen and Talib with both of whom he was acquainted. Florencio testified that he was in his house whenthe shooting occurred. He was arrested on the following day, June 30, 1968.He surmised that he was implicated in the case because he did not support Mayor Doruelo, the incumbent mayor, and, instead, he voted for Estañol, thecandidate of the Liberal Party. Florencio's alibi was corroborated by his wifeand his brother-in-law, Antonio Cesar.

The other accused, Guiamelon Mama, a thirty-year-old farmer, adopted thesame line of defense. He declared that he was also in his house when Talibwas shot; that he had no misunderstanding with Talib, who is his father'sbrother-in-law, being the brother of his stepmother, his father's second wife;that he was arrested while he was attending Talib's funeral, and that he cameto know his co-accused Florencio Odencio only in jail.

The accused presented Samuel Jubilan, a Constabularly Sergeant, whotestified that he was present when Patrolman Sañada interrogated Talib andthat the latter declared that he was not able to recognize his assailant because it was dark. Sañada said he did not know of that interrogation madeby Jubilan.

In disbelieving the alibis of Florencio and Guiamelon, the trial court observedthat the accused were indubitably Identified as the assailants in Talib's dyingdeclarations to his wife and Patrolman Sañada. Setie Mamalintao in herstatement to the police declared that she was able to recognize Florencio andGuiamelon because there was a "big torch" in front of her house andKaraing's house (No. 19, Exh. 1, p. 11, Record).

The trial court noted that there "was a good amount of lighting in the yard of Prowa Talib because he was preparing" supper when he was shot and that Setie was able to recognize the accused because she had been acquaintedwith them for a long time. As stated above, two witnesses saw the accused inthe vicinity of Talib's house shortly after the shooting. Therefore, thecontention of appellants' counsel de oficio that they had not been sufficientlyIdentified as the killers cannot be sustained.

Another contention of counsel de oficio is that the trial court erred in findingthat Guiamelon and Odencio conspired to kill Talib and Oranen. That

contention is belied by the evidence. Guiamelon and Odencio were seenpacing back and forth near Talib's house on the day of the incident (No. 27,Exh. 1). They shot the two victims in the same place and almost simultaneously, thus showing a coordination of efforts and community of design.

On leaving the scene of the crime, they proceeded in the same direction(westward). They were animated by the same motive, which was to liquidatethe victims because the latter allegedly stole the carabaos of the relatives of the accused. The record does not disclose any reason why Setie Mamalintaoand Patrolman Sañada would frame up the appellants.

The manner in which they shot the victims shows treachery. The shootingwas not the product of momentary impulse. There was alevosia because the



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two malefactors, taking advantage of the cover of night, stationed themselvesin a place where they could shoot the victims with impunity without any riskto themselves or without exposing themselves to any retaliation since thevictims did not expect to be assaulted at that time and place.

Appellants' counsel further contends that they were convicted on the basis of the wife's uncorroborated testimony "which is open to suspicion due toinherent improbabilities'' and "motives to falsify the truth". That contentionis not correct. Talib's antemortem statement fortifies the testimony of hiswidow, an eyewitness. We have stressed that two other witnesses saw theappellants leaving the scene of the crime.

Moreover, Talib's dying declaration was sufficiently proven. The rule is that adying declaration may be oral or written If oral, the witness, who heard it,may testify thereto without the necessity, of course, of reproducing exactlythe words of the decedent, if he is able to give the substance thereof. Anunsigned dying declaration may be used as a memorandum by the witnesswho took it down. (See 5 Moran's Comments on the Rules of Court, 1970 Ed.,pp. 315-316.)

We are satisfied that the guilt of the appellants was proven beyondreasonable doubt. As they were co-conspirators, they are each liable for thetwo murders. There being no modifying circumstances concomitant with thecommission of the two assassinations, the trial court properly penalized eachmurder with reclusion perpetua(Arts. 64[1] and 248, Revised Penal Code).

The trial court's judgment is affirmed with the sole modification that the twoappellants should be held solidarity liable for the two indemnities of P12,000each. In the service of the two reclusion perpetuas, the forty-year limit fixed inarticle 70 of the Revised Penal Code should be observed. Costs against theappellants.

SO ORDERED.

EN BANC

G.R. No. L-16941 October 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.MATEO DEL CASTILLO, ET AL., defendants,JOSE ESTRADA, defendant-appellant.

ANGELES, J.:

This is a review, on appeal by accused Jose Estrada, of Criminal Case No. 213-G of the Court of First Instance of Quezon, wherein the death sentence was

imposed upon the said accused by the court a quo in its decision datedFebruary 11, 1960, the dispositive portion of which reads as follows:

PREMISED on the foregoing considerations the Court hereby findsthe accused Jose Estrada GUILTY beyond reasonable doubt of thecrime of kidnapping for ransom as defined and punished by Article267 of the Revised Penal Code, as ultimately amended by RepublicAct No. 1084, with the aggravating circumstance of abuse of publicoffice (he being then municipal councilor of Gumaca), without anymitigating circumstance to offset it, and hereby sentences him todie by electrocution as provided by law, ordering his heirs afterhis execution, to indemnify Elvira Tañada Principe or her heirs incase of her death, in the amount of P50,000.00, and to pay thecosts.

For a prefatory statement of the background facts of the case, the details of which shall be set forth later as We review the evidence, the following

antecedents need be stated.In the afternoon of February 27, 1956, Mrs. Elvira Tañada de Principe, ayoung, prominent patron of Gumaca, Quezon, a member of the rich, wellknown Principe family, was kidnapped by a band of Hukbalahaps, headed byone Commander Pepe Alcantara. She was detained for 18 days in the Huklairs deep in the mountains of the Bondoc Peninsula, and was released onlyupon payment of a ransom of P50,000.00.

On account of the kidnapping, three(3) cases, filed one after another, wereinstituted by the Government against the known suspects. We are presentlyconcerned only with the last of these cases, which has culminated in thisappeal. But for a better understanding of this case, We have to make mentionof them all in passing. And for this purpose, the statement made by the trialcourt in the decision appealed from will suffice.

(a) The First Case. — Criminal Case No. 137-G.

The first charge was a complaint initiated on March 11, 1956, byLt. Lucas B. Apolonio of the 38th PC Company stationed at Gumacaand lodged with the justice of the peace court of Gumaca whichupon elevation to this Court became Crim. Case No. 137-G for thecomplex crime of rebellion with kidnapping in which theinformation was filed by Assistant Provincial Filed Severino I.Villafranca on April 24, 1956.

On June 4, 1956, Fiscal Villafranca amended his first informationto name Arcadio Talavera as Lt. Alcantara in the assumption that Lt. Alcantara was Arcadio Talavera.

Later on and after the Luis Taruc case was decided by the SupremeCourt to the effect that there was no such complex crime of rebellion with kidnapping, Fiscal Villafranca moved the Court to

permit him to amend his information and to charge the accusedseparately, one information for the crime of kidnapping forransom.

On June 26, 1956, a second amended information in Criminal CaseNo. 137-G was filed by Fiscal Villafranca charging all the accusedheaded by Arcadio Talavera alias Lt. Alcantara with the simplecrime of rebellion.

On August 26, 1956, a third information was filed by FiscalVillafranca eliminating Arcadio Talavera from the information but adding Lt. Alcantara as one of the accused. The crime charged wasstill for the crime of rebellion.

The record shows that this third amended information wasprovisionally dismissed by the Court on October 16, 1956, on thepetition of Fiscal Villafranca and Special Prosecutor Capilitan onthe ground that the evidence against the two accused DoroteoEdungan and Buenaventura Miel, who were then the only accusedplaced in the custody of the law for rebellion, were not sufficient toconvict them of rebellion.

The record further shows that the entire case was provisionallydismissed on the ground that the rest of the accused had not yet been arrested, subject to the proviso that any time the case may berevived for rebellion against those that might be arrested later.This Case No. 137-G is therefore a closed case, at least provisionally as a case for rebellion.

(b) The Second Case.— Criminal Case No. 164-G, for Kidnapping for Ransom.

On June 26, 1956, Assistant Provincial Fiscal Villafranca filed aseparate information for the kidnapping for ransom of ElviraTañada de Principe, naming the thirty-three accused in Crim. CaseNo. 137-G as defendants. This case was docketed as Criminal CaseNo. 164.

The record shows that on August 17, 1956, this Court uponpetition of Provincial Fiscal Jose O. Lardizabal dismissed the caseagainst Arcadio Talavera as Lt. Alcantara and Provincial FiscalLardizabal filed an amended information on August 16, 1956,against Lt. Alcantara and the thirty-two persons named in the first information. In other words, Arcadio Talavera alias Lt. Alcantarawas eliminated but Lt. Alcantara was continued in his stead.

The accused Antonio Campaniero alias Nelson de Rosas wasdischarged from thisinformation to be utilized as witness for the

government in Crim. Case No. 213-G.The case against Buenaventura Miel was dismissed on March 19,1957, for insufficiency of evidence.

The case against Gonzalo Mallare alias Commander Romy wasdismissed on December 5, 1957, for insufficiency of evidence.

On February 25, 1958, the case against Doroteo Edungan wasdismissed upon petition of Special Prosecutor Victor Santillan andArtemio Alejo and of Assistant Provincial Fiscal Eufemio A.Caparros for insufficiency of evidence.

On February 26, 1958, the accused Quirino Ravela alias de Leonpleaded guilty as accessory after the fact in the crime of kidnapping for ransom of Elvira Tañada and was sentencedaccordingly.

On February 1, 1960, the accused Clodualdo Camacho pleadedguilty as accessory after the fact and was sentenced accordingly.

Isidro Alpay alias Commander Bulaklak, Domingo America aliasLaguimay, Ireneo Capisonda alias Erning alias Lope, Benjamin deJesus @ Amin, Ben Ramirez @ Ben, Pedro Martinez @ Pedro,Santiago Napoles @ Nomver, @ Jaime @ Jimmy @ Jimay, @ Gelacio@ Elioso, @ Liwayway, @ Berna, @ Timoteo, @ Juan, @ DeGuzman, @ Torres, @ Valencia, @ Bayas and @ Ladres have not yet been placed in the custody of the law. On February 27, 1958,the case against those who are still at large was dismissedprovisionally.

The accused Alfredo Reyes @ Commander Fred, Emiliano Blasco@ Commander Emy, Rodrigo @ Commander Tony, VictorianoDayunot @ Torio and Panfilo Rosales @ Predo @ Banaag are allreported dead.

For all purposes therefore, Case No. 164-G may be considered aterminated case.

(c) The Third Case. — Crim. Case No. 213-G, for Kidnapping for Ransom.

On October 10, 1956, a third case was filed by a special prosecutorfrom the Department of Justice, Antonio O. Capilitan, after thesurrender of some of the Huks who participated in the kidnappingof Elvira Tañada de Principe. In this third case, the specialprosecutor accused Mateo del Castillo, Jose Estrada and JulioCeribo and several others under assumed names or aliases of kidnapping for ransom and this case was docketed as Crim. CaseNo. 213-G. This is now the case under consideration of the Court in



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which the accused Jose Estrada was the only accused tried by theCourt.

The accused Jose Ceribo was discharged from this case to beutilized as witness for the government.

The accused Mateo del Castillo has been reported dead.

The accused Romaguerra Doe @ Romaguerra was identified asFrancisco Rabi and Heling Doe @ Heling was identified as AngelVeran. They both pleaded guilty upon their arraignment onFebruary 1, 1960, as accessory and were sentenced accordingly.

The accused Pete Doe @ Pete and William Doe @ William were

identified as Francisco Lisay and Quintin Magdaong. They alsoboth pleaded guilty as accessory and were sentenced accordingly.

The accused Carding Doe @ Carding is reported dead.

As to the other accused, Teddy Doe @ Teddy, Nato Doe @ Nato,Mike Doe @ Mike, Inso Doe @ Inso, Essi Doe @ Essi, Kaloy Doe @Kaloy, Loring Doe @ Loring, and John Doe, they are still at largeand have not yet been placed under arrest.

During the trial of this case No. 213-G the defense of Estradaasserted that the accused Lt. Alcantara was already in the custodyof the Philippine Constabulary and was subpoenaed as witness forthe defense but notwithstandingthe efforts of the Court thisaccused has not been produced by the authorities. He is stillcharged in Crim. Case No. 213-G but his case has not yet been set for hearing.

The foregoing statement of the genesis of Criminal Case No. 213-G explainswhy the decision appealed from concerns only Jose Estrada (hereinappellant).

Accused Jose Estrada was tried alone by the court below under thecorresponding information, alleging as follows:

That on or about the 27th day of February, 1956, in themunicipality of Gumaca, Province of Quezon, Philippines andwithin the jurisdiction of this Honorable Court, theaforementioned Accused, together with (1) LT. ALCANTARA, (2)ROMY DOE @ Comdr ROMEO, (3) JOSE MALUBAY @ Comdr PEPE,(4) GALICANO MANAOG @ Comdr BULAKLAK, (6) DOMINADORAMERICA @ LAGUIMAY, (7) ALFREDO REYES @ Comdr FRED, (8)EMILIANO BLASCO @ Comdr EMMY, (9) RODRIGO DOE ComdrTONY, (10) CLODUALDO CAMACHO @ EFREN, (11) VICTORIANODAYUNOT @ TORIO, (12) IRINEO CAPISONDA @ ERNING, (13)

DOROTEO EDUNGAN @ DOROT, (14) BUENAVENTURA MIEL @TURA, (15) BENJAMIN DE JESUS @ AMIN, (16) BEN RAMIREZ @BEN, (17) PEDRO MARTINEZ @ PEDRO, (18) SANTIAGO NAPOLES@ NOMER, (19) PANFILO ROSALES @ FREDO @ BANAAG, (20)ANTONIO CAMPANIERO @ NELSON DE ROSAS, (21) @ JAIME @JIMMY @ JlMAY, (22) @ GELACIO @ ELIOSO, (23) @ LIWAYWAY,(24) @ BERNA, (25) @ TIMOTEO, (26) @ JUAN, (27) @ DEDUZMAN, (28) @ MENDOZA, (29) @ DE LEON, (30) @ TORRES,already charged with Kidnapping in Criminal Case No. 164-G,under the same facts herein charged, conspiring and confederatingand mutually helping each other, did then and there wilfully,unlawfully, and feloniously through force, threats andintimidation, kidnap ELVIRA TAÑADA DE PRINCIPE and CARMENNOCETO, take and carry them away from their dwellings to anuninhabited far distant forest in the mountain of Bondoc Peninsulafor 18 days confinement under their custody and control for the

purpose of demanding ransom in the amount of FIFTY THOUSANDPESOS (P50,000.00) Philippine currency, which the said Accuseddid in fact receive on the 16th day of March 1956 in considerationof which amount said kidnapped persons were released to thedamage and prejudice of the said offended parties in the saidamount.

That the following aggravating circumstances are present in thecommission of the offense:

(1) Superior strength; (2) in band; (3) use of unlicensed firearms;(4) in an uninhabited place; and (5) use of Army uniforms andother insignias for disguise.

Upon arraignment on November 27, 1956, accused Jose Estrada refused tomake any plea to the information against him; hence, the trial court enteredfor him a plea of "not guilty." His petition for bail had been denied; and sincethen, Jose Estrada has remained in confinement.

Our own examination of the record revealed that the case of the People wasestablished thru the testimonies of 12 prosecution witnesses, namely: ElviraTañada de Principe and Carmen Noceto, the kidnap victims; ReynaldoPrincipe, Elvira's husband; Marciano Principe, Reynaldo's father; PetraMañego, Basilio Angulo, Beato Glinoga and Jesus Letargo who all hadsomething to do with the negotiations between the kidnappers and thefamily of the victims, which led to their subsequent release of the kidnappedvictims; Antonio Campaniero and Julio Ceribo who were both dischargedfrom the information to be utilized as state witnesses; Gonzalo Mallare, asagainst whom the case was dismissed for insufficiency of evidence; and Col.Francisco del Castillo, Provincial Commander of Quezon at the time theinformation in this case was filed in court. Stripped of unessential details, the

testimonies of the principal witnesses may individually be summarized asfollows:

TESTIMONY OF ELVIRA TAÑADA DE PRINCIPE:

Elvira Tañada de Principe was inside her store on the ground floor of thehouse of her father-in-law in Gumaca, Quezon, at about 4: 00 o'clock in theafternoon of February 27, 1956. She was busy estimating her laundry bills.Three (3) men wearing uniforms similar to those worn by soldiers in thearmy arrived and entered her store. One of them first inquired for the priceof a pack of "Chelsea" cigarettes, and then asked for one. As Elvira reachedfor the pack of cigarettes, the other two suddenly grabbed her hands andpointed their pistols to her. They pulled her out of the store and dragged hertowards the bodega of her father-in-law, Marciano Principe, and then on tothe railroad track going to the direction of the elementary school of the town.The two uniformed men were later substituted by two others in civilianclothes who, after holding Elvira by the hand on each side, continued runningwith her through the coconut plantations toward the mountains. There weregun fires that followed, but the men continued running, taking Elvira Tañadade Principe along with them. They told her not to be afraid, as they were just making a "show". They stopped running, however, when the firing ceased;and soon other persons came running towards them and joined their group.One of them gave Elvira a pair of shoes and stockings. She put them on beforethey continued their way, deeper into the mountain. The leader ordered twoof his men to buy bread for Elvira, but they were not able to buy any. Instead,she was given candy. Then they continued walking all through the night stopping only at midday of the 28th of February when they reached asawmill site. From there, they continued walking again at dawn of thefollowing day until they came upon a copra kiln; and there the men preparedfood. Thereafter, they continued hiking once again until they reached the Huk

lairs. There were five huts at the place, all without walls. Elvira Tañada dePrincipe and Carmen Noceto were kept in the one located at the center fortwo weeks.

There were sixteen (16) men in the group that took Elvira and Carmen to themountains, including the three (3) who originally took Elvira out of her storein Gumaca. Elvira came to know their names because they had nameplates ontheir breasts. The leader — who earlier asked for a pack of "Chelsea"cigarettes at her store — was Lt. Alcantara, while those who dragged her out of the store were Gomez and Mendoza. Not long after their arrival at theplace of the huts, the kidnappers divided into two groups. Lt. Alcantara soonleft the place with seven (7) men, leaving the eight (8) others to guard ElviraTañada de Principe and Carmen Noceto. These men left behind were Ladres,Bayas, Gomez, Torres, De Leon, Villazar, Delgado and Mendoza. Lt. Alcantaraand Julio Ceribo came back to the place every now and then, bringing foodand letters from Elvira's husband.

After the lapse of about two weeks, Lt. Alcantara finally told Elvira that shewould be released. He showed her letters from her husband, her father andher brother. And on March 15, they left the huts at about 11:00 o'clock in themorning, with Carmen Noceto and others. They moved to another placewhere they waited for Lt. Alcantara's other companions. In due time, theyarrived, and Elvira and Carmen Noceto were then taken to another placewhich they reached after about an hour's walk. There they met Angulo,Letargo, Erea and Francia who had come all the way from Gumaca andbrought the P50,000.00 ransom money. Elvira counted the money, thendelivered the same to Lt. Alcantara. Thereafter, Elvira and Carmen Nocetowere released. They were not accompanied by anyone of the kidnappers. Lt.Alcantara merely instructed them to follow the course of a river until theycould see a house, and there to find one who could guide them to BarrioMagisian, Lopez, Quezon. They followed these instructions and reached theroad in said barrio, where they were picked up by a station wagon whichtook them back to Gumaca at about 5:00 o'clock in the afternoon of March 16,

1956.TESTIMONY OF CARMEN NOCETO:

In the afternoon of February 27, 1956, Carmen Noceto was at the house of her sister near the elementary school in Gumaca. She saw two personsrunning on the railroad track, leading Elvira Tañada de Principe by thehands. Suddenly, a "soldier", also on the railroad track and called her out of the house. Pointing his gun at her, the "soldier" pulled her by the hand anddragged her along, telling her that she would just accompany Elvira Tañadade Principe. She could not refuse; she was greatly terrified. Her father whowas then present was stunned for the "soldier" also pointed his gun at him.She was taken, along with the group of Elvira Tañada de Principe, to the faraway mountains she had never reached before. They walked all night, thenfor two days more, resting only when they took their meals. They finallystopped walking, only when they reached a place where there were five hutswithout walls. She and Elvira Tañada de Principe were kept in one of these

huts together during the eighteen days that they were held in captivity bytheir kidnappers. They were allowed to go home only after the arrival of theP50,000.00 ransom money which was brought by Manoling Letargo, BasilioAngulo and two others whom she did not know. Before their release, theywere guarded by several men, among them De Leon, Angelo Veran @Villazar, Antonio Campaniero @ Nelson and Julio Ceribo @ July.

Carmen Noceto did not know Elvira Tañada de Principe before thekidnapping. She came to know her only when they were kept together in onehut in the mountains. They became intimate with one another later, andElvira allowed her to read the letters sent to her by her husband while sheand Elvira were held captives.

TESTIMONY OF BEATO GLINOGA:



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Beato Glinoga was asleep in his house in Barrio Villa Tañada, Gumaca, on thenight of March 4, 1956, when he was awakened by his barriomate, LeonCalvelo. The former was informed by the latter that some soldiers wanted tosee him. Glinoga obliged, and went with Calvelo to the latter's place whichwas about half a kilometer away, to meet the soldiers referred to by Calvelo.He did meet them at the place which was dark; so much so that altho hespoke with one of the supposed "soldiers", Glinoga was not able to recognizeany of them. Nevertheless, the person with whom Glinoga spoke introducedhimself as Lt. Alcantara, at the same time identifying himself and hiscompanions as the ones who had kidnapped Elvira Tañada de Principe. Lt.Alcantara then asked Glinoga if he could deliver a letter to the Principes inGumaca, to which Glinoga consented. Lt. Alcantara warned him not to revealthat he had seen them to anybody. He also instructed Glinoga to see accused

Jose Estrada first before delivering the letter, so that he (Estrada) couldaccompany him to the house of the Principes, and then to the mountains inVilla Tañada where Lt. Alcantara would meet them later, for according to theletter, Estrada knew what it is all about. Glinoga was warned further, that should he fail to contact Estrada, he should not tell anybody about it, but should proceed directly to the house of the Principes in Gumaca, and thenmeet him (Lt. Alcantara) later in the mountains.

Pursuant to such instructions, Glinoga left Villa Tañada early the followingmorning and proceeded to the town of Gumaca, to deliver Lt. Alcantara'sletter to the Principes. He tried to locate Estrada when he reached the town,but he was not able to find him; so, Glinoga went directly to the house of Marciano Principe and delivered the letter to the old man in the presence of the other members of the family. Marciano Principe immediately prepared aletter in answer to Lt. Alcantara's note. He then gave it to Basilio Angulo whowas at the house of the Principes at the time, requesting Angulo to go with

Glinoga back to Villa Tañada and see Lt. Alcantara. Angulo agreed. He went with Glinoga to the mountains in Villa Tañada. They reached the Huk lairs at about 7:00 o'clock in the evening of that same day, and they were met by Lt.Alcantara after Glinoga had signalled three times with his flashlight. BasilioAngulo then had a conference with the Huk leader. Asked by one of Lt.Alcantara's men where accused Estrada was, Glinoga gave the informationthat he was not able to find him in town.

TESTIMONY OF ANTONIO CAMPANIERO @ NELSON DE ROSAS:

Antonio Campaniero joined the Hukbalahap organization on August 25,1952, under the Huk name @ Nelson. He served under various HukCommanders in the field. From 1955 up to the time of his surrender on July18, 1956, he was under the command of Huk Comdr. Teddy Corazon, head of the Organizers Brigade (OB), operating near the mountains of Gumaca,Quezon.

Sometime during the first week of February, 1956, Comdr. Teddy ordered

Nelson and another Huk, @ Fredo, to contact the accused, Councilor JoseEstrada of Gumaca, and inform the latter that Huk Lt. Alcantara (head of the"Tadtad Unit or G-Men") and Comdr. Teddy Corazon wanted to meet him(Estrada) in Barrio Biga. Nelson and Fredo complied with the order; Fredotalked with Estrada in Gumaca, as Nelson stood guard. Estrada showed up inBarrio Biga, three days later, at about 2:00 o'clock in the afternoon. Asidefrom Lt. Alcantara and accused Jose Estrada, there were other Huks present during the meeting, among them, Comdr. Teddy, Comdr. Emy, @ Romy, @Fredo, @ July, @ Sonia and @ Nelson. Estrada was asked by Lt. Alcantara whothe richest man in Gumaca was, and the former answered that "he wouldsuggest the Principe family" (ang maimumungkahi ko po ay ang pamilyaPrincipe). Asked by Lt. Alcantara if he was referring to Reynaldo Principe,Estrada answered that if Reynaldo Principe were the one to be kidnapped, it would be difficult for the family to ransom him for the reason that most of the properties of the Principes were in his name. Instead, accused Estradarecommended his wife, Elvira Tañada de Principe, who could easily be

ransomed. Lt. Alcantara agreed to the suggestion of Estrada saying, "if that isthe case, yes, and you will be informed when the kidnapping will take place,"to which Estrada answered: "All the time you can depend upon me." Estradathen left the place that same afternoon at about 5:00 clock, after he and Lt.Alcantara had talked about politics.

Sometime thereafter, Comdr. Teddy informed Nelson that the latter, togetherwith others in their Unit, would be "borrowed" by Lt. Alcantara tosupplement the men of the "Tadtad Unit" and join them in the execution of the plan to kidnap Elvira Tañada de Principe. And thenceforth, Nelson beganreceiving orders directly from Lt. Alcantara.

In the afternoon of February 27, 1956, Lt. Alcantara and his men came downfrom Barrio Biga and entered the town proper of Gumaca, Quezon. Alias Essi,@ Loring and @ Nelson stood guard near the railroad station. After takingElvira Tañada de Principe, they fled and went through the mountains forthree days and three nights, with short stops to rest at some points on the

way. They hid Elvira Tañada de Principe in Barrio Laguio between themunicipalities of Lopez, Gumaca and Macalelon. Carmen Noceto was alsotaken by them to the mountains with Elvira that same day.

On July 18, 1956, @ Nelson surrendered to the authorities. He did not knowthen what the penalty for kidnapping for ransom was. He was investigated inCamp Natividad on July 22. Having just surrendered then, he was af raid to beimplicated in the Principe kidnapping therein. Later, he was investigatedagain in Lucena. He then decided to tell the truth and did not mind anymorethe consequences. He gave his statement (Exh. X) wherein he revealed hisparticipation in the Principe kidnapping case and the role played therein byaccused Jose Estrada, on September 5, 1956. Having known the truth fromthe said statement, both the investigator and the prosecutor then told Nelson

that he would be a witness against Estrada after his discharge from theinformation. He was later arraigned on November 20, 1956.

In the month of January, 1957, Antonio Nieva, brother of then Chief of Police,Ricardo Nieva of Pasay City, met @ Nelson near the house of Col. del Castillo,Provincial Commander of Quezon. They had a sort of conference. Nievapromised Nelson to work out his case with Malacañang, should he agree not to testify against Estrada in court. Nieva urged him to deny the truth of hisstatement (Exh. X) when the trial comes, and to testify that he had executed it only because he had been maltreated, rewarded and given promises. Nievagave him P20.00 on that occasion.

Nelson at first denied having written Exhibit 2 (a letter signed by Nelsonaddressed to Estrada, on January 24, 1957), wherein Nelson appears to betelling Estrada that they were then in a bad fix; that Col. Castillo had come toknow that Congressman Roces of the CAFA was coming to see them, and hebelieved that Estrada was the one who had written the congressman, andthen caused Nelson and his companions to make a "turn about;" that becauseof that suspicion of Col. Castillo, they were no longer permitted to talk withany visitors; that Nelson, Gregana and Pedro Masilungan — Estrada's formeradversaries in the Barretto case — have all agreed to make a "turnabout",and that the Fiscal had been informed that they really did not know Estrada.Later, however, he admitted that he was the one who wrote it. On January 25,1957, Nelson sent Estrada another letter, Exhibit 3 (Nelson appears to beurging Estrada to write and complain to the CAFA; to give them help so that they may be able to deny the truth of their "statements" which the PCinvestigations had forced them to sign; and to request Nieva to intercede intheir behalf in Malacañang in order to put an end to the doings of theProvincial Commander in Quezon). On January 27, 1957, Nelson wroteanother letter, Exhibit 10 (styled "to whom it may concern," Nelson appears

to be declaring here that he and his companions knew nothing about thekidnapping of Elvira Principe, much less, the alleged conference with Estradaregarding the same; that they signed their "statements" only because theyhave been threatened, the investigators telling them that they would beprosecuted if they would not cooperate with the Government; that they hadbeen required to drink plenty of water; that they had been made to testifyagainst persons like Estrada, with the promise of a bright future and of money; and that Col. Castillo was really mad at Nieva. Nelson appears to berequesting Antonio Nieva also for "cigarette money" and for his letters to bereturned to him). Nelson wrote another letter on the same date, which hesigned with the name of Pedro Masilungan. (This letter, Exh. 1, purports toshow that Pedro Masilungan had also been forced to sign his "statement" andto testify against Estrada by Capt. Zita). Nelson explained that he wrote toEstrada because he had been coerced by two insular prisoners who wereallowed to enter his cell, warning him that his life would be in danger, shouldhe fail to do so. He wrote Exh. 3 only after the said prisoners had talked to

him and to Melchor Gregana and Julio Ceribo who were with him in the samecell at the time.

A few days thereafter, probably on January 31, 1957, Nelson, along with JulioCeribo, @ Sonia, Pedro Masilungan, Antonio Batanes and others, was takenby Col. Castillo before Col. Yan at Camp Crame. He then affirmed the truth of the contents of his statements (Exh. X) before the said official. He did thesame when he was taken before General Cabal who examined him on the saidstatement. He, likewise, affirmed the truth thereof before President RamonMagsaysay before whom he was seen in the office of Secretary Balao at CampMurphy. He did not mention the letters he had written to Estrada then,because the contents of said letters were false and he was afraid to tell anylies before the highest authority of the land. He stated in those letters that hedid not know Estrada, because he merely wanted to make Estrada believethat he would really make a "turn about". But the same is false; it was onlythe idea of Antonio Nieva. Nieva had told them that Estrada was ever willingto give them help, that is why Nelson and his companions agreed to mulct

him. Thus, in one of the said letters, Nelson had asked Estrada for "cigarettesmoney".

Nelson had been discharged from the information on March 20, 1957; but hewas still under PC custody because he had demanded such protectionpending the termination of the case.

TESTIMONY OF JULIO CERIBO:

Julio Ceribo testified that he was a surrendered Huk; he joined theHukbalahaps in 1946; he served under various Huk Commanders in the field;in 1953, he was assigned as a member of the unit — headed by Lt. Alcantara— with the old man Mateo del Castillo, the highest in command; he knewabout the kidnapping of Elvira Tañada de Principe because he was with Lt.Alcantara when they kidnapped her; but even before the actual kidnapping,he already knew about it because there was a conference in Barrio Bigawhere it was agreed to kidnap her because she was the one pointed to by

Estrada; first, Lt. Alcantara approached Comdr. Teddy Corazon, and then thelatter ordered Huks Nelson and Fredo to contact Estrada in the poblacion;three days after, Estrada came to Barrio Biga and conferred with Lt.Alcantara, Comdr. Teddy Corazon, Comdr. Emy and others; Estrada wasasked by Lt. Alcantara then as to who was the richest in Gumaca, and Estradasuggested Elvira Tañada de Principe because she could easily be ransomed;Estrada explained that if it were her husband to be kidnapped, it would behard for the family to ransom him because the properties of the Principeswere in the name of Elvira's husband, Reynaldo Principe; Lt. Alcantaraagreed, and about one week after that conference, they came down toGumaca and took Elvira; he stood guard in one of the streets in the townduring the kidnapping; one of his companions took along Carmen Noceto onthe way so that Elvira Tañada de Principe would have a companion; it wasabout 5: 00 o'clock in the afternoon of February 27, 1956, when they



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kidnapped Elvira; there were 16 of them who executed the said kidnapping,among them, Lt. Alcantara, Nato, Mike, Heling, Nelson, Emilia, Carding, Payat,Efren, another Efren and Del Moro; they took Elvira and Carmen to themountains between Macalelon and Lopez, Quezon; they hid them there fortwo weeks in one of five huts they built; Elvira was later ransomed by herhusband; Basilio Angulo and three other persons brought the ransom moneyof P50,000.00, after which both Elvira and Carmen Noceto were released;they kidnapped Elvira Tañada de Principe because they were in need of alarge sum of money; on August 7, 1956, he was with the Huks that had anencounter with the government forces in Usiwan Lucban, Quezon; there hewas wounded in the right foot, and soon, unable to withstand thedeprivations anymore, he decided to have a "new life"; he proposed tosurrender to the Mayor of Majayjay, Laguna, thru the intercession of Juan

Cuates of Barrio Botocan; he had no chance to talk with the Mayor, however,because when they came to get him, the BCT soldiers were the ones who got hold of him first, and they took him directly to their headquarters in MajayjayLaguna; from there, he was taken to Canlubang where he was questioned asto when he first joined the Huks; then he was transferred to Lucena Citywhere he was investigated by Eddie Recuenco; after that he was brought tothe Court of First Instance of San Pablo where he was charged of rebellion;but later he was discharged from the information thru the efforts of hisbrother who secured the services of Atty. Ribong; his brother showed to himhis discharge papers, but he was still kept in the stockade at Lucena City withNelson, he was not released; and when he was investigated there inconnection with the kidnapping of Elvira Tañada de Principe, he had toadmit; at first he wanted to deny it, but when Nelson pointed to him, he wasfrightened and had to tell the truth — that he was with the group that kidnapped Elvira — that is why he was included in the information in thiscase; but when he was arraigned, he pleaded "not guilty", assisted by one

Atty. Gonzales; he pleaded "not guilty" to the charge because he knew that kidnapping is a very serious crime, for even up in the mountains they hadbeen told; that the penalty for kidnapping was severe and "we had better bedead than caught alive;" but the truth is he was really with the kidnapperswho took Elvira Tañada de Principe; he knew Atty. Franco, the latterintroduced himself to him and told him that he was his counsel; they first met in Lucena City, then for a number of times later in Gumaca, Quezon wherethey talked about his case; he told him (Atty. Franco) that he could not denythe circumstances because they were all true; they met again after that in thestockade in Lucena when Atty. Franco brought some typewriter paperswhich he was asked to sign; the papers (Exh. 16) was shown to him, but hewould hardly read it because it was held by Atty. Franco far from his face;they were in the kitchen of the stockade then, and Atty. Franco told him tosign it at once because the soldiers might come; he insisted that he shouldsign it because he was his lawyer, and it was for his benefit — for hisacquittal; but he had no hand in the preparation of that document, and its

contents are not true; he met Atty. Franco again in Majayjay later when hewas granted leave; Atty. Franco instructed him to go to Manila because hewould prepare an affidavit, but he did not go there, he left Majayjayimmediately even if he had not fully enjoyed his 19-day leave; he later toldCapt. Alejo (government prosecutor) that Atty. Franco had made him signExh. 16; its contents, except for his age, are not true; for the truth is that heknew everything about the kidnapping of Elvira Tañada de Principe; thedocument was already prepared when it was shown to him by Atty. Franco,and the latter compelled him to sign it; when he was at the stockade inLucena with Nelson, he knew that Nelson was writting letters, and that he(Nelson) was sign their names on the letters, but Nelson never showed theletters to him; he came to know the letters to accused Estrada only when thesaid letters were later discovered; he knew Col. Yan, he was taken before himat Camp Crame; Col. Yan asked him whether or not his declarations in hisstatement (Exh. H) were true, and he confirmed them; he was next takenbefore Gen. Cabal, before whom he declared that he had executed Exh. Hvoluntarily, i.e., that he was not maltreated by the PC; later he was takenbefore the late President Magsaysay in the office of the Secretary Balao, andthere, he also affirmed the truth of his statement before the President.

TESTIMONY OF GONZALO MALLARE:

Gonzalo Mallare testified that he was a former Huk, he surrendered to theauthorities on March 20, 1957; he joined the Huks in Manila, as early as April,1948; in December of that year, he was apprehended by the PC, and wasmaltreated; they released him, later, however, because the Communist Partyhad then not yet been declared illegal; but after that he went up themountains, and from the position of mere clerk in the Manila office of theHuks, he rose to higher positions; he was again apprehended by the PC in1949, and again he was released in February, 1950; thereafter, he rejoined

the Huks in the mountains; in 1955, he was educational chairman of RECO 4— charged with the duty of indoctrinating the people with the tenets of theHMB, which he learned from Dr. Jesus Lava — with jurisdiction in theprovince of Rizal, half of Laguna, and the whole province of Quezon; about May 1, 1954, as he and his men were passing thru Barrio Labnig Gumaca,Quezon, he was introduced to accused Estrada by Huk Comdr. Tony who wasthen operating in the Bondoc Peninsula; Estrada told him then that he was afriend of the Huks and the civilians, and that he was influential with theArmy; Estrada told him further, that if he could be of help to him, he woulddo it; remembering that he was in need of a typewriter and a mimeographingmachine then, he asked Estrada if he could help him procure them for him,and Estrada promised to do so; in the afternoon of that same day, he gaveP650.00 — P500.00 coming from him, and P150.00 coming from Comdr.Onoy — to Comdr. Matta, for delivery to Estrada; he knew that Estrada

received the money for, soon, he received the typewriter and themimeographing machine, Comdr. Matta informing him then that Estrada hadsent him (Matta) a letter stating that the amount given was P43.00 short of the cost of the typewriter and the mimeographing machine, aside from theexpenses of the two persons who had brought them; this typewriter andmimeographing machine he acquired thru Estrada's help, was delivered byhim to the 26th BCT when he surrendered; he met Estrada in about a weekbefore February 23, 1956, at noon, in Barrio Biga, Gumaca, Quezon; he waswith Comdr. Teddy then, in his way to contact a certain teacher who hadpreviously promised to help him buy some supplies; he failed to contact theteacher, and as he approached Lt. Alcantara to bid him goodbye, he heard theconversation between Lt. Alcantara and accused Estrada; Lt. Alcantara askedEstrada if Elvira Tañada de Principe was the richest woman in Gumaca who

could be kidnapped, and Estrada answered that she was; that was all that heheard; Lt. Alcantara then borrowed some of his men and firearms; and whenhis men rejoined him later, they reported to him that they had participated inthe kidnapping; he recalled that he came from Barrio Malimatik, Lopez, whenhe went to Barrio Biga, Gumaca; he was with Comdr. Emy; those present inthat meeting in Barrio Biga, Gumaca, Quezon were Estrada, Lt. Alcantara,Comdr. Teddy Corazon, Emy, Fredo and others; on March 20, 1957, hesurrendered the following day his affidavit was taken by an investigator; it was a very long one, but he purposely did not make any mention about themeeting in Biga, Gumaca, where he saw and heard the conversation duringthe meeting between Estrada and Lt. Alcantara, because he did not want hisname linked with the latter; he wanted to avoid any mention about thekidnappings in the Bondoc Peninsula, because he feared that he would beincluded in it; that is why, when he was taken before Secretary Balao in CampMurphy, he told him not to ask him about the kidnapping; but when he latermet Antonio Campaniero @ Nelson, Melchor Gregana @ Rony and Julio

Ceribo @ July who have knowledge of the secrets of these kidnappings, andthe purchase of the typewriter and the mimeographing machine thruEstrada, and after knowing that Nelson, Ceribo and Angel Veran were alreadyaccused of the kidnapping, he decided to reveal the matter; and he believedthat if the government were to be convinced of his loyalty they would realizethat he had nothing to do with all the kidnappings in the Bondoc Peninsula;that is why, since his surrender, he had been helping the Army, in itscampaign for peace and order; he had contacted his former companions inthe Bondoc Peninsula so that they may return and live peacefully; onNovember 27, 1957, about 92 of them surrendered.

Other witnesses testified for the prosecution, but their testimonies deallargely on how the ransom money of P50,000.00 was finally agreed upon anddelivered to Lt. Alcantara thru couriers. Thru them, the letters of Lt.Alcantara to the Principes and vice versa (Exhibits A to E) and thephotograph of Lt. Alcantara (Exh. F) were identified. This picture and otherexhibits, where admitted as evidence for the prosecution.

For his defense, accused Jose Estrada denied his complicity in the commissionof the kidnapping of Elvira Tañada de Principe in the afternoon of February27, 1956. He swore that he had never been to Barrio Biga, Gumaca, in themonth of February, 1956, much less ever conferred with any Lt. Alcantara forthe alleged purpose of pointing to Elvira Tañada de Principe as the best kidnap victim in Gumaca. His testimony may be reduced as follows: he knewElvira Tañada de Principe; her family was his neighbors, and his youngerbrother, Fernando, was the godson of Elvira's father; he was electedcouncilor of Gumaca from 1948 to 1951; again he was elected councilor forthe term 1956-1960; he was a recognized guerrilla and a pensioner of U.S.Government; he belonged to the following civic organizations: President,Gumaca Club 37; Worshipful Master of the Masons; Chairman, Boy ScoutsOrganization; President, PTA District league; President (twice), PurokCastillo; Vice President, Jaycees of Gumaca; Chairman, Civilian AffairsOrganization; and Vice Chairman, Red Cross Campaign in 1951 for Quezon

Province; the barracks of the 8th BCT in Gumaca was constructed throughhim; he was the moving spirit in the construction of Camp Natividad in 1948,which now houses the 38th PC Company; he joined the pacification campaignin the towns of Quezon which brought about the surrender of severalfirearms; he exerted efforts for the construction of the Army OfficersQuarters of the 26th BCT in Calauag, Quezon; he is an informant of thePhilippine Army; as such informant, he had caused the arrest of severalpersons; and he was commended by Col. Baltazar for his effort andcooperation with the Army; he came to know prosecution witness AntonioCampaniero alias Nelson only in court, and it is not true that he and HukFredo came to his house to deliver the message of Lt. Alcantara; Nelson sent him letters during his confinement in the provincial jail of Quezon, and hehad sent them, to Congressman Roces of the CAFA; he did not know also HukComdr. Teddy Corazon, for he came to know him only in court; TeddyCorazon told him in jail than that it was not true that he had instructed HukNelson and Fredo to see him before; on November 25, 1956, he met prosecution witness Julio Ceribo in jail, and the latter confessed to him that he (Ceribo) did not know him (Estrada), and that Ceribo said he merelyimplicated him because the PC had forced him to include him; detainedprisoners Gutierrez and Mangubat were present when Ceribo told him so; helikewise did not know Huk Gonzalo Mallare (prosecution witness) before thetrial, and it is not true that they met each other before; there is no truth inMallare's testimony that he (accused) purchased a typewriter and amimeographing machine for him; in fact, when he learned that the saidtypewriter and a mimeographing chine was loaded in one of his trucks fordelivery to the Huks, he informed Captain Daza of the Army about it, onlythat Capt. Daza happened not to be there at the time; there is also no truth inthe testimony of Beato Glinoga; this prosecution witness, as a matter of fact,begged his forgiveness after testifying against him, when they met in theoffice of the Chief of Police of Gumaca; at the time, Col. Castillo came along,and finding them together, threw out Beato Glinoga and then challenged him



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(Estrada) and his brother to a fight; in fact, Beato Glinoga became his ownwitness after the relief of Col. Castillo as provincial commander of Quezon; hewas combat officer in the guerrilla forces; charges of murder were filedagainst him after liberation, but he had been given the benefits of theguerrilla amnesty; he was also accused in the Barretto kidnapping case, but his participation there was only that he had contacted the kidnappers at thebehest of the family of the victims, for purposes of reducing the amount demanded by the Huks; on the day of the kidnapping of Elvira Tañada dePrincipe, he was at home; upon learning about it, he helped the family inraising the ransom money, he was the largest copra dealer in Gumaca; hiscustomers owed him not less than P60,000.00; Elvira Tañada de Principe'sfather-in-law, Marciano Principe, was also one of the largest copra dealers inthe town, but there were other large copra dealers there; he knew, thru the

newspapers, about the other kidnapping cases in the Bondoc Peninsula — the kidnapping of Ex-Mayor Yumul of Lopez, of Wee King of Catanauan, of theBarrettos of Gumaca, of De Leon of Catanauan and of Elvira Tañada dePrincipe of Gumaca; he (Estrada) had not been the victim of kidnapping.Asked by the court whether kidnappings disappeared in Gumaca after hisarrest, accused Estrada refused to answer.

ELISEO RAMOS, a detained prisoner for rebellion in the provincial jail of Lucena City, testified that he knew prosecution witness Julio Ceribo; theywere both Huks, and had occasion to meet each other in the mountains; thelast time he met Ceribo was on November 25, 1956, when Ceribo was alsoconfined in the provincial jail of Lucena; he asked him (Ceribo) then why hewas detained, and the latter answered that he was being used as witnessagainst accused Estrada; there were many detention prisoners at the timethey talked to each other, among them were Hilarion Gutierrez, JuanitoBautista, Cenon Entiosco and Pedro Masilungan; during the course of their

conversation, accused Estrada appeared, and he asked Ceribo if he knew him;Ceribo then told Estrada that he did not know him; asked why he was goingto testify against Estrada when according to him he did not know the saidaccused, Ceribo answered that the investigators had promised to dischargehim from the complaint, and that was the only way he (Ceribo) could savehimself; and Ceribo told him: "Ikaw ang tumayo sa aking kalagayan kulanglamang akoy patayin sa bugbog;" Ceribo further confided to him that had heknown such treatment would happen to him, "he would not havesurrendered."

Other witness — PEDRO MANGUBAT, a co-accused of Estrada in the Barrettokidnapping case; CENON ENTIOSCO, a prisoner serving sentence for robberywith rape and physical injuries, and also for illegal possession of firearm; andHILARION GUTIERREZ, another detention prisoner on charges of murderand robbery of which he was later convicted — testified that they were all inthe provincial jail of Quezon when prosecution witness Julio Ceribo wasbrought in there; that they all heard the conversation between Ramos and

Ceribo on the one hand, and between Ceribo and accused Estrada on theother hand, and that they knew that Ceribo had told accused Estrada thenthat he (Ceribo) did not know Estrada.

Col. ESTANISLAO BALTAZAR testified that in 1952, he was commandingofficer of the 26th BCT, stationed in Calauag, Quezon; in one of the meetingshe held in the town hall of Gumaca, asking the people to cooperate with theArmy in its campaign against the dissidents, one of those present stood upand said, "How can you expect the people to help the Armed Forces whenthey do not treat the barrio people well, they are taken to the headquartersof the Army and there they are maltreated and compelled to admit crimeswhich they did not commit?"; he knew later on that that man who hadspoken was Councilor Estrada; and soon he solicited his help; Estradarendered valuable services to the Army then, for he had extensiveconnections with the barrio people and he supplied valuable information asto the movements of the Huks in the place; and in recognition of his services,he gave Estrada a written commendation (Exh. 18). Col. Baltazar admitted

tho that the Huks were very active in the place during his stay there as BCTCommander, and that they (the Huks) had an upper hand. He admittedfurther that the information supplied by Estrada was always late, that waswhy they had no encounter with the dissidents. They almost caught up withthe Huks in a barrio when they went to the place to verify the report made byEstrada, for the residents informed them that the Huks had left only about anhour before their arrival.

Major FELIPE BRUAN declared that he was formerly stationed in Gumaca,and there he came to know Estrada. The latter gave the PC then valuableinformation regarding the movements of the Huks. In May, 1954, Estradareported to them the presence of Huks near the boundary of Lopez andGumaca, and they went to the place to verify the report; unluckily, the Hukshad left the day before when they reached the barrio they had visited. He wasin command of the PC Detachment in Gumaca when Elvira Tañada dePrincipe was kidnapped. Estrada did not make any report then about the

presence of the Huks in Gumaca before the incident. But after the incident, he(Bruan) received news about it and he immediately pursued the kidnappers.There was an encounter that ensued when they had contact with the Huks at about 6:00 or 7:00 o'clock in the evening. There was firing for about 30minutes, after which they returned to the town because they soon lost contact with them.

Capt. JUAN DAZA testified that he was once stationed in Gumaca ascommanding officer of Love Company, 26th BCT; even before he wasstationed at the place, he already had news about the valuable services of Estrada to the Army; so, he sought Estrada's help when he moved to theplace; and as expected, Estrada rendered valuable services; one time, Estradainformed him that there were three (3) amazons who were willing tosurrender, and he soon brought them — Huk Amazons Liwayway, Leonorand Amy — to his camp; these amazons were all wives of Huk Commanders;

in 1954, they were able to kill a Huk named Absalon at Barrio Sastre thru theinformation supplied by Estrada; on May 2, 1954, they received informationfrom Estrada that the Huks had loaded some things on one of his trucks, fordelivery to Barrio Labnig; he sent men to verify the report and there was anencounter; they did not catch up with the Huks, however; and according toEstrada, the things loaded on his truck were a typewriter and amimeographing machine.

The defense later placed the victim, Elvira Tañada de Principe, on the witnessstand. From her testimony, the defense elicited the fact that during herconfinement in the mountains, Lt. Alcantara inquired from her, if she was thewife of Teodosio Principe. Upon her answer that she was not the wife of Teodosio Lt. Alcantara then asked her if she was the wife of Reynaldo

Principe, to which question, she gave an affirmative answer.QUIRINO RAVELA, one of the companions of Lt. Alcantara in the kidnappingof Elvira, and who had been sentenced already in this case upon a plea of "guilty" testified that while in the mountains, he overheard the conversationbetween Lt. Alcantara and Elvira Tañada, wherein Lt. Alcantara asked thevictim if she was "Doctora". To this question, Elvira answered that she wasnot the doctora; she cried then and said, "I am the poorest among thePrincipes."

MARCELO BARRAL, a resident of Gumaca who sells copra to the Principes,testified that he was in the house of Marciano Principe when Elvira arrivedfrom the mountains after her release. He then heard Elvira talk to her sisterConsuelo and exclaim in Tagalog: "Ako pala Ate Consuelo ay pinagkamalan, at ang akala pala ay ako ang asawa ni Dosio."

In September, 1958 (after about one year and three months after he hadtestified for the prosecution), BEATO GLINOGA was placed on the stand bythe defense. He then made a complete turn about regarding the previousinstructions of Lt. Alcantara for him to see first accused Estrada beforedelivering the ransom note to the Principes for the reason that Estrada knewall about it. This time, he declared that he was not so instructed by Lt.Alcantara; that the truth is, that he was directed by Lt. Alcantara to proceedto the house of the Principes, without mention whatsoever of the name of Estrada; that he made mention of and implicated Estrada, upon orders of thePC investigators that he should mention Estrada in his affidavit, and whichorders he followed, because they would not stop maltreating him; that on hisway to the house of the Principes, he met Federico Caparros and anotherman, and together they boarded a truck going to the poblacion of Gumaca;that he even showed to them the letter he was to deliver to the Principeswhen they asked him where he was going; and that he alighted right in front of the house of Marciano Principe when the truck reached the town.

FEDERICO CAPARROS and TOMAS SOMBILLA both testified and

corroborated the statement of Glinoga that they met Glinoga on March 5,1956; that they asked him where he was going then, and Glinoga told themthat he was going to the poblacion, showing to them a letter which he pulledout of his pocket; that Glinoga did not stop at any other place, but went directly to the house of Marciano Principe.

ATTY. ANDRES FRANCO, upon permission of Julio Ceribo, declared that hewas the counsel of Julio Ceribo in this case, and another case for rebellion inLaguna; that he prepared Ceribo's statement (Exh. 16) at the instance of JulioCeribo who had supplied the facts contained in the said statement; that heprepared the statement first and then took it to his place of confinement,asking him to sign it only after he had read the statement and understood itscontents; and that Julio Ceribo swore to it before Notary Public RodolfoGarduque whom he (Franco) had requested to come along. (The trial court appears to have commented, after examining Exh. 16, that the same was not necessary in the defense of Julio Ceribo in the present case, considering that Julio Ceribo had already been discharged from the information when Atty.

Franco secured the said statement of Ceribo).

The testimony of Atty. Franco was substantially corroborated by Atty.Rodolfo Garduque who declared that he ratified Ceribo's statement only afterhe was sure that Ceribo understood it; and that there were witnesses(brought along by Atty. Franco) who witnessed the signing of the document.

ANTONIO NIEVA testified that he was a former Army Officer stationed inPitogo, Quezon; Estrada was their informer when he was stationed there, andEstrada helped in the surrender of many Huks; ha approached Col. Castilloregarding the case of Estrada because he believed that Estrada was innocent;he met Col. Castillo several times regarding the matter, and he told him that he was wrong in prosecuting accused Estrada; but Col. Castillo confided tohim that his career was at stake in this case, for he had been instructed to get the "big shots" from the second district of Quezon; later, Col. Castillo alsoconfided to him that he was interested in monetary considerations which heitemized as follows: for Estrada's involvement in the Barretto case,

P20,000.00; in this case, P20,000.00; and for eight (8) other murder cases,P2,000.00 each; Col. Castillo then told him that if he could give himP50,000.00 he would still be economizing by P16,000.00; he thenimmediately went to see the President and asked for the relief of Col. Castilloas Provincial Commander of Quezon, and President Magsaysay then gave hima note, addressed to Gen. Cabal; when he met Gen. Cabal, however,accompanied by Gov. Santayana, Jardin and his (Antonio Nieva's) brother,then Chief of Police of Pasay City, he received the same answer as Col.Castillo's from Gen. Cabal, who told him further that "as long as he was Chief of the Philippine Constabulary, Col. Castillo will not be touched in QuezonProvince;" he never expected to hear from Gen. Cabal the same words whichCol. Castillo had confided to him, and in exasperation he exclaimed: "it seemsto me that I am not talking to the General;" in the note given by the President to Gen. Cabal, the President told the General that the Nieva brothers knew



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more of the peace and order conditions in Quezon, and should be left alone;he was told by the President to report to him the following Monday, but unluckily, the President died on the Sunday before their appointment; herecalled that he used to be in good terms with Col. Castillo before, but hebecame indifferent to him when he (Castillo) failed to stop him from takinginterest in the Estrada case telling him that P20,000.00 was not enough; heinsisted on his demand for P50,000.00.

With the offer of various exhibits, including a copy of the decision of Court of First Instance of Quezon in the Barretto case, wherein accused Estrada andall his co-accused were acquitted, the defense rested its case. It appears that before the defense did so, they made an attempt to put back prosecutionwitness Julio Ceribo on the witness stand in order that he could explain why

he allegedly had testified falsely against accused Estrada when he testifiedfor the prosecution in this case, but the court below did not al low the defenseto put back the witness. The trial appears to have been delayed also for aconsiderable time because the defense had made attempts to produce Lt.Alcantara in court, in which attempt they failed. Gen. Yan testified that acertain Pepe Alcantara working with the Army was still operating in the field,and that his whereabouts was unknown.

In rebuttal, the prosecution placed on the witness stand Col. Francisco delCastillo, who testified as follows: he was Provincial Commander of Quezonfrom May 2, 1956 to July 7, 1958; he was on a mission then — theprosecution of all the kidnapping cases in the Bondoc Peninsula, namely: thecase of Wee King of Catanauan (1954); of Saturnino Barretto and his childrenof Gumaca (1952); of Ex-Mayor Yumul of Lopez (1955); of Rosita de Leon of Catanauan (1955); and of Elvira Tañada Principe (this case, 1956); he had nopersonal grudge against Estrada, for even before he came to Quezon asprovincial commander, Estrada was already accused in the kidnapping case

of Saturnino Barretto and his children; Antonio Nieva and many otherpersons came to him and asked that the case against Estrada be quashed, but he refused; he turned down the immoral proposals of Antonio Nieva; he didnot prosecute him, however, on those immoral proposals because it was hardto prove, as there were no witnesses; Nieva used to approach him during thetime of his rest near his house; later, he learned that Antonio Nieva hadtampered with the witnesses for the prosecution; so, he ordered his men toput Nieva "off limits" in his camp; Nieva complained to higher authorities inQuezon City, that was why said higher authorities called him there to the PCHeadquarters; he then brought along the witnesses of the government against Estrada, and they were investigated by the said higher authorities:these witness were the ones who revealed the participation of Estrada in thiscase; and he never demanded P50,000.00 as consideration for the quashingof the cases against Estrada.

After a careful evaluation of the evidence thus set forth, We find that the

inculpatory facts proven by the testimonies of witnesses for the prosecutionto establish the guilt of accused Jose Estrada are as follows: The Hukbalahapsin and around the mountains of the Bondoc Peninsula were the friends of accused Jose Estrada. With and through his help, the chairman of theeducational committee of the HMB in the region, acquired a typewriter and amimeographing machine on May 1 or 2, 1954. 1 About the first week of February,2 or about a week before the actual kidnapping of Elvira Tañada dePrincipe on February 27, 1956,3 Huk Lt. Pepe Alcantara met with other HukCommanders in Barrio Biga, Gumaca, Quezon. Lt. Alcantara gave someinstructions to Comdr. Teddy Corazon then, and the latter ordered huks @Nelson and @ Fredo to contact councilor Estrada of Gumaca inthe poblacion and to tell him to see Lt. Alcantara in Barrio Biga. 4 Alias Nelsonand @ Fredo were able to talk with Estrada in the town, and three days later,Estrada met with Lt. Alcantara and his companions in Barrio Biga.5Duringthat meeting between them, Lt. Alcantara asked Estrada who (for purposes of kidnapping) was the richest man in Gumaca, and Estrada answered inTagalog, "ang maimumungkahi ko sa inyo ay ang mga Principe." Lt. Alcantara

inquired if it was Reynaldo Principe, to which question Estrada answered"no" because "it would be difficult for the family to ransom him for most of the properties were in his name." Lt. Alcantara then asked, "whom can wekidnap?" Estrada suggested Elvira Tañada Principe who "could easily beransomed." Lt. Alcantara agreed to the suggestion of Estrada saying: "if that is the case, yes, let us kidnap Elvira Tañada Principe,6 it will be good for us tokidnap Elvira Tañada Principe."7 The huk lieutenant told Estrada further:"you will be advised when the kidnapping will take place;"8 and Estradaanswered: "all the time you can depend upon me."9 In the afternoon of February 27, 1956, Lt. Alcantara and his men came down from Barrio Biga toGumaca and kidnapped Elvira Tañada Principe from the store on the groundfloor of the house of her father-in-law, Marciano Principe. They took her,together with Carmen Noceto whom they picked up along the way, to themountains near the boundaries of the towns of Gumaca, Lopez andMacalelon. The Huks kept them there for about two weeks.10 Thereafter, Lt.Alcantara and some of his men went to Barrio Villa Tañada, Gumaca, and

contacted the barrio lieutenant, Beato Glinoga, on the night of March 4, 1956.Identifying himself and his companions, as the kidnappers of Elvira TañadaPrincipe, Lt. Alcantara asked Beato Glinoga to deliver his letter to thePrincipes. He instructed Glinoga to see Councilor Estrada first in the town, sothat the latter could accompany him to the house of the Principes, and thento the mountains where he (Lt. Alcantara) would later meet them. 11 Thechosen courier followed the orders of the Huk Commander. He went tothe poblacion of Gumaca the following morning. He looked for Estrada, but hefailed to contact him. So, he went directly to the house of Marciano Principeand personally delivered the letter of Lt. Alcantara entrusted tohim.12 Marciano Principe read the letter of the Huk Commander, and thenwrote an answer. He gave the same to Basilio Angulo, a compadre of his whowas at the house at the time, and requested him to join Beato Glinoga back toLt. Alcantara in Barrio Villa Tañada. The courier and the emissary went

together and met Lt. Alcantara that same evening, in the mountains of VillaTañada?13 Basilio Angulo and Lt. Alcantara then had a conference. As theydid, one of the huks present nudged Glinoga and inquired from him whereEstrada was, and Glinoga explained that he was not able to see him.14

Basically, Estrada's defense is that the charge against him is but a pureconcoction. Naturally, he vehemently denied the truth of the aboveinculpatory facts proven by the prosecution, by showing that he could not have been in Barrio Biga, Gumaca, nor conferred with Lt. Alcantara at theplace in February, 1956, because he never left the town of Gumaca during thesaid month, but once — when he went to Lucena City to renew the plates of his trucks. He sought to destroy the credibility of the witnesses for theprosecution. He tried hard to convince the trial court that a man of his

stature and character — an elective official of social prominence and withsubstantial income, and commended by a ranking PC officer for "his exploitsand undertakings" as an "informer" of the Army — could not have been inleague with the Huks in the mountains, and propose to them a neighbor andfamily friend as an object of the heinous crime of kidnapping for ransom. Hisversion, however, failed to convince the trial court of his innocence of thecrime imputed to him.

Accused Jose Estrada has appealed from the decision.

Appellant contends that the trial court had fallen into grave error in givingfaith and credit to the testemonies of huks Antonio Campaniero @ Nelson,Julio Ceribo @ July, and Gonzalo Mallare @ Commander Romy. Attention iscalled to the fact that Nelson and Ceribo — former co-accused turned statewitnesses — had no choice but to testify against appellant in consideration of the prosecution's promise to discharge them from the information and savetheir skin, while the case as against witness Mallare was apparently

dismissed, on motion of the prosecution for alleged insufficiency of evidence,purposely to make him testify against herein appellant. Under thecircumstances, it is argued, these witnesses had no option but to testify as theprosecution desired — to secure the conviction of the appellant at all cost.

There should be no quarrel that Nelson and Ceribo must have testified asstate witnesses in consideration of the prosecution's promise to dischargethem from the information in this case; but that is not true with respect towitness Gonzalo Mallare, who appears to have testified long after the caseagainst him had been dismissed for insufficiency of evidence. But thesecircumstances alone — short of any showing that in consideration of theState's leniency, these witnesses had been ordered and had agreed, not onlyto testify for the prosecution but also to prevaricate in their espousal of thePeople's cause — cannot detract from their credibility. We have examinedthe testimonies of these witnesses with painstaking solicitude, in our sinceredesire to find the usual signs of wavering and wobbling in declarations of lying witnesses, and We note that notwithstanding the fact that they have

been subjected to extraordinarily long and searching cross-examinations — lasting several days of trial — by the brilliant lawyers for the defense, theynever fell into serious contradictions in their long declarations, which couldreasonably be expected if they were merely concocting lies. On the contrary,they withstood the ordeals of the lengthy cross-examinations, explainingevery point on which the counsels for the defense dwelled, in a straight-forward and satisfactory way. The above contention of appellant, therefore,cannot be accepted.

Much emphasis is placed by appellant upon the circumstance that during hisconfinement in the provincial jail in Lucena City, prosecution witness Nelson(then confined in the PC stockade) had written several letters addressed tohim and his witness, Antonio Nieva, altogether purporting to show that Nelson had been telling them that he and his companions who had previouslygiven statements implicating herein appellant in the commission of thecrime, before the government investigators, did not really know him

(Estrada); and that they implicated herein appellant in their said statementsbecause they were maltreated by the investigators into signing them. It is ourconsidered opinion, however, after considering the surroundingcircumstances under which the letters adverted to were written, that theircontents are false. Nelson declared that Antonio Nieva talked with him beforehe wrote the letters. Nieva explained to him that by testifying as statewitness, he cannot be relieved of his responsibility in the commission of thecrime. Pointing out that he (Nelson) was not just a witness but an accused(Nelson had not been discharged from the information at the time), Nievawarned Nelson that he would also be punished like Estrada, and perhaps goto the electric chair. With assurance of his close connection with Malacañang,Nieva promised Nelson that he could do something about this case inMalacañang, and Estrada would be willing to help them, provided they wouldnot testify against the latter, otherwise, something bad would happen tothem. And with this idea brought out to him by Nieva, Nelson wrote a letter(Exh. 2) to Estrada on January 24, 1957. The witness explained as follows:

Sinabi po sa akin ni Tony (Antonio Nieva) na huwag lamangkalabanin si Jose Estrada ay siya ang bahalang humango sa amingmga testigo at kung kakalabanin namin ay mapapasama kami, at binigyan po kami ng P20.00 suhol. At sinabi pa niyang siya angbahalang lumakad sa Malacañang at sa panahong kami aybibistahan gaya nito ay tanggihan namin at sabihin na kung kayakami nakapagsabi ng sa aming "statement" ay kami sinaktan at ginantingpalaan at pinangakuan.15

Regarding his letter (Exh. 3), Nelson declared that he did not write it voluntarily. About noontime of January 25, day after he had written the first letter, two prisoners wearing yellow suits entered their cell in the stockadeand asked who were the witnesses against Estrada in this case; and thewitnesses pointed to one another. One of the said prisoners then told Nelson



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that if he still valued his life, he should prepare a letter to Estrada and makehim believe that they will not testify against him. Nelson explained that hebelieved this to be a threat on their lives, for he thought that they might havebeen bribed to liquidate them. So, he wrote the letter, in the presence of thesaid prisoners. With respect to a portion of another letter (Exh. 10), datedJanuary 27, 1957 (letter was styled "to whom it may concern"), Nelson askedEstrada to give him some amount for cigarettes, and herein appellant wouldcapitalize on this apparent weakness of character of Nelson to destroy hiscredibility. We are more inclined, however, to disregard this theory becauseWe found that the witness had frankly admitted that he did it becauseAntonio Nieva had assured them that Estrada was willing to help them, andwhile confined in jail they (the witnesses) had agreed to milk him. In fact, inanother portion of the said letter, Nelson had asked Estrada to return his

letter; and Nelson explained in court later that he wanted to destroy theletter because if Col. Castillo should come to know about the lies he had toldtherein the more they would suffer (lalo kaming mahihirapan). Thus, heexplained to the court below:

Ang ibig ko pong sabihin ay lalo kaming kukulungin sa loob ng"stockade" kung malalaman kami'y sumulat kay Estrada at magpapanday ng kasinungalingan. Yayamang kami na-stockade at kami halos incomunicado pa ay dahil nga sa pangyayari ng kamikausapin ni Tony Nieva na gawin namin ang lahat ng paraan sapagsisinungaling, tanggihan namin ang mga "statement" nanilagdaan naming kusangloob. Nangangahulugang babaligtad kamisa katotohanan tungo sa kasinungalingan.16

This jibes with the other evidence of the prosecution of record, and admittedby the witness for the defense concerned, that Antonio Nieva, for havingshown extraordinary interest in this case, had thereafter been ordered "off

limits" inside the PC camp. Finally, there is another circumstance that adds aring of truth to the testimony of Nelson. Col. Castillo testified that AntonioNieva had complained to higher authorities about him. This is admitted bydefense witness Nieva who declared that he went to see the late President Magsaysay and General Cabal, and asked for the relief of Col. Castillo asprovincial Commander of Quezon province by reason of his actuations in thiscase. As a result of Nieva's Complaint, Col. Castillo was called by higherauthorities to Quezon City; and Col. Castillo brought along the witnesses of the government before Col. Yan, General Cabal, and then to the late President Magsaysay. Nelson testified that when he was taken to Col. Yan in QuezonCity, the said official asked him if the contents of his affidavit (Exh. X, whereinhe had implicated appellant Estrada) were true, and he affirmed the content thereof. The witness also declared that he was cross-examined (binabaligtad ng tanong sa aming"statement ") on his statement by General Cabal, beforewhom he, likewise, affirmed the truth thereof, explaining to the General that he was not threatened, harmed, or promised any reward when he voluntarily

affixed his signature on the document. Nelson made the same affirmationbefore President Magsaysay on the same occasion. And when asked why hedid not mention about the letters (Exhibits 2, 3, 10, 11 & 12) now heavilyrelied upon by herein appellant, Nelson declared outright in court that thecontents of the said letters were not true, and he was afraid to tell anyfalsehood to the highest authority of the land. Such explanations, consideredin the light of the surrounding circumstances, leave no iota of doubt that thewitness had told the truth in court.

Again herein appellant would capitalize upon the circumstances that bothwitnesses Ceribo and Mallare have made apparently contradictorystatements (affidavits) at different times during their confinement. Morespecifically, it is pointed out that Mallare had disclaimed any knowledgeabout the kidnapping in the Bondoc Peninsula in his statement (Exh. 17)which is contrary to his later declaration in court that he heard theconversation between Lt. Alcantara and herein appellant in Barrio Biga,Gumaca, regarding the kidnapping of Elvira Tañada Principe. This witness

explained that he did not mention in exhibit 17 about the participation of Estrada, because he did not want his name linked with the name of Lt.Alcantara. At the time, he had not met Nelson, Ceribo and Gregana. Helearned later, however, that these persons were already accused in this case,and knowing that they knew all the secrets of the kidnapping, he decided toreveal his knowledge thereof. At any rate, it will be noted that Mallare'stestimony regarding the involvement of appellant in this case was merelycumulative in nature, a disregard of which would not affect at all thetestimonies of Nelson and Ceribo regarding the same point. And so with thealleged contradiction between the statement of Ceribo before the PC onSeptember 12, 1956, and his subsequent affidavit prepared by his counsel onApril 16, 1957. It is true that in the one (Exh. H) Ceribo had inculpatedEstrada, while in the other (Exh. 16) he had exonerated him; but Ceriboexplained that the contents of the latter are false. He declared that when thesaid document was taken to him inside the PC stockade, it was alreadyprepared. His counsel had manifested to him that it was necessary for his

acquittal, for which reason he signed it without first reading its contents. Webelieve this explanation of the witness is sufficient, for We find no reason forhis counsel to prepare the latter affidavit when We consider the fact that Ceribo had long been discharged from the information before it wasprepared. And as the trial court had aptly observed, the said affidavit was nolonger necessary for the acquittal of the witness. Add to this suspiciouscharacter of Exh. 16 the unshaken testimony of the witness that its contentsare false and the fact that he had affirmed the truth of his other statement not only before the highest officers of the Army, but also before the Chief Executive of the land, that the value of Exhibit 16 soon fades intonothingness.

But appellant charges that the trial court had abused its discretion when it denied the defense the right to call back witness Ceribo who, it is claimed,

was then ready to retract his previous testimony for the prosecution, andthen testify for the defense. This, it is pointed out, was a denial of hereinappellant's right to due process. We cannot agree. Section 14, Rule 132 of theRules of Court explicitly provides that the court may grant or withhold leaveto recall a witness, in its discretion, as the interests of justice may require;and We believe that it was the better part of discretion and caution on thepart of the trial court to have denied as it did, the request of the defense torecall Ceribo. The record is loaded with circumstances tending to showinsidious attempts, too obvious to be overlooked, to tamper with thewitnesses for the prosecution. Under the circumstances, to allow such aprocedure would only encourage the perversion of truth and make amockery of court proceedings.

A certain alleged statement attributed to Lt. Alcantara, is here also reliedupon by appellant to show that he (appellant) did not really suggest ElviraTañada Principe to be the kidnap victim. It appears that soon after Elvira wastaken to the mountains, she was asked by Lt. Alcantara if she was the wife of Teodosio Principe. Elvira answered the question in the negative. Thereafter,Lt. Alcantara asked her if she was the wife of Reynaldo Principe, and this timeshe answered in the affirmative. We believe not much may be made out of this circumstance, for it merely shows that Lt. Alcantara was not even sure if the woman they had kidnapped was the wife of Teodosio or Reynaldo. It doesnot necessarily follow, however, that herein appellant did not really make thesuggestion to kidnap Elvira, in the light of positive evidence that he did so.Neither may We sustain the charge that the prosecution in this case wasguilty of suppression of evidence, on account. alone of the circumstance that the highest authorities of the Army had failed to produce Lt. Alcantara incourt, as desired by the defense. It is true that the prosecutor in this case wasa captain in the Army, but it cannot be denied that he had prosecuted this

case not as such officer, but as a special prosecutor under the Department of Justice; nor do We find any evidence of record that will justify an inferencethat he had prevailed upon his superior officers in the Armed Forces not toobey the orders of the trial court to produce Lt. Alcantara. Herein appellant claims that Lt. Alcantara was already in the custody of the Army at the time.Col. Yan testified, however, that the Lt. Alcantara in the service of the PC wasat the time "in the field of operation and his whereabouts was unknown." Wesee no reason then why the blame should be attributed to the prosecution.

With the foregoing conclusions, We have to sustain the finding of the court below that herein appellant is guilty of the crime imputed to him in this case.There could be no question that appellant had knowledge of the criminalintention of Lt. Alcantara and his men to kidnap somebody from Gumaca forransom. It seems, however, that they had no definite person in mind in thebeginning. So much so, that they had to call for herein appellant, a councilorand prominent citizen of the place, for his cooperation in the matter of selecting and pointing to the prospective victim. Appellant suggested the

Principes as the most suitable object of their criminal design, pinpointingElvira, wife of one of the Principes, as the ideal victim, with the explanationthat the Principe family would not meet with any difficulty in producing theransom money for her release. Lt. Alcantara and his men became convincedof appellant's suggestion and reasoning, and then and there they decided tokidnap Elvira Tañada Principe. The Huk leader told appellant that he(appellant) would be informed accordingly when the kidnapping was to beeffected and the latter answered that Lt. Alcantara could count upon him allthe time. Appellant knew, and must have realized the frightful consequencesof being kidnapped by the Huks. He was not unaware of previous otherkidnappings of prominent citizens in the Bondoc Peninsula — the kidnappingof Ex-Mayor Yumul of Lopez, of Wee King of Catanauan, of the Barrettos of Gumaca, and of De Leon of Catanauan — which had invariably resulted ineither the loss of honor of the victims, payment of huge amounts for ransomby their families, or the horrible deaths of the victims. With that knowledge,nevertheless, herein appellant agreed and conspired with Lt. Alcantara and

his men in the kidnapping of Elvira Tañada Principe, who was not onlydetained by Lt. Alcantara and his men in the mountains for eighteen (18)days, but was only released after the payment of a P50,000.00 ransom. Thesecircumstances, to the mind of the Court, altogether show that appellant enjoyed such ascendancy of the mind over that of Lt. Alcantara to the extent that his suggestion was the efficacious inducement which led the latter andhis men to proceed with the criminal design, thus making herein appellant aprincipal by inducement. However, for failure to obtain the necessarynumber of votes to affirm the death sentence in the decision appealed from,the penalty next lower should be imposed.

WHEREFORE, appellant is hereby rentented to reclusion perpetua. With thismodification, decision is affirmed by way of ordering appellant to pay thecivil liability and the costs. On equitable considerations, no costs in thisinstance.

G.R. No. 98376 August 16, 1991

PEOPLE OF THE PHILIPPINES, petitioners,vs.HON. BAYANI S. RIVERA, Judge, Branch 129 , Regional Trial Court of Kalookan City, and WILFREDO L. EMBRANO, respondent.

NARVASA, J.:p

The special civil action of certiorari at bar instituted in this Court to annul anorder rendered by the Regional Trial Court at Kalookan City, Branch 129, in aprosecution for arson docketed in that Court as Criminal Case No. 28820(87).



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Accused in that case of arson is Wilfredo L. Sembrano. It is the prosecution'stheory that he wilfully caused the fire in the early morning of May 21, 1987which totally burned and destroyed the second and third floors of the "I LoveYou Restaurant and Sauna Bath" owned by Juanita L. Tan, located at No. 2 L.Bustamante St. Kalookan City. 1

Among the witnesses presented by the Government to demonstrateSembrano's culpability was Benjamin Lee, a room boy of the restaurant andbath. Lee testified on direct examination at the hearing of December 8, 1987.His testimony was essentially that Sembrano had run out of the VIP roomwhere the fire had started and refused to heed his (Lee's) call to stop. Leetook the witness stand again on April 26, 1987 during which he was cross-examined by defense counsel, gave additional evidence on redirect

examination, was again questioned on recross-examination by the samedefense counsel, and thereafter allowed to step down. 2

The prosecution completed presentation of its evidence-in-chief in duecourse. But before it could rest its case, and two (2) months or so afterBenjamin Lee had completed his testimony, the defendant's original counsel,Benjamin Formoso, withdrew his appearance and was substituted byanother attorney, Eduardo S. Rodriguez. 3The latter then filed a motion onJune 8, 1988 to recall Benjamin Lee for further examination. 4 The groundrelied upon by Atty. Rodriguez was simply that after he had reviewed therecord of Benjamin Lee's testimony, he came to the conclusion that " thereseems to be many points and questions that should have been asked but werenot profounded (sic) by the other defense counsel who conducted.. (the cross-examination). It was on this averment, and counsel's reference to "the gravityof the offense charge (sic)" and the need "to afford the accused fullopportunity to defend himself," that Lee's recall for further crossexamination was sought to be justified. Over objections of the prosecution,

the Court 5 granted the motion.

Efforts were thereafter exerted to cause witness Benjamin Lee to againappear before the Court for further cross-examination. These efforts met with no success; and the trial had to be postponed several times. It appearsthat Lee had terminated his employment and moved elsewhere without indicating his new address.

So, on October 1, 1990 the private prosecutor filed a "Manifestation andMotion" drawing attention to the inability to procure the re-appearance of witness Lee for which "the prosecution could not be held liable," and to thefact that "Lee has already been thoroughly examined by the former defensecounsel," and praying upon these premises "that the farther examination of Benjamin Lee be dispensed with and ... the prosecution ... allowed toterminate the presentation of its evidence."

By Order dated October 2, 1990, 6 the Trial Court denied the motion to

dispense with the recall of Benjamin Lee. In fact, it ordered the testimony of Benjamin Lee for the prosecution xx stricken off the record for lack of complete cross-examination" because the witness could no longer be found,and "the failure of counsel for the accused to further cross-examine thewitness is not the fault of the defense. 7

In the same order, the Court also set the "reception of further evidence forthe prosecution, if any, ... on October 23, 1990 xx as earlier scheduled."Subsequently, it denied the private prosecutor's motion for reconsiderationof the order. 8 Hence, the action at bar, instituted by the Office of the SolicitorGeneral.

The writ of certiorari prayed for will issue. The Trial Court acted with graveabuse of discretion in authorizing the recall of witness Benjamin Lee over theobjections of the prosecution, and in later striking out said witness'testimony for want of further cross-examination.

There is no doubt that a Trial Court has discretion to grant leave for the recallof a witness. This is clear from a reading of Section 9, Rule 132 of the Rules of Court, as amended, 9 viz .:

SEC. 9. Recalling witness.— After the examination of awitness by both sides has been concluded, the witnesscannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as theinterests of justice may require.

But obviously that discretion may not be exercised in a vacuum, as it were,entirely, isolated from a particular set of attendant circumstances. Thediscretion to recall a witness is not properly invoked or exercisable by anapplicant's mere general statement that there is a need to recall a witness "inthe interest of justice," or "in order to afford a party full opportunity topresent his case," or that, as here, "there seems to be many points and questions that should have been asked " in the earlier interrogation. To regardexpressed generalities such as these as sufficient ground for recall of witnesses would make the recall of witness no longer discretionary but ministerial. Something more than the bare assertion of the need to propoundadditional questions is essential before the Court's discretion may rightfullybe exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactoryshowing on the movant's part, for instance, that particularly identifiedmaterial points were not covered in the cross-examination, or that particularly described vital documents were not presented to the witnesswhose recall is prayed for, or that the cross-examination was conducted in soinept a manner as to result in a virtual absence thereof. Absent suchparticulars, to repeat, there would be no foundation for a trial court toauthorize the recall of any witness.

In the case at bar, the respondent Trial Court granted the defendant's motionfor recall on nothing more than said movant's general claim that certainquestions — unspecified , it must be stressed — had to be asked. In doing so,it acted without basis, exercised power whimsically or capriciously, andgravely abused its discretion.

So, too, the respondent Court acted whimsically, capriciously, andoppressively, in other words, gravely abused its discretion, in ordering thestriking out of the entire testimony of Benjamin Lee after it appeared that hecould no longer be found and produced for further examination. In the first place, the Court acted unilaterally, without any motion to this effect by thedefense and thus without according the prosecution a prior opportunity toshow why the striking out should not be decreed. More importantly, the

striking out was directed without any showing whatever by the defense of the indispensability of further cross-examination, what it was that wouldhave been elicited by further cross-examination rendering valueless all that the witness had previously stated. It should be stressed that Lee wassubjected both to cross-examination and recross-examination by formercounsel of the accused Sembrano. Obviously the latter was satisfied that there had been sufficient cross-examination of the witness. Absence of cross-examination may not therefore be invoked as ground to strike out Lee'stestimony (as being hearsay). And there is no showing whatever in this casethat it was the prosecution that placed the witness beyond the reach of theCourt, much less of the expected nature or tenor of his additional testimonywhich, because not presented, would necessarily cause the evidence earliergiven by Lee to become hearsay or otherwise incompetent, and therefore,amenable to being stricken from the record.

WHEREFORE, the petition is GRANTED and the respondent Court'schallenged Order dated October 2, 1990 is NULLIFIED AND SET ASIDE, with

costs against private respondent.

IT IS SO ORDERED.

EN BANC

G.R. Nos. 32394 and 32395 September 5, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,vs.SANDAL, ARIMAO, LONSING, MAMA, and PAMPANG, defendants-appellants.

AVANCEÑA, C.J.:

The Moros Sandal, Arimao, Lonsing, Mama, and Pampang appeal from thejudgment of the Court of First Instance of Lanao convicting them of murdercommitted on the 18th of February, 1929, upon the person of ElenoLamorena, and sentencing each of them to twenty years of cadena temporal ,with the accessories of law, to indemnify the heirs of the deceased jointly andseverally in the amount of P1,000, and to pay their proportional part of thecosts.

On the date mentioned, in Abaga, District of Monungan, Province of Lanao,Inambar, a Moro woman, heard the appellant Sandal call the deceased, andlater saw them engaged in conversation. While the two were talking,appellant Pampang went up to them and with a hammer struck the deceasedon the back of the neck, felling him to the ground. Sandal and the rest of theappellants, Lonsing, Arimao, and Mama, then closed in on the fallen manbeating him to death.

Moro Dimaponong testified that early in the morning of that day, he sawEleno, the deceased, in Tomas Permites' warehouse, while the appellantswere nearby constructing a house. When witness returned to the warehouse,he saw neither the deceased nor the defendants where he had seen thembefore. On that night as he was going home, witness saw appellants near asawmill, carrying the corpse of Eleno, which they threw into the river. Duringthe inquiry made by the Constabulary lieutenant into Eleno's disappearance,Dimaponong testified to this effect, and the corpse was found in that part of the river indicated by him.

Doctor Pablo Hamoy in the post-mortem examination found the followinglesions: The right side of the neck and the right shoulder were bruised; theneck was fractured and the right shoulder dislocated; the right eye wasbruised; marked cyanosis and acute hemorrhage of both eyes which weresomewhat sunken; marked cyanosis of the lips with the incisors juttingforward and loose cyanosis and hemorrhage of the gums, and hemorrhage of the nose; cyanosis of the whole face, a wound in the left arm and forearm,and a contusion on the breast and abdomen.

The following facts of record explain the motive of the assault: When TomasPermites went to Manila to look after certain matters he left Eleno in chargeof his interests in Monungan. While Permites was in Manila, the appellantscaused some injuries to his carabaos, as a result of which Eleno had a disputewith them. Eleno sent word of what had happened to Permites in Manila, andwhen the latter returned to Monungan, he verified the facts and filed acomplaint against the appellants. Eleno was to be the principal witness, andthe defendants knew it.

The appellants denied the facts set forth and attempted to prove an alibi.

Upon consideration of the evidence for both sides, we agree with theconclusion of the trial court that the appellants killed Eleno in the mannerdescribed above. The court below did not err in weighing the evidence.



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Another assignment of error alleged by the appellants in this instance dealswith the trial court's refusal to admit a certain witness presented by thedefense. The court took this stand for the reason that this witness had beenpresent during the hearing notwithstanding the court's order that allwitnesses leave the court room. Under such circumstances it lies within thecourt's discretion to admit or reject the testimony of the witness. And

although we are of opinion that the court below should have admitted thetestimony of this witness, especially when he stated that he did not hearwhat the other witnesses testified, yet there is nothing to show that this errorhas affected the appellants' defense. There is nothing to show what thiswitness would have testified if admitted, and so it cannot be held that hisfailure to testify has materially affected the appellants' defense.

The appellants also assign as an error the fact that the

trial court failed torequire the fiscal to exhibit the testimony given by the witnesses during thepreliminary investigation conducted by the justice of the peace. But the onlyeffect of this failure was to entitle the defense to adduce secondary evidencetouching the testimony of said witnesses, for the purpose of attacking theirveracity, should they have been presented as witnesses during the trial.

Neither did the trial court commit an error in refusing the defense anextension of time to present Doctor Feliciano, for this is a matter whollywithin the court's discretion, the abuse whereof has not been shown,especially in view of the fact that it was not informed of the nature of thiswitness's testimony.

Wherefore, the judgment appealed from is affirmed, with costs against theappellants. So ordered.

G.R. No. 76792 March 12, 1990

RESURRECCION BARTOLOME, ET AL., petitioners,vs.THE INTERMEDIATE APPELLATE COURT (now Court of Appeals) andHEIRS OF SPOUSES BERNABE BARTOLOME and URSULACID, respondents.

FERNAN, C.J.:

This is a petition for review on certiorari of the decision 1 of the thenIntermediate Appellate Court "adjudicating the whole Lot No. 11165 in favorof" Bernabe Bartolome and Ursula Cid, thereby reversing the decision 2 of theRegional Trial Court of Ilocos Norte, Branch XII at Laoag City. The dispositiveportion of the latter decision states:

WHEREFORE, judgment is hereby renderedadjudicating the eastern portion to the heirs of the lateEpitacio Batara measuring 27 meters from south tonorth by 32 meters from east to west, with an area of 864 square meters, bounded on the east by theProvincial Road; on the north by the heirs of RufoManuel; on the west by a portion of the same Lot No.11165; and on the south by Lot No.11164; theremaining portion to the heirs of Doroteo Bartolome,bounded on the east by the portion of Lot No. 11165adjudicated to the heirs of Epitacio Batara and heirs of Rufo Manuel; on the north by Eugenio Andrada; on thewest by Nieves Caday or Lot No. 11166; and on thesouth by Lot No. 11164.

Likewise, the heirs of Epitacio Bartolome Batara arehereby ordered to reserved (sic) the road right of wayfor the necessary expansion of the road adjacent to the

eastern side of said lot, subject, however, to just compensation.

Once this Decision becomes final, let the correspondingDecree be issued accordingly.

IT IS SO ORDERED.

The record shows that

a 725-square meter portion of said Lot No. 11165located in Barrio 11, Laoag, Ilocos Norte, was first declared as his property byEpitacio Batara under tax declaration No. 5708 dated May 23, 1906. 3 Theproperty was described therein as bounded on the north by the property of Pedro Manuel, on the east by the road, on the south by the property of Doroteo Bartolome and on the west by the property of one named Esteban,and as having "una casa de tabla de dimension 5 x 4 metros" asimprovement. Tax declaration No. 5708 was superseded by tax declarationNo. 37576 labelled as a "revision of declaration of real property (urban)"dated April 23, 1914. 4 The residential lot described in the latter taxdeclaration contained an area of 772 square meters with a "casa" and a"granero" as improvements thereon.

Epitacio Batara and his wife, Maria Gonzales, had two children: Catalina andPedro. The latter died a bachelor and without issue. Catalina, who marriedsomeone surnamed Bartolome, bore five children named Isabela, Tarcila,Calixto, Resurreccion and Ruperta. In 1912, before he left Laoag to settle inCulalabo, Gamo (Burgos), Isabela, Epitacio entrusted the lot to his cousin,Doroteo Bartolome, who owned the lot bounding Epitacio's property on thesouth. 5 Maria Gonzales remained in the lot for sometime. When she laterfollowed Epitacio to Isabela, she allowed Doroteo Bartolome to continuetaking charge of the property. 6

In 1916, Epitacio Batara died in Isabela. Five years later or in 1921, MariaGonzales and her grandchildren, Calixto and Resurreccion Bartolome,returned to Laoag. As they found that the house on their lot was destroyed byfire, they boarded in someone else's house. Calixto constructed a bamboofence around his grandfather's lot and he and Resurreccion, who wasstudying in Laoag, cleaned it. Resurreccion went back to Isabela after MariaGonzales' death in 1926. 7 It was also in that year when Doroteo Bartolome,to whom Epitacio had entrusted his land, migrated to Davao City. Doroteodied there two years later. 8

Thereafter, the Director of Lands instituted cadastral proceedings over theland involved herein (Cadastral Case No. 53). On October 23, 1933, UrsulaCid, the widow of the son of Doroteo Bartolome, Bernabe, who died in

1928,9 filed an answer in Cadastral Case No. 53, claiming ownership over Lot No. 11165 with an area of 1660 square meters, described as bounded on thenorth by the property of Rufo Manuel and Eugenia Andrada, on the east bythe provincial road, on the south by the property of Doroteo Bartolome, andon the west by the property of Nieves Caday and Eugenia Andrada, and witha house as improvement thereon. The land was allegedly acquired by UrsulaCid through inheritance from Doroteo Bartolome, the father of Ursula'sdeceased husband, Bernabe. 10

More than three months later or on January 30, 1934, ResurreccionBartolome also filed an answer in the same cadastral case claimingownership over a portion of Lot No. 11165 with an area of 864 square metersdescribed as bounded on the north by the property of the heirs of RufoManuel, on the east by Blumentritt Street, on the south by the property of Doroteo Bartolome, and on the west by the property of Bernabe Bartolome.No improvements on the lot were indicated in the answer which also statedthat said portion of Lot No. 11165 was acquired by claimant Resurreccion

Bartolome "by inheritance from my grandfather and grandmother . . .Epitacio Batara and Maria Gonzales." 11

From then on, no further proceedings were held in the cadastral case.Meanwhile, in 1934, Resurreccion Bartolome verbally entrusted the portionshe had claimed to Maria Bartolome, whom she later described as thedaughter of Doroteo Bartolome. 12

In 1939, Ursula Cid and her children also migrated to Davao City leaving theirhouse on Lot No. 11165 to a lessee, Severino Ramos. Ursula and her son,Dominador Bartolome, instructed Maria Bartolome, the sister of Bernabe, toreceive the rentals for the house from Severino Ramos. 13 Maria Bartolomealso paid the taxes on the property until 1948, when Dominador took overthe task. 14 But on September 22, 1950, Maria Bartolome, as "administratorof the parcel of land situated at Bo. 11, Laoag, Ilocos Norte," leased Lot No.11165 to the Philippine United Trading Co., Inc. 15 The rentals for theproperty were paid by the lessee to Dominador Bartolome until the edifice

housing the company was burned down in 1968. 16 Resurreccion Bartolome,who had been residing in Isabela, was given by Maria Bartolome a smallamount, which could have been about P50, in consideration of the leasecontract. 17

In June, 1968, the Court of First Instance of Ilocos Norte sent out notices forthe "continuation of the hearing" on June 13, 1968 in Cadastral Case No.53. 18 It should be remembered, however, that from the time Ursula Cid andResurreccion Bartolome filed their answers to the petition in the cadastralcase, there had been no progress in the proceedings.

A year later or in 1969, Maria J. Bartolome filed in Cadastral Case No. 53 a"motion to admit answer in intervention," alleging that she is one of thechildren of Doroteo Bartolome and that she and her co-heirs had beenexcluded in Ursula Cid's answer to the petition. She therefore prayed that theanswer of Ursula Cid be amended so as to include the rightful heirs of Doroteo Bartolome. 19 At the same time, she filed an answer claiming co-

ownership over Lot No. 11165 with Clemente, Julia and Rosario Bartolomeand Ursula Cid, the widow of Bernabe. She likewise alleged therein that sheand her siblings inherited the 1660-square meter lot from DoroteoBartolome. 20

Three months later, Ursula Cid filed a motion to amend her answer to reflect the complete "ground or basis of acquisition" of Lot No. 11165. 21 In heramended answer, Ursula Cid stated that she was the absolute owner of Lot No. 11165; that she had been the possessor of Lot No. 11165 for over fiftyyears; that she "acquired by inheritance from Bernabe Bartolome, whotogether with her, purchased the . . . lot which used to be three adjoining lotsfrom their respective owners;" and that Lot No. 11165 had been declared fortax purposes in the name of her late husband Bernabe Bartolome. 22

No hearing was conducted in the case until 1974. To buttress her claim that she and her husband purchased Lot No. 11165, Ursula Cid presented at thetrial three deeds of sale: [a] one dated March 1, 1917 showing that Bernabe

Bartolome and Ursula Cid bought a 374-square meter lot for fifteen pesosfrom the spouses Domingo Agustin and Josefa Manrique; 23 [b] anotherdocument dated February 18, 1913 executed by Ignacia Manrique in favor of Bernabe Bartolome evidencing the sale of another lot also for fifteenpesos; 24 and [c] still another deed executed by Maria Gonzales y Paguyo onFebruary 9, 1917 in favor of Bernabe Bartolome and Ursula Cid ceding to thelatter 772 square meters of land for P103.75. 25 The last-mentioned piece of land is the one being claimed by Resurreccion Bartolome.

On May 10, 1984, the Regional Trial Court of Ilocos Norte rendered a decisionthe dispositive portion of which is quoted above. The court entertained onlythe answers of Ursula Cid and Resurreccion Bartolome. It found that the lotsdescribed in Exhibits 2 and 3 presented by Ursula Cid "are not within Lot 11165" and that said exhibits "are defective as the vendors are not the real



26

owner(s)" of the lots described therein. As to Exhibit 4, the court ruled that it has "no probative value as the same is incomplete and unsigned." The court also held that Ursula Cid's possession of the land "after the claimants hadfiled their respective answer(s) or after the declaration of a general default,"did not confer ownership on her because said possession was interruptedand merely tolerated by all the parties during the pendency of the case. 26

Ursula Cid appealed to the then Intermediate Appellate Court. In its decisionreversing the lower court, the appellate court held that the deeds of salepresented by Ursula Cid are ancient documents under Section 22, Rule 132 of the Rules of Court. It also ruled that Ursula Cid's continuous possession of thelot from its acquisition and her exercise of rights of ownership over it vestedher with the legal presumption that she possessed it under a just title.

Her motion for the reconsideration of said decision having been denied,Resurreccion Bartolome filed the instant petition for reviewon certiorari based on two principal issues: [a] whether the provisions of Rule 132 on ancient documents are applicable with respect to Exhibit 4, and[b] whether acquisitive prescription runs during the pendency of a cadastralcase.

Exhibit 4 consists of three pieces of paper. The first piece is a blank sheet which apparently serves as a cover page. The two other pages contain thehandwritten document in Ilocano stating that in consideration of the amount of P103.75, Maria Gonzales y Paguyo sold to the spouses Bernabe Bartolomeand Ursula Cid 772 square meters of land bounded on the north by theproperty of Pedro Manuel, on the east by the Bacarra road, on the south bythe property of Doroteo Bartolome and on the west by the property of Bernabe Bartolome. The third sheet or page 2 thereof contains a warrantyagainst eviction and other disturbances with the last three lines indicating

the date of the execution of the instrument.According to Dominador Bartolome, he first saw Exhibit 4 in thepossession of his mother, Ursula Cid, when he was just eleven years old.He noticed that the document had a fourth page containing thesignature of Maria Gonzales and that all four pages were sewntogether. 27 However, when the document was entrusted to him by hismother in 1947 as he was then representing the family in litigationconcerning the land, the document's fourth page was alreadymissing. 28 He stated that his mother told him that the fourth page waslost during the Japanese occupation while they were evacuating fromDavao City. 29

Dominador Bartolome also presented in court a sworn statement in Ilocanoexecuted by Ursula Cid on February 19, 1937. 30 In her statement, Ursula Ciddeclared that the sale of the lot to her and her husband by MariaGonzales was evidenced by a written instrument; that the land had

been transferred in the name of her husband; that she had been payingtaxes therefor, and that they had been in continuous possession of theland for more than twenty years. 31

Rule 132 of the Rules of Court provides:

Sec. 22. Evidence of execution not necessary . — Where aprivate writing is more than thirty years old, isproduced from a custody in which it would naturally befound if genuine, and is unblemished by any alterationsor circumstances of suspicion, no other evidence of itsexecution and authenticity need be given.

We agree with the appellate court that the first two requirements ordainedby Section 22 are met by Exhibit 4. It appearing that it was executed in 1917,Exhibit 4 was more than thirty years old when it was offered in evidence in1983. 32 It was presented in court by the proper custodian thereof who is anheir of the person who would naturally keep it. 33 We notice, however, that the Court of Appeals failed to consider and discuss the third requirement;that no alterations or circumstances of suspicion are present.

Admittedly, on its face, the deed of sale appears unmarred by alteration. Wehold, however, that the missing page has nonetheless affected itsauthenticity. Indeed, its importance cannot be overemphasized. It allegedlybears the signature of the vendor of the portion of Lot No. 11165 in questionand therefore, it contains vital proof of the voluntary transmission of rightsover the subject of the sale. Without that signature, the document isincomplete. Verily, an incomplete document is akin to if not worse than adocument with altered contents.

Moreover, there is a circumstance which bothers the Court and makes the genuineness of the document suspect . If it is really true that the document wasexecuted in 1917, Ursula Cid would have had it in her possession when shefiled her answer in Cadastral Case No. 53 in 1933. Accordingly, she couldhave stated therein that she acquired the portion in question by purchasefrom Maria Gonzales. But as it turned out, she only claimed purchase as amode of acquisition of Lot No. 11165 after her sister-in-law, Maria J.Bartolome and the other descendants of Doroteo Bartolome sought intervention in the case and demanded their rightful shares over theproperty.

All these negate the appellate court's conclusion that Exhibit 4 is an ancient document. Necessarily, proofs of its due execution and authenticity are vital.Under Section 21 of Rule 132, the due execution and authenticity of a privatewriting must be proved either by anyone who saw the writing executed, byevidence of the genuineness of the handwriting of the maker, or by asubscribing witness. The testimony of Dominador Bartolome on Exhibit 4and Ursula Cid's sworn statement in 1937 34 do not fall within the purview of Section 21. The signature of Maria Gonzales on the missing fourth page of

Exhibit 4 would have helped authenticate the document if it is proven to begenuine. But as there can be no such proof arising from the signature of Maria Gonzales in the deed of sale, the same must be excluded. 35

Even if Exhibit 4 were complete and authentic, still, it would substantially beinfirm. Under Article 834 of the old Civil Code, Maria Gonzales, as a survivingspouse, "shall be entitled to a portion in usufruct equal to that correspondingby way of legitime to each of the legitimate children or descendants who hasnot received any betterment." And, until it had been ascertained by means of the liquidation of the deceased spouse's estate that a portion of the conjugalproperty remained after all the partnership obligations and debts had beenpaid, the surviving spouse or her heirs could not assert any claim of right ortitle in or to the community property which was placed in the exclusive

possession and control of the husband as administrator thereof. 36 Hence, inthe absence of proof that the estate of Epitacio Batara had been duly settled,Maria Gonzales had no right to sell not even a portion of the property subject of Exhibit 4.

On the issue of whether acquisitive prescription runs during the pendency of a cadastral case, we hold, as this Court held in Cano v . De Camacho, 37 that theinstitution of cadastral proceedings, or at least the publication of the noticetherein issued, has the effect of suspending the running of the prescriptiveperiod. Hence, the appellate court erred in ascribing acquisitive prescriptionin favor of Ursula Cid "up to the present." 38

Neither can Ursula Cid successfully assert that prior to the institution of thecadastral proceedings, she and her husband had gained acquisitiveprescription over the property. Until Doroteo Bartolome migrated to DavaoCity in 1926, he was in possession of the whole lot including the portionentrusted to him by Epitacio Batara. Granting that the 1520-square meter lot

Bernabe Bartolome had declared as his own in 1925 39 is within Lot No.11165, still, the period from 1925 until the filing of the cadastral case in 1933failed to give him an advantage. It is short of the 10-year actual, adverse anduninterrupted period of possession mandated by Section 41 of the Code of Civil Procedure in order that a full and complete title could be vested on theperson claiming to be the owner of a piece of land.

Furthermore, while it is true that the property had been declared for taxpurposes by Bernabe Bartolome and that, subsequent to his death, taxesthereon were paid in the name of his son, Dominador, 40 ownership thereof had not been acquired by Ursula Cid or her heirs. Aside from the fact that said declarations and payments were made during the pendency of thecadastral case, a tax declaration in the name of the alleged property owner orof his predecessor-in-interest, does not prove ownership. It is merely anindicium of a claim of ownership. 41 In the same manner, neither does thepayment of taxes conclusively prove ownership of the land paid for.

The foregoing discussion notwithstanding, the Court is unprepared to decree824 square meters of Lot No. 11165 in favor of Resurreccion Bartolome andher co-heirs to the estate of Epitacio Batara. The revised declaration of realproperty in the name of Epitacio, which petitioners presented as Exhibit B,reveals that Epitacio Batara owned only 772 square meters of the lot involved. Certainly, petitioner and her co-heirs may not be entitled to an areagreater than what their grandfather claimed as his own.

Similarly, what remains of Lot No. 11165 after the portion herein adjudicatedto Resurreccion Bartolome and her co-heirs has been determined, may not be granted to the heirs of Bernabe Bartolome and Ursula Cid exclusively. Thetwo other deeds of sale presented as Exhibits 2 and 3 having been foundworthless by the trial court as they involve parcels of land not within Lot No.11165 and the vendors of which were not the real owners of the property,which findings of facts are binding on this Court, the law mandates that theproperty, having been inherited from Doroteo Bartolome, must be shared inequal portions by his children or their heirs.

WHEREFORE, the appealed decision of the then Intermediate AppellateCourt is hereby reversed and set aside.

The eastern portion of Lot No. 11165 with an area of 772 square meters ishereby adjudicated in favor of the heirs of Epitacio Batara who are hereinrepresented by Resurreccion Bartolome while the remaining area of Lot No.11165 is hereby adjudicated in favor of the heirs of Doroteo Bartolome.

Petitioners shall pay the cost of the survey and subdivision of Lot No. 11165.No costs.

SO ORDERED.

G.R. No. 76595 May 6, 1988

PACIFIC ASIA OVERSEAS SHIPPING CORPORATION, petitioner,vs.NATIONAL LABOR RELATIONS COMMISSION and TEODORORANCES, respondents.

FELICIANO, J.:

The petitioner, Pacific Asia Overseas Shipping Corporation (Pascor, in short),seeks the annulment and setting aside of the Resolutions of the publicrespondent National Labor Relations Commission (NLRC) dated 14 August 1986 and 19 November 1986, denying Pascor's appeal for having been filedout of time and denying its Motion for Reconsideration, respectively.

Sometime in March 1984, private respondent Teodoro Rances was engagedby petitioner Pascor as Radio Operator of a vessel belonging to Pascor'sforeign principal, the Gulf-East Ship Management Limited. Four (4) months



27

later, and after having been transferred from one vessel to another fourtimes for misbehaviour and inability to get along with officers and crewmembers of each of the vessels, the foreign principal terminated the servicesof private respondent Rances citing the latter's poor and incorrigible workattitude and incitement of others to insubordination. 1

Petitioner Pascor filed a complaint against private respondent with thePhilippine Overseas Employment Administration tion (POEA) for actsunbecoming a marine officer and for, character assassination," which casewas docketed as POEA Case No: M-84-09-848. Private respondent denied thecharges set out in the complaint and by way of counterclaim demanded anamount of US$ 1,500.00 which a court in Dubai had, he contended, awardedin his favor against petitioner's foreign principal. In due course, on 4

September 1985, the POEA found private respondent liable for incitinganother officer or seaman to insubordination and challenging a superiorofficer to a fist fight and imposed six (6) months suspension for each offenseor a total of twelve (12) months suspension, with a warning that commissionof the same or similar offense in the future would be met with a stifferdisciplinary sanction. The POEA decision passed over sub silentiothecounterclaim of private respondent. 2

On 10 October 1985, private respondent filed a complaint against petitioner,docketed as POEA Case No: M-85-10-0814 and entitled "Teodoro Rances v.Pacific Asia Overseas Shipping Corporation." In this complaint, he sought tocarry out and enforce the same award obtained by him in Dubai allegedlyagainst Pascor's foreign principal which he had pleaded as a counterclaim inPOEA Case No: M-84-09-848. Private respondent claimed that be had filed anaction in the Dubai court for US$ 9,364.89, which claim was compromised bythe parties for US$ 5,500.00 plus "a return ticket to (private respondent's)country," with the proviso that "the opponent" would pay "to the claimant"

US$ 1,500.00 'in case the wife of the claimant Rantes doesn't agree with theamount sent to [her] Private respondent further claimed that since his wifedid not "agree with" the amount given to her as 'an allotment for the 3-monthperiod (of April, May and June 1984), he was entitled to recover theadditional US$ 1,500.00 "as mandated under the Compromise Agreement which was the basis of the decision of the Dubai Civil Court. 3 As evidence of this foreign award, private respondent submitted what purports to be an"original copy (sic) of the decision" of the Dubai court written in Arabic script and language, With a copy of an English translation by an unidentifiedtranslator and a copy of a transmittal letter dated 23 September 1984 signedby one Mohd Bin Saleh "Honorary Consul for Philippines." The full texts of the purported English translation of the Dubai award and of the transmittalletter are set out in the margin. 4

In its answer filed on 11 December 1985, petitioner Pascor made fourprincipal arguments: that the copy of the Dubai decision relied upon by

private respondent could not be considered as evidence, not having beenproperly authenticated; that Pascor was not a party to the Dubai court proceedings; that the POEA had no jurisdiction over cases for theenforcement of foreign judgments; and that the

claim had already beenresolved in POEA Case No: M-84-09-848, having been there dismissed as acounterclaim.

In a decision dated 14 April 1986, the POEA held petitioner Pascor liable topay private respondent Rances the amount of US$ 1,500.00 "at the prevailingrate of exchange at the time of payment." This decision was served onpetitioner's counsel on 18 April 1986, which counsel filed a 'Memorandumon Appeal and/or Motion for Reconsideration" on 29 April 1986.

Private respondent moved the next day for dismissal of the appeal and forissuance of a writ of execution, upon the ground that petitioner's appeal hadbeen filed one (1) day beyond the reglementary period and that,consequently, the POEA decision had become final and executory.

Petitioner opposed dismissal of its appeal and issuance of a writ of execution,arguing that the one (1) day delay in filing its Memorandum on Appeal hadbeen occasioned by an excusable mistake.

On 20 May 1986, the POEA issued an order denying petitioner's appeal forhaving been filed out of time. Petitioner moved for reconsideration, paid thedocket fee and posted the required supercedes bond in connection with itsappeal.

On 29 May 1986, the POEA denied private respondent's Motion for a Writ of Execution and elevated the case to the NLRC.

On 14 August 1986, public respondent NLRC denied petitioner's appeal asflied out of time. Petitioner's Motion for Reconsideration was similarlydenied.

In the present Petition for certiorari and mandamus with prayer forPreliminary Injunction and Temporary Restraint ' 9 Order, Pascor urges that public respondent NLRC acted with grave abuse of discretion or in excess of its jurisdiction in denying its appeal and motion for reconsideration.

We think petitioner's contention has merit. The record shows, not an intent to delay the proceedings but rather a genuine and substantial effort on thepart of petitioner Pascor to file, in a timely manner, its Memorandum onAppeal which, in the circumstances of this case, should not have beendisregarded by respondent NLRC. The circumstances surrounding the one(1) day delay in the filing of petitioner's Memorandum on Appeal aresummed up by petitioner in the following terms:

30.1. Mr. Ruben de la Cruz, who was newly hired asmessenger in the law firm representing the petitionerwas tasked with the delivery of the memorandum on

appeal in the afternoon of April 28, 1986 (the last dayfor filing the same).

30.2. When Mr. de la Cruz read the caption of thememorandum, he noted that the same is addressed tothe respondent NLRC and he erroneously concludedthat it should be filed with the offices of the NLRC inIntramuros, Manila.

30.3. Wen Mr. de la Cruz presented petitioner's Appealat the docket section of respondent NLRC, he wasadvised that the same should be filed with the offices of the POEA in Ortigas, San Juan, Metro Manila.

30.4. Mr. de la Cruz upon being apprised of his errorimmediately proceeded to the offices of the POEA inorder to have petitioner's (PASCOR's) appeal receivedbut unfortunately, by the time he arrived thereat, thePOEA office had already closed for the day. Thus, theappeal was filed the following day.

To Support the above explanation, in addition to an affidavit executed by Mr.Ruben de la Cruz, petitioner submitted a certification dated 2 May 1986executed by Evelyn G. Sauza, receive . receiving clerk of respondent NLRCstating that she had read to receive the Memorandum on Appeal on or about 4:15 P.M., 28 April 1986, because the Memorandum was supposed to be filedwith the POEA office in Ortigas and not with the NLRC in Intramuros.

The brevity of the delay in filing an appeal is not, of course, by itself asufficient basis for giving due course to the appeal. In the present case,however, the factual circumstances combine with the legal merits of the case

urged by the petitioner to move us to the conviction that respondent NLRCshould have recognized and heeded the requirements of orderly procedureand substantial justice which are at stake in the present case by allowing theappeal. In Siguenza v. Court of appeals, 5 the Court stressed that the right toappeal should not be lightly disregarded by a stringent application of rules of procedure especially where the appeal is on its face meritorious and theinterests of substantial justice would be served by permitting the appeal:

In the case of Castro v. Court of Appeals (132 SCRA 782),we stressed the importance and real purpose of theremedy of appeal and ruled:

An appeal is an essential part of our judicial system. We haveadvised the courts to proceed withcaution so as not to deprive a party of the right to appeal (National

Waterworks and SewerageAuthority v. Municipality of Libmanan, 97 SCRA 138) andinstructed that every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, freed fromthe constraints of technicalities (A.One Feeds, Inc. v. Court of Appeals,100 SCRA 590).<äre||anº•1àw>

The rules of procedure are not tobe applied in a very rigid and technical sense. The rules of procedure are used only to helpsecure not override substantial justice. (Gregorio v. Court of Appeals [72 SCRA 1201).Therefore, we ruled in Republic v.Court of Appeals (83 SCRA 453)that a six-day delay in theperfection of the appeal does not warrant its dismissal . And againinRamos v. Bagasao, 96 SCRA 396,this Court held that the delay in four (4) days in filing a notice of appeal and a notion for extension of time to file a record on appeal canbe excused on the basis of equity.

We should emphasize, however, that we have allowedthe of an appeal in some cases where a sent applicationof the rules would have denied it only when to do so

would serve the demands of substantial justice and inthe exercise of our equity junction.

In the case at bar, the petitioner's delay in their recordon appeal should not be strictly construed as to deprivethem of the right to appeal especially since on its face theappeal appears to be impressed appeal especially withmerit . 6

We turn to the merits of the Petition. An examination of the complaint and of the Manifestation and Motion filed by respondent Rances in POEA Case No:M-85-08-14, shows that the cause of action pleaded by respondent Ranceswas enforcement of the decision rendered by c. Dubai Court which purportedto award him, among other things, an additional amount of US$ 1,500.00



28

under certain circumstances. In the complaint dated 23 October 1985,respondent Rances stated:

Details of cause of action (Why are you complaining?)(To include place and date of occurrence of case of action and amount of claim, if any) P 2,295 US$ salaryfor three (3) months stated in the compromise of 1,500TJS$ total of 2,795.50 US$ [as] per decision from Civil Court of Dubai U.A.E . 7

The Motion/Manifestation dated 3 December 1985 filed by respondent Rances may be quoted in extension

1. Originally, complainant's claim was US$ 9,364.89

which he filed with the Dubai Court for adjudication.

xxx xxx xxx

2. The US$ 9,364.89 claim was compromised by thecourt in a decision dated September 12, 1984. Xeroxcopy of the decision is hereto attached as Annex "B" andthe authentication as Annex "B-l' and made an integralpart thereof.

3. Pertinent portion of the decision referred to abovereads as follows:

Both parties came to a decisionthat the opponent would pay tothe claimant the amount of FiveThousand & Five Hundred dollarsfor the withdrawal of the claimant and providing him return ticket tohis country. The opponent declared that he would pay OneThousand & Five Hundred Dollarsto the opponent in case the wife of the claimant doesn't agree withthe amount sent to.

4. During the hearing leading to the Compromise, Iemphasized that the allotment I was giving my wife wasUS$ 765.00 per month and at the time the case was filedthe allotment was already 3 months in arrears whichalready amounted to US$ 2,295.00.

5. The amount sent my wife which is only P 13,393.45through PASCOR and confirmed by a Certification of thePhilippine National Bank, Dagupan City Branch, heretoattached as Annex 'C' is definitely very meagercompared to the exchange value of US$ 2,295.00;

6. My wife certainly did not agree and cannot agree oradmit that only P 13,393.45 will be given her as anallotment for the 3-month period; hence, urder theCompromise Agreement , we are entitled to recover theadditional US$ 1,500.00;

7. The agreement insofar as the additional remittance tomy wife of US$1,500.00 is reasonable in that adding thesame to the P13,393.45 my wife received would sum upto US$2,295.00 corresponding to the accumulated 3month allotment due my wife.

WHEREFORE, premises considered, it is respectfullyprayed of this Honorable Office to —

Cause or require respondent to remit and/or pay theundersigned or his wife of the amount of US$1,500.00 as mandated under the Compromise Agreement which was the basis of the decision of the Dubai Civil Court . 8

It should be noted that respondent Rances submitted to the POEA only theDubai Court decision; he did not submit any copy of the 'CompromiseAgreement' (assuming that to have been reduced to writing) which hepresumably believed to have been absorbed and superseded by the Dubaidecision.

That the cause of action set out in respondent Rances' complaint wasenforcement of the Dubai decision is further, indicated in the decision dated14 April 1986 rendered by the POEA. This decision provided in part asfollows:

Complainant alleged that his original claim of US$9,364.89 for unpaid salaries, termination pay and travelexpenses was filed in Dubai. In a decision rendered by the Dubai Court, his claim was compromised in theamount of US$ 5,500.00 plus return plane ticket. Theamount of US$ 1,500.00 will be paid to his wife if shedoes not agree with the amount sent to her. The three(3) months unremitted allotments refers to the monthsof April, May and June 1984. As evidenced by theAllotment Shp, respondent approved the authoritygiven by complainant stating that the amount of US$765.00 be remitted to his wife belong with the month of April 1984. The amount remitted to his wife forallotment cover the three (3) month period was only P

13,393.45. The basis of complainant's claim is thereservation in the decision of the Dubai Court whichstates that in case the wife of the claimant does not agreewith the amount sent to her, the opponent shall pay US$ l,500.00. 9

Clearly, therefore, respondent Rances' action was for enforcement of theDubai decision to the extent that such decision provided for payment of anadditional amount of US$1,500.00 and that respondent relied upon suchdecision.

Petitioner argues vigorously that the POEA had no authority and jurisdictionto enforce the judgment of a foreign court. Under Section 1, Rule 1, Book VI of the POEA Rules and Regulations, it will be seen that the POEA hasjurisdiction to decide all cases 'involving employer employee relationsarising out of or by virtue of any law or contract involving Filipino workersfor overseas employment, including seamen." Respondent Rances, however,relied not upon the employer - employee relationship between himself andpetitioner corporation and the latter's foreign principal, but rather upon thejudgment obtained by him from the Dubai Court which had apparentlyalready been partially satisfied by payment to respondent Rances of US$5,500.00. The POEA has no jurisdiction to hear and decide a claim forenforcement of a foreign judgment. Such a claim must be brought before theregular courts. The POEA is not a court; it is an administrative agencyexercising, inter alia, adjudicatory or quasi-judicial functions. Neither therules of procedure nor the rules of evidence which are mandatorilyapplicable in proceedings before courts, are observed in proceedings beforethe POEA.10

Even assuming (arguendo, merely) that the POEA has jurisdiction to

recognize and enforce a foreign judgment, still respondent Rances cannot rely upon the Dubai decision. The Dubai decision was not properly provedbefore the POEA. The Dubai decision purports to be the written act or recordof an act of an official body or tribunal of a foreign country, and therefore apublic writing under Section 20 (a) of Rule 132 of the Revised Rules of Court.Sections 25 and 26 of Rules 132 prescribe the manner of proving a public of official record of a foreign country in the following terms:

Sec. 25. Proof of public or official record . — An officialrecord or an entry therein, when admissible for anypurpose, may be evidenced by an official publicationthereof or by a copy attested by the officer having thelegal custody of the record, or by his deputy, and accompanied. if the record is not kept in the Philippines,with a certificate that such officer has the custody. If theoffice in which the record is kept is in a foreign country,the certificate maybe be made by a secretary of embassy

or litigation, consul general, consul, vice consul, orconsular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in whichthe record is kept, and authenticated by the seal of hisoffice.

Sec. 26. What attestation of copy must state. — Whenever a copy of a writing is attend for the purposeof evidence, the attestation must state, in substance,that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must beunder the official seal of the attesting officer, if there beany, or if he be the clerk of a court having a seal, under the seal of such court . (Emphasis supplied)

In the instant case, respondent Rances failed to submit any attestation issuedby the proper Dubai official having legal custody of the original of the

decision of the Dubai Court that the copy presented by said respondent is afaithful copy of the original decision, which attestation must furthermore beauthenticated by a Philippine Consular Officer having jurisdiction in Dubai.The transmittal letter, dated 23 September 1984, signed by Mohd Bin Saleh,Honorary Consul for Philippines' does not comply with the requirements of either the attestation under Section 26 nor the authentication envisaged bySection 25. 11

There is another problem in respect of the admissibility in evidence of theDubai decision. The Dubai decision is accompanied by a document whichpurports to be an English translation of that decision., but that translation islegally defective. Section 34 of Rule 132 of the Revised Rules of Court requires that documents written in a non-official language hke Arabic) shallnot be admitted as evidence unless accompanied by a translation into Englishor Spanish or Filipino. 12In Ahag v. Cabiling, 13 Mr. Justice Morelandelaborated on the need for a translation of a document written in a languageother than an official language:

... Moreover, when there is presented in evidence anexhibit written in any language other than Spanish, if there is an appeal, that exhibit should be translated intoSpanish by the official interpreter of the court, or atranslation should be agreed upon by the parties, andboth original and translation sent to this court. In thecase before us, there is an untranslated exhibit writtenin the Visayan language. 14

In Teng Giok Yan v. Hon. Court of Appeals, et al. , 15 the Court, speaking throughMr. Justice Montemayor, had occasion to stress the importance of having atranslation made by the court interpreter who must, of course, be of



29

recognized competence both in the language in which the document involvedis written and in English. The Court said:

[t]he trial court was certainly not bound by thetranslation given by the Chinese Embassy, specially inthe absence of a delete assurance that said translationwas correct and that it was made by the EmbassyAdviser himself. On the other hand, the translation madeby the court interpreter is official and reliable not only because of the recognized ability of said interpreter totranslate Chinese characters into English, but alsobecause said interpreter was under the direct supervisionand control of the court . .... 16

In the instant case, there is no showing of who effected the Englishtranslation of the Dubai decision which respondent Rances submitted to thePOEA. The English translation does not purport to have been made by anofficial court interpreter of the Philippine Government nor of the DubaiGovernment. Neither the Identity of the translator nor his competence inboth the Arabic and English languages has been shown. The Englishtranslation submitted by the respondent is not sworn to as an accuratetranslation of the original decision in Arabic. Neither has that translationbeen agreed upon by the parties as a true and faithful one.

The foregoing does not exhaust the difficulties presented by reliance uponthe Dubai decision. The Dubai Court decision, even on the basis of the Englishtranslation submitted by respondent Rances, does not purport on its face tohave been rendered against petitioner Pascor nor against the foreign principal of petitioner. Respondent Rances simply assumed that the decision wasrendered against petitioner's foreign principal. The Dubai decision does not

Identify the parties to the litigation that was resolved by said decision. Accordingly, the Dubai decision can scarcely be enforced against petitioner Pascor. Further, even if the Dubai decision had on its facepurported to be rendered against petitioner Pascor, we must note that petitioner Pascor has expressly denied that jurisdiction had ever beenacquired by the Dubai court over the person of Pascor in accordance with theRules of Procedure applicable before the Dubai Court. 17 Respondent Ranceshas not proved the contents of the Dubai Rules of Procedure governingacquisition of jurisdiction over the person of a non-resident defendant.

Finally, if it be assumed (arguendo, once more) that the Dubai Court hadindeed acquired jurisdiction over the person of Pascor's foreign principal — Gulf East Ship Management Ltd. — it still would not follow that Pascor wouldautomatically be bound by the Dubai decision. The statutory agency (orsuretyship) of Pascor is limited in its reach to the contracts of employment Pascor entered into on behalf of its principal with persons like respondent Rances. 18 Such statutory inability does not extend to liability for judgments

secured against Gulf East Ship Management Ltd., in suits brought against Gulf East outside Philippine territorial jurisdiction, even though such a suit mayinvolve a contract of employment with a Filipino seaman.

We conclude that the POEA acted without or in excess of jurisdiction inrendering its Decision dated 14 April 1986 and its Order dated 20 May 1986,and that public respondent NLRC similarly acted without or in excess of jurisdiction in rendering its Orders dated 14 August 1986 and 19 November1986 denying petitioner's appeal and Motion for Reconsideration. This,however, is without prejudice to the right of respondent Rances to initiateanother proceeding before the POEA against petitioner Pascor, this time onthe basis alone of the contract of employment which existed between saidrespondent and petitioner or petitioner's foreign principal; there,respondent Rances may seek to show that he is still entitled to the allotmentswhich he claims were not remitted by his employer to his wife.

ACCORDINGLY, the Petition for certiorari is GRANTED and the Resolutions of

public respondent NLRC dated 14 August 1986 and 19 November 1986 arehereby NULLIFIED and SET ASIDE. The Temporary Restraining Order issuedby this Court on 8 December 1986 is hereby made PERCENT. Nopronouncement as to costs.

SO ORDERED.

G.R. No. 104235 November 18, 1993

SPOUSES CESAR & SUTHIRA ZALAMEA and LIANA ZALAMEA, petitioners,vs.HONORABLE COURT OF APPEALS and TRANSWORLD AIRLINES,INC., respondents.

NOCON, J.:

Disgruntled over TransWorld Airlines, Inc.'s refusal to accommodate them inTWA Flight 007 departing from New York to Los Angeles on June 6, 1984despite possession of confirmed tickets, petitioners filed an action fordamages before the Regional Trial Court of Makati, Metro Manila, Branch145. Advocating petitioner's position, the trial court categorically ruled that respondent TransWorld Airlines (TWA) breached its contract of carriagewith petitioners and that said breach was "characterized by bad faith." Onappeal, however, the appellate court found that while there was a breach of contract on respondent TWA's part, there was neither fraud nor bad faithbecause under the Code of Federal Regulations by the Civil AeronauticsBoard of the United States of America it is a llowed to overbook flights.

The factual backdrop of the case is as follows:

Petitioners-spouses Cesar C. Zalamea and Suthira Zalamea, and theirdaughter, Liana Zalamea, purchased three (3) airline tickets from the Manilaagent of respondent TransWorld Airlines, Inc. for a flight to New York to LosAngeles on June 6, 1984. The tickets of petitioners-spouses were purchasedat a discount of 75% while that of their daughter was a full fare ticket. Allthree tickets represented confirmed reservations.

While in New York, on June 4, 1984, petitioners received notice of thereconfirmation of their reservations for said flight. On the appointed date,however, petitioners checked in at 10:00 a.m., an hour earlier than thescheduled flight at 11:00 a.m. but were placed on the wait-list because thenumber of passengers who had checked in before them had already taken allthe seats available on the flight. Liana Zalamea appeared as the No. 13 on the

wait-list while the two other Zalameas were listed as "No. 34, showing aparty of two." Out of the 42 names on the wait list, the first 22 names wereeventually allowed to board the flight to Los Angeles, including petitionerCesar Zalamea. The two others, on the other hand, at No. 34, being rankedlower than 22, were not able to fly. As it were, those holding full-fare ticketswere given first priority among the wait-listed passengers. Mr. Zalamea, whowas holding the full-fare ticket of his daughter, was allowed to board theplane; while his wife and daughter, who presented the discounted ticketswere denied boarding. According to Mr. Zalamea, it was only later when hediscovered the he was holding his daughter's full-fare ticket.

Even in the next TWA flight to Los Angeles Mrs. Zalamea and her daughter,could not be accommodated because it was also fully booked. Thus, theywere constrained to book in another flight and purchased two tickets fromAmerican Airlines at a cost of Nine Hundred Eighteen ($918.00) Dollars.

Upon their arrival in the Philippines, petitioners filed an action for damages

based on breach of contract of air carriage before the Regional Trial Court of Makati, Metro Manila, Branch 145. As aforesaid, the lower court ruled infavor of petitioners in its decision 1 dated January 9, 1989 the dispositiveportion of which states as follows:

WHEREFORE, judgment is hereby rendered orderingthe defendant to pay plaintiffs the following amounts:

(1) US $918.00, or its peso equivalent at the time of payment representing the price of the tickets bought bySuthira and Liana Zalamea from American Airlines, toenable them to fly to Los Angeles from New York City;

(2) US $159.49, or its peso equivalent at the time of payment, representing the price of Suthira Zalamea'sticket for TWA Flight 007;

(3) Eight Thousand Nine Hundred Thirty-Four Pesos

and Fifty Centavos (P8,934.50, Philippine Currency,representing the price of Liana Zalamea's ticket forTWA Flight 007,

(4) Two Hundred Fifty Thousand Pesos (P250,000.00),Philippine Currency, as moral damages for all theplaintiffs'

(5) One Hundred Thousand Pesos (P100,000.00),Philippine Currency, as and for attorney's fees; and

(6) The costs of suit.

SO ORDERED. 2

On appeal, the respondent Court of Appeals held that moral damages arerecoverable in a damage suit predicated upon a breach of contract of carriage only where there is fraud or bad faith. Since it is a matter of record

that overbooking of flights is a common and accepted practice of airlines inthe United States and is specifically allowed under the Code of FederalRegulations by the Civil Aeronautics Board, no fraud nor bad faith could beimputed on respondent TransWorld Airlines.

Moreover, while respondent TWA was remiss in not informing petitionersthat the flight was overbooked and that even a person with a confirmedreservation may be denied accommodation on an overbooked flight,nevertheless it ruled that such omission or negligence cannot under thecircumstances be considered to be so gross as to amount to bad faith.

Finally, it also held that there was no bad faith in placing petitioners in thewait-list along with forty-eight (48) other passengers where full-fare first class tickets were given priority over discounted tickets.

The dispositive portion of the decision of respondent Court of Appeals 3 dated October 25, 1991 states as follows:

WHEREFORE, in view of all the foregoing, the decisionunder review is hereby MODIFIED in that the award of moral and exemplary damages to the plaintiffs iseliminated, and the defendant-appellant is herebyordered to pay the plaintiff the following amounts:

(1) US$159.49, or its peso equivalent at the time of thepayment, representing the price of Suthira Zalamea'sticket for TWA Flight 007;

(2) US$159.49, or its peso equivalent at the time of thepayment, representing the price of Cesar Zalamea'sticket for TWA Flight 007;

(3) P50,000.00 as and for attorney's fees.



30

(4) The costs of suit.

SO ORDERED. 4

Not satisfied with the decision, petitioners raised the case on petition forreview on certiorari and alleged the following errors committed by therespondent Court of Appeals, to wit:

I.

. . . IN HOLDING THAT THERE WAS NO FRAUD OR BADFAITH ON THE PART OF RESPONDENT TWA BECAUSEIT HAS A RIGHT TO OVERBOOK FLIGHTS.

II.

. . . IN ELIMINATING THE AWARD OF EXEMPLARYDAMAGES.

III.

. . . IN NOT ORDERING THE REFUND OF LIANAZALAMEA'S TWA TICKET AND PAYMENT FOR THEAMERICAN AIRLINES TICKETS. 5

That there was fraud or bad faith on the part of respondent airline when it did not allow petitioners to board their flight for Los Angeles in spite of confirmed tickets cannot be disputed. The U.S. law or regulation allegedlyauthorizing overbooking has never been proved. Foreign laws do not provethemselves nor can the courts take judicial notice of them. Like any otherfact, they must be alleged and proved. 6 Written law may be evidenced by anofficial publication thereof or by a copy attested by the officer having the

legal custody of the record, or by his deputy, and accompanied with acertificate that such officer has custody. The certificate may be made by asecretary of an embassy or legation, consul general, consul, vice-consul, orconsular agent or by any officer in the foreign service of the Philippinesstationed in the foreign country in which the record is kept, andauthenticated by the seal of his office. 7

Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, itscustomer service agent, in her deposition dated January 27, 1986 that theCode of Federal Regulations of the Civil Aeronautics Board allowsoverbooking. Aside from said statement, no official publication of said codewas presented as evidence. Thus, respondent court's finding that overbooking is specifically allowed by the US Code of Federal Regulations hasno basis in fact.

Even if the claimed U.S. Code of Federal Regulations does exist, the same isnot applicable to the case at bar in accordance with the principle of lex loci

contractus which require that the law of the place where the airline ticket was issued should be applied by the court where the passengers areresidents and nationals of the forum and the ticket is issued in such State bythe defendant airline. 8 Since the tickets were sold and issued in thePhilippines, the applicable law in this case would be Philippine law.

Existing jurisprudence explicitly states that overbooking amounts to badfaith, entitling the passengers concerned to an award of moral damages.In Alitalia Airways v. Court of Appeals, 9 where passengers with confirmedbookings were refused carriage on the last minute, this Court held that whenan airline issues a ticket to a passenger confirmed on a particular flight, on acertain date, a contract of carriage arises, and the passenger has every right to expect that he would fly on that flight and on that date. If he does not, thenthe carrier opens itself to a suit for breach of contract of carriage. Where anairline had deliberately overbooked, it took the risk of having to deprivesome passengers of their seats in case all of them would show up for thecheck in. For the indignity and inconvenience of being refused a confirmed

seat on the last minute, said passenger is entitled to an award of moraldamages.

Similarly, in Korean Airlines Co., Ltd. v. Court of Appeals , 10 where privaterespondent was not allowed to board the plane because her seat had alreadybeen given to another passenger even before the allowable period forpassengers to check in had lapsed despite the fact that she had a confirmedticket and she had arrived on time, this Court held that petitioner airlineacted in bad faith in violating private respondent's rights under theircontract of carriage and is therefore liable for the injuries she has sustainedas a result.

In fact, existing jurisprudence abounds with rulings where the breach of contract of carriage amounts to bad faith. In Pan American World Airways,Inc. v. Intermediate Appellate Court , 11 where a would-be passenger had thenecessary ticket, baggage claim and clearance from immigration all clearlyand unmistakably showing that she was, in fact, included in the passenger

manifest of said flight, and yet was denied accommodation in said flight, thisCourt did not hesitate to affirm the lower court's finding awarding herdamages.

A contract to transport passengers is quite different in kind and degree fromany other contractual relation. So ruled this Court in Zulueta v. Pan AmericanWorld Airways, Inc. 12 This is so, for a contract of carriage generates a relationattended with public duty — a duty to provide public service andconvenience to its passengers which must be paramount to self-interest orenrichment. Thus, it was also held that the switch of planes from Lockheed1011 to a smaller Boeing 707 because there were only 138 confirmedeconomy class passengers who could very well be accommodated in thesmaller planes, thereby sacrificing the comfort of its first class passengers forthe sake of economy, amounts to bad faith. Such inattention and lack of care

for the interest of its passengers who are entitled to its utmost considerationentitles the passenger to an award of moral damages. 13

Even on the assumption that overbooking is allowed, respondent TWA is stillguilty of bad faith in not informing its passengers beforehand that it couldbreach the contract of carriage even if they have confirmed tickets if therewas overbooking. Respondent TWA should have incorporated stipulations onoverbooking on the tickets issued or to properly inform its passengers about these policies so that the latter would be prepared for such eventuality orwould have the choice to ride with another airline.

Respondent TWA contends that Exhibit I, the detached flight coupon uponwhich were written the name of the passenger and the points of origin anddestination, contained such a notice. An examination of Exhibit I does not bear this out. At any rate, said exhibit was not offered for the purpose of showing the existence of a notice of overbooking but to show that Exhibit Iwas used for flight 007 in first class of June 11, 1984 from New York to LosAngeles.

Moreover, respondent TWA was also guilty of not informing its passengers of its alleged policy of giving less priority to discounted tickets. While thepetitioners had checked in at the same time, and held confirmed tickets, yet,only one of them was allowed to board the plane ten minutes beforedeparture time because the full-fare ticket he was holding was given priorityover discounted tickets. The other two petitioners were left behind.

It is respondent TWA's position that the practice of overbooking and theairline system of boarding priorities are reasonable policies, which whenimplemented do not amount to bad faith. But the issue raised in this case isnot the reasonableness of said policies but whether or not said policies wereincorporated or deemed written on petitioners' contracts of carriage.Respondent TWA failed to show that there are provisions to that effect.Neither did it present any argument of substance to show that petitionerswere duly apprised of the overbooked condition of the flight or that there is ahierarchy of boarding priorities in booking passengers. It is evident that petitioners had the right to rely upon the assurance of respondent TWA, thruits agent in Manila, then in New York, that their tickets representedconfirmed seats without any qualification. The failure of respondent TWA toso inform them when it could easily have done so thereby enablingrespondent to hold on to them as passengers up to the last minute amountsto bad faith. Evidently, respondent TWA placed its self-interest over therights of petitioners under their contracts of carriage. Such consciousdisregard of petitioners' rights makes respondent TWA liable for moraldamages. To deter breach of contracts by respondent TWA in similar fashionin the future, we adjudge respondent TWA liable for exemplary damages, aswell.

Petitioners also assail the respondent court's decision not to require therefund of Liana Zalamea's ticket because the ticket was used by her father.On this score, we uphold the respondent court. Petitioners had not shownwith certainty that the act of respondent TWA in allowing Mr . Zalamea to usethe ticket of her daughter was due to inadvertence or deliberate act.Petitioners had also failed to establish that they did not accede to saidagreement. The logical conclusion, therefore, is that both petitioners andrespondent TWA agreed, albeit impliedly, to the course of action taken.

The respondent court erred, however, in not ordering the refund of theAmerican Airlines tickets purchased and used by petitioners Suthira andLiana. The evidence shows that petitioners Suthira and Liana wereconstrained to take the American Airlines flight to Los Angeles not becausethey "opted not to use their TWA tickets on another TWA flight" but becauserespondent TWA could not accommodate them either on the next TWA flight which was also fully booked. 14 The purchase of the American Airlines ticketsby petitioners Suthira and Liana was the consequence of respondent TWA's

unjustifiable breach of its contracts of carriage with petitioners. Inaccordance with Article 2201, New Civil Code, respondent TWA should,therefore, be responsible for all damages which may be reasonablyattributed to the non-performance of its obligation. In the previously citedcase of Alitalia Airways v . Court of Appeals, 15 this Court explicitly held that apassenger is entitled to be reimbursed for the cost of the tickets he had tobuy for a flight to another airline. Thus, instead of simply being refunded forthe cost of the unused TWA tickets, petitioners should be awarded the actualcost of their flight from New York to Los Angeles. On this score, we differfrom the trial court's ruling which ordered not only the reimbursement of theAmerican Airlines tickets but also the refund of the unused TWA tickets. Torequire both prestations would have enabled petitioners to fly from NewYork to Los Angeles without any fare being paid.

The award to petitioners of attorney's fees is also justified under Article2208(2) of the Civil Code which allows recovery when the defendant's act oromission has compelled plaintiff to litigate or to incur expenses to protect hisinterest. However, the award for moral damages and exemplary damages bythe trial court is excessive in the light of the fact that only Suthira and LianaZalamea were actually "bumped off." An award of P50,000.00 moral damagesand another P50,000.00 exemplary damages would suffice under thecircumstances obtaining in the instant case.

WHEREFORE, the petition is hereby GRANTED and the decision of therespondent Court of Appeals is hereby MODIFIED to the extent of adjudgingrespondent TransWorld Airlines to pay damages to petitioners in thefollowing amounts, to wit:

(1) US$918.00 or its peso equivalent at the time of payment representing theprice of the tickets bought by Suthira and Liana Zalamea from AmericanAirlines, to enable them to fly to Los Angeles from New York City;



31

(2) P50,000.00 as moral damages;

(3) P50,000.00 as exemplary damages;

(4) P50,000.00 as attorney's fees; and

(5) Costs of suit.

SO ORDERED.

G.R. No. 156251 April 27, 2007

PHILIPPINE REALTY HOLDINGS CORPORATION, Petitioner,

vs.FIREMATIC PHILIPPINES, INC., Respondent.

D E C I S I O N

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 63791 and its Resolution2 dated November19, 2002.

The Antecedents

On December 12, 1989, Philippine Realty and Holdings Corporation (PRHC),entered into a Construction Agreement 3 with Firematic Philippines, Inc.(Firematic) for the installation of a sprinkler system in the proposed TektiteTowers, located at Tektite Road corner Pearl Avenue, Mandaluyong, MetroManila. The project had two phases - Phase I (Tower I) and Phase II (Tower

II)The scope of the work to be done by Firematic is provided in Article II of theContract, thus:

1.0 The CONTRACTOR, in consideration of the payments to bemade by OWNER, of certain sums of money in the mannerhereinafter specified, shall fully and faithfully deliver, perform andundertake to finish and supply all the materials, tools, equipment,supervision and to do all the skills and labor necessary or properfor the due completion of the Sprinkler System for the above-mentioned project, and does hereby warrant and guarantee that the said work and labor shall be performed in the most proper andworkmanlike manner and in full conformity with thecorresponding plans and specifications duly prepared thereforand/or the pertinent contract documents.

2.0 The work of the CONTRACTOR shall include, but shall not be

limited to ordering materials, following-up of orders, checking thequantity and quality of materials within the premises of theconstruction site, and rejecting or returning defective materials.

3.0 The CONTRACTOR is hereby expressly required to refer to allMechanical, Plumbing, Electrical, Structural and Architecturalplans and specifications and shall investigate any possibleinterference and conditions affecting its contract work.

4.0 All materials supplied by the CONTRACTOR shall be inconformity with the Sprinkler System specifications prepared byR. Villarosa – Architects.

5.0 It is not intended that the drawings shall show every pipe,fittings, and valve. All such items, whether or not those parts havebeen specifically mentioned or indicated on the drawings, shall befurnished and installed by CONTRACTOR, if necessary to complete

the system in accordance with the best practice of SprinkerSystem and to the satisfaction of the OWNER.4

Under Article I of the Contract, the following documents were incorporatedinto the agreement:

1.0 Sprinkler System Plans: FP-1 to FP-18, all consisting of eighteen (18) sheets as prepared by R. Villarosa – Architects.

2.0 Fire Protection Specification consisting of Forty-nine (49)pages.

3.0 Bid Documents consisting of the following:

a) Invitation to Bid – One (1) sheet;

b) Instruction to Bidders – Three (3) sheets;

c) Bid Proposals of Firematic Phils., Inc. consisting of

Three (3) pages dated Oct. 31, 1989;

d) Bid Bulletin No. 1 – Fourteen (14) sheets;

e) Letter of Intent dated November 21, 1989 dulysigned by the Owner and the Contractor consisting of Two (2) sheets.5

Article IX of the Contract enumerates the responsibilities of Firematicrelative to the supply and installation of the sprinkler supplies:

1.0. The CONTRACTOR shall remove all portions of work which the OWNERor its representative may condemn as in any way having failed to conformwith the corresponding Sprinkler Systems plans and specifications, and theCONTRACTOR shall properly make good all such work so condemned by the

OWNER. The cost of making good any/all work shall be solely borne by theCONTRACTOR.

x x x x

7.0. The CONTRACTOR warrants the Sprinkler System installations underthis contract to be free from faults or defects in materials and workmanshipfor a period of One (1) year from the date of initial operations. Faults causedby or due to ordinary wear and tear or those caused by the OWNER or itsemployees are excluded from this guarantee.1awphi1.nét

The CONTRACTOR further warrants all equipment and accessories thereto tobe free from defects in materials and faulty workmanship for a period of One(1) year from the date of initial operation.

The equipment or parts thereof which are found defective within the saidperiod of guarantee shall be replaced by the CONTRACTOR at no cost to theOWNER.

On December 11, 1990, PRHC informed6 Firematic that it had decided todelete Phase II (Tower II) from the original contract, and consequently, thecontract price for Phase I was reduced to P22,153,424.52.7 However, byreason of the change orders approved by PRHC, the contract price wasincreased to P24,773,376.48.8

On December 13, 1990, PRHC and Firematic entered into anotherConstruction Agreement 9 under which the latter undertook to supply, deliverand install the fire alarm system for Phase I of the Tektite Project for a totalcontract price of P3,780,000.00. This agreement contains substantially thesame terms and conditions as the earlier contract for fire sprinklers.

The Technical Specification for Fire Protection10 (which is an integral part of the contract) provides, among others:

1.02. QUALIFICATIONS

x x x x

D. LISTED AND APPROVED:

When the words "listed" and "approved" appear in the Contract Documents,or the Standard Specifications and Codes, they shall be interpreted to requireproducts to bear labels indicating the listing, or approval of items of equipment, components, devices, assemblies and apparatus; by aninternationally recognized testing laboratory for the specific serviceintended.

1.03. STANDARD SPECIFICATIONS AND CODES:

x x x x

1. NFPA-20; Centrifugal Fire Pumps11

The contract price and terms of payment for the project are as follows:

The OWNER shall pay the CONTRACTOR for the full, faithful and completeperformance of the works called for under this agreement, a fixed amount of PESOS: THIRTY THREE MILLION NINE HUNDRED NINETY FIVETHOUSAND FORTY ONE & 24/100 (P33,995,041.24) ONLY , the manner of payment of which shall be in accordance with Article V hereof. The contract price shall not be subject to escalation, except due to work addition approvedby the Owner and the Architect and due to official increase in minimum wageas covered by the Labor Cost Adjustment Clause below. x x x It is understoodthat there shall be no escalation in the price of materials. x x x.

ARTICLE IV – ADJUSTMENT OF CONTRACT PRICE

The OWNER or ARCHITECT may, without invalidating this Agreement or the

Contract Documents, order at anytime in writing additional work oralterations by correcting, altering or deducting from the work to beundertaken or being undertaken by the CONTRACTOR. All such work shall beevidenced by Change Orders signed by the OWNER and shall be executedunder the conditions hereof and of the Contract Documents.

No claims for additions or deductions to the Contract Price herein stipulatedby reason of extra or alteration shall be valid unless ordered in writing by theOwner. The value of any extra work or alterations shall be separately agreedupon by the parties in writing.

Any value of Change Orders approved shall be considered as part of theContract and to be included in progress billing.

ARTICLE V – TERMS OF PAYMENT

3.0. No payment made hereunder shall be construed as a waiver of any claimagainst the CONTRACTOR by the OWNER for any faulty workmanship,

materials used or defect in work completed.

On March 30, 1992,

Firematic requested12 PRHC for financial assistance dueto its tight business credit and rising costs. Consequently, the purchases of materials for the project were directly paid by PRHC.

Firematic submitted to PRHC the Catalogue of Peerless Fire Pumps,13 andPRHC approved the use of 500 GPM (12 LB-F model) Peerless VerticalTurbine Fire Pumps.14 To facilitate the purchase of the approved model andspecifications of the fire pumps from Technotrade Industrial Sales, Inc., andpursuant to the financial assistance earlier requested by Firematic, the latterpresented to PRHC for approval Purchase Order No. 10815 dated August 6,1992. PRHC approved the purchase order. The subject materials weredelivered and eventually installed by Firematic.

http://www.lawphil.net/judjuris/juri2007/apr2007/gr_156251_2007.html#fnt1






























































32

On the other hand, the Technical Specifications for Fire Alarm and DetectionSystem16 provides:

2.01. FIRE ALARM CONTROL PANEL (FACP):

x x x x

B. The FACP shall be solid state design with full capability for sensingautomatic detectors, and manual stations and have the provision forintegrating with security system.17

Paragraph 9 of Bid Bulletin No. 118 dated September 10, 1990 provides that the requirement for interfacing with Security System Section under Section2.01(B) is actually for interfacing with the Building Management System

(BMS).19

The materials were installed by Firematic. The project became operationaland was turned over to PRHC, which then issued the Certificate of Completion.20 The Municipal Mayor issued a Certificate of Occupancy in favorof PRHC on January 12, 1993.21

In the meantime, PRHC requested the Connel Bros. Co., Philippines for aquotation of the Peerless UL/FU Fire pump similar to those installed byFirematic in Tektite Tower I.22 However, Connel Bros. Philippines, Inc.replied by letter dated September 2, 1993 that it would be difficult for themto trace whether they had records of transactions with Technotrade-USA,because the pump model and serial number that PRHC furnished were not of Peerless origin."23

Meanwhile, on October 14, 1993, Firematic billed PRHC P1,402,559.93 for

the balance of the amount of the automatic sprinkler suppliesinstalled.24 However, PRHC rejected the claim. On October 20, 1993, PRHC,through counsel, sent a letter25 to Firematic claiming that, based on itsPurchase Order, the brand "Peerless" should have been used; however, themanufacturer of the brand (Peerless Pump Co., USA), did not have any recordof having manufactured the pumps that Firematic delivered and installed onthe Tektite Towers project.

Firematic did not respond to the letter. Instead, its managing director, Ms.Jojie Gador, went to the Fire Department of the City of Pasig and inquiredabout the fire incident that occurred at Tower II while construction wasongoing.26 In response to the inquiry, the City Fire Marshall issued areport 27 dated June 10, 1994 stating that "said fire could have turned into aconflagration size without the swift response of the company guards on dutyplus the existing firefighting equipment installed thereat."

In a letter28 dated March 2, 1994, Connel Bros. stated that Peerless Pump Co.never had direct negotiation with Technotrade, and as such, the latter is not adealer of "Peerless" pump.

On January 12, 1995, Firematic sent its final billin g29 and a demandletter30 prepared by its counsel to PRHC for the payment of the latter’s

balance of the contract price amounting to P3,919,283.13, including the

unacted charge order attached thereto.1ªvvphi1.nét

In answer to the final billing of Firematic, PRHC denied31 liability for thefollowing reasons:

1.[The] installation is incomplete and has not been fullycommissioned.

2.[The] Fire Alarm Panels could not be interfaced with BuildingManagement System as required in [the] contract x x x.

3.[The] Fire Alarm Panels do not follow the specifications requiredin the contract.

In a letter32 dated March 6, 1995, PRHC informed Firematic that all the firepumps and accessories supplied by it shall be removed, and the cost of replacement, including the labor cost of the installation, would be chargeableto its account. Again, Firematic failed to respond.33

In the meantime, PRHC purchased the replacement for the "defective"materials installed by Firematic, as evidenced by the following PurchaseOrders: (1) P.O. dated November 15, 1993 for pumps obtained from ConnelBros. Company Pilipinas, Inc. amounting to US$ 61,925.00;34 (2) P.O. datedOctober 25, 1994 for fire and jockey pumps installation amounting toP318,750.00;35 and (3) P.O. dated October 4, 1995 for materials purchasedfrom Electro Systems, for a total amount of P450,000.00.36 The Peerless

pumps bought by PRHC to replace the pumps Firematic had installed werehigher in terms of capacity.37

As a result of the continued refusal of PRHC to pay its unpaid obligation,Firematic filed a Complaint for Collection for Sum of Money plus

Damages38 against PRHC. The case was raffled to Branch 66 of the RegionalTrial Court of Makati, and was docketed as Civil Case No. 95-394.

Firematic alleged in its complaint that when it followed up its final billingsand retention money, the PRHC, under new management, refused to pay itsobligation. It further claimed that the PRHC’s reason, that the sprinkler

system and fire alarm system were defective was so flimsy because thesprinkler and fire alarm systems were certified to be in good condition.Firematic also asserted that because of PRHC’s continued refusal to settle its

valid and outstanding obligations, it suffered actual damages in the amount of P5,897,736.44; temperate or moderate damages in a reasonable amount of P500,000.00; and attorney’s fees equivalent to 25% of the amount

recoverable. The complaint contained the following prayer:

WHEREFORE, Premises Considered, it is respectfully pray (sic) of theHonorable Court that after trial a judgment be rendered ordering thedefendant –

1. To pay the amount of P5,897,736.44 plus legal interest of 1%per month until fully paid from the filing of this complaint;

2. To pay temperate or moderate damages of P500,000.00;

3. To pay attorney’s fees in the amount equivalent to 25% of the

amount recovered;

4. To pay the cost of suit.

Further prays for such other reliefs and damages under the premises.39

In its Answer,40

PRHC countered that plaintiff had no cause of action, and that the complaint is premature because the case should have been submittedfirst to arbitration. It also alleged that out of the total amount ofP23,400,869.41 billed by Firematic, it already paid the total sum

of P22,098,302.45. However, after such payment, it discovered that Firematic

had violated the terms and conditions of the contract, and that the actualworks completed in accordance with the technical specifications amountedonly to P21,915,869.41. It likewise claimed that there was in fact an

overpayment of P182,433.04 insofar as the fire sprinkler contract wasconcerned. As to the

fire alarm contract, PRHC alleged that it paid a total sumof P3,247,966.49, but it turned out that the works actually completed in

accordance with the specifications of the contract amounted onlyto P2,857,655.10. PRHC insisted that Firematic committed fraud in the

performance of its obligations under the two contracts in (1) actuallydelivering and installing pumps that were not genuine "Peerless" products,

non-UL listed and non-FM approved; (2) supplying and installing "Mitech"brand instead of "Firescan 5027" as approved during the bidding; (3)installing fire alarm control and data gathering panels that were not compatible with each other; and (4) installing a fire alarm system that couldnot be connected or interfaced with the Building Management System.

In its Reply,41 Firematic alleged that the provision on arbitration had forceand effect only during the execution and performance of the agreement orcontract and not after its termination. It further asserted that the totalcontract price, including the change orders, increased to P25,277,559.75 but

PRHC only paid P21,087,191.89; thus, there was a balance of P4,190,367.86.It likewise contended that

though there was an approved specification,revisions were made due to unavailability of materials. Consequently, withthe conformity and approval of PRHC of the description specified under P.O.108, the latter made direct orders from Technotrade; PRHC also made direct payments to it. Firematic pointed out that the materials delivered wereunder warranty for one (1) year, and since PRHC had no complaints after the

lapse of the warranty, it was under the impression that the materials had met the specifications. It insisted that PRHC could not complain that the firealarm system could not be interfaced with its system because it was thelatter’s responsibility to provide for an interface device.

On September 1, 1998, PRHC filed a Motion for Leave to Amend Answer toConform to Evidence42 which Firematic opposed. On October 26, 1998, thetrial court granted the motion and thereby admitted the AmendedAnswer.43 In its Amended Answer, PRHC claimed that, with respect to the firesprinkler system, the actual works completed by Firematic amounted toonly P20,613,302.45. Thus, it (PRHC) made an overpayment ofP1,485,000.00. As to the fire alarm system, the works actually completed inaccordance with the technical specifications amounted toonly P2,597,966.49. Again, there was an overpayment of P650,000.00.

By way of counterclaim, PRHC averred that Firematic’s violation of the

contract and its misrepresentation caused the former to suffer actual

damages in the amount of P2,135,000.00, $61,925.00 and P450,000.00; thebaseless and unfounded suit caused it to suffer besmirched reputation, forwhich Firematic should be ordered to pay moral damages in the amount of P20,000.00; for the public good and to deter others similarly minded fromcommitting fraud in the performance of the contract, Firematic should beordered to pay exemplary damages in the amount ofP10,000.00; and sincethe unfounded suit compelled PRHC to obtain the services of counsel,Firematic should be made to pay 25% of the amount recovered as attorney’s

fees.44

After trial on the merits, the

RTC ruled in favor of PRHC. The fallo of thedecision45 reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered dismissing theabove complaint and ordering the plaintiff to pay the defendant the amount of $61,925.00 or P1,610,050.00 (at P26.00 per dollar exchange rate when thePeerless pump were bought) representing the purchase price of the genuine

Peerless fire pumps,P318,750.00 representing the amount to install thereplacement fire pumps, P450,000.00 representing the amount of supply andinstallation of replacement fire alarm panels plus P25,000.00 as attorney’s

fees.

SO ORDERED.46

The

RTC concluded that in failing to deliver genuine Peerless Pumps asagreed upon, and to install fire alarm system that could be interfaced withthe system, Firematic failed to comply with the technical specifications of thecontracts.47

Aggrieved, Firematic appealed to the CA, raising the following errors:

I.

































































































































33

THE HONORABLE COURT ERRED IN FINDING PLAINTIFF-APPELLANT OFHAVING FAILED TO DELIVER AND TRANSFER TO DEFENDANT-APPELLEESPRINKLER SYSTEM AND FIRE ALARM SYSTEMS IN ACCORDANCE WITHTHE CONTRACTS.

II.

THE HONORABLE COURT ERRED IN FINDING THE PEERLESS FIRE PUMPSAS FAKE.

III.

THE HONORABLE COURT ERRED IN FINDING PLAINTIFF-APPELLANT OFHAVING FAILED TO COMPLY WITH THE TECHNICAL SPECIFICATIONS OF

THE FIRE ALARM SYSTEM CONTRACT.IV.

DEFENDANT IS LIABLE TO PLAINTIFF-APPELLANT FOR THE DAMAGESPRAYED FOR.48

On July 10, 2002, the CA rendered judgment reversing the decision of theRTC. The fallo reads:

WHEREFORE, the foregoing considered, the Decision appealed from ishereby ANNULLED. The appellee is hereby ORDERED to pay, in view of theabove premises and computations, the sum of P852,566.96, with legalinterest from 7 March 1995, the date the complaint was filed.49

The

CA declared that PRHC’s belated claim was highly doubtful since PRHC

had ordered the pumps from Technotrade, albeit through the Firematic, andwere inspected and scrutinized by its consultants who are experts in their

fields.50

The appellate court likewise agreed with Firematic that thedocuments presented in evidence by PRHC to prove that the pumps suppliedby Technotrade were not genuine "Peerless" pumps are inadmissible forbeing hearsay.51 According to the CA, it is possible that it was not theappellant but Technotrade that was guilty of fraud in supplying dubiouspumps to PRHC.52

However, the CA affirmed the findings of the RTC that appellant committed abreach of contract in installing the fire control panels because of its failure tocomply with the requirement of interfacing with its system. Since PRHC wasconstrained to incur P450,000.00 to undo the work of Firematic, it wasconvinced that the unfinished work amounted to P1,372,507.07.

Thus, the appellate court held that Firematic was liable to PRHC for a totalamount of P1,822,507.07, while PRHC had an unpaid obligation to Firematicamounting to P2,675,074.03 representing the balance of the contract price.The appellate court concluded that PRHC owed Firematic P852,566.96.53

On August 2, 2002, Firematic and PRHC filed their Motion forReconsideration and Clarification54 and Motion for PartialReconsideration,55 respectively.

On November 19, 2002, the CA issued the following Resolution:56

WHEREFORE, premises considered, the Decision of 10 July 2002 is herebyMODIFIED, and instead of P852,566.96, the appellee is hereby ORDERED topay appellant P762,658.71 with legal interest from 07 March 1995.

The main Decision STANDS in all other respects.

No costs.

SO ORDERED.57

PRHC, now petitioner, seeks to have the appellate court’s ruling reversed on

the following grounds:

1. The Court of Appeals committed reversible error when it cameout with a conclusion based on a manifestly mistaken inference orbased on misapprehension of facts, inasmuch as its findings arecontradictory to the evidence on record. Specifically, the Court of Appeals committed reversible error when it ruled that the firepumps supplied and delivered by FIREMATIC to PHILREALTYconformed to the technical specifications of the sprinkler systemcontract despite evidence to the contrary.

2. The Court of Appeals committed reversible error when it againcame out with a conclusion based on a manifestly mistakeninference. Specifically, the Court of Appeals committed reversibleerror when it unjustifiably disregarded petitioner’s evidence

showing the supplied pumps as fakes and not of "Peerless" origin,on the ground that said evidence is hearsay.

3. The Court of Appeals committed reversible error when it cameout with a conclusion based on a manifestly mistaken inferenceand based on misapprehension of facts. Specifically, the Court of Appeals erred that the issuance of a Certificate of Completionproved the genuineness of fire pumps and the compliance with thetechnical specifications of the contract .58

The threshold issue raised is whether or not the fire pumps supplied anddelivered by respondent to petitioner conformed to the technicalspecifications of the contract.

Petitioner argues that while it is true that the particular model of the pumpsfor the fire control system was not specified in the technical specifications forfire protection, the qualifications of the pumps were nevertheless provided – that the pumps should be "listed" and "approved" by an internationally

recognized testing laboratory for the specific service intended.59 Pursuant tosuch specification, respondent in fact submitted for approval the brochure of Peerless Pumps. Petitioner further insists that it was respondent whobrought the source of the fake peerless pumps into the picture, and as such, it should be the one to return the defective materials. It insists that the direct payment made by petitioner did not relieve respondent from itsresponsibility under the contract. Moreover, petitioner asserts, becauserespondent failed to dispute its claim and present proof that the fire pumpsdelivered were genuine, it had impliedly admitted that the fire pumps werenot original Peerless pumps. Petitioner further contends that the issuance of the certificate of completion and the fact that the fire pumps were used didnot cure their defects.

For its part, respondent contends that the fire pumps were inspected,examined and tested by petitioner’s technical staff, and that t he latter foundthem to be operational. Thus, it cannot now be permitted to belatedlycomplain. According to respondent, petitioner admitted that when the firepumps were changed, the replacement pumps installed by the latter werehigher in terms of capacity. Respondent likewise reiterates that the evidencepresented by petitioner to prove that the fire pumps were not genuine isinadmissible in evidence for being hearsay. It claimed that the CA erred inordering petitioner to pay to it the principal amount of only P852,566.96.Respondent maintains that, as shown by the evidence on record, petitionerowed it P10,399,418.89 for the fire sprinkler supplies and fire alarm system.It further contends that the decision of the CA should be modified, and praysfor the following relief:

1.) The herein Petition for Review on Certiorari filed by PetitionerPhilippine Realty & Holdings Corporation be dismissed for lack of merit;

2.) Petitioner be ordered to pay Respondent the following to wit:

a.) Ten Million Three Hundred Ninety Nine ThousandFour Hundred Eighteen & 87/100 (P10,399,418.89)Pesos, for the fully completed installation of the FireSprinkler System and Fire Alarm System, ten (10%)percent retention and (sic) plus legal interest of twelve(12%) percent per annum from July 10, 2002 as and byway of actual damages;

b.) Five Hundred Thousand (P500,000.00) Pesos as andby way of exemplary, nominal or moderate damages;

c.) Attorney’s fees at the rate of Twenty (sic) (25%)

percent of the award of actual damages above-mentioned;

d.) Such other reliefs and remedies as may be just andequitable under the premises.60

However, it is an established rule that an appellee (respondent) who is not also an appellant (petitioner) may assign error where the purpose is tomaintain the judgment on other grounds, but he cannot seek modification orreversal of the judgment or affirmative relief unless he has also appealed (orfiled a separate petition).61 Thus, due to respondent’s failure to institute a

separate petition before this Court, the CA decision must perforce beconsidered final and binding as to it.

Petitioner insists that the fire pumps supplied and installed by respondent are "not of Peerless origin" because of the following: (1) respondent failed topresent proofs of the genuineness of the pumps; (2) respondent failed toanswer petitioner’s letters requiring it to present the aforesaid proofs, thus,

estoppel by silence applies; and (3) the manufacturer of the Peerless pumpsverbally informed Connel Bros. that the subject fire pumps "are not of

Peerless origin."

We do not agree.

Well-settled is the rule that the party alleging fraud or mistake in atransaction bears the burden of proof. The circumstances evidencing fraudare as varied as the people who perpetrate it in each case. It may assumedifferent shapes and forms; it may be committed in as many different ways.Thus, the law requires that fraud be established, not just by preponderanceof evidence, but by clear and convincing evidence.62

In this case, petitioner relied on the principle of estoppel by silence, as wellas on Letter No. L/93-27263 and Letter No. L/94-04364 of Connel Bros. toprove that the fire pumps, which respondent supplied and installed, were not genuine. The aforesaid letters are quoted hereunder:

Letter No. L/93-272

December 15, 1993

PRHC PROPERTY MANAGERS, INC.5th Floor, Tektite Towers,Tektite Road, Ortigas Center,Pasig, Metro Manila

Attention: Mr. Ed B. Banaag, Vice President

Subject: EXISTING FIRE PUMPS AT TEKTITE TOWER I

Gentlemen:







































































34

With reference to your letter dated November 15, 1993, please find attacheda (sic) copy of facsimile message dated December 15, 1993 from ourprincipal, Peerless Pump, USA.

Please take note that they normally trace the authenticity of the pumpthrough the pump model and pump serial number. It would be then difficult for the factory to trace whether they have indeed records of transactionswith Technotrade-USA because the pump model and serial number that youfurnished us are not of Peerless origin.

We also enclosed a copy of our Letter No. L/93-063 dated November 16,1993 for your reference.

We hope the above explanation will enlighten your clarification.

Very truly yours,

E.L. STA. MARIA, JR.Asst. Vice President Machineries Department

ELS:LTV

Att.: a/s

Letter No. L/94-043

March 2, 1994

PRHC PROPERTY MANAGERS, INC.5/F Tektite Towers, Tektite RoadOrtigas Center, Pasig, M.M.

Attention: MR. EDUARDO B. BANAAGVice President

Subject: EXISTING FIRE PUMPS AT TEKTITE TOWER I

Gentlemen:

We apologize for the delay in our reply to your letter of December 16, 1994regarding your clarification on the above subject.

Please find attached a (sic) copy of our Letter No. F/93-071 dated December20, 1993 addressed to our principal wherein we enclosed your above statedletter .

However, inspite of constant follow-ups and reminder, we could not have aconfirmation from our principal on your requested information.

Mr. John Kahren, Peerless Pump’s Director for International Sales, verbally

advised that they have no access or capability to verify whether there is suchan organization named Technotrade operating in the U.S.A. They can onlyconfirm that they never had direct negotiation with Technotrade in recordand as such, Technotrade is not a dealer of Peerless pump.

We hope the above statement will in any way answer your requestedclarification.

Very truly yours,

E.L. STA. MARIA, JR.Asst. Vice President Machineries Department

ELS: LTVAtt.: a/s

However, petitioner failed to present the signatory of the letters (E.L. Sta.Maria, Jr.) to testify on the veracity of the contents of the letters; thus,respondent was not given the opportunity to cross-examine him. It alsoappears that the person who signed the letters had no personal knowledge of the facts stated therein, as he claimed that he had been "verbally advised"that the manufacturer of Peerless pumps never had direct negotiation withTechnotrade, and as such, the latter is not a dealer of the pumps.

Well-entrenched is the rule that a private certification is hearsay where theperson who issued the same was never presented as a witness. The same istrue of letters. While hearsay evidence may be admitted because of lack of objection by the adverse party’s counsel, it is nonetheless without probativevalue.65 Stated differently, the declarants of written statements pertaining todisputed facts must be presented at the trial for cross-examination.66 Thelack of objection may make an incompetent evidence admissible, but admissibility of evidence should not be equated with weight of evidence.Indeed, hearsay evidence whether objected to or not has no probativevalue.67

Petitioner asserts that respondent impliedly admitted that the fire pumps it installed were "not of Peerless origin" because of its failure to disputepetitioner’s accusation and to present proofs that the fire pumps deliveredwere genuine. Thus, petitioner contends that estoppel by silence applies torespondent.

The principle of estoppel in pais applies wherein one, by his acts,representations or admissions, or by his own silence when he ought to speakout, intentionally or through culpable negligence, induces another to believecertain facts to exist and such other rightfully relies and acts on such belief,so that he will be prejudiced if the former is permitted to deny the existenceof such facts.68

We find the principle inapplicable in the present case. Acording torespondent’s Managing Director Jojie S. Gador, she did not completely keepsilent on petitioner’s accusation. She testified that when petitioner refused to

pay respondent, she went to the Fire Department of the City of Pasig andmade an inquiry regarding the fire incident that took place at the Tektiteproject .69 In answer to this inquiry, the Fire Department issued aCertification70stating, inter alia, that the office71 was very much delightedbecause the management of Tektite Tower had substantially complied withthe safety requirements of Presidential Decree No. 1185.72 In making suchinquiry, respondent in effect denied petitioner’s accusation that the fire

pumps it had installed were defective; as such, the principle of estoppel bysilence does not apply.

Because good faith is presumed, respondent was not obliged to present proofs of the genuineness of the fire pumps it supplied and installed. Theburden of proof to show that the pumps were not genuine fell uponpetitioner. However, the records show that petitioner failed to discharge thisburden. Clearly, the evidence relied upon is not sufficient to overturn (1) thepresumption of good faith; (2) that private transactions have been fair andregular;73and (3) that the ordinary course of business had been followed.74

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.The Decision of the RTC dated July 10, 2002, in CA-G.R. CV No. 63791, and itsResolution dated November 19, 2002, are AFFIRMED.

SO ORDERED.

G.R. No. 164273 March 28, 2007

EMMANUEL B. AZNAR, Petitioner,vs.CITIBANK, N.A., (Philippines), Respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review assailing the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 62554 dated January 30, 2004 which set aside the November 25, 1998 Order of the Regional Trial Court (RTC) Branch

10, Cebu City and reinstated the Decision of RTC Branch 20 of Cebu Citydated May 29, 1998 in Civil Case No. CEB-16474; and the CA Resolutiondated May 26, 2004 denying petitioner’s motion for reconsideration.

The facts are as follows:

Emmanuel B. Aznar (Aznar), a known businessman2 in Cebu, is a holder of aPreferred Master Credit Card (Mastercard) bearing number 5423-3920-0786-7012 issued by Citibank with a credit limit of P150,000.00. As he and

his wife, Zoraida, planned to take their two grandchildren, Melissa andRichard Beane, on an Asian tour, Aznar made a total advance deposit of P485,000.00 with Citibank with the intention of increasing his credit limit

toP635,000.00.3

With the use of his Mastercard,

Aznar purchased plane tickets to KualaLumpur for his group worth P237,000.00. On July 17, 1994, Aznar, his wifeand grandchildren left Cebu for the said destination.4

Aznar claims that

when he presented his Mastercard in some establishmentsin Malaysia, Singapore and Indonesia, the same was not honored.5 And whenhe tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) inIndonesia to purchase plane tickets to Bali, it was again dishonored for thereason that his card was blacklisted by Citibank. Such dishonor forced him tobuy the tickets in cash.6 He further claims that his humiliation caused by thedenial of his card was aggravated when Ingtan Agency spoke of swindlerstrying to use blacklisted cards.7 Aznar and his group returned to thePhilippines on August 10, 1994.8

On August 26, 1994, Aznar filed a complaint for damages against Citibank,docketed as Civil Case No. CEB-16474 and raffled to RTC Branch 20, CebuCity, claiming that Citibank fraudulently or with gross negligence blacklistedhis Mastercard which forced him, his wife and grandchildren to abort important tour destinations and prevented them from buying certain itemsin their tour.9 He further claimed that he suffered mental anguish, serious

anxiety, wounded feelings, besmirched reputation and social humiliation dueto the wrongful blacklisting of his card.10 To prove that Citibank blacklistedhis Mastercard, Aznar presented a computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued tohim by Ingtan Agency (Exh. "G") with the signature of one Victrina ElnadoNubi (Nubi)11 which shows that his card in question was "DECL OVERLIMIT"or declared over the limit .12

Citibank denied the allegation that it blacklisted Aznar’s card. It alsocontended that under the terms and conditions governing the issuance anduse of its credit cards, Citibank is exempt from any liability for the dishonorof its cards by any merchant affiliate, and that its liability for any action orincident which may be brought against it in relation to the issuance and useof its credit cards is limited to P1,000.00 or the actual damage provenwhichever is lesser.13































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35

To prove that they did not blacklist Aznar’s card, Citibank’s Credit Card

Department Head, Dennis Flores, presented Warning Cancellation Bulletinswhich contained the list of its canceled cards covering the period of Aznar’s

trip.14

On May 29, 1998, RTC Branch 20, Cebu City, through Judge Ferdinand J.Marcos, rendered its decision dismissing Aznar’s complaint for lack of

merit .15 The trial court held that as between the computer print-out 16presented by Aznar and the Warning Cancellation Bulletins17 presentedby Citibank, the latter had more weight as their due execution andauthenticity were duly established by Citibank.18 The trial court also heldthat even if it was shown that Aznar’s credit card was dishonored by a

merchant establishment, Citibank was not shown to have acted with malice

or bad faith when the same was dishonored.19 Aznar filed a motion for reconsideration with motion to re-raffle the casesaying that Judge Marcos could not be impartial as he himself is a holder of aCitibank credit card.20 The case was re-raffled21 and on November 25, 1998,the RTC, this time through Judge Jesus S. De la Peña of Branch 10 of CebuCity, issued an Order granting Aznar’s motion for reconsideration, as follows:

WHEREFORE, the Motion for Reconsideration is hereby GRANTED. TheDECISION dated May 29, 1998 is hereby reconsidered, and consequently, thedefendant is hereby condemned liable to pay the following sums of money:

a) P10,000,000.00 as moral damages;

b) P5,000,000.00 as exemplary damages;

c) P1,000,000.00 as attorney’s fees; and

d) P200,000.00 as litigation expenses.22

Judge De la Peña ruled that:

it is improbable that a man of Aznar’s stature

would fabricate Exh. "G" or the computer print-out which shows that Aznar’s

Mastercard was dishonored for the reason that it was declared over the limit;Exh. "G" was printed out by Nubi in the ordinary or regular course of business in the modern credit card industry and Nubi was not able to testifyas she was in a foreign country and cannot be reached by subpoena; takingjudicial notice of the practice of automated teller machines (ATMs) and credit card facilities which readily print out bank account status, Exh. "G" can bereceived as prima facie evidence of the dishonor of Aznar’s Mastercard; norebutting evidence was presented by Citibank to prove that Aznar’s

Mastercard was not dishonored, as all it proved was that said credit card wasnot included in the blacklisted cards; when Citibank accepted the additionaldeposit of P485,000.00 from Aznar, there was an implied novation and

Citibank was obligated to increase Aznar’s credit limit and ensure that Aznar

will not encounter any embarrassing situation with the use of his

Mastercard; Citibank’s failure to comply with its obligation constitutes grossnegligence as it caused Aznar inconvenience, mental anguish and socialhumiliation; the fine prints in the flyer of the credit card limiting the liabilityof the bank to P1,000.00 or the actual damage proven, whichever is lower, is

a contract of adhesion which must be interpreted against Citibank.23

Citibank filed an appeal with the CA and its counsel filed an administrativecase against Judge De la Peña for grave misconduct, gross ignorance of thelaw and incompetence, claiming among others that said judge rendered hisdecision without having read the transcripts. The administrative case washeld in abeyance pending the outcome of the appeal filed by Citibank withthe CA.24l awphi1.net

On January 30, 2004, the CA rendered its Decision granting Citibank’s appeal

thus:

WHEREFORE, the instant appeal is GRANTED. The assailed order of theRegional Trial Court, 7th Judicial Region, Branch 10, Cebu City, in Civil CaseNo. CEB-16474, is hereby SET ASIDE and the decision, dated 29 May 1998 of the Regional Trial Court, 7th Judicial Region, Branch 20, Cebu City in this caseis REINSTATED.

SO ORDERED.25

The CA ruled that: Aznar had no personal knowledge of the blacklisting of hiscard and only presumed the same when it was dishonored in certainestablishments; such dishonor is not sufficient to prove that his card wasblacklisted by Citibank; Exh. "G" is an electronic document which must beauthenticated pursuant to Section 2, Rule 5 of the Rules on ElectronicEvidence26 or under Section 20 of Rule 132 of the Rules of Court 27 by anyonewho saw the document executed or written; Aznar, however, failed to provethe authenticity of Exh. "G", thus it must be excluded; the unrefutedtestimony of Aznar that his credit card was dishonored by Ingtan Agency andcertain establishments abroad is not sufficient to justify the award of damages in his favor, absent any showing that Citibank had anything to dowith the said dishonor; Citibank had no absolute control over the actions of its merchant affiliates, thus it should not be held liable for the dishonor of Aznar’s credit card by said establishments.28

Aznar filed a motion for reconsideration which the CA dismissed in itsResolution dated May 26, 2004.29

Parenthetically, the administrative case against Judge De la Peña wasactivated and on April 29, 2005, the Court’s Third Division30 foundrespondent judge guilty of knowingly rendering an unjust judgment andordered his suspension for six months. The Court held that Judge De la Peñaerred in basing his Order on a manifestation submitted by Aznar to support his Motion for Reconsideration, when no copy of such manifestation wasserved on the adverse party and it was filed beyond office hours. The Court

also noted that Judge De la Peña made an egregiously large award of damages in favor of Aznar which opened himself to suspicion.31

Aznar now comes before this Court on a petition for review alleging that: theCA erroneously made its own factual finding that his Mastercard was not blacklisted when the matter of blacklisting was already a non-issue in theNovember 25, 1998 Order of the RTC; the RTC found that Aznar’s Mastercard

was dishonored for the reason that it was declared over the credit limit; thisfactual finding is supported by Exh. "G" and by his (Aznar’s) testimony; the

issue of dishonor on the ground of ‘DECL OVERLIMIT’, although not allegedin the complaint, was tried with the implied consent of the parties and shouldbe treated as if raised in the pleadings pursuant to Section 5, Rule 10 of theRules of Civil Procedure;32 Exh. "G" cannot be excluded as it qualifies as an

electronic evidence following the Rules on Electronic Evidence whichprovides that print-outs are also originals for purposes of the Best EvidenceRule; Exh. "G" has remained complete and unaltered, apart from thesignature of Nubi, thus the same is reliable for the purpose for which it wasgenerated; the RTC judge correctly credited the testimony of Aznar on theissuance of the computer print-out as Aznar saw that it was signed by Nubi;said testimony constitutes the "other evidence showing the integrity andreliability of the print-out to the satisfaction of the judge" which is requiredunder the Rules on Electronic Evidence; the trial court was also correct infinding that Citibank was grossly negligent in failing to credit the additionaldeposit and make the necessary entries in its systems to prevent Aznar fromencountering any embarrassing situation with the use of his Mastercard.33

Citibank, in its Comment, contends that: Aznar never had personalknowledge that his credit card was blacklisted as he only presumed such fact;the issue of dishonor on the ground that the card was declared over the limit was also never tried with the implied consent of both parties; Aznar’s self -

serving testimony is not sufficient to prove the integrity and reliability of Exh. "G"; Aznar did not declare that it was Nubi who printed the document and that said document was printed in his presence as he merely said that the print-out was provided him; there is also no annotation on Exh. "G" toestablish that it was Nubi who printed the same; assuming further that Exh."G" is admissible and Aznar’s credit card was dishonored, Citibank still

cannot be held liable for damages as it only shows that Aznar’s credit card

was dishonored for having been declared over the limit; Aznar’s cause of

action against Citibank hinged on the alleged blacklisting of his card whichpurportedly caused its dishonor; dishonor alone, however, is not sufficient toaward Aznar damages as he must prove that the dishonor was caused by agrossly negligent act of Citibank; the award of damages in favor of Aznar wasbased on Article 117034 of the Civil Code, i.e., there was fraud, negligence ordelay in the performance of its obligation; there was no proof, however that Citibank committed fraud or delay or that it contravened its obligationstowards Aznar; the terms and conditions of the credit card cannot be

considered as a contract of adhesion since Aznar was entirely free to reject the card if he did not want the conditions stipulated therein; a person whosestature is such that he is expected to be more prudent with respect to histransactions cannot later on be heard to complain for being ignorant orhaving been forced into merely consenting to the contract .35

In his Reply, Aznar contended that to a layman, the term "blacklisting" issynonymous with the words "hot list" or "declared overlimit"; and whetherhis card was blacklisted or declared over the limit, the same was dishonoreddue to the fault or gross negligence of Citibank.36

Aznar also filed a Memorandum raising as issues the following:

I. Whether or not the augmentation deposit in the amount of P485,000.00 of the Petitioner constitutes relative extinctivenovation;

II. Whether or not the purchases made by Petitioner were beyond

his credit limit;

III. Whether or not the issues of dishonor by reason of overlimit was tried with the consent of the parties;

IV. Whether or not the "On Line Authorization Report" is anelectronic document."

V. Whether or not the "On Line Authorization Report" constituteselectronic evidence;

VI. Whether or not the agreement between the parties is a contract of adhesion;

VII. Whether or not the Respondent is negligent in not creditingthe deposits of the Respondent.37

Aznar further averred in his Memorandum that Citibank assured him that

with the use of his Mastercard, he would never be turned down by anymerchant store, and that under Section 43, Rule 130 of the Rules of Court,Exh. "G" is admissible in evidence.38

Citibank also filed a Memorandum reiterating its earlier arguments.39

Stripped to its essentials, the only question that needs to be answered is:whether Aznar has established his claim against Citibank.

The answer is no.

It is basic that in civil cases, the burden of proof rests on the plaintiff toestablish his case based on a preponderance of evidence. The party that alleges a fact also has the burden of proving it.40















































































































36

In the complaint Aznar filed before the RTC, he claimed that Citibankblacklisted his Mastercard which caused its dishonor in severalestablishments in Malaysia, Singapore, and Indonesia, particularly in IngtanAgency in Indonesia where he was humiliated when its staff insinuated that he could be a swindler trying to use a blacklisted card.

As correctly found by the RTC in its May 29, 1998 Decision, Aznar failed toprove with a preponderance of evidence that Citibank blacklisted hisMastercard or placed the same on the "hot list."41

Aznar in his testimony admitted that he had no personal knowledge that hisMastercard was blacklisted by Citibank and only presumed such fact fromthe dishonor of his card.

Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list wasconfirmed to be authentic".

Now, who confirmed that the blacklisting of your Preferred CitibankMastercard was authentic?

A. Okey. When I presented this Mastercard, my card rather, at the Merchant’s

store, I do not know, they called up somebody for verification then later theytold me that "your card is being denied". So, I am not in a position to answerthat. I do not know whom they called up; where they verified. So, when it isdenied that’s presumed to be blacklisted.

Q. So the word that was used was denied?

A. Denied.

Q. And after you were told that your card was denied you presumedthat it was blacklisted?

A. Definitely.

Q. So your statement that your card was allegedly blacklisted is onlyyour presumption drawn from the fact, from your allegations, that it was denied at the merchandise store?

A. Yes, sir.42 (Emphasis supplied)

The dishonor of Aznar’s Mastercard is not sufficient to support a conclusion

that said credit card was blacklisted by Citibank, especially in view of Aznar’s

own admission that in other merchant establishments in Kuala Lumpur andSingapore, his Mastercard was accepted and honored.43

Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGNACCOUNT ACTIVITY REPORT, a computer print-out handed to Aznar byIngtan Agency, marked as Exh. "G", to prove that his Mastercard wasdishonored for being blacklisted. On said print-out appears the words "DECL

OVERLIMIT" opposite Account No. 5423-3920-0786-7012.

As correctly pointed out by the RTC and the CA, however, such exhibit cannot be considered admissible as its authenticity and due executionwere not sufficiently established by petitioner.

The prevailing rule at the time of the promulgation of the RTC Decision isSection 20 of Rule 132 of the Rules of Court. It provides that whenever anyprivate document offered as authentic is received in evidence, its dueexecution and authenticity must be proved either by (a) anyone whosaw the document executed or written; or (b) by evidence of thegenuineness of the signature or handwriting of the maker.

Aznar, who testified on the authenticity of Exh. "G," did not actually see thedocument executed or written, neither was he able to provide evidence onthe genuineness of the signature or handwriting of Nubi, who handed to himsaid computer print-out. Indeed, all he was able to allege in his testimony are

the following:Q I show to you a Computer Print Out captioned as On Line AuthorizationActivity Report where it is shown that the Preferred Master Card Number5423392007867012 was denied as per notation on the margin of thisComputer Print Out, is this the document evidencing the dishonor of yourPreferred Master Card?

x x x x

A Yes sir, after that Ingtan incident, I went straight to the Service Agencythere and on the left hand side you will be able to see the name of the personin-charged [sic] there certifying that really my card is being blacklisted andthere is the signature there of the agency.

ATTY. NAVARRO:

The witness, your honor, is pointing to the signature over the handwrittenname of Victrina Elnado Nubi which I pray, your honor, that the ComputerPrint Out be marked as our Exhibit "G" and the remarks at the left handbottom portion of Victorina Elnado Nubi with her signature thereon beencircled and be marked as our Exhibit "G-1".

x x x x

Q Mr. Aznar, where did you secure this Computer Print Out marked asExhibit "G"?

A This is provided by that Agency, your honor. They were the ones whoprovided me with this. So what the lady did, she gave me the Statement and I requested her to sign to show proof that my Preferred MasterCard has been rejected.44 (Emphasis supplied).

Even if examined under the Rules on Electronic Evidence, which took effect on August 1, 2001, and which is being invoked by Aznar in this case, theauthentication of Exh. "G" would still be found wanting.

Pertinent sections of Rule 5 read:

Section 1. Burden of proving authenticity. – The person seeking to introducean electronic document in any legal proceeding has the burden of proving itsauthenticity in the manner provided in this Rule.

Section 2. Manner of authentication. – Before any private electronicdocument offered as authentic is received in evidence, its authenticity must be proved by any of the following means:

(a) by evidence that it had been digitally signed by the personpurported to have signed the same;

(b) by evidence that other appropriate security procedures ordevices as may be authorized by the Supreme Court or by law forauthentication of electronic documents were applied to thedocument; or

(c) by other evidence showing its integrity and reliability to thesatisfaction of the judge.

Aznar claims that his testimony complies with par. (c), i.e., it constitutes the"other evidence showing integrity and reliability of Exh. "G" to thesatisfaction of the judge." The Court is not convinced. Aznar’s testimony that the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot beconsidered as sufficient to show said print-out’s integrity and reliability.As correctly pointed out by Judge Marcos in his May 29, 1998 Decision, Exh."G" does not show on its face that it was issued by Ingtan Agency as Aznar merely mentioned in passing how he was able to secure theprint-out from the agency; Aznar also failed to show the specificbusiness address of the source of the computer print-out because whilethe name of Ingtan Agency was mentioned by Aznar, its businessaddress was not reflected in the print-out .45

Indeed, Aznar failed to demonstrate how the information reflected on theprint-out was generated and how the said information could be relied uponas true. In fact, Aznar to repeat, testified as follows:

ATTY. NERI

Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list wasconfirmed to be authentic"tygvcx

Now, who confirmed that the blacklisting of your Preferred Citibank

Mastercard was authentic?A Okey. When I presented this Mastercard, my card rather, at the Merchant’s

store, I do not know, they called up somebody for verification then later theytold me that "your card is being denied". So, I am not in a position to answerthat. I do not know whom they called up; where they verified. So, whenit is denied that’s presumed to be black listed.46 (Emphasis supplied)

Aznar next invokes Section 43 of Rule 130 of the Rules of Court, whichpertains to entries in the course of business, to support Exh. "G". Saidprovision reads:

Sec. 43. Entries in the course of business. – Entries made at, or near the time of the transactions to which they refer, by a person deceased or unable totestify, who was in a position to know the facts therein stated, may bereceived as prima facie evidence, if such person made the entries in hisprofessional capacity or in the performance of duty and in the ordinary orregular course of business or duty.

Under this rule, however, the following conditions are required:

1. the person who made the entry must be dead, or unable totestify;

2. the entries were made at or near the time of the transactions towhich they refer;

3. the entrant was in a position to know the facts stated in theentries;

4. the entries were made in his professional capacity or in theperformance of a duty, whether legal, contractual, moral orreligious; and

5. the entries were made in the ordinary or regular course of business or duty.47

As correctly pointed out by the RTC in its May 29, 1998 Decision, thereappears on the computer print-out the name of a certain "Victrina ElnadoNubi" and a signature purportedly belonging to her, and at the left dorsalside were handwritten the words "Sorry for the delay since the records had tobe retrieved. Regards. Darryl Mario." It is not clear therefore if it was Nubiwho encoded the information stated in the print-out and was the one whoprinted the same. The handwritten annotation signed by a certain DarrylMario even suggests that it was Mario who printed the same and only handedthe print-out to Nubi. The identity of the entrant, required by the provisionabove mentioned, was therefore not established. Neither did petitionerestablish in what professional capacity did Mario or Nubi make the entries,or whether the entries were made in the performance of their duty in theordinary or regular course of business or duty.































37

And even if Exh. "G" is admitted as evidence, it only shows that the use of thecredit card of petitioner was denied because it was already over the limit.There is no allegation in the Complaint or evidence to show that there wasgross negligence on the part of Citibank in declaring that the credit card hasbeen used over the limit.

The Court is also perplexed that stated on Exh. "G" is the amount of "6,289,195.10" opposite petitioner's account number, which data, petitionerdid not clarify.48 As plaintiff in this case, it was incumbent on him to provethat he did not actually incur the said amount which is above his credit limit.As it is, the Court cannot see how Exh. "G" could help petitioner's claim fordamages.

The claim of petitioner that Citibank blacklisted his card through fraud orgross negligence is likewise effectively negated by the evidence of Citibankwhich was correctly upheld by the RTC and the CA, to wit:

xxx Mr. Dennis Flores, the Head of the Credit Card Department of defendant Bank, presented documents known as Warning Cancellation Bulletin for July10, 17, 24, and 31, 1994 (Exhibits ‘3’, ‘3-1’ to ‘3-38’, ‘4’, ‘4-1’ to ‘4-38’ ‘5’, ‘5-1’

to ‘5-39’ and ‘6’, ‘6-1’ to ‘6-39’), for August 7, 1994 (Exhibit[s] ‘7’, ‘7-1’ to ‘7-37’), for August 8, 1994 (Exhibit[s] ‘8’, ‘8-1’ to ‘8-20’) which show that plaintiff’s Citibank preferred mastercard was not placed in a hot list or

was not blacklisted.

The Warning Cancellation Bulletins (WCB) (Exhibits ‘3’, ‘4’, ‘5’, ‘6’, ‘7’, ‘8’ and

their submarkings) which covered the period of four (4) days in July 1994(from July 10, 17, 24 and 31, 1994), and two (2) days in August 1994,(August 7 and 8, 1994), when plaintiff traveled in the aforementioned Asiancountries showed that said Citibank preferred mastercard had never beenplaced in a ‘hot list’ or the same was blacklisted, let alone the fact that all thecredit cards which had been cancelled by the defendant bank were allcontained, reported and listed in said Warning Cancellation Bulletin whichwere issued and released on a regular basis.

These three hundred (300) Warning Cancellation Bulletins pieces of documentary proofs, all in all, adduced by defendant pointed to the fact that said plaintiff’s credit car (sic) was not among those found in said bulletins as

having been cancelled for the period for which the said bulletins had beenissued.

Between said computer print out (Exhibit ‘G’) and the Warning CancellationBulletins (Exhibits ‘3’ to ‘8’ and their submarkings) the latter documentsadduced by defendant are entitled to greater weight than that said computerprint out presented by plaintiff that bears on the issue of whether theplaintiff’s preferred master card was actually placed in the ‘hot list’ or

blacklisted for the following reasons:

The first reason is that the due execution and authentication of theseWarning Cancellation Bulletins (or WCB) have been duly established andidentified by defendant’s own witness, Dennis Flores, one of the bank’s

officers, who is the head of its credit card department, and, therefore,competent to testify on the said bulletins as having been issued by thedefendant bank showing that plaintiff’s preferred master credit card was

never blacklisted or placed in the Bank’s ‘hot list’ . But on the other hand,plaintiff’s computer print out (Exhibit ‘G’) was never authenticated or its dueexecution had never been duly established. Thus, between a set of dulyauthenticated commercial documents, the Warning Cancellation Bulletins(Exhibits ‘3’ to ‘8’ and their submarkings), presented by defendants (sic) and

an unauthenticated private document, plaintiff’s computer print out (Exhibit

‘G’), the former deserves greater evidentiary weight supporting the findings

of this Court that plaintiff’s preferred master card (Exhibit ‘1’) had never

been blacklisted at all or placed in a so-called ‘hot list’ by defendant .49

Petitioner next argues that with the additional deposit he made in hisaccount which was accepted by Citibank, there was an implied novation andCitibank was under the obligation to increase his credit limit and make thenecessary entries in its computerized systems in order that petitioner maynot encounter any embarrassing situation with the use of his credit card.Again, the Court finds that petitioner's argument on this point has no leg tostand on.

Citibank never denied that it received petitioner’s additional deposit .50 It even claimed that petitioner was able to purchase plane tickets from Cebu toKuala Lumpur in the amount of P237,170.00, which amount was beyond

hisP150,000.00 limit, because it was able to credit petitioner’s additional

deposit to his account. Flores of Citibank testified:

COURT:

Q When was this ticket purchased, after the account was augmented

or before?A After the account was augmented, Your Honor, because there is no way wecan approve a P250,000.00 purchase with a P150,000.00 credit limit.51

x x x

ATTY. NERI:

For the record, your honor, the deposit of P450,000.00 was made as perexhibit of the plaintiff on June 28. The purchase of the tickets amount toP237,000.00 was approved and debited on the account of Mr. Aznar onJuly 20, your honor. The deposit was made about a month before thepurchase of the tickets as per documentary exhibits, your honor.

COURT:

So, Atty. Navarro, what do you say to that explanation?

ATTY. NAVARRO [counsel of petitioner]:

That is correct, your honor, that is borne out by the records, yourhonor. (Emphasis supplied)

COURT: (to witness)

Q So, I think Atty. Navarro is only after whether a credit line could beextended?

A Yes, your honor.

Q Even if there is no augmenting?

A No, sir, it is not possible. So, the only way the P237,000.00 transactioncould be approved was by way of advance payment which actuallyhappened in this case because there is no way that the P237,000.00 canbe approved with the P150,000.00 credit limit .52 (Emphasis supplied)

The allegations of blacklisting not having been proved, is Citibank liable fordamages for the dishonor of Aznar’s Mastercard?

Again, the answer is no.

Citibank, in its attempt to evade liability, invokes paragraphs 7 and 15 of theterms and conditions governing the issuance of its Mastercard which read:

7. MERCHANT AFFILIATES. [Citibank is] not responsible if the Card is not honored by any merchant affiliate for any reason. Furthermore, [thecardholder] will not hold [Citibank] responsible for any defective product orservice purchased through the Card.

x x x x

15. LIMITATION OF LIABILITY. In any action arising from this agreement orany incident thereto which [the cardholder] or any other party may fileagainst [Citibank], [Citibank’s] liability shall not exceed One Thousand Pesos

[P1,000.00] or the actual damages proven, whichever is lesser.53

On this point, the Court agrees with Aznar that the terms and conditions of Citibank’s Mastercard constitute a contract of adhesion. It is settled that

contracts between cardholders and the credit card companies are contractsof adhesion, so-called, because their terms are prepared by only one partywhile the other merely affixes his signature signifying his adhesion thereto.54

In this case, paragraph 7 of the terms and conditions states that "[Citibank is]not responsible if the Card is not honored by any merchant affiliate for anyreason x x x". While it is true that Citibank may have no control of all theactions of its merchant affiliates, and should not be held liable therefor, it is

incorrect, however, to give it blanket freedom from liability if its card isdishonored by any merchant affiliate for any reason. Such phrase renders thestatement vague and as the said terms and conditions constitute a contract of adhesion, any ambiguity in its provisions must be construed against theparty who prepared the contract ,55 in this case Citibank.

Citibank also invokes paragraph 15 of its terms and conditions which limitsits liability to P1,000.00 or the actual damage proven, whichever is lesser.

Again, such stipulation cannot be considered as valid for beingunconscionable as it precludes payment of a larger amount even thoughdamage may be clearly proven. This Court is not precluded from ruling out blind adherence to the terms of a contract if the attendant facts andcircumstances show that they should be ignored for being obviously too one-sided.56

The invalidity of the terms and conditions being invoked by Citibank,

notwithstanding, the Court still cannot award damages in favor of petitioner.It is settled that in order that a plaintiff may maintain an action for theinjuries of which he complains, he must establish that such injuries resultedfrom a breach of duty which the defendant owed to the plaintiff – aconcurrence of injury to the plaintiff and legal responsibility by the personcausing it. The underlying basis for the award of tort damages is the premisethat an individual was injured in contemplation of law; thus there must first be a breach before damages may be awarded and the breach of such dutyshould be the proximate cause of the injury.57

It is not enough that one merely suffered sleepless nights, mental anguish orserious anxiety as a result of the actuations of the other party. It is alsorequired that a culpable act or omission was factually established, that proof that the wrongful act or omission of the defendant is shown as the proximatecause of the damage sustained by the claimant and that the case is predicatedon any of the instances expressed or envisioned by Arts. 221958 and 222059 of

the Civil Code.60 In culpa contractual or breach of contract, moral damages are recoverableonly if the defendant has acted fraudulently or in bad faith, or is found guiltyof gross negligence amounting to bad faith, or in wanton disregard of hiscontractual obligations. The breach must be wanton, reckless, malicious or inbad faith, oppressive or abusive.61

While the Court commiserates with Aznar for whatever undueembarrassment he suffered when his credit card was dishonored by IngtanAgency, especially when the agency’s personnel insinuated that he could be a

swindler trying to use blacklisted cards, the Court cannot grant his present petition as he failed to show by preponderance of evidence that Citibankbreached any obligation that would make it answerable for said suffering.



























































38

As the Court pronounced in BPI Express Card Corporation v. Court of Appeals ,62

We do not dispute the findings of the lower court that private respondent suffered damages as a result of the cancellation of his credit card. However,there is a material distinction between damages and injury. Injury is theillegal invasion of a legal right; damage is the loss, hurt, or harm whichresults from the injury; and damages are the recompense or compensationawarded for the damage suffered. Thus, there can be damage without injuryto those instances in which the loss or harm was not the result of a violationof a legal duty. In such cases, the consequences must be borne by the injuredperson alone, the law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. These situations are often

called damnum absque injuria.63 WHEREFORE, the petition is denied for lack of merit.

SO ORDERED.

G.R. No. 162886 August 11, 2008

HEIRS OF THE DECEASED SPOUSES VICENTE S. ARCILLA and JOSEFA ASUNCION ARCILLA, namely: Aida Arcilla Alandan, Rene A. Arcilla,Oscar A. Arcilla, Sarah A. Arcilla, and Nora A. Arcilla, now deceased andsubstituted by her son Sharmy Arcilla, represented by their attorney-in-fact, SARAH A. ARCILLA, petitioners,vs.MA. LOURDES A. TEODORO, respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of theRules of Court assailing the September 12, 2003 Decision1 of the Court of Appeals (CA) and its Resolution2 dated March 24, 2004 in CA-G.R. SP No.72032.

The facts of the case are as follows:

On December 19, 1995, Ma. Lourdes A. Teodoro (respondent) initially filedwith the Regional Trial Court (RTC) of Virac, Catanduanes an application forland registration of two parcels of land located at Barangay San Pedro, Virac,Catanduanes. The lots, with an aggregate area of 284 square meters, aredenominated as Lot Nos. 525-A and 525-B, Csd.-05-010483-D of the ViracCadastre. Respondent alleged that, with the exception of the commercialbuilding constructed thereon, she purchased the subject lots from her father,

Pacifico Arcilla (Pacifico), as shown by a Deed of Sal e3

dated December 9,1966, and that, prior thereto, Pacifico acquired the said lots by virtue of thepartition of the estate of his father, Jose Arcilla evidenced by a document entitled Extrajudicial Settlement of Estate.4 Respondent also presented asevidence an Affidavit of Quit-Claim5 in favor of Pacifico, executed by hereinpetitioners as Heirs of Vicente Arcilla (Vicente), brother of Pacifico.

On February 7, 1996, the case was transferred to the Municipal Trial Court (MTC) of Virac, Catanduanes in view of the expanded jurisdiction of saidcourt as provided under Republic Act No. 7691.6

In their Opposition dated August 19, 1996, petitioners contended that theyare the owners pro-indiviso of the subject lots including the building andother improvements constructed thereon by virtue of inheritance from theirdeceased parents, spouses Vicente and Josefa Arcilla; contrary to the claim of respondent, the lots in question were owned by their father, Vicente, havingpurchased the same from a certain Manuel Sarmiento sometime in 1917;

Vicente's ownership is evidenced by several tax declarations attached to therecord; petitioners and their predecessors-in-interest had been in possessionof the subject lots since 1906. Petitioners moved to dismiss the application of respondent and sought their declaration as the true and absoluteowners pro-indiviso of the subject lots and the registration and issuance of the corresponding certificate of title in their names.

Subsequently, trial of the case ensued.

On March 20, 1998, herein respondent filed a Motion forAdmission7 contending that through oversight and inadvertence she failed toinclude in her application, the verification and certificate against forumshopping required by Supreme Court (SC) Revised Circular No. 28-91 inrelation to SC Administrative Circular No. 04-94.

Petitioners filed a Motion to Dismiss Application8 on the ground that respondent should have filed the certificate against forum shoppingsimultaneously with the petition for land registration which is a mandatory

requirement of SC Administrative Circular No. 04-94 and that any violation of the said Circular shall be a cause for the dismissal of the application uponmotion and after hearing.

Opposing the motion to dismiss, respondents asserted that the petitioners'Motion to Dismiss Application was filed out of time; respondent's failure tocomply with SC Administrative Circular No. 04-94 was not willful, deliberateor intentional; and the Motion to Dismiss was deemed waived for failure of petitioners to file the same during the earlier stages of the proceedings.

On July 19, 1999, the MTC issued an Order9 denying petitioners' Motion toDismiss Application.

On June 25, 2001, the MTC rendered a Decision10 the dispositive portion of which reads as follows:

NOW THEREFORE, and considering all the above premises, theCourt finds and so holds that Applicant MA. LOURDES A.TEODORO, having sufficient title over this land applied for herebyrenders judgment, which should be, as it is hereby CONFIRMEDand REGISTERED in her name.

IT IS SO ORDERED.11

Herein petitioners then filed an appeal with the Regional Trial Court of Virac,Catanduanes. In its Decision12 dated February 22, 2002, the RTC, Branch 43,of Virac, Catanduanes dismissed the appeal for lack of merit and affirmed intoto the Decision of the MTC. Petitioners filed a Motion for Reconsiderationbut it was denied by the RTC in its Order13 of July 22, 2002.

Aggrieved by the RTC Decision, petitioners filed a Petition for Review 14 withthe CA. On September 12, 2003, the CA promulgated its presently assailedDecision dismissing the Petition. Petitioners filed a Motion forReconsideration but the same was denied by the CA in its Resolutio n15 datedMarch 24, 2004.

Hence, the herein petition based on the following grounds:

A. The Honorable Court of Appeals did not rule in accordance withthe prevailing rules and jurisprudence when it held that thebelated filing, after more than two (2) years and three (3) monthsfrom the initial application for land registration, of a sworncertification against forum shopping in Respondent's applicationfor land registration, constituted substantial compliance with SCAdmin. Circular No. 04-94.

B. The Honorable Court of Appeals did not rule in accordance with

prevailing laws and jurisprudence when it held that thecertification of non-forum shopping subsequently submitted byrespondent does not require a certification from an officer of theforeign service of the Philippines as provided under Section 24,Rule 132 of the Rules of Court.

C. The Honorable Court of Appeals did not rule in accordance withprevailing laws and jurisprudence when it upheld the decisions of the Regional Trial Court (RTC) and Municipal Trial Court (MTC)that the lots in question were not really owned by Petitioners'father Vicente S. Arcilla, contrary to the evidence presented byboth parties.

D. The Honorable Court of Appeals did not rule in accordance withprevailing laws and jurisprudence when it sustained the decisionof the RTC which affirmed in toto the decision of the MTC and innot reversing the same and rendering judgment in favor of

Petitioners.16

In their Memorandum, petitioners further raise the following issue:

Whether or not the Supreme Court may inquire into conclusions of factsmade by the Honorable Court of Appeals in the instant Petition.17

The Court’s Ruling

The petition is bereft of merit.

The CA ruled correctly when it held that the belated filing of a sworncertification of non-forum shopping was substantial compliance with SC Administrative Circular No. 04-94.

Under the attendant circumstances in the present case, the Court cannot uphold petitioners’ contention that respondent's delay of more than two

years and three months in filing the required certificate of non-forumshopping may not be considered substantial compliance with the

requirements of SC Administrative Circular No. 04-94 and Section 5, Rule 7 of the Rules of Court; that respondent's reasons of oversight and inadvertencedo not constitute a justifiable circumstance that could excuse her non-compliance with the mandatory requirements of the above-mentionedCircular and Rule; that subsequent compliance with the requirement doesnot serve as an excuse for a party's failure to comply in the first instance.

Section 5, Rule 7, of the Rules of Court provides:

Sec. 5. Certification against forum shopping. – The plaintiff orprincipal party shall certify under oath in the complaint or otherinitiatory pleading asserting a claim for relief, or in a sworncertification annexed thereto and simultaneously filed therewith:(a) that he has not theretofore commenced any action or filed anyclaim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such otheraction or claim is pending therein; (b) if there is such other

pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the sameor similar action or claim has been filed or is pending, he shallreport that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has beenfiled.

Failure to comply with the foregoing requirements shall not becurable by mere amendment of the complaint or other initiatorypleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and afterhearing. The submission of a false certification or non-compliancewith any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding







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39

administrative and criminal actions. If the acts of the party or hiscounsel clearly constitute willful and deliberate forum shopping,the same shall be ground for summary dismissal with prejudiceand shall constitute direct contempt as well as a cause foradministrative sanctions.

This Rule was preceded by Circular No. 28-91, which originally required thecertification of non-forum shopping for petitions filed with this Court and theCA; and SC Administrative Circular No. 04-94, which extended thecertification requirement for civil complaints and other initiatory pleadingsfiled in all courts and other agencies.

In Gabionza v. Court of Appeal s,18 this Court has held that Circular No. 28-91was designed to serve as an instrument to promote and facilitate the orderlyadministration of justice and should not be interpreted with such absoluteliteralness as to subvert its own ultimate and legitimate objective or the goalof all rules of procedure – which is to achieve substantial justice asexpeditiously as possible.19 The same guideline still applies in interpretingwhat is now Section 5, Rule 7 of the 1997 Rules of Civil Procedure.20

The Court is fully aware that procedural rules are not to be belittled orsimply disregarded, for these prescribed procedures insure an orderly andspeedy administration of justice.21 However, it is equally settled that litigation is not merely a game of technicalities.22 Rules of procedure shouldbe viewed as mere tools designed to facilitate the attainment of justice.23 Their strict and rigid application, which would result intechnicalities that tend to frustrate rather than promote substantial justice,must always be eschewed.24 Even the Rules of Court reflect this principle.25

Moreover, the emerging trend in our jurisprudence is to afford every party-litigant the amplest opportunity for the proper and just determination of hiscause free from the constraints of technicalities.26

It must be kept in mind that while the requirement of the certificate of non-forum shopping is mandatory, nonetheless the requirement must not beinterpreted too literally and thus defeat the objective of preventing theundesirable practice of forum shopping.27 In Uy v. Land Bank of thePhilippines,28 the Court ruled, thus:

The admission of the petition after the belated filing of thecertification, therefore, is not unprecedented. In those cases wherethe Court excused non-compliance with the requirements, therewere special circumstances or compelling reasons making thestrict application of the rule clearly unjustified. In the case at bar,the apparent merits of the substantive aspects of the case shouldbe deemed as a "special circumstance" or "compelling reason" forthe reinstatement of the petition. x x x29

Citing De Guia v. De Guia30 the Court, in Estribillo v. Department of AgrarianReform,31 held that even if there was complete non-compliance with the ruleon certification against forum-shopping, the Court may still proceed todecide the case on the merits pursuant to its inherent power to suspend itsown rules on grounds of substantial justice and apparent merit of the case.

In the instant case, the Court finds that the lower courts did not commit anyerror in proceeding to decide the case on the merits, as herein respondent was able to submit a certification of non-forum shopping. More importantly,the apparent merit of the substantive aspect of the petition for landregistration filed by respondent with the MTC coupled with the showing that she had no intention to violate the Rules with impunity, as she was the onewho invited the attention of the court to the inadvertence committed by hercounsel, should be deemed as special circumstances or compelling reasons todecide the case on the merits.

In addition, considering that a dismissal contemplated under Rule 7, Section

5 of the Rules of Court is, as a rule, a dismissal without prejudice, and sincethere is no showing that respondent is guilty of forum shopping, to dismissrespondent's petition for registration would entail a tedious process of re-filing the petition, requiring the parties to re-submit the pleadings whichthey have already filed with the trial court, and conducting anew hearingswhich have already been done, not to mention the expenses that will beincurred by the parties in re-filing of pleadings and in the re-conduct of hearings. These would not be in keeping with the judicial policy of just,speedy and inexpensive disposition of every action and proceeding.32

The certification of non-forum shopping executed in a foreign countryis not covered by Section 24, Rule 132 of the Rules of Court.

There is no merit to petitioners’ contentions that the verification andcertification subsequently submitted by respondent did not state the countryor city where the notary public exercised her notarial functions; and that theMTC simply concluded, without any basis, that said notary public was from

Maryland, USA; that even granting that the verification and certification of non-forum shopping were notarized in the USA, the same may not be deemedadmissible for any purpose in the Philippines for failure to comply with therequirement of Section 24, Rule 132 of the Rules of Court that the notarizeddocument must be accompanied by a certificate issued by an officer in theforeign service of the Philippines who is stationed in the country in which arecord of the subject document is kept, proving or authenticating that theperson who notarized the document is indeed authorized to do so and hascustody of the same.

The Court agrees with the disquisition of the CA, to wit:

From the foregoing provision [referring to Section 24, Rule 132,Rules of Court], it can be gathered that it does not include

documents acknowledged before [a] notary public abroad. Forforeign public documents to be admissible for any purpose here inour courts, the same must be certified by any officer of thePhilippine legation stationed in the country where the documentscould be found or had been executed. However, after judiciousstudies of the rule, Sec. 24, Rule 132 of the 1997 Rules of Court basically pertains to written official acts, or records of the officialof the sovereign authority, official bodies and tribunals, and publicofficers, whether of the Philippines, or of a foreign country. This isso, as Sec. 24, Rule 132 explicitly refers only to paragraph (a) of Sec. 19. If the rule comprehends to cover notarial documents, therule could have included the same. Thus, petitioners-oppositors'contention that the certificate of forum shopping that was

submitted was defective, as it did not bear the certificationprovided under Sec. 24, Rule 132 of the Rules of Court, is devoid of any merit. What is important is the fact that the respondent-applicant certified before a commissioned officer clothed withpowers to administer oath that [s]he has not and will not commit forum shopping.33

The ruling of the Court in Lopez v. Court of Appeals,34 cited by petitioners, isinapplicable to the present case because the Rules of Evidence which were ineffect at that time were the old Rules prior to their amendment in 1989. Therule applied in Lopez, which was decided prior to the effectivity of theamended Rules of Evidence,35 was Section 25, Rule 132, to wit:

Sec. 25. Proof of public or official record – An official record or anentry therein, when admissible for any purpose, may beevidenced by an official publication thereof or by a copy attestedby the officer having the legal custody of the record, or by his

deputy, and accompanied, if the record is not kept in thePhilippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country,the certificate may be made by a secretary of embassy orlegation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippinesstationed in the foreign country in which the record is kept,and authenticated by the seal of his office. (Emphasis supplied)

When the Rules of Evidence were amended in 1989, Section 25, Rule 132became Section 24, Rule 132; and the amendment consisted in the deletion of the introductory phrase " An official record or an entry therein," which wassubstituted by the phrase "The record of public documents referred to in paragraph (a) of Section 19."

Thus, Section 24, Rule 132 of the Rules of Court now reads as follows:

Sec. 24. Proof of official record . - The record of public documentsreferred to in paragraph (a) of Section 19, when admissible forany purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of therecord, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has thecustody. If the office in which the record is kept is in a foreigncountry, the certificate may be made by a secretary of the embassyor legation, consul general, consul, vice consul or consular agent orby any officer in the foreign service of the Philippines stationed inthe foreign country in which the record is kept, and authenticatedby the seal of his office. (Emphasis supplied)

Section 19(a) of the same Rule provides:

Sec. 19. Classes of documents. - For the purpose of theirpresentation in evidence, documents are either public or private.

Public documents are:

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

(b) Documents acknowledged before a notary public except last wills and testaments; and

(c) Public records, kept in the Philippines, of private documentsrequired by law to be entered therein.

All other writings are private.

It cannot be overemphasized that the required certification of an officer inthe foreign service under Section 24 refers only to the documentsenumerated in Section 19(a), to wit: written official acts or records of theofficial acts of the sovereign authority, official bodies and tribunals, andpublic officers of the Philippines or of a foreign country. The Court agreeswith the CA that had the Court intended to include notarial documents as oneof the public documents contemplated by the provisions of Section 24, it should not have specified only the documents referred to under paragraph(a) of Section 19.

In Lopez , the requirements of then Section 25, Rule 132 were madeapplicable to all public or official records without any distinction because theold rule did not distinguish. However, in the present rule, it is clear underSection 24, Rule 132 that its provisions shall be made applicable only to thedocuments referred to under paragraph (a), Section 19, Rule 132.












































































40

The CA did not err in sustaining the findings of fact and conclusion of law of the MTC and the RTC.

Settled is the rule that the trial court’s findings of fact, especially when

affirmed by the CA, are generally binding and conclusive upon thisCourt .36 There are recognized exceptions to this rule, among which are: (1)the conclusion is grounded on speculations, surmises or conjectures; (2) theinference is manifestly mistaken, absurd or impossible; (3) there is graveabuse of discretion; (4) the judgment is based on a misapprehension of facts;(5) the findings of fact are conflicting; (6) there is no citation of specificevidence on which the factual findings are based; (7) the finding of absenceof facts is contradicted by the presence of evidence on record; (8) thefindings of the CA are contrary to the findings of the trial court; (9) the CA

manifestly overlooked certain relevant and undisputed facts that, if properlyconsidered, would justify a different conclusion; (10) the findings of the CAare beyond the issues of the case; and (11) such findings are contrary to theadmissions of both parties.37 However, petitioners failed to show that any of the exceptions is present in the instant case to warrant a review of thefindings of fact of the lower courts.

Petitioners insist that the documents which were presented in evidence byrespondent to prove her ownership of the subject lot are rife with defectsand inconsistencies. Petitioners contend that the subject lot should not havebeen included in the Extrajudicial Settlement of the Estate of Jose Arcilla,because he was no longer the owner of the said property at the time of saidsettlement; the Deed of Sale should be declared null and void because theseller, Pacifico Arcilla, was not the owner of the subject lands at the time thesaid Deed was executed; the Affidavit of Quitclaim is not valid and has noforce and effect considering that the document indicates that the signaturesof petitioners were affixed in different places, none of which is in Virac,

Catanduanes where they supposedly acknowledged said document.

The only evidence of petitioners to prove their claim that the disputedproperty was sold by Jose Arcilla to Manuel Sarmiento in 1908 is a single TaxDeclaration in the name of the latter, with a notation that the property wasacquired by purchase.

The Court agrees with the CA in its finding that petitioners failed to present any substantial evidence, such as a deed of sale, to prove their claim that their predecessor, Vicente Arcilla, bought the disputed property fromSarmiento. Petitioners were only able to present tax declarations in Vicente'sname to prove their allegation that Vicente became the owner of the subject property. The tax declarations presented in evidence by petitioners are not supported by any other substantial proofs.

The Court has ruled time and again that tax declarations do not proveownership but are at best anindicium of claims of ownership.38 Payment of

taxes is not proof of ownership, any more than indicating possession in theconcept of an owner.39 Neither a tax receipt nor a declaration of ownershipfor taxation purposes is evidence of ownership or of the right to possessrealty when not supported by other effective proofs.40

In addition, the Court agrees with the CA when it held that if Vicente, in fact,owned the disputed properties, his widow, Josefa, would not have agreed toinclude said lots among those partitioned in the Extrajudicial Settlement of the Estate of Jose.

On the other hand, respondent's claim of ownership is not only backed up bytax declarations but also by other pieces of evidence such as the subject Extrajudicial Settlement, Affidavit of Quitclaim, and Deed of Sale.

Petitioners question the validity of the above-mentioned documents.However, as the CA, RTC and MTC found, these documents are all notarized.It is settled that a notarized document is executed to lend truth to thestatements contained therein and to the authenticity of thesignatures.41 Notarized documents enjoy the presumption of regularitywhich can be overturned only by clear and convincing evidence.42

Petitioners' bare denials of the contents of the subject documents will not suffice to overcome the presumption of their regularity considering that theyare all notarized. To overthrow such presumption of regularity, thecountervailing evidence must be clear, convincing and more than merelypreponderant, which petitioners failed to present .43

An examination of the subject Extrajudicial Settlement of Estate clearlyshows that the disputed lot forms part of the properties adjudicated in favorof Pacifico Arcilla, respondent’s predecessor-in-interest.

Moreover, petitioners themselves admit that the Extrajudicial Settlement being referred to in the Affidavit of Quitclaim executed by petitioner and herco-heirs is the Extrajudicial Settlement of the Estate of Jose Arcilla and not of Vicente Arcilla. An examination of the Affidavit of Quitclaim shows that the

reference made therein with respect to the date of execution of the saidExtrajudicial Settlement as well as the notary public who acknowledged thesame and the Document Number, Page Number, Book Number and SeriesNumber all coincide with those appearing in the document evidencing theExtrajudicial Settlement of the Estate of Jose Arcilla. Hence, what has beenwaived by petitioners is their right, if any, to the properties mentioned in thesaid Affidavit of Quitclaim, which includes the presently disputed lot.

Petitioners posit that they are not bound by the subject ExtrajudicialSettlement because they did not participate in nor did they sign thedocument evidencing such settlement and that their mother who signed ontheir behalf was not, in fact, authorized to do so. However, the Court agreeswith the ruling of the RTC that the Extrajudicial Settlement is a publicdocument, the same having been notarized; that such document is entitled to

full faith and credit in the absence of competent evidence showing that itsexecution was tainted with defects and irregularities which would warrant adeclaration of nullity; that in the absence of evidence showing that theperson who signed in behalf of herein petitioners was, in fact, not authorizedto do so, the presumption that she had the authority, as stated in theExtrajudicial Settlement, remains undisturbed.

Moreover, petitioners' execution of the subject Affidavit of Quitclaim is proof that they have ratified the contents of the disputed Extrajudicial Settlement.

Petitioners' claim that the Affidavit of Quitclaim is null and void on theground that the signatories thereto are not residents of Virac, Catanduanesand that they affixed their signature in places other than Virac, Catanduaneswhere they supposedly acknowledged the said document, is not persuasive.The Court finds no error in the finding of the MTC, as affirmed by the CA, that the execution of the subject Affidavit of Quitclaim or the signatures of theaffiants appearing therein were never contested nor raised as an issue andthat petitioner Sarah Arcilla herself acknowledged her own signature in thesaid Affidavit.

In any event, the law does not require that parties to a document notarizedby a notary public should be residents of the place where the said document is acknowledged or that they affix their signature in the presence of thenotary public. What is necessary is that the persons who signed a notarizeddocument are the very same persons who executed and personally appearedbefore the notary public in order to attest to the contents and truth of what are stated therein.44

In the instant case, it is established that, with the exception of petitionerRene Arcilla, all of herein petitioners, including their now deceased motherJosefa and sister Nora, executed and personally acknowledged before thenotary public the subject Affidavit of Quitclaim. Hence, aside from Rene, thesaid Affidavit of Quitclaim is valid and binding on all the petitioners.

With respect to Rene, petitioner Oscar Arcilla, acting as his attorney-in-fact,signed the document on the former’s behalf. However, settled is the rule that:

A member of the bar who performs an act as a notary publicshould not notarize a document unless the persons who signed thesame are the very same persons who executed and personallyappeared before him. The acts of the affiants cannot be delegatedto anyone for what are stated therein are facts of which they havepersonal knowledge. They should swear to the document personally and not through any representative. Otherwise, theirrepresentative’s name should appear in the said documents as the

one who executed the same. That is the only time therepresentative can affix his signature and personally appearbefore the notary public for notarization of the said document.Simply put, the party or parties who executed the instrument must be the ones to personally appear before the notary public toacknowledge the document .45

Thus, the herein subject Affidavit of Quitclaim may not be binding on Rene.Nonetheless, with or without Rene’s participation in the quitclaim,

respondent’s ownership of the subject lots has been established bypreponderance of evidence, as unanimously found by the MTC, the RTC andthe CA.

Finally, petitioners' physical occupation of the commercial building whichthey erected on the disputed property does not necessarily prove theirownership of the subject lots.

This Court has held that:

ownership and possession are two entirely different legal

concepts. Just as possession is not a definite proof of ownership,neither is non-possession inconsistent with ownership. The first paragraph of Article 1498 of the Civil Code states that when thesale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract, if from the deed the contrary does not appear orcannot clearly be inferred.Possession, along with ownership, istransferred to the vendee by virtue of the notarized deed of conveyance. Thus, in light of the circumstances of the present case, it is of no legal consequence that petitioner did not takeactual possession or occupation of the disputed lot after theexecution of the deed of sale in her favor because she wasalready able to perfect and complete her ownership of andtitle over the subject property.46(Emphasis supplied)

The Extrajudicial Settlement of Estate in favor of Pacifico, respondent’s predecessor-in-interest, the Affidavit of Quitclaim and the Deed of Sale in

favor of respondent establish respondent’s ownership over the disputedproperty.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appealsdated September 12, 2003 and its Resolution of March 24, 2004 in CA-G.R. SPNo. 72032 are AFFIRMED.

Costs against petitioners.

SO ORDERED.

G.R. No. 177505 November 27, 2008















































41

HEIRS OF GORGONIO MEDINA, namely: LEONOR T. MEDINA, RAMON T.MEDINA, ABIEL T. MEDINA, ILUDIVINA M. ROSARI, CONCEPCION DE LACRUZ, LEONOR M. BAKKER, SAMUEL T. MEDINA, VICTOR T. MEDINA,TERESITA M. SABADO, JOSEFINA M. CANAS and VERONICA M. DEGUZMAN, petitioners,vs.BONIFACIO NATIVIDAD, represented by PHILIP M.NATIVIDAD, respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45 of the 1997

Rules of Civil Procedure which seeks to set aside the Decision1 of the Court of Appeals dated 20 November 2006 in CA-G.R. CV No. 82160 affirming withmodification the Decision2 of Branch 33 of the Regional Trial Court (RTC) of Guimba, Nueva Ecija, in Civil Case No. 1165-G and its Resolution3 dated 16April 2007 denying petitioners’ motion for reconsideration.

The factual antecedents are as follows:

On 16 May 1969, Tirso Medina, Pacifico M. Ruiz, Gorgonio D. Medina,Vivencio M. Ruiz, and Dominica Medina, co-owners of a parcel of land (Lot 1199, Cad-162, Guimba Cadastre, plan Ap-23418) situated in Poblacion,Municipality of Guimba, Province of Nueva Ecija, containing an area of twothousand three hundred thirty nine (2,339) square meters, agreed to divideand allot for themselves the said land. A sketch4 signed by the co-ownersshowed the respective portions of land allotted to each. Gorgonio D. Medinareceived two portions of said land. One portion was allotted to him alone,while the second portion was allotted to him together with Tirso Medina and

Pacifico M. Ruiz. This second portion is labeled as "Gorgonio Medina, TirsoMedina and Pacifico M. Ruiz" which is adjacent to the portion labeled as"Dominica Medina."

On 29 March 1972, Gorgonio D. Medina, predecessor-in-interest of petitioners, executed a Deed of Absolute Sale5 whereby he sold to respondent Bonifacio Natividad for P2,000.00 his share (1/3) in the second portion of land including the improvements found therein.

Subsequently, a case for Partition with Damages, docketed as Civil Case No.781-G, was filed before the RTC of Guimba, Nueva Ecija, Branch 33, by TirsoMedina against the co-owners of Lot 1199, among whom are GorgonioMedina and Bonifacio Natividad. Bonifacio Natividad had likewise alreadybought the share of Dominica Medina in the land.

The parties entered into a compromise agreement which they submitted tothe Court. On 20 November 1989, the RTC approved the agreement and

rendered its decision based on the same.6

The Compromise Agreement asquoted by the Court reads:

COMPROMISE AGREEMENT

COME NOW the parties, assisted by their respective counsel(s),and unto this Honorable Court respectfully submit thisCompromise Agreement in full and final settlement of theirdifferences, to wit:

1. The parties herein are the exclusive co-owners of that certainparcel of land located at the Poblacion, Guimba, Nueva Ecija,known as Lot 1199, Guimba Cadastre and more particularlydescribed as follows:

A parcel of land (Lot 1199, of the Cadastral Survey of Guimba Cad.162, plan Ap-23418, L.R. Case No. G-51, L.R.C. Record No. N-40711), situated in the Poblacion, Municipality of Guimba,

Province of Nueva Ecija. x x x containing an area of TWOTHOUSAND THREE HUNDRED AND THIRTY NINE (2,339)SQUARE METERS, more or less. x x x.

x x x x

2. The herein parties recognize and acknowledge that theirrespective shares in the property aforementioned as appearing inthe aforesaid Original Certificate of Title No. 130366 have beenmodified by agreement between them to allot a portion thereof totheir co-owner, Vivencio M. Ruiz, to compensate for valuableservices rendered to the parties vis-à-vis the said property,separate and apart from his rightful share therein as participatingheir of Maria Medina;

3. The plaintiff Tirso Medina hereby withdraws any/all statementsappearing on record which he may have made in said case in the

course of his testimony therein, and hereby asks the HonorableCourt that said statements be expunged or withdrawn from therecord;

4. The foregoing considered, the parties have determined that it isto their mutual convenience and advantage, and in accord withtheir common desire to preserve and maintain the existing familyharmony and solidarity to terminate their present community of ownership in the property aforementioned by mutual agreement and adjudication, in the manner appearing in the Sketch Plan of Partition attached as an integral part hereof as Annex "A" wherethe property is subdivided into Lot 1, 2, 3, 4, 5, and 6 andadjudicated, as follows:

a. To Bonifacio Natividad, Lot No. 1, consisting of 480square meters, more or less, representing the interestsof Dominica Medina which was sold to him perdocument of "Sale of Rights, Waiver and Renunciation"appearing as Doc. No. 367; Page No. 75; Book No. 10;Series of 1968 in the Notarial Register of Atty.

b. To VIVENCIO M. RUIZ, Lot No. 3 consisting of 370.21square meters, more or less, as compensation forvaluable services rendered; free and clear from any/allliens or encumbrances whatsoever or from the claims of any person whomsoever, except the present tenant/sthereon;

c. To the heirs of MARIA MEDINA, Lot No. 2 consistingof 370.21 square meters, more or less, without prejudice to sales and dispositions already made by therespective heirs of their interests and participationstherein;

d. To TIRSO MEDINA, Lot No. 4 consisting of 369.29square meters, more or less;

e. To the heirs of PACIFICO M. RUIZ, Lot No. 5 consistingof 369.29 square meters, more or less, and

f. To GORGONIA MEDINA, Lot No. 6, consisting of 369.29 square meters, more or less.7

On 8 October 1991, the trial court issued an order supplementing its decisiondated 20 November 1989 which reads in part:

[T]hat the parties thereafter, engaged the services of one commongeodetic engineer in the person of Rolly Francisco to conduct thesurvey and effect the subdivision of Lot 1199, which wassubdivided into Lots A, B, C, D, E, and F, the area of which appears,thus:

Lot 1199-A with an area of 371 sq. ms., which lot nowcorresponds to Lot No. 4 adjudicated to Tirso Medina;

Lot 1199-B with an area of 371 sq. ms., which lot nowcorresponds to Lot No. 5 adjudicated to Pacifico Ruiz;

Lot 1199-C with an area of 371 sq. ms., which lot nowcorresponds to Lot No. 6 adjudicated to GorgonioMedina;

Lot 1199-D with an area of 482 sq. ms., which lot now

corresponds to Lot No. 1 adjudicated to BonifacioNatividad;

Lot 1199-E with an area of 372 sq. ms., which lot nowcorresponds to Lot No. 2 adjudicated to Heirs of MariaMedina; and

Lot 1199-F with an area of 372 sq. ms., which lot nowcorresponds to Lot No. 3 adjudicated to Vivencio M.Ruiz; that in this subdivision made by the geodeticengineer, there was no change in the designation of theparticular places adjudicated to the parties, except thechange in areas allotted after the actual survey made.

WHEREFORE, finding the motion to be in order, the Court resolvesto grant the same and hereby orders, that:

Lot 1199-A with an area of 371 sq. ms. is Lot 4, decision,

adjudicated to Tirso Medina;

Lot 1199-B with an area of 371 sq. ms. is Lot 5, decision,adjudicated to Pacifico Ruiz;

Lot 1199-C with an area of 371 sq. ms. is Lot 6, decision,adjudicated to Gorgonio Medina;

Lot 1199-D with an area of 482 sq. ms. is Lot 1, decision,adjudicated to Bonifacio Natividad;

Lot 1199-E with an area of 372 sq. ms. is Lot 2, decision,adjudicated to Heirs of Maria Medina;

Lot 1199-F with an area of 372 sq. ms. is Lot 3, decision,adjudicated to Vivencio M. Ruiz.

This Order supplements the Decision dated November 20, 1989.8

Pursuant to the court-approved partition, Lot 1199-C, measuring 371 squaremeters, was registered in the name of Gorgonio Median for which TransferCertificate of Title (TCT) No. NT-230248 of the Registry of Deeds for theProvince of Nueva Ecija was issued to him.9

On 11 June 2001, Bonifacio Natividad, thru his alleged Attorney-In-Fact,Philip M. Natividad, filed before the RTC of Guimba, Nueva Ecija, Branch 31, aComplaint for Annulment of TCT No. NT-230248 and Damages.10 It impleaded as respondents Abiel Medina and Veronica de Guzman who areoccupying the said land. Bonifacio asks, among other things, that 1/3 of saidland be surrendered to him because he had bought the same from GorgonioMedina. In the Answer11 filed by Abiel Medina and Veronica de Guzman, theyargued, inter alia, that Philip Natividad had no legal capacity to sue becausethe Special Power of Attorney annexed to the Complaint did not grant him

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42

such authority. They further added that the Complaint failed to implead allthe parties-in-interest considering that the ownership of the land covered byTCT No. NT-230248 had already passed to eleven heirs of Gorgonio Medina.

Bonifacio, thru Philip, filed a Motion for Bill of Particulars12 praying that anorder be issued by the court directing Abiel Medina and Veronica de Guzmanto give the names and present addresses of all the heirs of Gorgonio Medina.Said motion was opposed.13 In an order dated 15 October 2001, the trialcourt granted the motion.14 Defendants complied with the court’s order and

submitted the names and addresses of all the heirs of Gorgonio Medina.15

On 7 January 2002, Bonifacio filed a Motion for Leave to Admit AmendedComplaint with prayer that summons upon eight heirs be made throughpublication.16 The Amended Complaint impleaded all the heirs of GorgonioMedina (petitioners herein). In said amended complaint, a special power of attorney17dated 21 September 2001 allegedly executed by BonifacioNatividad in the State of Washington, United States of America, andacknowledged before Phyllis Perry, a Notary Public of the State of Washington, USA, was attached authorizing Philip Natividad to:

1. To file all appropriate cases in court against the heirs of Gorgonio Medina for the recovery of the lot that I purchased fromsaid Gorgonio Medina by virtue of Deed of Absolute Sale executedon March 29, 1972 and notarized by Atty. Inocencio B. Garampilunder Doc. No. 435, Page No. 87, Book No. 1, Series of 1972, whichlot is now titled in the name of Gorgonio Medina under TransferCertificate of Title No. NT-230248;

2. To institute all legal actions/cases in court for the annulment of said Transfer Certificate of Title No. NT -230248 which now coversthe lot I bought from Gorgonio Medina;

3. To represent me in all proceedings/hearings of the above-mentioned case/s up to its termination;

4. To enter into a fair and reasonable compromise agreement anddo all acts for the protection and preservation of my rights andinterest over the above-mentioned lot;

5. To negotiate/transact with all persons, secure and sign allnecessary documents for the attainment of the above purposes.

In an Order dated18 30 January 2002, the trial court approved the motion andadmitted the Amended Complaint. It directed the issuance of thecorresponding summons, the same to be published in a newspaper of generalcirculation for three consecutive weeks. As to plaintiff’s authority to sue, the

trial court ruled that said issue had been settled by the special power of attorney attached to the Amended Complaint.

On 17 May 2002, the heirs of Gorgonio Medina filed a Motion toDismiss19 which the trial court denied on 20 August 2002.20 On 10 September2002, the heirs filed their Answer raising the following defenses:prescription, laches, lack of cause of action, lack of legal capacity to sue byAttorney-in-Fact, indefeasibility of TCT No. NT-230248 and lack of jurisdiction over the case for failure of the plaintiff to comply with themandatory requirement of the Katarungang Pambarangay . Plaintiff filed hisReply dated 18 September 2002 specifically denying the allegationscontained in the Answer with Compulsory Counterclaim.21

During the Pre-Trial, the parties stipulated the following facts and issues:

a. TCT No. N-230248 in the name of Gorgonio Medina covers 371square meters. This title was one of the titles issued as transferfrom Original Certificate of Title No. 130366.22

b. TCT No. 230248 came into being by virtue of the decision in

Civil Case No. 781-G, a case of partition among Gorgonio Medinaand his co-heirs decided by RTC Branch 33.

c. The late Gorgonio Medina executed a Deed of Absolute Sale over1/3 portion of his share in a parcel of land (Lot 1199, CAD-162Guimba Cadastre) owned in common by him and his co-heirs.

d. The land subject of the deed of sale is not the one covered byTCT No. 230248.

Issues:

1. Whether the deed of sale of sale may be given effect notwithstanding the fact that the subject thereof isdifferent from the portion covered by TCT No. 230248.

2. Whether Mr. Philip Natividad is duly authorized torepresent his father, Bonifacio Natividad in this case.23

The parties manifested that after they shall have filed their respectivememoranda, the case shall be submitted for decision.

In its decision dated 10 December 2003, the trial court ruled in favor of Bonifacio Natividad. The decretal portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff ordering the defendants to convey to the plaintiff 1/3 portion of the lot covered by TCT No. 230248 together with theimprovements thereon and to account for, and deliver to theplaintiff the income derived therefrom from the institution of thiscase up to the execution of this decision.

No pronouncement as to damages there being no reservationmade by the plaintiff to present evidence thereof .24

On the issue of Philip Natividad’s authority to represent his father, the court

ruled that it was convinced that Philip was authorized to represent his fatherby virtue of a notarized special power of attorney executed by Bonifacioattached to the amended complaint. It explained that the document was apublic document as defined under Section 20, paragraph (a) of Rule 132 of the Rules of Court, the same having been notarized by a notary public for theState of Washington, USA. In the absence of any evidence to show that saidspecial power of attorney was falsified, it was sufficient authority for Mr.Natividad to represent his father.

The trial court likewise ruled that the deed of absolute sale executed byGorgonio Medina in favor of Bonifacio Natividad may be given effect notwithstanding the fact that the portion of Lot 1199 specified as its object was different from the portion adjudicated to Gorgonio Medina. It declaredthat the 1/3 portion of the land covered by TCT No. NT-230248 shall bedeemed the object of the deed of sale. It agreed with Bonifacio that what wassold by Gorgonio Medina to him (Bonifacio) was his share, right andparticipation in the land known as Lot 1199. At the time of the sale, Lot 1199was not yet divided. Gorgonio Medina specified a portion of Lot 1199,expecting that portion to be adjudicated to him, but his expectation did not materialize because a different portion was adjudicated to him during thepartition. It added that justice demanded that a portion of what wasadjudicated to him be considered as the object of the deed of sale.

The trial court further ruled that prescription and laches did not set in. Sincethere was an express trust created between Gorgonio Medina and BonifacioNatividad, the action to compel the defendants to convey the property to

Bonifacio did not prescribe. It explained that it is only when the trusteerepudiates the trust that the prescriptive period of 10 years commences torun. In the instant case, Gorgonio Medina (trustee) repudiated the trust on 5July 1993 when TCT No. NT-230248 was issued in his name. Thus, the filingof the complaint on 11 June 2001 was well within the ten-year prescriptiveperiod.

On 22 December 2003, the petitioner-heirs of Gorgonio Medina filed a Noticeof Appeal informing the trail court that they were appealing the decision tothe Court of Appeals.25 A Notice of Appeal having been seasonably filed bythe petitioners, the entire records of the case were forwarded to the Court of Appeals.26

On 13 January 2004, Bonifacio Natividad filed a Motion for ExecutionPending Appeal27 which the trial court denied, it having lost jurisdiction overthe case because the appeal was already perfected when the motion wasfiled.28

On 20 November 2006, the Court of Appeals rendered its decision affirmingwith modification the decision of the trial court. It disposed of the case asfollows:

WHEREFORE, the Decision of the RTC, Branch 33, Guimba, NuevaEcija, dated December 10, 2003, is hereby AFFIRMED with theMODIFICATION ordering the defendants-appellants to convey toplaintiff-appellee an area equivalent to 90 square meters of theland covered by TCT No. NT-230248.29

The appellate court affirmed the findings of the trial court, but ruled that thetrust established between the parties was an implied or constructive trust,and not an express trust. It added that what should be conveyed to BonifacioNatividad was only 1/3 of 270 square meters or 90 square meters, and not 1/3 of 371 square meters since what was sold to him was only a part of oneof the two portions owned by Gorgonio Medina in the entire lot. Finally, it declared that the contention that the Complaint should have been dismissedfor lack of cause of action, considering that the Special Power of Attorneyexecuted abroad by Bonifacio Natividad in favor of his son was not properlyauthenticated before a consular officer, put a premium on technicalities at the expense of substantial justice. Litigation, it said, should, as much aspossible, be decided on the merits and not on technicalities.

Petitioners filed a Motion for Reconsideration30 which the Court of Appealsdenied in a resolution dated 16 April 2007.31

Hence, the instant petition raising the following issues:

WHETHER OR NOT THE COMPROMISE AGREEMENT THAT THETRIAL COURT APPROVED IN CIVIL CASE NO. 781-G NOVATEDTHE DEED OF ABSOLUTE SALE DATED 29 MARCH 1972BETWEEN GORGONIO MEDINA AND BONIFACIO NATIVIDAD.

WHETHER OR NOT BONIFACIO NATIVIDAD IS ESTOPPED BY

LACHES.WHETHER OR NOT THE REGISTRATION OF LOT NO. 1199-C INTHE NAME OF GORGONIO MEDINA WAS IN FRAUD OFBONIFACIO NATIVIDAD.

WHETHER OR NOT A CONSTRUCTIVE TRUST WAS CREATEDBETWEEN GORGONIO MEDINA AND BONIFACIO NATIVIDAD.

WHETHER OR NOT BONIFACIO NATIVIDAD’S CAUSE OF ACTION

HAS ALREADY PRESCRIBED.

WHETHER OR NOT THE COMPLAINT STATES A CAUSE OFACTION.



















































































43

Among the issues raised by petitioners the last is what we shall first tackle.Petitioners contend that the Court of Appeals committed a very grave errorin not finding that the respondent was without any cause of action.Petitioners argue:

The Complaint in this case was instituted by Philip M. Natividad inthe name of Bonifacio Natividad upon the strength of a SpecialPower of Attorney executed by the latter in Washington, U.S.A.While the document appears to have been acknowledged beforePhyllis Perry, a Notary Public for the jurisdiction of the State of Washington, U.S.A., it was not presented before a PhilippineConsular Officer for the requisite authentication.

The Revised Rules on Evidence require that a document acknowledged before a notary public being a public document,such record if kept in a foreign country, should be accompaniedwith a certificate that such officer has the custody thereof made bya secretary of the embassy or legation, consul general, consul, viceconsul, or consular agent or by an officer in the foreign service of the Philippines stationed in the foreign country in which therecord is kept, authenticated by the seal of his office. In theabsence of the requisite certification and authentication of thepublic document, the same cannot be proved and, therefore,inadmissible as evidence.

Bonifacio Natividad’s Special Power of Attorney not having been

duly certified and authenticated, it cannot be duly proved. It is,therefore, deemed as not having been executed for purposes of instituting an action on his behalf. Without any valid authority toinstitute the action on behalf of his father, Philip Natividad is

deemed to have instituted it on his own. Philip Natividad not beinga party to the Deed of Absolute Sale between Gorgonio Medina andBonifacio Natividad, he is undoubtedly not the real party ininterest because he does not have any material interest in thecontract which is the source of Bonifacio Natividad’s cause of

action. He does not stand to be benefited or injured by a judgment in the suit and neither is he entitled to the avails of the suit.

Not being the real party in interest, and being deemed to havebrought the action on his own, Philip M. Natividad has no cause of action.32

The trial court was convinced that Philip Natividad was authorized by hisfather (Bonifacio) in this case by virtue of the special power of attorney that the latter issued. The special power of attorney, it claims, is a publicdocument, the same having been notarized by a notary public of the State of Washington, USA. It said that there being no evidence showing that said

document had been falsified, the same was sufficient authority for Philip torepresent his father. The Court of Appeals considered the fact that the specialpower of attorney was not properly authenticated before a consular office tobe a mere technicality and could not be the basis for the dismissal of thecomplaint for lack of cause of action.

On his part, respondent said the notarized special power of attorney whichhe appended to the complaint is a public document. It carries with it thepresumption of regularity and any suspicion on the authenticity and dueexecution thereof cannot stand against said presumption absent evidencewhich is clear and convincing.

The question to be answered is: Is the Special Power of Attorney supposedlyauthorizing Philip Natividad to file the instant case in behalf of his fatheradmissible in evidence?

In Lopez v. Court of Appeals,33 we have ruled that a special power of attorneyexecuted in a foreign country is, generally, not admissible in evidence as apublic document in our courts. In said case, we said:

Is the special power of attorney relied upon by Mrs. Ty a publicdocument? We find that it is. It has been notarized by a notarypublic or by a competent public official with all the solemnitiesrequired by law of a public document. When executed andacknowledged in the Philippines, such a public document or acertified true copy thereof is admissible in evidence. Its dueexecution and authentication need not be proven unlike a privatewriting.

Section 25,34 Rule 132 of the Rules of Court provides –

Sec. 25. Proof of public or official record. – An official record or anentry therein, when admissible for any purpose, may be evidencedby an official publication thereof or by a copy attested by theofficer having the legal custody of the record, or by his deputy, and

accompanied, if the record is not kept in the Philippines, with acertificate that such officer has the custody. If the office in whichthe record is kept is in a foreign country, the certificate may bemade by a secretary of embassy or legation, consul general, consul,vice consul, or consular agent or by any officer in the foreignservice of the Philippines stationed in the foreign country in whichthe record is kept, and authenticated by the seal of his office.

From the foregoing provision, when the special power of attorney is executed and acknowledged before a notarypublic or other competent official in a foreign country, it cannot be admitted in evidence unless it is certified as such inaccordance with the foregoing provision of the rules by asecretary of embassy or legation, consul general, consul, vice

consul, or consular agent or by any officer in the foreignservice of the Philippines stationed in the foreign country inwhich the record is kept of said public document andauthenticated by the seal of his office . A city judge-notary whonotarized the document, as in this case, cannot issue suchcertification.

Considering that the record of the case does not disclose anycompliance with the provisions of Section 25, Rule 132 of theRules of Court on the part of the petitioner, the special power of attorney in question is not admissible in evidence. As such, Mrs.Priscilla L. Ty cannot lawfully prosecute the case against theprivate respondents in the name of her principal as her authority

through a special power of attorney had not been duly establishedin evidence. The litigation was not commenced by the real party-in-interest or by one duly authorized by the said party.

This being so, the Metropolitan Trial Court, the Regional TrialCourt and the Court of Appeals never acquired jurisdiction overthe person of the real party-in-interest – Angelita Lopez. For lackof the requisite jurisdiction, all the proceedings in the said courtsare null and void ab initio. All proceedings therein should be andare hereby set aside.

Accordingly, it is Our considered opinion, and We so hold, that aspecial power of attorney executed before a city judge-publicnotary in a foreign country, without the certification orauthentication required under Section 25, Rule 132 of the Rules of Court, is not admissible in evidence in Philippine courts.(Emphasis supplied.)

In the case under consideration, the supposed special power of attorneyinvolved was executed and acknowledged before Phyllis Perry, a NotaryPublic of the State of Washington, USA. This being the case, a certification orauthentication, as required by Section 25 (now Section 24), Rules of Court, bya secretary of the embassy or legation, consul general, consul, vice consul, orconsular agent or by any other officer in the foreign service of the Philippinesstationed in the foreign country in which the record is kept, andauthenticated by the seal of his office, is required. A notary public in a foreigncountry is not one of those who can issue the required certificate.

The records are bereft of evidence showing that there was compliance withSection 25 (now Section 24). Non-compliance therewith will render thespecial power of attorney not admissible in evidence. Not being dulyestablished in evidence, the special power of attorney cannot be used byPhilip Natividad to represent his father, Bonifacio Natividad, in this legalaction against the petitioners. It is thus clear that this case was not filed by

the real party-in-interest (Bonifacio) or by one duly authorized by said party.Not being a real party-in-interest and sans the authority to pursue the case,Philip Natividad could not have validly commenced this case. The specialpower of attorney executed before a notary public in a foreign countrywithout the requirements mentioned in Section 25 (now Section 24) of theRules of Court cannot be admitted in evidence before Philippine courts.

Both lower courts and respondent’s contention that the lack of consular

authentication is a mere technicality that can be brushed aside in order touphold substantial justice, is untenable. The failure to have the special powerof attorney authenticated is not merely a technicality -- it is a question of jurisdiction. In Lopez , we pronounced that jurisdiction over the person of thereal party-in-interest was never acquired by the courts. As a result, allproceedings in the lower courts were declared null and voidab initio and thusset aside.

In the case before us, the Regional Trial Court and the Court of Appeals did

not acquire jurisdiction over the person of Bonifacio Natividad. Followingour pronouncement in Lopez , all proceedings before these courts are voidedand set aside. In light of this, we find no need to discuss the other issuesraised.

WHEREFORE, premises considered, the instant petition is GRANTED. All theproceedings before the Regional Trial Court of Guimba, Nueva Ecija, Branch33 (Civil Case No. 1165-G) and the Court of Appeals (CA-G.R. CV No. 82160)are hereby declared void, and the case is hereby DISMISSED. No costs.

SO ORDERED.

G.R. Nos. 79597-98 May 20, 1991

HEIRS OF DEMETRIA LACSA, represented by: BIENVENIDO CABAIS,VIRGINIA CABAIS, LEONOR CABAIS-PENA and DOLORES CABAIS-

MAGPAYO, petitioners,vs.COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCOENCARNACION D. SONGCO, LOURDES D. SONGCO, ANGELA S. SONGCO,LUDIVINA S. SONGCO, JOSEPHINE S. SONGCO, ALBERT S. SONGCO,INOSENCIO S. SONGCO, JAIME S. SONGCO, MARTIN S. SONGCO, andBERNARD S. SONGCO, Being Heirs of Inocencio Songco, respondents.

PADILLA, J.:p

This is a petition for review on certiorari of the decision * of respondent Court of Appeals in CA-G.R. CV Nos. 08397-08398 dated 16 July 1987affirming with modification the decision of the Regional Trial Court of Guagua, Pampanga, in favor of private respondents, and its resolution dated14 August 1987 denying the motion for reconsideration.















44

This petition which originated with the Regional Trial Court of Guagua,Pampanga involves two (2) cases, namely: Civil Case No. G-1190 and CivilCase No. G-1332. 1

Civil Case No. G-1190 is an action for recovery of possession with damagesand preliminary injunction filed by herein petitioners, the heirs of DemetriaLacsa, against Aurelio Songco and John Doe based on the principal allegationsthat petitioners are heirs of deceased Demetria Lacsa who, during herlifetime, was the owner of a certain parcel of land consisting partly of afishpond and partly of uncultivated open space, located in Bancal, Guagua,Pampanga, evidenced by Original Certificate of Title No. RO-1038 (11725);that the principal respondent and his predecessor-in-interest who areneither co-owners of the land nor tenants thereof, thru stealth, fraud and

other forms of machination, succeeded in occupying or possessing thefishpond of said parcel of land and caused the open space therein to becleared for expanded occupancy thereof, and refused to vacate the samedespite petitioner's demands on them to vacate. 2

Civil Case No. G-1332 is an action also by herein petitioners against privaterespondents before the same lower court for cancellation of title, ownershipwith damages and preliminary injunction, based on the allegations that theyare the heirs of Demetria Lacsa who was the owner of the land also involvedin Civil Case No. G-1190; that the herein private respondents and theirpredecessors-in-interest, thru stealth, fraud and other forms of machination,succeeded in occupying or possessing the fishpond of the said parcel of land,and later abandoned the same but only after the case was filed and after allthe fish were transferred to the adjoining fishpond owned by the privaterespondents; that on 31 October 1923 and 15 March 1924, by presenting tothe Register of Deeds of Pampanga certain forged and absolutely simulateddocuments, namely: "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE

PARTICION EXTRAJUDICIAL" and "ESCRITURA DE VENTA ABSOLUTA",respectively, and by means of false pretenses and misrepresentation,Inocencio Songco, the private respondents' predecessor-in-interest,succeeded in transferring the title to said property in his name, to thedamage and prejudice of the petitioners; and that a preliminary injunctionwas necessary to prevent the private respondents from disposing of saidproperty. 3

Private respondents denied the material allegations of both complaints andalleged as special and affirmative defenses, petitioners' lack of cause of action, for the reason that Original Certificate of Title No. RO-1038 (11725)was merely a reconstituted copy issued in April 1983 upon petitioners'expedient claim that the owner's duplicate copy thereof had been missingwhen the truth of the matter was that OCT No. RO-1038 (11725) in the nameof Demetria Lacsa, had long been cancelled and superseded by TCT No. 794in the name of Alberta Guevarra and Juan Limpin by virtue of the document

entitled "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE PARTICIONEXTRA-JUDICIAL" entered into by the heirs of Demetria Lacsa; that the latterTCT was in turn superseded by TCT No. 929 issued in the name of InocencioSongco (father of private respondents) by virtue of a document entitled"ESCRITURA DE VENTA ABSOLUTA" executed by spouses Juan Limpin andAlberta Guevarra in favor of said Inocencio Songo. 4

Private respondents, in their answer, pleaded a counterclaim against petitioners based on allegations that the latter headed by Carlito Magpayo, byforce and intimidation, took possession of a portion of the fishpond in theland and occupied a hut therein, that at that time, private respondents had3,000 bangus fingerlings left in the fishpond which upon petitioners' harvest thereof left private respondents deprived and damaged in the amount of P50,000.00 more or less; that such illegal occupancy caused privaterespondents to suffer unrealized income and profits, sleepless nights,wounded feelings and serious anxiety which entitled them to actual, moraland exemplary damages as well as attorney's fees and P500.00 appearance

fee for every hearing. 5 On 20 January 1985, the parties assisted by their respective counsel filed inCivil Case No. G-1332 a joint stipulation of facts, alleging:

1. That on June 9, 1982, the plaintiffs, being heirs of Demetria Lacsa, filed Civil Case No. 1190;

2. That after the defendants filed their Answer in thesaid Civil Case No. G-1190, and learning the land subject of the two (2) abovementioned cases (sic), saidplaintiffs filed a Motion for Leave to Admit Amendedand/or Supplemental Complaint.

3. That the said motion was denied by the HonorableCourt, hence, said plaintiffs filed Civil Case No. G-1332,the above-entitled case, with the same cause of action asthat of the proposed Amended and/or Supplemental

Complaint;

4. That the evidences of both parties in Civil Case No. G-1190 and in the above-entitled case are practically andliterally the same;

5. That in view of the foregoing, and in order to avoidduplicity of action by repeatedly presenting the sameact of evidences and same set of witnesses, the partiesmutually agreed as they hereby agree and stipulate that any and all evidences presented under Civil Case No.1190 shall be adopted as evidences for both parties inthe above-entitled case, and upon submission forresolution of Civil Case No. G-1190, the above-entitled

case shall likewise be deemed submitted for resolutionon the basis of the evidence presented in the same CivilCase No. G-1190. 6

On the basis of this joint stipulation of facts, the lower court held that:

. . . the fishpond in question was originally owned byDemetria Lacsa under Original Certificate of Title No.11725. After Demetria Lacsa died her two daughtersAlberta Guevarra and Ambrocia Guevarra with theirrespective husbands Juan Limpin and Damaso Cabaisentered into an extrajudicial partition of the propertiesleft by Demetria Lacsa under the document "TraduccionAl Castellano de la Escritura de Partition Extra-judicial"dated April 7, 1923 (Exhibits "3","3-A" and "3-B")wherein the fishpond in question was adjudicated toAlberta Guevarra and which deed was duly registered inthe Office of the Registry of Deeds of Pampanga asevidenced by the certification of the Deputy Register of Deeds marked as Exhibit "3-C". Aside from the"Traduccion Al Castellano de la Escritura de ParticionExtrajudicial" written in the Spanish language, thespouses Alberta Guevarra and Juan Limpin and thespouses Ambrosia Guevarra and Damaso Cabaisexecuted on April 7, 1923, another deed of partition inthe Pampango dialect marked as Exhibit "3-D" "whereinthe fishpond in question was adjudicated to AlbertaGuevarra. As a consequence, Original Certificate of TitleNo. 794 (Exhibit "4") was issued to spouses AlbertaGuevarra and Juan Limpin. On January 20, 1924, the

spouses Juan Limpin and Alberta Guevarra sold thefishpond in question to Inocencio Songco under thedeed entitled "Escritura de Venta Absoluta" (Exhibits"7" and "7-A") which was duly registered in the Office of the Registry of Deeds of Pampanga as evidenced by thecertification of the Deputy Register of Deeds markedExhibit "7-B". As a result of the sale, Transfer Certificateof Title No. 794 (Exhibit "4") in the name of the spousesAlberta Guevarra and Juan Limpin was cancelled by theOffice of the Registry of Deeds of Pampanga andTransfer Certificate of Title No. 929 was issued toInocencioSongco." 7

The lower court thus held that the fishpond in question belongs to theprivate respondents, having been inherited by them from their deceased

father Inocencio Songco.8

The dispositive portion of the judgment in favor of private respondentsreads:

WHEREFORE, JUDGMENT is hereby rendered

In Civil Case No. G - 1190

(A) Ordering the dismissal of the complaint in Civil CaseNo. G-1190;

In Civil Case No. G-1332

(B) Ordering the dismissal of the complaint in Civil CaseNo. G-1332;

In Both Civil Case No. G-1190 and Civil Case No. G-1332

(C) Ordering the cancellation of Original Certificate of Title No. RO-1038 (11725) in the name of DemetriaLacsa;

(D) Ordering the plaintiffs to restore possession of thefishpond in question located in Bancal, Guagua,Pampanga, to the defendants (sic);

(E) Ordering the plaintiffs to pay jointly and severally,the defendants the sum of Twenty Five Thousand(P25,000.00) Pesos, Philippine Currency, as and formoral damages;

(F) Ordering the plaintiffs to pay jointly and severally,the defendants the sum of Twenty Five Thousand(P25,000.00) Pesos, Philippine Currency, as and forexemplary damages;

(G) Ordering the plaintiffs to pay jointly and severally,the defendants the sum of Ten Thousand (P10,000.00)Pesos, Philippine Currency, as attorney's fees;

(H) Costs against the plaintiffs.

SO ORDERED. 9

Petitioners appealed the above-mentioned decision to the respondent Court of Appeals assigning the following errors allegedly committed by the lowercourt:

I. IN FAILING TO APPRECIATE THE PREPONDERANCEOF EVIDENCE IN FAVOR OF THE PLAINTIFFS-APPELLANTS THAT THE TWO DOCUMENTS (EXHS. 3 &7 AND THEIR SUB-MARKINGS) WERE FORGED AND



45

ABSOLUTELY SIMULATED DOCUMENTS. HENCE, NULLAND VOID;

II. IN HOLDING THAT THERE WAS NO EVIDENCE THATTHE SIGNATURE OF JUAN LIMPIN AND THUMBMARKOF ALBERTA GUEVARRA APPEARING ON THEEXCRITUA DE VENTA ABSOLUTA (EXHS. 7 & 7-A)WERE FORGED;

III. IN APPRECIATING IN FAVOR OF THE APPELLEESTHE DOCUMENTS PRESENTED BY WITNESS JESUSCRUZ WHEN THEIR SOURCES COULD NOT BEACCOUNTED FOR AND THEIR AUTHENTICITY IS INQUESTION;

IV. IN HOLDING THAT INOCENCIO SONGCO, THEPREDECESSOR-IN-INTEREST OF THE APPELLEES WASAN INNOCENT PURCHASER FOR VALUE;

V. IN HOLDING THAT TRANSFER CERTIFICATE OFTITLE NO. 929 WAS ISSUED TO INOCENCIO SONGCO BYTHE REGISTERED TRY OF DEEDS OF PAMPANGA;

VI. IN HOLDING THAT ORIGINAL CERTIFICATE OFTITLE NO. RO-1038 (11725) WAS ISSUED BY THECOURT (CFI-III PAMPANGA) IN EXCESS OF ORWITHOUT JURISDICTION AND THEREFORE NULL ANDVOID;

VII. IN FAILING TO APPRECIATE THAT THEVOLUNTARY ABANDONMENT OF THE FISHPOND IN

QUESTION BY THE APPELLEES WAS A RECOGNITIONOF APPELLANTS' TITLE TO IT;

VIII. IN AWARDING DAMAGES TO THE APPELLEES. 10

The Court of Appeals rendered a decision in the appealed case, thedispositive portion of which reads:

WHEREFORE, the decision appealed from is herebyAFFIRMED with the modification that appellants are not liable for moral and exemplary damages as well asattorney's fees.

SO ORDERED. 11

Petitioners flied a motion for reconsideration with the Court of Appeals but the same was denied in its resolution dated 14 August 1987. 12 Hence, thispetition.

Petitioners assign the following alleged errors to the Court of Appeals:

I. IN APPLYING THE "ANCIENT DOCUMENT RULE" ONTHE QUESTIONED DOCUMENT ENTITLED "ESCRITURADE PARTICION EXTRAJUDICIAL" AND "ESCRITURA DEVENTA ABSOLUTA; AND MARKED DURING THE TRIALAS EXHIBITS "3" AND "7", RESPECTIVELY, FOR THERESPONDENT HEREIN;

II. IN DISREGARDING THE MANDATORYREQUIREMENT OF THE NOTARIAL LAW WHICH TOOKEFFECT AS EARLY AS FEBRUARY 1, 1903;

III. IN DISREGARDING THE RULE ON PROOF OF PUBLICOR OFFICIAL RECORD, (SEC. 25, RULE 132, RULES OFCOURT) 13

Petitioners contend that the Court of Appeals wrongfully applied the "ancient document rule" provided in Sec. 22, Rule 132 of the Rules of Court. 14 Therule states that:

Sec. 22. Evidence of execution not necessary .— Were aprivate writing is more than thirty years old, isproduced from a custody in which it would naturally befound if genuine, and is unblemished by any alterationsor circumstances of suspicion, no other evidence of itsexecution and authenticity need be given.

It is submitted by petitioners that under this rule, for a document to beclassified as an "ancient document", it must not only be at least thirty (30)years old but it must also be found in the proper custody and is unblemishedby alterations and is otherwise free from suspicion. 15 Thus, according topetitioners, exhibits "3" and "7", entitled "Traduccion Al Castellano de laEscritura de Particion Extrajudicial" and "Escritura de Venta Absoluta",

respectively, can not qualify under the foregoing rule, for the reason that since the "first pages" of said documents do not bear the signatures of thealleged parties thereto, this constitutes an indelible blemish that can beget unlimited alterations. 16

We are not persuaded by the contention. Under the "ancient document rule,"for a private ancient document to be exempt from proof of due execution andauthenticity, it is not enough that it be more than thirty (30) years old; it isalso necessary that the following requirements are fulfilled; (1) that it isproduced from a custody in which it would naturally be found if genuine; and(2) that it is unblemished by any alteration or circumstances of suspicion. 17

The first document, Exhibit "3", entitled 'Traduccion Al Castellano de laEscritura de Particion Extrajudicial" was executed on 7 April 1923 whereasthe second document, exhibit "7", entitled "Escritura de Venta Absoluta" was

executed on 20 January 1924. These documents are, therefore, more thanthirty (30) years old. Both copies of the aforementioned documents werecertified as exact copies of the original on file with the Office of the Registerof Deeds of Pampanga, by the Deputy Register of Deeds. There is a furthercertification with regard to the Pampango translation of the document of extrajudicial partition which was issued by the Archives division, Bureau of Records Management of the Department of General Services. 18

Documents which affect real property, in order that they may bind thirdparties, must be recorded with the appropriate Register of Deeds. Thedocuments in question, being certified as copies of originals on file with theRegister of Deeds of Pampanga, can be said to be found in the propercustody. Clearly, therefore, the first two (2) requirements of the "ancient

document rule" were met.As to the last requirement that the document must on its face appear to begenuine, petitioners did not present any conclusive evidence to support theirallegation of falsification of the said documents. They merely alluded to thefact that the lack of signatures on the first two (2) pages could have easily ledto their substitution. We cannot uphold this surmise absent any proof whatsoever. As held in one case, a contract apparently honest and lawful onits face must be treated as such and one who assails the genuineness of suchcontract must present conclusive evidence of falsification. 19

Moreover, the last requirement of the "ancient document rule" that adocument must be unblemished by any alteration or circumstances of suspicion refers to the extrinsic quality of the document itself. The lack of signatures on the first pages, therefore, absent any alterations orcircumstances of suspicion cannot be held to detract from the fact that thedocuments in question, which were certified as copied of the originals on file

with the Register of Deeds of Pampanga, are genuine and free from anyblemish or circumstances of suspicion.

The documents in question are "ancient documents" as envisioned in Sec. 22of Rule 132 of the Rules of Court. Further proof of their due execution andauthenticity is no longer required. Having held that the documents inquestion are private writings which are more than thirty (30) years old,come from the proper repository thereof, and are unblemished by anyalteration or circumstances of suspicion, there is no further need for thesedocuments to fulfill the requirements of the 1903 Notarial Law. Hence, theother contentions of the petitioners that the documents do not fulfill themandatory requirements of the Notarial Law 20 and that the proper personor public official was not presented to testify on his certification of thedocuments in question, 21 need not be resolved as they would no longer serveany purpose.

WHEREFORE, the Petition is DENIED. The appealed decision of the Court of

Appeals is AFFIRMED. Costs against the petitioners.SO ORDERED.

G.R. No. 116149 November 23, 1995

ELVIRA MATO VDA. DE OÑATE, substituted by her heirs MARIA MATO- ALAMEDA, AIDA MATO, ZOE MATO, PACITA MATO and JUAN MATOII, petitioners,vs.THE COURT OF APPEALS and EULALIA M. TAGUBA, respondents.

KAPUNAN, J.:

Petitioners challenge the decision of the trial court, as affirmed byrespondent court, for lack of basis. They argue that the lower court and theCourt of Appeals erred in considering evidence not formally offered byprivate respondent in accordance with the Rules of Court.

The controversy involves Lot No. 1571, a riceland located at Toran, Aparri,Cagayan covered by Transfer Certificate of Title No. T-5168. On January 10,1980, an action for specific performance with damages was filed in the thenCourt of First Instance of Cagayan, Branch II by Eulalia Marcita Taguba in hercapacity as administratrix of the estate of the deceased Leonor Tagubaagainst Elvira Mato Vda. de Oñate.

As the trial court found, the deceased Leonor Taguba bought the subject parcel of land from Elvira Mato Vda. de Oñate sometime in 1976 for aconsideration of P5,000.00 payable in four (4) installments. Accordingly, shepaid P2,250.00 on January 20, 1976, 1 P750.00 on February 23,1976, 2 P1,000.00 on March 20, 1976 3 and P1,000.00 on July 29, 1976. 4 Afterfull payment was made on July 29, 1976, the parties however failed to reducetheir contract in writing. On December 30, 1976, Leonor Taguba died. Theinstant complaint was filed when demand was made upon Elvira Mato Vda.de Oñate to execute a public document of sale in favor of the deceased andher heirs and she refused.

The trial court rejected the petitioners' defense that Elvira Mato Vda. deOñate contracted a verbal loan from Leonor Taguba in the amount of P12,000.00 payable within a period of 4 years with 12% interest. Alsodisbelieved was the allegation that two (2) parcels of land covered by TCTNo. 5167 and TCT No. 5168 (the land in dispute) were mortgaged by ElviraMato Vda. de Oñate to Leonor Taguba as security for the payment of the loanand that only P5,000.00 of the P12,000.00 loan was given by Taguba.

On July 12, 1990, the trial court rendered judgment, the dispositive portionof which reads:

WHEREFORE judgment is hereby rendered as follows:



46

1. Declaring the agreement between the late LeonorTaguba and deceased defendant Elvira Mato Vda. deOñate entered into on 20 January 1976, as a contract of "to sell";

2. Ordering the defendants to execute the properdocument to give effect to the contract within thirty(30) days, otherwise, this Court shall be forced to orderthe cancellation of the certificate of title covering Lot No. 1571 of the Aparri Cadastre, and the Register of Deeds of Cagayan to issue another certificate of title inthe name of the Estate of Leonor Taguba;

3. Ordering the plaintiff to prosecute their money claimsagainst deceased defendant's estate in accordance withSection 21, Rule 3 of the Rules of Court.

Costs de oficio.

SO ORDERED. 5

Petitioners appealed to respondent Court of Appeals faulting the trial court'sfactual findings. They contended that the trial court erred when it tookcognizance of the plaintiff's evidence, particularly Exhibits "F," "F-1," "F-2"and "F-3", which had been marked but never formally submitted in evidenceas required by the Rules of Court. Consequently, it was claimed that the trialcourt erred in relying on the said evidence in deciding for privaterespondents.

On December 13, 1993, respondent court affirmed the decision of the trialcourt. 6 In sustaining the lower court, the respondent court held that Exhibits

"F, "F-1," "F-2" and "F3" though not formally offered, may still be admitted inevidence for having complied with the two (2) requisites for admissionenunciated in our jurisprudence, 7 that is, (1) evidence must be dulyidentified by testimony duly recorded and (2) it must be incorporated in therecords of the case.

A motion for reconsideration of said decision was denied for lack of merit onJune 13, 1994. 8

Hence, the present petition for review. Petitioners ascribe to the respondent court the following errors, to wit:

THE HONORABLE COURT OF APPEALS ERRED IN NOTRULING THAT DOCUMENTS WHICH ARE MARKED ASEXHIBITS BUT NOT FORMALLY OFFERED ARE NOT TOBE CONSIDERED BY THE COURT;

THE HONORABLE COURT OF APPEALS ERRED IN NOT

RULING THAT SINCE THERE WAS NO FIXED PURCHASEPRICE OF THE LAND AGREED UPON BY THE PARTIES,SPECIFIC PERFORMANCE COULD NOT BE AVAILED BYTHE BUYER TO FORCE THE OWNER OF THE LAND TOEXECUTE A DEED OF SALE. 9

Section 35 (now Section 34) of Rule 132 of the Rules of Court provides:

Sec. 35. Offer of evidence. — The court shall consider noevidence which has not been formally offered. Thepurpose for which the evidence is offered must bespecified.

From the foregoing provision, it is clear that for evidence to be considered,the same must be formally offered. Corollarily, the mere fact that a particulardocument is identified and marked as an exhibit does not mean that it hasalready been offered as part of the evidence of a party. In Interpacific Transit,

Inc. v . Aviles,10

we had the occasion to make a distinction betweenidentification of documentary evidence and its formal offer as an exhibit. Wesaid that the first is done in the course of the trial and is accompanied by themarking of the evidence as an exhibit while the second is done only when theparty rests its case and not before. A party, therefore, may opt to formallyoffer his evidence if he believes that it will advance his cause or not to do soat all. In the event he chooses to do the latter, the trial court is not authorizedby the Rules to consider the same.

However, in People v . Napat-a 11 citing People v . Mate, 12 we relaxed theforegoing rule and allowed evidence not formally offered to be admitted andconsidered by the trial court provided the following requirements arepresent,viz .: first, the same must have been duly identified by testimony dulyrecorded and, second, the same must have been incorporated in the recordsof the case.

In the case at bench, we find, as respondent court did, that these requisites

have been satisfied.The evidence in question refers to Exhibits "F," receipt for P2,250.00 datedJanuary 20, 1976; "F-1," receipt for P750.00 dated February 23, 1976, "F-2,"receipt for P1,000.00 dated March 20, 1976; and "F-3," receipt for anotherP1,000.00 dated July 29, 1976, all showing the varying amounts paid byLeonor Taguba to Elvira Mato Vda. de Oñate. These exhibits were marked at the pre-trial for the purpose of identifying them. In fact, the payment of P5,000.00 was admitted by herein petitioners in the same pre-trial. On March5, 1984, Eulalia Marcita Taguba identified the said exhibits in her testimonywhich was duly recorded. She testified as follows:

ATTY. LUCERO:

Q Now, you said that the offer of P5,000.00 selling price acceptedby your sister and that she paidP2,250.00 on January 20, 1976(Exhibit "F") how about thebalance on the consideration?

A The amount of Seven hundredfifty (P750.00) pesos to make it Three thousand (P3,000.00) pesoswas paid on February 23, 1976and the two (2) at One thousandpesos (P1,000.00) were paid on

March 20, 1976 and July 29, 1976,ma'am.

COURT:

Was that admitted by the otherparty?

ATTY. LUCERO:

May we put it on record that theamount of P750.00 was paid byMiss Leonor B. Taguba onFebruary 23, 1976, Your Honor.

COURT:

First receipt is P2,250.00. 13

xxx xxx xxx

ATTY. LUCERO:

The receipt for the amount of TwoThousand two hundred fifty(P2,250.00) pesos be marked asExhibit "F", Your Honor.

COURT:

Mark it as Exhibit "F." 14

ATTY. LUCERO:

May we request Your Honor that the amount of 750.00 receipt bemarked as Exhibit "F-1" dated

February 23, 1976; Exhibit "F-2" isthe receipt for P1,000.00 paid onMarch 20, 1976; all in all, theamount is P5,000.00 includingExhibit "J" or rather Exhibit "F-3"which is the amount of P1,000.00and was paid apparently on July29, 1976 as partial payment forthe parcel of land covered by TCTNo. 5167 (sic),Your Honor.

xxx xxx xxx

COURT:

Q Will you look at Exhibit "F3" andtell the Court if you know thisExhibit and why do you know this?

A This was the receipt prepared bymy sister paid to Elvira M. Vda. deOñate the amount of One thousand(P1,000.00) pesos as the payment of the land she purchased.

Q Why do you say that the samereceipt was prepared by your latesister Leonor Taguba?

A Yes ma'am because I waspresent when she made that receipt. 15

Likewise, extant from the records is the witness' explanation of the contents of each of the said exhibits. Also telling is petitioners'counsel vigorous cross-examination of the said witness whotestified on the exhibits in question. 16

Herein subject exhibits were also incorporated and made part of the recordsof this case. 17

Finally, petitioners' allegation that an action for specific performance cannot be availed of in this case because the parties did not agree on a fixed price islikewise devoid of merit. Private respondent's evidence and testimonyremain unrebutted that the contract price for the parcel of land in question isP5,000.00.

WHEREFORE, finding no reversible error on the part of respondent court, thedecision appealed from is hereby AFFIRMED in toto.

SO ORDERED.



47

G.R. No. 160832 October 27, 2006

THE HEIRS OF EMILIO SANTIOQUE, represented by FELIMON W.SANTIOQUE, petitioners,vs.THE HEIRS OF EMILIO CALMA, CHICO-NAZARIO, JJ. FABIAN CALMA, AGATONA CALMA, and DEMETRIA CALMA, represented by LOPE AKOLand LUCIA CALMA-AKOL, and the REGISTER OF DEEDS OF THEPROVINCE OF TARLAC, respondents.

D E C I S I O N

CALLEJO, SR., J .: This is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 65352 affirming the Decision2 of the RegionalTrial Court (RTC) in Civil Case No. 8634, as well as the Resolution datedNovember 21, 2003 which denied the motion for reconsideration thereof.

On March 31, 1932, the Governor General granted a homestead patent over a20.9740-hectare parcel of land located in Barrio Tibag, Tarlac, Tarlac. On thebasis of said patent, Original Certificate of Title (OCT) No. 1112 was issued bythe Register of Deeds on April 21, 1932. The title was cancelled by TransferCertificate of Title (TCT) No. 13287. On November 27, 1953, TCT No. 13287was cancelled by TCT No. 19181 under the names of Agatona Calma, FabianCalma, Emilio Calma and Demetria Calma.3 On September 23, 1954, theparties executed a contract of lease in favor of the Spouses Lope A. Akol, whothen executed an Assignment of Leasehold Rights under the Contract of Lease in favor of the Rehabilitation Finance Corporation (RFC) on January 26,

1955.4

In the meantime, Fabian Calma died intestate. A petition for theadministration of his estate was filed in the RTC of Tarlac docketed as SpecialProceedings No. 1262. Lucia Calma was appointed as administratrix of theestate. The heirs executed a Deed of Partition over the property on April 17,1967. On September 13, 1967,5 TCT No. 19181 was cancelled by TCT No.71826 in the names of Agatona Calma, Emilio Calma, Demetria Calma andFabian Calma.

Meanwhile, in 1967, a 20.564-ha parcel of land located in Tibag, Tarlac andidentified as Lot No. 3844 of Pat-H-132104 - prt. was declared for taxationpurposes under the name of Emilio Santioque (Tax Dec. No.19675).6 However, the declaration did not bear the name and signature of the declarant.

On June 3, 1973, Santioque died intestate. His children, Felimon, Rose,Filomena, Jose, Josefina, Ana, Rufino, and Avelina, all surnamed Santioque,filed on February 29, 1998, a complaint in the RTC of Tarlac for declaration of nullity of title, reconveyance, with damages, over a piece of land situated inTibag, Tarlac City. The case was docketed as Civil Case No. 8634.

The heirs claimed that on March 31, 1932, Emilio was awarded HomesteadPatent No. 18577 by virtue of Homestead Application No. 132104 over a lot located in Barrio Tibag, Tarlac City; the said lot was identified as Lot No.3844 of the Tarlac Cadastre No. 274, with an area of 20.5464 hectares; OCTNo. 1112 was issued to Emilio on April 21, 1932, and from then had enjoyedfull ownership and dominion over the said lot; and prior to his death, Emilioordered Felimon to work for the recovery of the said property.7 They furtheraverred that when Felimon went to the Register of Deeds of Tarlac for a finalverification, he discovered that the lot covered by OCT No. 1112 was alreadyregistered in the names of Agatona, Fabian, Emilio and Demetria, allsurnamed Calma, under TCT No. 19181 issued on November 27, 1953. It appeared from the said TCT No. 19181 that the title was a transfer from TCT

No. 13287.8

The heirs contended that Emilio was the first registrant of the subject lot and,as such, was its lawful owner. The land could no longer be the subject matterof subsequent cadastral proceedings, and any title issued pursuant theretowould be void. They prayed that judgment be rendered in their favor, asfollows:

WHEREFORE, it is most respectfully prayed that after due noticeand hearing, judgment be rendered ordering the nullification of TCT No. 19181 and TCT No. 13287 of the Register of Deeds of Tarlac and upholding and declaring the existence, legality andvalidity of the Homestead Patent bearing No. 18577 and OCT No.1112 issued in the name of the late Emilio Santioque and –

1. Ordering Defendants to reimburse to the Plaintiffs the income,profits or benefits unjustly derived by them from TCT No. 19181and 13287 the estimation of which is left to the sound discretionof the Honorable Court;

2. Ordering the Defendants to pay to the Plaintiffs the amount of P50,000.00 as attorney’s fees;

3. Cost of suit;

4. Any and all remedies just and equitable under the premises.9

The heirs of Calma filed a motion to dismiss the complaint alleging that (a)the action had prescribed and was barred by laches; (b) the claim has beenabandoned, and (c) the complaint stated no cause of action.10 The court denied the motion. The heirs of Calma filed their answer, reiterating thegrounds and allegations in their motion to dismiss by way of special andaffirmative defenses.11

During trial, Felimon Santioque testified for the plaintiffs. He admitted that they had no copy of OCT No. 1112; the Register of Deeds likewise had norecord of the said title, nor TCT No. 13287.12 He discovered from the saidoffice that the subject lot was covered by TCT No. 19181 with the names of Agatona Calma and her co-heirs as owners.13 The title was, in turn, cancelledand replaced by TCT No. 71286 also in the names of Agatona Calma and herco-heirs.

On cross-examination, Felimon declared that his father, Emilio, mentionedthe property to the plaintiffs sometime before he died in 1973. From that time on, he tried to ascertain the particulars of the property and succeeded in1990 only when he went through the records at the Community Environment and Natural Resources Office (CENRO).14

Felimon declared that, on August 4, 1992, he secured a document from theLands Management Bureau (LMB) stating that on March 1 to 6, 1930, aparcel of land with an area of 209,746 square meters located in Tibag, Tarlac,Tarlac, was surveyed by W. Santiago and approved on February 27,1932.15 However, the document was not certified by the Chief GeodeticEngineer. Neither did the plaintiffs present the employee of the Bureau whoprepared the document to testify on its authenticity.

Felimon admitted that Amando Bangayan, Chief, Records Management Division of the LMB certified that, based on the survey records of CadastralSurvey No. 274 and as indicated in the Area Sheet of Lot 3844, Cad. 274,Emilio Santioque was the claimant of the lot. However, the Bureau had noavailable records of Homestead Application No. 132104 and HomesteadPatent No. 18577 dated March 31, 1932.16 Felino Cortez, Chief, Ordinary andCadastral Decree Division of the Land Registration Authority (LRA), certifiedthat after due verification of the records of the Book of Cadastral Lots, Lot

3844 had been the subject of Cadastral Case No. 61, LRC Cad. Record No.1879; the case had been decided but no final decree of registration had beenissued; and the lot was subject to the annotation "con patent No. 18577 segunreport of B.L."17 The Register of Deeds of Tarlac stated that, on January 25,1998, despite diligent efforts, he could not locate TCT No. 13287 and OCT No.1112 or any other document leading to the issuance of TCT No. 19181. Heexplained that in 1987 and 1988, his office had to be reconstructed, and titlesand documents had to be moved from one place to another.18 The Register of Deeds issued a certification19 dated September 10, 1998 stating that despitediligent efforts, he could not locate OCT No. 1112 or any document showinghow it was cancelled. The Records Officer of the Register of Deeds in TarlacCity also certified that OCT No. 1112 and TCT No. 13287 could not be founddespite diligent efforts.20

After the heirs of Santioque rested their case, the defendants, heirs of Calma,demurred to plaintiffs’ evidence and sought its dismissal on the ground that

the latter failed to establish a preponderance of evidence to support their

ownership over the property.21

On August 11, 1999, the trial court issued an Orde r22 granting the demurrerand dismissing the complaint on the ground that plaintiffs failed to establishtheir case.

The heirs of Santioque appealed said order to the CA claiming that

I

THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFFS-APPELLANTS FAILED TO PROVE THAT ORIGINAL CERTIFICATEOF TITLE NO. 1112 WAS ISSUED IN THE NAME OF EMILIOSANTIOQUE, THE PLAINTIFFS’ PREDECESSOR-IN-INTEREST,DESPITE THE FACT THAT SUFFICIENT, ADEQUATE ANDCONVINCING EVIDENCE HAVE BEEN PRESENTED TO PROVETHAT SAID OCT 1112 WAS ISSUED IN THE NAME OF EMILIOSANTIOQUE.

II

THE TRIAL COURT ERRED IN RESORTING TO SPECULATIONS,SURMISES AND CONJECTURES WHEN IT RULED THAT OCT 1112COULD HAVE BEEN ISSUED TO ANOTHER PERSON OTHER THANTHE LATE EMILIO SANTIOQUE.

III

THE TRIAL COURT ALSO RESORTED TO SPECULATIONS,SURMISES AND CONJECTURES WHEN IT HELD THAT THERE WASNO EVIDENCE TO PROVE THAT PATENT NO. 18577 WAS ISSUEDTO EMILIO SANTIOQUE, THUS DISREGARDING THE COMPETENTAND SUFFICIENT EVIDENCE ADDUCED BY PLAINTIFFS-APPELLANTS TO PROVE THAT SAID PATENT WAS ISSUED TOEMILIO SANTIOQUE.

IV

THE TRIAL COURT ERRED IN HOLDING THAT TCT NO. 19181ISSUED TO DEFENDANTS-APPELLEES WAS PRESUMED TO HAVEBEEN ISSUED IN THE ORDINARY COURSE OF BUSINESS WHEN INFACT ITS ISSUANCE IS PLAINLY FRAUDULENT AND EVIDENTLYANOMALOUS.

V

THE TRIAL COURT ERRED IN SWEEPINGLY CONCLUDING THATDEFENDANTS-APPELLEES HAVE ACQUIRED THE SUBJECTPROPERTY BY ACQUISITIVE PRESCRIPTION AND IN RULINGTHAT PLAINTIFFS-APPELLANTS HAVE SLEPT ON THEIR RIGHTFOR MANY YEARS AND THAT THEY HAVE CONSTRUCTIVE

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NOTICE OF THE ISSUANCE OF DEFENDANTS-APPELLEES’ TITLE,

THUS THEY ARE ESTOPPED BY LACHES.

VI

THE TRIAL COURT ERRED IN REFUSING WITHOUT VALID CAUSETO ISSUE SUBPOENA DUCES TECUM AND AD TESTIFICANDUM TOTHE REGISTER OF DEEDS OF TARLAC AND THE LANDREGISTRATION AUTHORITY IN ORDER TO SHED LIGHT ON THEWHEREABOUTS OF OCT 1112 AND THE ISSUANCE OF TCT NOS.13287, 19181 AND 71826.23

On August 30, 2000, Felimon Santioque wrote to the Director of the NationalBureau of Investigation (NBI), Federico Opinion, Jr., requesting for his

assistance in "investigating the disappearance" of the copy of the Registrar of Deeds of Tarlac of OCT No. 1112 and TCT No. 13287.24Attached to the saidletter were the following certifications and investigation reports of the LRA:

1. Xerox copy of TCT No. 71826 dated September 13, 1967 underthe names of Agatona Calma, Emilio Calma, Dorotea Calma andLucia Calma.25

2. Certified xerox copy Tax Declaration No. 22116 in the name of Agatona Calma, et al;26

3. Certified xerox copy of Tax Declaration No. 39766 in the nameof Agatona Calma, et al;27

4. Certified xerox copy of Tax Declaration No. 35226 in the namesof Agatona Calma, et al;28

5. Certified xerox copy of the Investigation Report of Mr. Felix

Cabrera Investigator, Land Registration Authority, datedSeptember 30, 1999, finding that there are no documents in theRegistry supporting the cancellation of OCT 1112 and the issuanceof TCT Nos. 13287, and that TCT No. 71826 is irregularly issuedinasmuch as no transaction which would justify its issuanceappears in the Primary Entry Book;29

6. Certification of Mr. Andres B. Obiena, Records Officer I of theRegister of Deeds of Tarlac, Tarlac, dated April 5, 1999, that OCTNo. 1112 could not be located in the archives;30

7. Certification of Mr. Meliton I. Vicente, Jr., CommunityEnvironment and Natural Resources Officer of the DENR, RegionIII, that Lot No. 3844 is already covered by Homestead ApplicationNo. 132104 with Patent No. 1877 issued to Emilio Santioque onMarch 31, 1932;31

8. Certified xerox copy of Record Book Page 383 signed by FloridaS. Quiaoit, Records Management Unit, CENRO III-6, Tarlac City,showing that Emilio Santioque is a claimant of Lot No. 3844 underHomestead Application No. HA-132104 and Patent No. 1877;32

9. Certified xerox copy of Area Sheet over Lot 3844 prepared forEmilio Santioque, certified by Emilanda M. David, Record Officer 1,DENRO, San Fernando, Pampanga dated February 29, 2000;33

10. Certified xerox copy of Case No. 6, Cad Record No. I, showingthat Emilio Santioque was the claimant of Lot No. 3844, under Pat-H-132104 Part .34

The heirs of Santioque did not present the said documents at the trial belowbut they included the same in their appellants’ brief.

Without waiting for the report of the NBI on their request, the heirs of Santioque filed a motion with the CA for the early resolution of the case .35On

June 27, 2003, the CA affirmed the appealed decision.36 The appellate court did not give probative weight to the certifications and other documentssubmitted by the heirs of Santioque, as their authenticity had not beenestablished and the signatories therein were not presented for cross-examination. It noted that none of the "crucial documents" were presented inthe trial court. Assuming that OCT No. 1112 was indeed issued to EmilioSantioque, the claim of his heirs was nevertheless barred by laches; the lattermust bear the consequences of their father’s inaction.

The heirs of Santioque filed a motion for reconsideration, which the CAresolved to deny on November 21, 2003.37

The heirs of Santioque, now petitioners, seek relief from this Court on thefollowing issues:

I.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED

IN NOT GIVING CREDENCE TO THE CERTIFICATIONS,DOCUMENTS, RECORDS AND PICTURES SUBMITTED BYPETITIONER BEFORE THE SAID COURT ON THE GROUND THATTHEY WERE NOT SUBMITTED IN EVIDENCE AT THE TRIAL ANDTHAT THEIR AUTHENTICITY HAS NOT BEEN ESTABLISHED,DESPITE THE FACT THAT PETITIONERS’ FAILURE TO SUBMIT

THE SAME AS EVIDENCE BEFORE THE TRIAL COURT AND TOESTABLISH THEIR AUTHENTICITY WAS DUE TO THEPREMATURE AND UNJUSTIFIED DISMISSAL OF THEIRCOMPLAINT, WHICH WAS TANTAMOUNT TO DENIAL OF THEIRRIGHT TO BE HEARD AND TO DUE PROCESS.

II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDINGTHAT DESPITE PETITIONERS’ FAILURE TO PRESENT THEIR

ORIGINAL CERTIFICATE OF TITLE, OCT NO. 1112, SUFFICIENTAND CONVINCING EVIDENCE WERE ADDUCED BY PETITIONERSTO PROVE THAT SAID TITLE WAS ISSUED TO THEIRPREDECESSOR-IN-INTEREST, EMILIO SANTIOQUE. ON THEOTHER HAND, SINCE PETITIONERS’ COMPLAINT WAS DISMISSED

BY THE TRIAL COURT ON RESPONDENTS’ DEMURRER TO

EVIDENCE, THE RESPONDENTS FAILED EITHER (1) TOCONTROVERT THE EVIDENCE ADDUCED BY PETITIONERS INSUPPORT OF THEIR CLAIM OVER THE SUBJECT PROPERTY ORTHEIR PRETENSION OF FACTS.

III.THE HONORABLE COURT OF APPEALS GRAVELYMISAPPREHENDED THE FACTS OF THE CASE WHEN IT HELDTHAT RESPONDENTS ARE IN ACTUAL POSSESSION OF THESUBJECT PROPERTY, DESPITE CLEAR ABSENCE OF EVIDENCE BYRESPONDENTS TO SUPPORT THEIR CLAIM OF POSSESSION ANDAS EVIDENCED BY THE PICTURES SUBMITTED BY PETITIONERS.

IV.

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THATPETITIONERS DID NOTHING TO RECOVER THEIR CERTIFICATEOF TITLE, OCT NO. 1112, IN A DIRECT ACTION IF INDEED SAIDOCT NO. 1112 WAS ISSUED TO EMILIO SANTIOQUE ANDINVALIDLY CANCELLED AND REPLACED WITH TCT NO. 13287 INTHE NAME OF RESPONDENTS, AND THAT THE PETITIONERSSHOULD BEAR THE CONSEQUENCES OF THEIR FATHER EMILIOSANTIOQUE’S INACTION, DESPITE THE FACT THAT PETITIONERS

HAVE BEEN VIGILANT OF THEIR RIGHTS AND, HENCE,PRESCRIPTION AND LACHES DO NOT BAR PETITIONERS’

COMPLAINT.

V.

WHETHER OR NOT REMAND OF THE INSTANT CASE TO THELOWER COURT IS PROPER, INSTEAD OF A DECISION ON THEMERITS.38

Petitioners contend that the appellate court erred in not giving credence tothe certifications, records, documents and pictures they attached to theirappellants’ brief. They aver that they had not yet discovered the said

documents when they presented their evidence at the trial court; hence, theycould have presented the documents and their affiants during the rebuttalstage of the proceedings had the trial court not prematurely aborted the

proceedings before it. They insist that they were denied their right to dueprocess when the trial court granted respondents’ demurrer to evidence anddismissed the case.39

Petitioners aver that they have clearly shown and proven their claim over theproperty, particularly through Tax Dec. No. 19675 and the contents of theRecord Book. They posit that judicial notice should be taken that taxdeclarations are usually issued in the name of the prospective owner upon ashowing of the basis of ownership. On the other hand, respondents have nofactual and evidentiary basis to support their claim over the subject propertysince they have not adduced before the trial court any documentary andtestimonial evidence to support ownership of the property. Petitionersfurther contend that they have clearly shown, through the pictures theysubmitted before the appellate court, that respondents have not been inactual possession of the property; hence, it cannot be presumed that respondents, as registered owners, are likewise in possession of the subject property.40

Petitioners aver that prescription and laches do not bar their complaint sincethey have been vigilant in protecting their rights. They contend that Emiliowas old and sickly and died at an old age. Laches presupposes negligence,and neither Emilio nor his successors were negligent in protecting theirrights over the subject property. It took sometime before they could lodge acomplaint against respondents because they had to make inquiries first andretrieve documents from different offices to support their claim.41

For their part, respondents aver that there were no indicia of proof that OCTNo.1112 was really issued to Emilio. The evidence proffered by thepetitioners only tends to prove that Emilio was a mere claimant. It is not incumbent upon the respondents to present any proof that they are theowners of the subject lot because the property is registered in their name.The mere fact that the records are not available would not ipso factomeanthat the transactions made affecting OCT No. 1112 were irregular.42

Respondents further aver that the appellate court was correct in not givingcredence to the documents, which were not submitted during the trial eventhough they were obtainable at that time. To allow the introduction of thesedocuments on appeal would violate the essence of due process as therespondents would not be able to interpose objections to their admissibility.Even if these documents were admitted, they would not help petitioners’

case since they would still not prove that Emilio’s claim ripened into fullownership. Respondents likewise agree with the finding of the appellatecourt that the complaint is already barred by prescription and laches.43

The petition is without merit.





















































































49

The core issues in this case are: (1) whether the trial court erred in grantingthe demurrer to evidence of respondents, and (2) whether petitioners’ claim

is barred by prescription and laches.

On the first issue, the Court holds that CA ruling which affirmed that of theRTC granting the demurrer is correct.

Demurrer to evidence authorizes a judgment on the merits of the casewithout the defendant having to submit evidence on his part as he wouldordinarily have to do, if it is shown by plaintiff’s evidence that the latter is not

entitled to the relief sought. The demurrer, therefore, is an aid or instrument for the expeditious termination of an action, similar to a motion to dismiss,which a court or tribunal may either grant or deny.44

A demurrer to evidence may be issued when, upon the facts and the law, theplaintiff has shown no right to relief .45 Where the plaintiff’s evidence

together with such inferences and conclusions as may reasonably be drawntherefrom does not warrant recovery against the defendant, a demurrer toevidence should be sustained.46 A demurrer to evidence is likewisesustainable when, admitting every proven fact favorable to the plaintiff andindulging in his favor all conclusions fairly and reasonably inferabletherefrom, the plaintiff has failed to make out one or more of the materialelements of his case,47 or when there is no evidence to support an allegationnecessary to his claim.48 It should be sustained where the plaintiff’s evidence

is prima facie insufficient for a recovery.49

Petitioners, as plaintiffs below, were obliged to prove their claim in theircomplaint that their father, Emilio, applied for and was granted HomesteadPatent No. 18577, and that OCT No. 1112 was issued by the Register of Deedsin his name on the basis of said patent. Petitioners had the burden of proof topresent evidence on the fact in issue to establish their claim by their ownevidence required by law.50 More so, where, as in this case, on the face of TCTNo. 19181 under the names of the respondents, it was derived from TCT No.13287, which in turn cancelled OCT No. 1112 issued on April 21, 1932 on thebasis of a homestead patent. It must be stressed that the original certificate of title carries a strong presumption that the provisions of law governing theregistration of land have been complied with. The OCT enjoys a presumptionof validity. Once the title is registered, the owners can rest secure on theirownership and possession.51 Once a homestead patent granted in accordancewith law is registered, the certificate of title issued in virtue of said patent has the force and effect of a Torrens title issued under the land registrationlaw.52

In the present case, petitioners failed to prove the material allegations intheir complaint that Emilio Santioque applied for and was granted Patent No.18577 and that OCT No. 1112 was issued on the basis thereof. We quote withapproval the ruling of the RTC:

The plaintiffs failed to prove that OCT [N]o. 1112 was issued in thename of Emilio Santioque. It was issued all right, but there is noevidence it was in the name of Emilio Santioque. OCT [N]o. 1112could have been in the name of another person. Exhibit "B" merelyshows that Emilio Santioque is a survey claimant.

Exhibit "A" contradicted all these claims of plaintiffs. It is statedtherein that Lot No. 3844 of Tarlac Cadastre, Cadastral Case [N]o.61, L.R.C. Record No. 1879 was previously decided but no finaldecree of registration has yet issued thereon. Hence, there wasalready a decision by the cadastral court. In whose favor the landwas awarded is a mystery up to the date.

There is also no evidence that [P]atent [N]o. 18577 was issued toEmilio Santioque. In fact, there is no available record to prove that [P]atent [N]o. 18577 was in the name of Emilio Santioque. (Exhibit "B-1") It is safe to assume that the decision of the cadastral Court awarded the land to a person who was also the awardee of [P]atent [N]o. 18577, because of the entry "said lot is subject toannotation quote: "con patent no. 18577 segun report of the B.L."", this being the very reason why no decree of registration wasissued pursuant to the cadastral proceeding.53

Petitioners even failed to present Homestead Application No. 132104allegedly filed by Emilio with the Bureau of Lands. In fact, as evidenced bythe Certification of the LMB, it had no record of said application and patent.The records of the LMB relative to Cadastral Case No. 61 and LRC Cad.Record No. 1879 were, likewise, not presented.

It should be noted that, under Section 14 of Commonwealth Act 141, ThePublic Land Act, there are certain requirements that a homestead applicant should comply with before a patent could be issued to him, thus:

SECTION 14. No certificate shall be given or patent issued for the

land applied for until at least one-fifth of the land has beenimproved and cultivated. The period within which the land shallbe cultivated shall not be less than one nor more than five years,from the date of the approval of the application. The applicant shall, within the said period, notify the Director of Lands as soonas he is ready to acquire the title. If at the date of such notice, theapplicant shall prove to the satisfaction of the Director of Lands,that he has resided continuously for at least one year in themunicipality in which the land is located, or in a municipalityadjacent to the same, and has cultivated at least one-fifth of theland continuously since the approval of the application, and shallmake affidavit that no part of said land has been alienated orencumbered, and that he has complied with all the requirements

of this Act, then, upon the payment of five pesos, as final fee, heshall be entitled to a patent.

Petitioners failed to present competent and credible evidence that EmilioCalma complied with the aforesaid requirements before his death.

Petitioners rely on Tax Dec. No. 19675 to substantiate their claim over thesubject property. However, it is axiomatic that tax receipts and taxdeclarations of ownership for taxation purposes do not constitute sufficient proof of ownership. They must be supported by other effective proofs.54

The appellate court was also correct in not giving credence to thecertifications which petitioners submitted before it on the ground that thesaid documents were not presented in the trial court. Petitioners, thus, failed

to prove the authenticity of said documents because they failed to present the government officials who certified the same.

It is well settled that courts will consider as evidence only that which hasbeen formally offered,55 otherwise, the opposing party would be denied dueprocess of law.56 Thus, the Court explained in one case that –

A formal offer is necessary since judges are required to base theirfindings of fact and judgment only—and strictly—upon theevidence offered by the parties at the trial. To allow a party toattach any document to his pleading and then expect the court toconsider it as evidence may draw unwarranted consequences. Theopposing party will be deprived of his chance to examine thedocument and object to its admissibility. The appellate court willhave difficulty reviewing documents not previously scrutinized bythe court below.57

Petitioners, however, contend that they could have presented the saiddocuments during the rebuttal stage of the proceedings before the trial court.It bears stressing, however, that a plaintiff is bound to introduce all evidencethat supports his case during the presentation of his evidence in chief .58 Aparty holding the affirmative of an issue is bound to present all of theevidence on the case in chief before the close of the proof, and may not add toit by the device of rebuttal.59 After the parties have produced their respectivedirect proofs, they are allowed to offer rebutting evidence only.60

Generally, rebuttal evidence is confined to that which explains, disproves, orcounteracts evidence introduced by the adverse party. It is not intended togive a party an opportunity to tell his story twice or to present evidence that was proper in the case in chief . 61 However, the court for good reasons, in thefurtherance of justice, may permit them to offer evidence upon their originalcase, and its ruling will not be disturbed in the appellate court where noabuse of discretion appears. This is usually allowed when the evidence isnewly discovered, or where it has been omitted through inadvertence or

mistake, or where the purpose of the evidence is to correct evidencepreviously offered.62

It is true that petitioners failed to adduce rebuttal evidence becauserespondents filed a Demurrer to Evidence. However, petitioners should havefiled a motion for new trial based on newly-discovered evidence under Rule37, Section 2 of the 1997 Rules of Civil Procedure after the trial court grantedthe demurrer and dismissed the complaint.

Petitioners aver that the documents they submitted on appeal were not yet discovered during the presentation of their evidence before the trialcourt .63 Assuming this claim to be true, the Court notes however, that petitioners nevertheless failed to establish that they could not, withreasonable diligence, have discovered and produced the documents at thetrial, and prove that such documents would probably alter the result, if presented. The documents belatedly submitted by petitioners on appeal canhardly be considered "newly discovered" since they are public records.

Petitioners could have earlier secured copies thereof during trial. Moreover,a perusal of these documents reveals that even i f admitted, they would not, inany way, bolster petitioners’ case, or remedy the vacuum in their evidence-in-chief.

Further, we agree with the appellate court that petitioners’ complaint is

barred by prescription and laches. An action for reconveyance prescribes inten years, the point of reference being the date of registration of the deed orthe date of issuance of the certificate of title over the property.64Even if wereckon the prescription period from TCT No. 19181 issued on November 27,1953, the only title verified to be in the name of respondents, more than tenyears have already elapsed since then until the time the petitioners filed theircomplaint on February 29, 1998. An action for reconveyance isimprescriptible only when the plaintiff is in actual possession of theproperty.65 In the present case, there is no showing that petitioners were inactual possession of the subject property.

In any event, petitioners’ cause of action is likewise barred by laches. Theessence of laches or "stale demands" is the failure or neglect for anunreasonable and unexplained length of time to do that which, by exercisingdue diligence, could or should have been done earlier, thus giving rise to thepresumption that the party entitled to assert it either has abandoned ordeclined to assert it .66 Petitioners’ right of action had long been barred by

laches during the lifetime of their father, their predecessor in interest;petitioners must necessarily bear the consequences of their pred ecessor’s

inaction. We quote, with approval, the following ruling of the CA:

The trial court further held that "There is also no evidence that patent No. 18577 was issued to Emilio Santioque. In fact, there isno available record to prove that patent No. 18577 was in thename of Emilio Santioque. (Exhibit "B-1")." We add that nowhere































































































50

in the certificates of title presented by appellants is the source of OCT No. 1112 indicated as Homestead Patent No. 18577.

Even assuming that appellants’ constructive notice of another titleover Lot No. 3844 could be reckoned only from 1953 when TCTNo. 19181 was issued to replace TCT No. 13287, still appellantsand their predecessors-in-interest waited 45 years before bringingthe action below. Meanwhile, Lot No. 3844 became the subject of various litigations among appellees and with third parties, as wellas several transactions, such as the contract of lease betweenEmilio Calma’s heirs and spouses Lope A. Akol from 1954-1964(Entry No. 46563); the Assignment of Leasehold rights toRehabilitation Finance Corporation, 1955 (Entry No. 53205); the

Termination of Lease (Entry No. 1-7584; the Partial Release of Leasehold (Entry No. 65888). No proof was submitted in the court below to belie the actual possession of the subject lot by theappellees, who as the registered owners are also presumed to bein possession of the same.

While the indefeasibility of the Torrens title of appellees can beclaimed only if a previous valid title to the same parcel does not exist (Register of Deeds vs. Philippine National Bank , 13 SCRA 46),appellants have failed to establish that OCT No. 1112 was issued intheir father’s name and was later invalidly cancelled in 1947 and

replaced with TCT No. 13287. Only in 1998 was an action brought to directly question the validity of TCT No. 13287. The principle of laches has indeed come into play. Laches or stale demand is basedupon grounds of public policy which requires for the peace of society the discouragement of stale actions, and unlike the statuteof limitations is not a mere question of time but primarily a

question of the inequality or unfairness of permitting a right orclaim to be enforced or asserted (Pangilinan vs. Court of Appeals,279 SCRA 590). In Agne vs. Director of Lands, 181 SCRA 793, 809[1990], it was held that the failure of the registered owners toassert their claim over the disputed property for almost thirty (30)years constituted laches.

The question of laches is addressed to the sound discretion of thecourt. Laches being an equitable doctrine, its application iscontrolled by equitable considerations, although the better rule isthat courts under the principle of equity will not be guided orbound strictly by the statute of limitations or doctrine of lacheswhen to do so would result in manifest wrong or injusticed result (Santiago vs. Court of Appeals, 278 SCRA 98).

We are aware of rulings to the effect that even if the defendantshave been in actual possession of the property for more than ten

(10) years, the registered title of plaintiffs over the propertycannot be lost by prescription or laches (Board of Liquidators vs.Roxas, 179 SCRA 809); or that an action by the registered owner torecover possession based on a Torrens title is not barred by laches(Dablo vs. Court of Appeals, 226 SCRA 621). However, the lachescommitted by the appellants pertained to the establishment of their very title itself. Only after they have recovered their titlecould they then have standing to question the title of theappellants and recover possession of the subject lot. Besides, it hasbeen held that an action for reconveyance or quieting of titleinstituted only after thirty (30) years could be barred by laches(City Government of Danao vs. Monteverde Consunji , 358 SCRA107). This being so, all the more should an action to recover title,filed after 45 years, be barred by laches where the complainant’s

title is itself clearly doubtful.67

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.The Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 65352are AFFIRMED. Cost against the petitioners.

SO ORDERED.

G.R. No. 177797 December 4, 2008

SPS. PEDRO TAN and NENA ACERO TAN, petitioner,vs.REPUBLIC OF THE PHILIPPINES, respondent.

D E C I S I O N

CHICO-NAZARIO, J.:

This case is a Petition for Review on Certiorari under Rule 45 of the 1997Revised Rules of Civil Procedure seeking to reverse and set aside theDecision1 dated 28 February 2006 and Resolution2 dated 12 April 2007 of the Court of Appeals in CA-G.R. CV No. 71534. In its assailed Decision, theappellate court reversed and set aside the Decision3 dated 9 May 2001 of theRegional Trial Court (RTC) of Misamis Oriental, 10 th Judicial Region, Branch39, Cagayan de Oro City, in LRC Case No. N-2000-055, and ordered hereinpetitioners, spouses Pedro and Nena Tan (spouses Tan), to return the parcelof land known as Lot 1794, Ap-10-002707, Pls-923, with an area of 215,698square meters, located in Calingagan, Villanueva, Misamis Oriental (subject property) to herein respondent, Republic of the Philippines (Republic). In its

assailed Resolution, the appellate court denied the spouses Tan’s Motion for

Reconsideration.

The factual milieu of this case is as follows:

The spouses Tan were natural-born Filipino citizens, who became Australiancitizens on 9 February 1984.4 They seek to have the subject propertyregistered in their names.

The subject property was declared alienable and disposable on 31 December1925, as established by a Certification5 dated 14 August 2000 issued by theDepartment of Environment and Natural Resources (DENR), CommunityEnvironment and Natural Resources Office (CENRO), Cagayan de Oro City.

Prior to the spouses Tan, the subject property was in the possession of Lucioand Juanito Neri and their respective spouses. Lucio and Juanito Neri haddeclared the subject property for taxation purposes in their names under TaxDeclarations No. 8035 (1952),6 No. 15247 and No. 1523 (1955).8

The spouses Tan acquired the subject property from Lucio and Juanito Neriand their spouses by virtue of a duly notarized Deed of Sale of UnregisteredReal Estate Propert y9 dated 26 June 1970. The spouses Tan took immediatepossession of the subject property on which they planted rubber, gemelina,and other fruit-bearing trees. They declared the subject property for taxationpurposes in their names, as evidenced by Tax Declarations No.501210 (1971); No. 11155,11 No. 10599,12 No. 1059813 (1974); No.1170414 (1976); No. 0122415 (1980); No. 0631616 (1983); and No.94300017 (2000); and paid realty taxes thereon.

However, a certain Patermateo Casiño (Casiño) claimed a portion of thesubject property, prompting the spouses Tan to file a Complaint for Quieting

of Title against him before the RTC of Cagayan de Oro City, Branch 24, whereit was docketed as Civil Case No. 88-204. On 29 August 1989, the RTCrendered a Decision18 in Civil Case No. 88-204 favoring the spouses Tan anddeclaring their title to the subject property thus "quieted." Casiño appealedthe said RTC Decision to the Court of Appeals where it was docketed as CA-G.R. CV No. 26225. In a Resolution19dated 15 November 1990, the appellatecourt dismissed CA-G.R. CV No. 26225 for lack of interest to prosecute.Casiño elevated his case to this Court via a Petition for Review on Certiorari,docketed as UDK-10332. In a Resolution20 dated 13 March 1991 in UDK-10332, the Court denied Casiño’s Petition for being insufficient in form and

substance. The said Resolution became final and executory on 3 June 1991.21

Refusing to give up, Casiño filed an Application for Free Patent on the subject property before the Bureau of Lands.22 On 8 December 1999, Casiño’s

application was ordered cancelled23 by Officer Ruth G. Sabijon of DENR-CENRO, Cagayan de Oro City, upon the request of herein petitioner PedroTan, the declared owner of the subject property pursuant to the 29 August

1989 Decision of the RTC in Civil Case No. 88-204. Similarly, survey plan Csd-10-002779 prepared in the name of Casiño was also ordered cancelled24 bythe Office of the Regional Executive Director, DENR, Region X, Macabalan,Cagayan de Oro City.

In 2000, the spouses Tan filed their Application for Registration of Titl e25 tothe subject property before the RTC of Cagayan de Oro City, Branch 39,where it was docketed as LRC Case No. N-2000-055. The application of thespouses Tan invoked the provisions of Act No. 49 626 and/or Section 48 of Commonwealth Act No. 141,27 as amended. In compliance with therequest 28 of the Land Registration Authority (LRA) dated 29 August 2000, thespouses Tan filed on 5 October 2000 an Amended Application forRegistration of Title29 to the subject property.

The Office of the Solicitor General (OSG) entered its appearance in LRC CaseNo. N-2000-055 on behalf of the Republic, but failed to submit a writtenopposition to the application of the spouses Tan.

When no opposition to the application of the spouses Tan was filed by thetime of the initial hearing of LRC Case No. N-2000-055, the RTC issued on 23April 2001 an order of general default, except as against the Republic.Thereafter, the spouses Tan were allowed to present their evidence ex-parte.

After the establishment of the jurisdictional facts, the RTC heard thetestimony of John B. Acero (Acero), nephew and lone witness of the spousesTan. Acero recounted the facts already presented above and affirmed that thespouses Tan’s possession of the subject property had been open, public,

adverse and continuous.30

After Acero’s testimony, the spouses Tan already made a formal offer of

evidence, which was admitted by the court a quo.31

On 9 May 2001, the RTC rendered a Decision in LRC Case No. N-2000-055granting the application of the spouses Tan, the dispositive portion of whichreads:

WHEREFORE, [Spouses Tan] having conclusively established tothe satisfaction of this Court their ownership of the [subject property], Lot 1794, Pls-923, situated in Villanueva, MisamisOriental, should be as it is hereby adjudicated to the [Spouses Tan]with address at #166 Capistrano Street, Cagayan de Oro City.

Once this judgment becomes final, let the Order for the issuance of decree and corresponding Certificate of Title issue in accordancewith Presidential Decree No. 1529, as amended.32

In its appeal of the afore-mentioned RTC Decision to the Court of Appeals,docketed as CA-G.R. CV No. 71534, the Republic made the followingassignment of errors:




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I. The trial court erred in ruling that [herein petitioners SpousesTan] and their predecessors-in-interest have been in open,continuous and notorious possession of subject property for theperiod required by law.

II. The trial court erred in granting the application for landregistration despite the fact that there is a disparity between thearea as stated in [the Spouses Tan’s] application and the tax

declarations of Juanito Neri, Lucio Neri, and [herein petitionerPedro Tan].

III. The trial court erred in granting the application for landregistration despite the fact that [the Spouses Tan] failed topresent the original tracing cloth plan.

IV. The trial court erred in relying on the Decision dated [29August 1989] by the RTC-Branch 24, Cagayan de Oro City whichdeclared [the Spouses Tan’s] "title" on the subject [property]

"quieted."

V. The trial court erred in not finding that [the Spouses Tan] failedto overcome the presumption that all lands form part of the publicdomain.33

On 28 February 2006, the Court of Appeals rendered a Decision in CA-G.R. CVNo. 71534 granting the appeal of the Republic, and reversing and settingaside the 9 May 2001 Decision of the RTC on the ground that the spouses Tanfailed to comply with Section 48(b) of Commonwealth Act No. 141, otherwiseknown as the Public Land Act, as amended by Presidential Decree No. 1073,which requires possession of the subject property to start on or prior to 12June 1945.34 Hence, the appellate court ordered the spouses Tan to return

the subject property to the Republic.

The spouses Tan filed a Motion for Reconsideration of the foregoing Decisionof the Court of Appeals. To refute the finding of the appellate court that theyand their predecessors-in-interest did not possess the subject property by 12June 1945 or earlier, the spouses Tan attached to their Motion a copy of TaxDeclaration No. 4627covering the subject property issued in 1948 in thename of their predecessor-in-interest, Lucio Neri. They called attention to thestatement in Tax Declaration No. 4627 that it cancelled Tax Declaration No.2948. Unfortunately, no copy of Tax Declaration No. 2948 was available evenin the Office of the Archive of the Province of Misamis Oriental. The spousesTan asserted that judicial notice may be taken of the fact that landassessment is revised by the government every four years; and since TaxDeclaration No. 4627 was issued in the year 1948, it can be presupposed that Tax Declaration No. 2948 was issued in the year 1944.

The Court of Appeals denied the Motion for Reconsideration of the spouses

Tan in a Resolution dated 12 April 2007.

The spouses Tan now come before this Court raising the sole issue of whether or not [the Spouses Tan] have been in open, continuous, exclusive and notorious possession and occupation of the subject [property], under a bona f ide claim of acquisition or ownership, since [12 June 1945], or earlier, immediately preceding the filing of the application for confirmation of title.35

The Court rules in the negative and, thus, finds the present Petition devoid of merit.

To recall, the spouses Tan filed before the RTC their Application forRegistration of Title to the subject property in the year 2000 generallyinvoking the provisions of Act No. 496 and/or Section 48 of CommonwealthAct No. 141, as amended.

The Public Land Act,36 as amended by Presidential Decree No.1073,37 governs lands of the public domain, except timber and mineral lands,friar lands, and privately owned lands which reverted to the State.38 It explicitly enumerates the means by which public lands may be disposed of, towit:

(1) For homestead settlement;

(2) By sale;

(3) By lease; and

(4) By confirmation of imperfect or incomplete titles;

(a) By judicial legalization.

(b) By administrative legalization (free patent).39

Each mode of disposition is appropriately covered by separate chapters of the Public Land Act because there are specific requirements and application

procedure for every mode.40

Since the spouses Tan filed their applicationbefore the RTC, then it can be reasonably inferred that they are seekingthe judicial confirmation or legalization of their imperfect orincomplete title over the subject property.

Judicial confirmation or legalization of imperfect or incomplete title to land,not exceeding 144 hectares, may be availed of by persons identified underSection 48 of the Public Land Act, as amended by Presidential Decree No.1073,41 which reads –

Section 48. The following-described citizens of the Philippines,occupying lands of the public domain or claiming to own any suchlands or an interest therein, but whose titles have not beenperfected or completed, may apply to the Court of First Instance of the province where the land is located for confirmation of their

claims and the issuance of a certificate of title thereafter, under theLand Registration Act, to wit:

(a) [Repealed by Presidential Decree No. 1073].

(b) Those who by themselves or through theirpredecessors-ininterest have been in open,continuous, exclusive, and notorious possession andoccupation of agricultural lands of the publicdomain, under a bona fide claim of acquisition of ownership, since June 12, 1945, or earlier,immediately preceding the filing of the applicationfor confirmation of title, except when prevented bywar or force majeure. These shall be conclusivelypresumed to have performed all the conditionsessential to a Government grant and shall be entitled toa certificate of title under the provisions of this chapter.

(c) Members of the national cultural minorities who bythemselves or through their predecessors-in-interest have been in open, continuous, exclusive and notoriouspossession and occupation of lands of the public domainsuitable to agriculture whether disposable or not, undera bona fide claim of ownership since June 12, 1945 shallbe entitled to the rights granted in subsection (b)hereof. (Emphasis supplied.)

Not being members of any national cultural minorities, spouses Tan may onlybe entitled to judicial confirmation or legalization of their imperfect orincomplete title under Section 48(b) of the Public Land Act, as amended.

The Court notes that Presidential Decree No. 1073, amending the Public LandAct, clarified Section 48, paragraph "b" thereof, by specifically declaring that it applied only to alienable and disposable lands of the public domain. Thus,based on the said provision of Commonwealth Act No. 141, as amended, thetwo requisites which the applicants must comply with for the grant of theirApplication for Registration of Title are: (1) the land applied for is alienableand disposable; and (2) the applicants and their predecessors-in-interest have occupied and possessed the land openly, continuously, exclusively, andadversely since 12 June 1945.42

To prove that the land subject of an application for registration is alienable,an applicant must conclusively establish the existence of a positive act of thegovernment such as a presidential proclamation or an executive order oradministrative action, investigation reports of the Bureau of Landsinvestigator or a legislative act or statute. Until then, the rules onconfirmation of imperfect title do not apply.43

In the case at bar, the spouses Tan presented a Certification from the DENR-CENRO, Cagayan de Oro City, dated 14 August 2000, to prove the alienabilityand disposability of the subject property. The said Certification stated that the subject property became alienable and disposable on 31 December1925. A certification from the DENR that a lot is alienable and disposable issufficient to establish the true nature and character of the property andenjoys a presumption of regularity in the absence of contradictoryevidence.44 Considering that no evidence was presented to disprove thecontents of the aforesaid DENR-CENRO Certification, this Court is duty-bound to uphold the same.

Nonetheless, even when the spouses Tan were able to sufficiently prove that the subject property is part of the alienable and disposable lands of thepublic domain as early as 31 December 1925, they still failed to satisfactorilyestablish compliance with the second requisite for judicial confirmation of imperfect or incomplete title, i.e., open, continuous, exclusive and notoriouspossession and occupation of the subject property since 12 June 1945 orearlier.

Through the years, Section 48(b) of the Public Land Act has been amendedseveral times. Republic v. Doldol 45provides a summary of these amendments:

The original Section 48(b) of C.A. No. 141 provided for possessionand occupation of lands of the public domain since July 26, 1894.This was superseded by R.A. No. 1942, which provided fora simple thirty-year prescriptive period of occupation by anapplicant for judicial confirmation of imperfect title. The same,however, has already been amended by Presidential Decree 1073,approved on January 25, 1977. As amended, Section 48(b) nowreads:

(b) Those who by themselves or through theirpredecessors-ininterest have been in open,continuous, exclusive, and notorious possession and

occupation of agricultural lands of the public domain,under a bona fide claim of acquisition or ownership,since June 12, 1945 or earlier, immediately precedingthe filing of the application for confirmation of titleexcept when prevented by wars or force majeure. Thoseshall be conclusively presumed to have performed allthe conditions essential to a Government grant andshall be entitled to a certificate of title under theprovisions of this chapter.

Section 48(b) of the Public Land Act, as amended by PD No. 1073,presently requires, for judicial confirmation of an imperfect orincomplete title, the possession and occupation of the piece of landby the applicants, by themselves or through their predecessors-in-






















































52

interest, since 12 June 1945 or earlier. This provision is in totalconformity with Section 14(1) of the Property Registration Decreeheretofore cited. (Emphasis ours.)

As the law now stands, a mere showing of possession for thirty years ormore is not sufficient. It must be shown, too, that possession andoccupation had started on 12 June 1945 or earlier.46

It is worth mentioning that in this case, even the spouses Tan do not disputethat the true reckoning period for judicial confirmation of an imperfect orincomplete title is on or before 12 June 1945. They also admit that based onthe previous evidence on record, their possession and occupation of thesubject property fall short of the period prescribed by law. The earliest evidence of possession and occupation of the subject property can be tracedback to a tax declaration issued in the name of their predecessors-in-interest only in 1952. However, the spouses Tan are now asking the kind indulgenceof this Court to take into account Tax Declaration No. 4627 issued in 1948,which they had attached to their Motion for Reconsideration before the Court of Appeals but which the appellate court refused to consider. Just as they hadargued before the Court of Appeals, the spouses Tan point out that TaxDeclaration No. 4627 was not newly issued but cancelled Tax Declaration No.2948; and should the Court take judicial notice of the fact that taxassessments are revised every four years, then Tax Declaration No. 2948covering the subject property was issued as early as 1944.

Section 34, Rule 132 of the Rules of Court explicitly provides:

SEC. 34. Offer of evidence. – The court shall consider no evidencewhich has not been formally offered. The purpose for which theevidence is offered must be specified.

On the basis thereof, it is clear that evidence should have been presentedduring trial before the RTC; evidence not formally offered should not beconsidered. In this case, it bears stressing that Tax Declaration No. 4627 wasonly submitted by the Spouses Tan together with their Motion forReconsideration of the 28 February 2006 Decision of the Court of Appeals.The reason given by the Spouses Tan why they belatedly procured suchevidence was because at the time of trial the only evidence available at handwas the 1952 tax declaration. More so, they also believed in good faith that they had met the 30-year period required by law. They failed to realize that under Section 48(b) of Commonwealth Act No. 141, as amended, a mereshowing of possession for thirty years or more is not sufficient because what the law requires is possession and occupation on or before 12 June 1945.This Court, however, finds the reason given by the spouses Tanunsatisfactory. The spouses Tan filed their application for registration of titleto the subject property under the provisions of Section 48(b) of Commonwealth Act No. 141, as amended. It is incumbent upon them as

applicants to carefully know the requirements of the said law.Thus, following the rule enunciated in Section 34, Rule 132 of the Rules of Court, this Court cannot take into consideration Tax Declaration No. 4627 asit was only submitted by the Spouses Tan when they filed their Motion forReconsideration of the 28 February 2006 Decision of the appellate court.

And even if this Court, in the interest of substantial justice, fairness andequity, admits and take into consideration Tax Declaration No. 4627, issuedin 1948, it would still be insufficient to establish open, continuous, exclusiveand notorious possession and occupation of the subject property by theSpouses Tan and their predecessors-in-interest since 12 June 1945 or earlier.

Tax Declaration No. 4627 was only issued in 1948, three years after 12 June1945, the cut-off date under the law for acquiring imperfect or incompletetitle to public land. For the Court to conclude from the face of Tax DeclarationNo. 4627 alone that the subject property had been declared for tax purposesbefore 12 June 1945 would already be too much of a stretch and wouldrequire it to rely on mere presuppositions and conjectures. The Court cannot simply take judicial notice that the government revises tax assessmentsevery four years. Section 129 of the Revised Rules of Evidence providesparticular rules on which matters are subject to judicial notice and when it ismandatory47 or discretionary48 upon the courts or when a hearing isnecessary.49 It is unclear under which context this Court must take judicialnotice of the supposed four-year revision of tax assessments on realproperties. Moreover, the power to impose realty taxes, pursuant to whichthe assessment of real property is made, has long been devolved to the localgovernment units (LGU) having jurisdiction over the said property. Hence,the rules pertaining to the same may vary from one LGU to another; andregular revision of the tax assessments of real property every four years maynot be true for all LGUs, as the spouses Tan would have this Court believe.Given the foregoing, Tax Declaration No. 4627 is far from the clear, positive,and convincing evidence required50 to establish open, continuous, exclusiveand notorious possession and occupation of the subject property by the

Spouses Tan and their predecessors-in-interest since 12 June 1945 or earlier.

In addition, tax declarations and receipts are not conclusive evidence of ownership. At most, they constitute mere prima facie proofs of ownership of the property for which taxes have been paid. In the absence of actual,public and adverse possession, the declaration of the land for taxpurposes does not prove ownership.51They may be good supporting orcollaborating evidence together with other acts of possession and ownership;but by themselves, tax declarations are inadequate to establish possession of the property in the nature and for the period required by statute foracquiring imperfect or incomplete title to the land.

As a final observation, the spouses Tan purchased the subject property andcame into possession of the same only in 1970. To justify their application for

registration of title, they had to tack their possession of the subject propertyto that of their predecessors-in-interest. While the spouses Tan undoubtedlypossessed and occupied the subject property openly, continuously,exclusively and notoriously, by immediately introducing improvements onthe said property, in addition to declaring the same and paying realty taxthereon; in contrast, there was a dearth of evidence that their predecessors-in-interest possessed and occupied the subject property in the same manner.The possession and occupation of the subject property by the predecessors-in-interest of the spouses Tan were evidenced only by the tax declarations inthe names of the former, the earliest of which, Tax Declaration No. 4627,having been issued only in 1948. No other evidence was presented by thespouses Tan to show specific acts of ownership exercised by theirpredecessors-in-interest over the subject property which may date back to

12 June 1945 or earlier.

For failure of the Spouses Tan to satisfy the requirements prescribed bySection 48(b) of the Public Land Act, as amended, this Court has no otheroption but to deny their application for judicial confirmation and registrationof their title to the subject property. Much as this Court wants to conform tothe State’s policy of encouraging and promoting the distribution of alienablepublic lands to spur economic growth and remain true to the ideal of socialjustice, our hands are tied by the law’s stringent safeguards against

registering imperfect titles.52

The Court emphasizes, however, that our ruling herein is without prejudiceto the spouses Tan availing themselves of the other modes for acquiring titleto alienable and disposable lands of the public domain for which they may bequalified under the law.

WHEREFORE, premises considered, the instant Petition is hereby DENIED.

The Decision dated 28 February 2006 and Resolution dated 12 April 2007 of the Court of Appeals in CA-G.R. CV No. 71534 are hereby AFFIRMED. Nocosts.

SO ORDERED.

G.R. No. 136860 January 20, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y VALENCIA, accused. AGPANGA LIBNAO y KITTEN, accused-appellant.

PUNO, J .:

Before us is an appeal from the Decision dated November 19, 1998 of theRegional Trial Court, Branch 65, Tarlac City, finding appellant AgpangaLibnao and her co-accused Rosita Nunga guilty of violating Article II, Section4 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972.1 For their conviction, each was sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos.

Appellant and her co-accused were charged under the following Information:

"That on or about October 20, 1996 at around 1:00 o’clock dawn,in the Municipality of Tarlac, Province of Tarlac, Philippines, andwithin the jurisdiction of this Honorable Court, the above-namedaccused conspiring, confederating and helping with one another,without being lawfully authorized, did then and there willfully,unlawfully and feloniously make delivery/transport with intent tosell marijuana leaves wrapped in a transparent plastic weighingapproximately eight (8) kilos, which is in violation of Section 4,Article II of RA 6425, otherwise known as the Dangerous DrugsAct of 1972, as amended.

CONTRARY TO LAW."2

During their arraignment, both entered a plea of Not Guilty. Trial on themerits ensued.

It appears from the evidence adduced by the prosecution that in August of 1996, intelligence operatives of the Philippine National Police (PNP)stationed in Tarlac, Tarlac began conducting surveillance operation onsuspected drug dealers in the area. They learned from their asset that acertain woman from Tajiri, Tarlac and a companion from Baguio City weretransporting illegal drugs once a month in big bulks.

On October 19, 1996, at about 10 o’clock in the evening, Chief Inspector

Benjamin Arceo, Tarlac Police Chief, held a briefing in connection with a tipwhich his office received that the two drug pushers, riding in a tricycle,would be making a delivery that night. An hour later, the Police Alert Team

installed a checkpoint in Barangay Salapungan to apprehend the suspects.Witness SPO1 Marlon Gamotea, PO3 Florante Ferrer and SPO3 RobertoAquino were assigned to man the checkpoint.

At about 1:00 o’clock in the morning of the following day, SPO1 Gamotea and

PO3 Ferrer flagged down a passing tricycle. It had two female passengersseated inside, who were later identified as the appellant Agpanga Libnao andher co-accused Rosita Nunga.3 In front of them was a black bag. Suspicious of the black bag and the two’s uneasy behavior when asked about its ownership

and content, the officers invited them to Kabayan Center No.2 located at thesame barangay. They brought with them the black bag.

Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascualto witness the opening of the black bag. In the meantime, the two women andthe bag were turned over to the investigator on duty, SPO3 Arthur Antonio.































53

As soon as the barangay captain arrived, the black bag was opened in thepresence of the appellant, her co-accused and personnel of the center. Foundinside it were eight bricks of leaves sealed in plastic bags and covered withnewspaper. The leaves were suspected to be marijuana.

To determine who owns the bag and its contents, SPO3 Antonio interrogatedthe two. Rosita Nunga stated that it was owned by the appellant. The latter,in turn, disputed this allegation. Thereafter, they were made to sign aconfiscation receipt without the assistance of any counsel, as they were not informed of their right to have one. During the course of the investigation,not even close relatives of theirs were present.

The seized articles were later brought to the PNP Crime Laboratory in SanFernando, Pampanga on October 23, 1996. Forensic Chemist Daisy P. Babuconducted a laboratory examination on them. She concluded that the articleswere marijuana leaves weighing eight kilos.4

For their part, both accused denied the accusation against them. RositaNunga testified that in the evening of October 19,1996, she went to buymedicine for her ailing child at a pharmacy near the Tarlac ProvincialHospital. The child was suffering from diarrhea, occasioned by abdominalpain. To return to their house, she boarded a tricycle bound for BarangayTariji, where she resides. Along the way, the tricycle she was riding wasflagged down by a policeman at a checkpoint in Barangay Salapungan. Shewas taken aback when the officer invited her to the Kabayan Center. It wasthere that she was confronted with the black bag allegedly containing eight bricks of marijuana leaves. She disputed owning the bag and knowing itscontents. She also denied sitting beside the appellant in the passenger’s seat

inside the tricycle, although she admitted noticing a male passenger behindthe driver.

Remarkably, appellant did not appear in court and was only represented byher lawyer. The latter marked and submitted in evidence an affidavit executed by one Efren Gannod, a security guard of Philippine Rabbit BusLines in Tarlac, Tarlac. The sworn statement declared that at about 0220H onOctober 20, 1996, SPO2 Antonio arrived at their terminal and arrested acertain woman who boarded their Bus No. 983. The incident was recorded inthe company’s logbook. Gannod, however, was not presented in court to

attest that the woman referred in his affidavit was the appellant.

After trial, the court convicted appellant and her co-accused Rosita Nunga,thus:

"WHEREFORE, finding both accused guilty beyond reasonabledoubt of the offense of violation of Article II, Section 4 of RA 6425in relation to RA 7659, they are hereby sentenced to suffer animprisonment of reclusion perpetua and to pay a fine of twomillion pesos.

SO ORDERED."5

Aggrieved by the verdict, appellant interposed the present appeal. In herbrief, she assigned the following errors:

"1. The Honorable Regional Trial Court failed to appreciate thecontention of the defense that the right of accused against illegaland unwarranted arrest and search was violated by the policeofficers who arrested both accused.

2. The Honorable Court failed to appreciate the contention of thedefense that the right of the accused to custodial investigation wasdeliberately violated by the peace officers who apprehended andinvestigated the accused.

3. The Honorable Court miserably failed to evaluate the materialinconsistencies in the testimonies of the prosecution’s witnesses

which inconsistencies cast doubt and make incredible thecontention and version of the prosecution.

4. The Honorable Court gravely abused its discretion when it appreciated and considered the documentary and object evidenceof the prosecution not formally offered amounting to ignorance of the law."6

We are not persuaded by these contentions; hence, the appeal must bedismissed.

In arguing that her arrest was unlawful, appellant capitalizes on the absenceof a warrant for her arrest. She contends that at the time she wasapprehended by the police officers, she was not committing any offense but was merely riding a tricycle. In the same manner, she impugns the searchmade on her belongings as illegal as it was done without a valid warrant orunder circumstances when warrantless search is permissible. Consequently,

any evidence obtained therein is inadmissible against her.

These arguments fail to impress. The general rule is that a search may beconducted by law enforcers only on the strength of a search warrant validlyissued by a judge as provided in Article III, Section 2 of the 1987 Constitution,thus:

"The right of the people to be secure in their persons, houses,papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and nosearch warrant and warrant of arrest shall issue except uponprobable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and thewitnesses he may produce, and particularly describing the place tobe searched and the persons or things to be seized."7

The constitutional guarantee is not a blanket prohibition against all searchesand seizures as it operates only against "unreasonable" searches andseizures. Searches and seizures are as a rule unreasonable unless authorizedby a validly issued search warrant or warrant of arrest. Thus, thefundamental protection accorded by the search and seizure clause is that between persons and police must stand the protective authority of amagistrate clothed with power to issue or refuse to issue search warrantsand warrants of arrest.8

Be that as it may, the requirement that a judicial warrant must be obtainedprior to the carrying out of a search and seizure is not absolute. There arecertain familiar exceptions to the rule, one of which relates to search of moving vehicles.9 Warrantless search and seizure of moving vehicles are

allowed in recognition of the impracticability of securing a warrant undersaid circumstances as the vehicle can be quickly moved out of the locality orjurisdiction in which the warrant may be sought.10 Peace officers in suchcases, however, are limited to routine checks where the examination of thevehicle is limited to visual inspection. 11 When a vehicle is stopped andsubjected to an extensive search, such would be constitutionally permissibleonly if the officers made it upon probable cause, i.e., upon a belief, reasonablyarising out of circumstances known to the seizing officer, that an automobileor other vehicle contains as item, article or object which by law is subject toseizure and destruction.12

In earlier decisions, we held that there was probable cause in the followinginstances: (a) where the distinctive odor of marijuana emanated from theplastic bag carried by the accused;13 (b) where an informer positivelyidentified the accused who was observed to be acting suspiciously; 14 (c)where the accused who were riding a jeepney were stopped and searched bypolicemen who had earlier received confidential reports that said accused

would transport a quantity of marijuana;15 (d) where Narcom agents hadreceived information that a Caucasian coming from Sagada, MountainProvince had in his possession prohibited drugs and when the Narcomagents confronted the accused Caucasian because of a conspicuous bulge inhis waistline, he failed to present his passport and other identification paperswhen requested to do so;16 (f) where the moving vehicle was stopped andsearched on the basis of intelligence information and clandestine reports bya deep penetration agent or spy -- one who participated in the drugsmuggling activities of the syndicate to which the accused belong -- that saidaccused were bringing prohibited drugs into the country;17 (g) where thearresting officers had received a confidential information that the accused,whose identity as a drug distributor was established in a previous test-buyoperation, would be boarding MV Dona Virginia and probably carrying shabuwith him;18 (h) where police officers received an information that theaccused, who was carrying a suspicious-looking gray luggage bag, wouldtransport marijuana in a bag to Manila;19 and (i) where the appearance of the

accused and the color of the bag he was carrying fitted the description givenby a civilian asset.20

The warrantless search in the case at bench is not bereft of a probable cause.The Tarlac Police Intelligence Division had been conducting surveillanceoperation for three months in the area. The surveillance yielded theinformation that once a month, appellant and her co-accused Rosita Nungatransport drugs in big bulks. At 10:00 pm of October 19, 1996, the policereceived a tip that the two will be transporting drugs that night riding atricycle. Surely, the two were intercepted three hours later, riding a tricycleand carrying a suspicious-looking black bag, which possibly contained thedrugs in bulk. When they were asked who owned it and what its content was,both became uneasy. Under these circumstances, the warrantless search andseizure of appellant’s bag was not i llegal.

It is also clear that at the time she was apprehended, she was committing acriminal offense. She was making a delivery or transporting prohibited drugs

in violation of Article II, Section 4 of R.A. No. 6425. Under the Rules of Court,one of the instances a police officer is permitted to carry out a warrantlessarrest is when the person to be arrested is caught committing a crime inflagrante delicto, thus:

"Section 5. Arrest without Warrant; when lawful . - A peace officeror a private person may, without warrant, arrest a person:

(a) When in his presence, the person to be arrested hascommitted, is actually committing, or is attempting to commit anoffense;

(b) When an offense has in fact just been committed, and he hasprobable cause to believe based on personal knowledge of facts orcircumstances that the person to be arrested has committed it;and

(c) When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving finaljudgment or temporarily confined while his case is pending, or hasescaped while being transferred from one confinement to another.

x x x."21 (emphasis supplied)

Appellant also takes issue of the fact that she was not assisted by a lawyerwhen police officers interrogated her. She claimed that she was not dulyinformed of her right to remain silent and to have competent counsel of herchoice. Hence, she argues that the confession or admission obtained thereinshould be considered inadmissible in evidence against her.

These contentions deserve scant attention. Appellant did not make anyconfession during her custodial investigation. In determining the guilt of theappellant and her co-accused, the trial court based its decision on the



54

testimonies of prosecution witnesses and on the existence of the confiscatedmarijuana. We quote the relevant portion of its decision:

"Earlier in the course of the proceedings, the court then presidedby Judge Angel Parazo, granted bail to accused Agpanga Libnao,ruling that the confiscation receipt signed by both accused (Exhibit "C") is inadmissible because they were not assisted by a counsel.Confronted with this same issue, this court finds the postulate torest on good authority and will therefore reiterate itsinadmissibility.

Since the prosecution had not presented any extrajudicialconfession extracted from both accused as evidence of their guilt,the court finds it needless to discuss any answer given by bothaccused as a result of the police interrogation while in theircustody. By force of necessity, therefore, the only issue to beresolved by the court is whether or not, based on theprosecution’s evidence, both accused can be

convicted."22 (emphasis supplied)

Appellant then faults the trial court for appreciating and taking into account the object and documentary evidence of the prosecution despite the latter’s

failure to formally offer them. Absent any formal offer, she argues that theyagain must be deemed inadmissible.

The contention is untenable. Evidence not formally offered can be consideredby the court as long as they have been properly identified by testimony dulyrecorded and they have themselves been incorporated in the records of thecase.23 All the documentary and object evidence in this case were properlyidentified, presented and marked as exhibits in court, including the bricks of marijuana.24 Even without their formal offer, therefore, the prosecution canstill establish the case because witnesses properly identified those exhibits,and their testimonies are recorded.25 Furthermore, appellant’s counsel hadcross-examined the prosecution witnesses who testified on the exhibits.26

Appellant also assails the credibility of the testimonies of the prosecutionwitnesses. She first cites the inconsistency between the testimony of SPO1Marlon Gamotea, who said that it was SPO2 Antonio who opened the blackbag containing the marijuana; and that of SPO2 Antonio, who declared that the bag was already open when he arrived at the Kabayan Center. She thenfocuses on the police officers’ failure to remember the family name of thedriver of the tricycle where she allegedly rode, claiming that this isimprobable and contrary to human experience.

Again, appellant’s arguments lack merit. The alleged inconsistencies she

mentions refer only to minor details and not to material points regarding thebasic elements of the crime. They are inconsequential that they do not affect the credibility of the witnesses nor detract from the established fact that appellant and her co-accused were transporting marijuana. Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal occurrence.27 The identity of the person whoopened the bag is c learly immaterial to the guilt of the appellant. Besides, it isto be expected that the testimony of witnesses regarding the same incident may be inconsistent in some aspects because different persons may havedifferent recollections of the same incident.28

Likewise, we find nothing improbable in the failure of the police officers tonote and remember the name of the tricycle driver for the reason that it wasunnecessary for them to do so. It was not shown that the driver was incomplicity with the appellant and her co-accused in the commission of thecrime.

To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are law enforcers. When police officers have nomotive to testify falsely against the accused, courts are inclined to uphold thispresumption.29 In this case, no evidence has been presented to suggest anyimproper motive on the part of the police enforcers in arresting theappellant.

Against the credible positive testimonies of the prosecution witnesses,appellant’s defense of denial and alibi cannot stand. The defense of denial

and alibi has been invariably viewed by the courts with disfavor for it canjust as easily be concocted and is a common and standard defense ploy inmost cases involving violation of the Dangerous Drugs Act.30 It has to besubstantiated by clear and convincing evidence.31 The sole proof presented inthe lower court by the appellant to support her claim of denial and alibi wasa sworn statement, which was not even affirmed on the witness stand by theaffiant. Hence, we reject her defense.

IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trialcourt finding appellant guilty beyond reasonable doubt of the offense of violation of Article II, Section 4 of R.A. No. 6425 in relation to R.A. No. 7659,and sentencing her to an imprisonment of reclusion perpetua and to pay afine of two million pesos is hereby AFFIRMED.

SO ORDERED.

G.R. No. 91646 August 21, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ROMIL MARCOS Y ISIDRO, accused-appellant.

GUTIERREZ, JR., J.:

Appellant Romil Marcos y Isidro was charged with the crime of Violation of Section 4, Article II of Republic Act 6425, as amended, otherwise known asthe Dangerous Drugs Act of 1972 in an information filed by the Office of theCity Fiscal of Zamboanga City with the Regional Trial Court of ZamboangaCity. The information alleged:

That on or about June 7, 1989, in the City of Zamboanga,Philippines, and within the jurisdiction of thisHonorable Court, the above-named accused, not beingauthorized by law, did then and there wilfully,unlawfully and feloniously sell to one SGT. AMADO ANIsix (6) sticks of marijuana cigarettes, knowing same tobe a prohibited drug. (Rollo, p. 7)

When arraigned the appellant pleaded not guilty.

After trial on the merits, the appellant was found by the court guilty ascharged and was sentenced to suffer imprisonment of reclusion perpetua at the San Ramon Penal Colony and to pay the costs.

The trial court gave credence to the buy-bust operation conducted by theprosecution witnesses, all of them Narcom agents, wherein the appellant soldsix (6) sticks of marijuana to Sgt. Amado Ani, a member of the operation, whoacted as the poseur-buyer. The other target of the operation, a certainBallena eluded arrest and escaped.

The trial court summarized the buy-bust operation leading to the arrest of the appellant as follows:

. . . The arrest of the accused was carefully planned.After receiving the information from the civilian

informant named "Bobby" that the accused and anotherperson was selling marijuana at Talon-Talon moreparticularly at Lucy's Store, the Narcom Agentsconducted a surveillance in said place riding on twomotorcycles a day before the raid. They saw the accusedselling marijuana. The following day, again, the NarcomAgents held a conference and each of them was briefedby their team leader. One of them who was Sgt. AmadoAni was to act as poseur buyer while others, namely:Sgt. Jesus Belarga, Sgt. Bernardo Lego and Sgt. JulietoVega as arresting officers. The following day, June 7,1989, at about 11:00 a.m., said team consisting of Narcom Agents proceeded to the place. Three were left at a vulcanizing shop, namely, Sgts. Belarga, Lego, andVega; while Sgt. Amado Ani, the poseur buyer,proceeded to the Lucy's store. There he met the accusedRomil Marcos who asked said poseur buyer how muchhe was buying and the latter answered him P10.00worth. The accused entered the store, gave the P10.00marked money given by Sgt. Ani to his companionBallena and the latter gave the accused Romil Marcosthe six sticks of marijuana cigarettes which werewrapped. Sgt. Ani examined the same and uponverifying that it was marijuana, he proceeded to thestreet and made the pre-arranged signal by wiping hisface with a handkerchief. The three Narcom Agentsrushed to the place where Sgt. Amado Ani was.However, after Sgt. Ani gave the signal, he returned towhere the accused Romil Marcos and alias Ballenawere, introduced himself as Narcom Agent and grabbedthe accused Romil Marcos but the latter was able toescape. While escaping, the Narcom Agents saw himthrow a stick of marijuana cigarette which Sgt. Belarga

retrieved. Later, they apprehended Romil Marcos andbrought him to their office at Upper Calarian, this City.He was turned over to the chief investigator Sgt.Mihasun together with the six sticks of marijuanacigarettes that were sold by the said accused RomilMarcos to the poseur buyer, Sgt. Ani. The Five stickswere examined by the PCCI and found the same to bepositive of marijuana (Rollo, p. 24)

The trial court rejected the appellant's defense that he was not the object of the buy-bust operation and that he was arrested when he refused to testifyagainst Ballena who was actually the target of the buy-bust operation. Hetestified as follows:

. . . That on June 7, 1989, past 11:00 o'clock in morning,he was at Lucy's Store waiting for a jeep going to Sta.Catalina to find out when he was going to work at the

Peninsula Construction Company because he wastemporarily laid off. That while he was at the Lucy'sStore, a motorcycle stopped in the store. Immediately,the people on board said motorcycle chased a certainBallena who is his neighbor. That Ballena's completename is Romeo Ballena who is known as Mimi or Mi.Then he heard a shot when they were chasing Ballenabut does not know who fired the same. The people onboard the motorcycle were not able to catch up withBallena, so they returned to the store. Upon returning tothe store, one of them pointed at him and said that hewas a companion of Ballena at the same timehandcuffing him. At that time there were many peopleat the Lucy's Store numbering about thirty; that there



55

were three CAFGUs who arrived in the place and one of them asked the people who were riding earlier in themotorcycle what were those shots for. One of them inthe motorcycle answered that they must not interfereas they are Narcom Agents, and the CAFGU did not interfere. After that they placed him between themotorcycle driver and the other person and took himwith them to Calarian; that the persons who took himwere the same people who chased Ballena; that whileon their way to Calarian, one of the two persons whochased Ballena in a motorcycle told him that he must act as witness against Ballena. However, said accused toldthem that he would not like to testify because he does

not know what was that about. They said that they aregoing to place him in jail because he does not want to bea witness against Ballena. (RTC Decision, p. 6, Rollo, p.21)

In his appeal the appellant assigns the alleged errors of the trial court asfollows:

A. THE TRIAL COURT ERRED IN CONVICTING THEACCUSED BASED ON TESTIMONIES OF PROSECUTIONWITNESSES WHICH WERE NOT PROPERLY OFFEREDIN EVIDENCE AND ON REAL EVIDENCE CONSISTING OFSIX (6) STICKS OF MARIJUANA WHICH WERE NOTALSO OFFERED IN EVIDENCE.

B. THE TRIAL COURT ERRED IN CONVICTING THEACCUSED BASED ON THE TESTIMONIES OF THE

WITNESSES FOR THE PROSECUTION WHICH WEREFRAUGHT WITH SERIOUS DOUBT, AND THEREFORE,CLEARLY APPEAR TO BE INCREDIBLE ANDUNBELIEVABLE.

C. THE TRIAL COURT GRAVELY ERRED INCONCLUDING THAT THE GUILT OF ACCUSED-APPELLANT HAS BEEN PROVED BEYONDREASONABLE DOUBT. (Appellant's Brief, p. 20)

In the first assigned error, the appellant contends that the testimonies of prosecution witnesses Sgt. Jesus Belarga, Sgt. Amado Ani, Jr. and Mrs. AthenaElias Anderson were not formally offered, hence, the trial court erred inconsidering their testimonies. He cites sections 34 and 35, Rule 132 of theRules of Court to prove his point, to wit:

Sec. 34. Offer of Evidence. — The court shall consider noevidence which has not been formally offered. Thepurpose for which the evidence is offered must bespecified.

Sec. 35. When to make offer . — As regards the testimonyof a witness, the offer must be made at the time thewitness is called to testify.

xxx xxx xxx

Contrary to the assertion of the appellant, Sgt. Amado Ani's testimony wasformally offered by the prosecution. Hence, when Sgt. Ani was called totestify for the prosecution, Prosecuting Fiscal Deogracias Avecilla said that Sgt. Amado Ani's testimony was being offered "to the effect that he was theposeur-buyer of this case." (TSN October 23, 1989, p. 15)

As regards the other mentioned prosecution witnesses, we agree with theappellant that their testimonies were not formally offered at the time the said

witnesses were called to testify. However, the records reveal that thetestimonies of the prosecution witnesses were offered during the formaloffer of documentary evidence by the prosecuting Fiscal. The appellant didnot object to such offer. In such a case we rule that the appellant is nowestopped from questioning the inclusion of the subject testimonies by thetrial court in convicting him of the crime charged.

At any rate, the appellant was not deprived of any of his constitutional rightsin the inclusion of the subject testimonies. The appellant was not deprived of his right to cross-examine all these prosecution witnesses.

The appellant also faults the trial court for considering the six (6) marijuanasticks as evidence for the prosecution despite the fact that they were not offered as evidence.

The record reveals that when the prosecuting Fiscal offered theprosecution's documentary evidence among these offered was Inhibit "E"which was described as "the wrapper containing the six (6) sticks handrolledcigarette which were sold by the accused Romil Marcos to the poseur-buyerSgt. Ani, and as part of the testimony of the Forensic Chemist AthenaAnderson and Sgt. Belarga and also Sgt. Mihasun" Marcos alleges that nowhere in the offer of documentary evidence is there a mention as regardsthe six (6) sticks of marijuana sold by the appellant to Sgt. Ani during thebuy-bust operation. Under these circumstances, the appellant argues that theappellant should be acquitted for failure of the prosecution to offer the six(6) sticks of marijuana sold by the appellant to Sgt. Ani.

This argument is not well taken.

We rule that Exhibit "E" does not refer to the wrapper alone but also refers tothe six (6) marijuana sticks sold by the appellant to Sgt. Ani during the buy-bust operation. It is to be noted that Exhibit "E" was offered as evidence in

relation to the testimonies of Sgt. Belarga, Forensic Chemist Athena Andersonand Sgt. Mihasun. The record is clear to the effect that in their testimonies,Sgt. Belarga, Forensic Chemist Athena Anderson and Sgt. Mihasun referred toExhibit "E" as the six (6) sticks of marijuana sold by the appellant to Sgt. Aniduring the buy-bust operation conducted by the Narcom agents led by Sgt.Belarga at Talon-Talon, Zamboanga City on June 7, 1989.

The second and third assigned errors raise the issue on credibility of witnesses. In this regard the appellant points out alleged circumstances of the prosecution witnesses which "render their testimonies lacking inprobative weight or value." The appellant focuses on the alleged inconsistent statements of the Narcom agents as regards how long they have known theirinformant named "Bobby" to the point that the appellant suggests that there

was no informant and that the surveillance on June 6, 1989 and the buy-bust operation conducted on June 7, 1989 never took place at a ll.

Whether or not the prosecution witnesses, particularly the Narcom agentshave known their informant Bobby for one year is not a material point in thecrime of illegal sale of marijuana drug under Section 4, Art. II of theDangerous Drugs Act. This crime requires merely the consummation of theselling transaction. (People v. Dekingco, 189 SCRA 512 [1990]; and People v.Catan, G.R. No. 92928, January 21, 1992) in case of a "buy-bust operation",the crucial point is that the poseur-buyer received the marijuana from theappellant and the same was presented as evidence in court. Proof of thetransaction is sufficient. (People v. Catan, supra; and People v. Mariano, 191SCRA 136 [1990])

In the case at bar, the transaction was established by the evidence on record.Prosecution witness Sgt. Ani who acted as poseur-buyer positively identifiedthe appellant as the one who sold him six (6) sticks of marijuana for the

amount of P10.00. He testified as follows:Q On June 7, 1989, at 11:00 o'clockin the morning, who were thosewho proceeded to Bandariba,Talon-Talon, this City?

A We were together with Sgt.Belarga, Sgt. Lago and Sgt. Vega.

Q And from your headquarters toTalon-Talon, this City, how did yougo?

A We went there to Bandariba byusing the motorcycle.

Q What particular place at

Bandariba, Talon-Talon,Zamboanga City, did your groupgo?

A We stopped first at a littlevulcanizing area near the road.

Q What did you do there in that area of vulcanizing?

A Our team leader, Sgt. Lego andSgt. Vega left at the vulcanizingarea.

Q How about you?

A I proceeded to the vicinity wherethe Lucy store is located.

Q How far is this vulcanizing toLucy store where you proceeded?

A About 30 to 40 meters.

Q You were able to proceed to theLucy store?

A Yes, sir.

Q What happened when you wereat the Lucy Store?

A In front of the store I was met byRomil Marcos and he asked mewhat I want.

Q In that dialect did Romil Marcos

ask to what you like for?A In Tagalog dialect.

Q What did you say to thisquestion of Romil Marcos?

A I said "mayroon ba tayongstock?"

COURT:

Q What do you mean by that?

A "If you have marijuana stock."

FISCAL AVECILLA:



56

Q Did Romil answer you when youasked that question?

A Yes, he answered.

Q What did he say to you?

A He asked me, "How much?"

Q What did you do when he asked"How much?"

A I handed the P10.00.

Q When you handed that P10.00,

what happened next?

A He said "you wait for me nearthe waiting shed."

Q What happened when you weretold to wait in the waiting shed?

A After a while, Romil Marcos left and went inside in a portion of thestore.

Q What happened there, if any?

A When he came back, he brought a paper wrapper where the six (6)sticks of marijuana cigarettes werefound inside.

Q How did you know inside that wrapper are the six sticks of marijuana?

A I opened the wrapper and Ifound these six sticks of marijuanacigarettes inside.

Q Do you know where Romil got this wrapper in which you foundthe six sticks of marijuanacigarettes?

A Yes, sir.

Q Please tell the court.

A Romil told me, "you wait for awhile". I saw he approached acertain fellow whom we later cameto know as Ballena. Then that person got the money from RomilMarcos, placed inside his pocket and he got inside from his pocket the paper wrapper containingseveral sticks of marijuana.

Q You have been talking about thisRomil Marcos. Would you be ableto recognize if you see him again?

A Yes, sir.

Q Please look inside the courtroomand see around, and go down from

the witness stand and tap him onhis shoulder.

(Witness pointed to a man in court who identified himself as RomilMarcos when asked) (TSN,October 23, 1989, pp. 18-19)

Second, the appellant points out the supposed inconsistency of thetestimonies of Sgt. Ani, the poseur-buyer and prosecution witness AthenaElias Anderson, document examiner and forensic chemist of the PC/INPCrime Laboratory Service, Recom IX, Zamboanga City, who examined the six(6) marijuana sticks (Exhibit "E") submitted for analysis as regards thewrapper containing the six (6) marijuana sticks which were sold to theformer by the appellant. Thus, while Sgt. Ani testified that the six (6) sticks of marijuana sold to him by the appellant were wrapped in newspaper,Anderson declared that the wrapper used and submitted to her containing

the six (6) sticks of marijuana was a primary ruled pad and not a newspaper.The appellant submits that what was obtained from the appellant is different from the one submitted for examination by Anderson.

We are not impressed.

The records show that when Sgt. Ani turned over the six (6) marijuana stickswrapped in paper sold to him by the appellant, Sgt. Belarga placed his initial,the date, as well as the sign of a star on the six (6) sticks for identificationpurposes. (TSN, p. 8, October 23, 1989) The records further reveal that thesix (6) sticks of marijuana examined and analyzed by Anderson wereidentified in court by Sgt. Belarga as the same six (6) sticks of marijuana soldby the appellant to Sgt. Ani during the buy-bust operation conducted at

Talon-Talon, Zamboanga City. (TSN, p. 6, October 25, 1989 in relation to TSNpp. 12-13, October 25, 1989)

In sum we find no compelling reason to disturb the findings of facts of thetrial court. We give credence to the narration of the incident by theprosecution witnesses who are police officers and presumed to haveperformed their duties in a regular manner in the absence of any evidence tothe contrary. (People v. Napat-a, 179 SCRA 403 [1989]; People v. Castillo yMartinez, G.R. No. 93408, April 10, 1992.) Moreover, the buy-bust operationwas methodically executed with surveillance operations done one (1) daybefore the arrest of the appellant. We find the procedure adapted by thepolice officers in consonance with the application of regularity in theperformance of official duties. (People v. De Jesus, G.R. No. 93852, January 24,

1992; People v. Castillo y Martinez, supra).However, the trial court erred in sentencing the appellant to sufferimprisonment of reclusion perpetua. The proper penalty to be imposed onappellant should be life imprisonment, not reclusion perpetua and a fine of TWENTY THOUSAND PESOS (P20,000.00) in accordance with Sec. 4, ArticleII of Republic Act No. 6425, as amended. (People v. Catan, supra).

WHEREFORE, the judgment appealed from is AFFIRMED except for theMODIFICATION that the penalty shall be life imprisonment and a fine of TWENTY THOUSAND PESOS (P20,000.00) instead of reclusion perpetua.Judgment appealed from is AFFIRMED.

SO ORDERED.

G.R. No. 105813 September 12, 1994

CONCEPCION M. CATUIRA, petitioner,vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

BELLOSILLO, J.:

Is the testimony of a witness inadmissible in evidence if not formally offeredat the time the witness is called to testify, as required in Sec. 35, in relation toSec. 34, Rule 132, of the Revised Rules on Evidence? 1

On 8 June 1990, two (2) Informations for estafa were filed against petitionerConcepcion M. Catuira with the Regional Trial Court of Calamba, Laguna, forhaving issued two (2) checks in payment of her obligation to privatecomplainant Maxima Ocampo when petitioner had no sufficient funds tocover the same, which checks upon presentment for payment weredishonored by the drawee bank. 2

After the prosecution had presented its evidence, petitioner Concepcion M.Catuira filed a Motion to Dismiss (by way of Demurrer to Evidence) underSec. 15, Rule 119, of the 1985 Revised Rules on CriminalProcedure. 3Petitioner contended that the testimony of private respondent Ocampo was inadmissible in evidence since it was not properly introducedwhen she was called to testify as mandated in Sec. 35, Rule 132, of theRevised Rules on Evidence. Petitioner also argued that even if the testimonyof private respondent was considered, the evidence of the prosecution stillfailed to prove that the checks were issued in payment of an obligation.

On 26 July 1991, the trial court denied the motion to dismiss for lack of merit.On 18 October 1991, it likewise denied the motion to reconsider its denial of the motion to dismiss.

On 4 November 1991 petitioner elevated her case to the Court of Appealsthrough a petition for certiorari, prohibition and mandamus. In a similarmove, the appellate court rejected her petition and sustained the trial court

in its denial of the motion to dismiss. Hence, this recourse seeking to annulthe decision of the Court of Appeals rendered on 27 February 1992 as well asits resolution of 1 June 1992. 4

Petitioner claims that the Court of Appeals erred when it accepted thetestimony of private respondent despite the undisputed fact that it was not offered at the time she was called to testify; her testimony should have beenstricken off the record pursuant to Sec. 34, Rule 132, which prohibits thecourt from considering evidence which has not been formally offered; and, it was error for respondent appellate court to declare that petitioner'sobjection was not done at the proper time since under Sec. 36, Rule132, 5 objection to evidence offered orally must be made immediatelyafter the offer is made . Evidently, petitioner could not have waived herright to object to the admissibility of the testimony of private respondent since the rule requires that it must be done only at the time such testimony ispresented and the records plainly show that the opportunity for petitioner toobject only came when the prosecution attempted, albeit belatedly, to offer

the testimony after it has rested its case. 6

The petition is devoid of merit. The reason for requiring that evidence beformally introduced is to enable the court to rule intelligently upon theobjection to the questions which have been asked. 7 As a general rule, theproponent must show its relevancy, materiality and competency. Where theproponent offers evidence deemed by counsel of the adverse party to beinadmissible for any reason, the latter has the right to object. But such right is a mere privilege which can be waived. Necessarily, the objection must bemade at the earliest opportunity, lest silence when there is opportunity tospeak may operate as a waiver of objections. 8

Thus, while it is true that the prosecution failed to offer the questionedtestimony when private respondent was called to the witness stand,petitioner waived this procedural error by failing to object at the appropriate



57

time, i.e., when the ground for objection became reasonably apparent themoment private respondent was called to testify without any prior offerhaving been made by the proponent

Most apt is the observation of the appellate court:

While it is true that the prosecution failed to offer inevidence the testimony of the complaining witnessupon calling her to testify and that it was only after hertestimony and after the petitioner moved that it bestricken that the offer was made, the respondent Court did not gravely err in not dismissing the case against the petitioner on the ground invoked. For, she shouldhave objected to the testimony of the complainingwitness when it was not first offered upon calling herand should not have waited in ambush after she hadalready finished testifying. By so doing she did not savethe time of the Court in hearing the testimony of thewitness that after all according to her was inadmissible.And for her failure to make known her objection at theproper time, the procedural error or defect waswaived. 9

Indeed, the rationale behind Sec. 34, Rule 132, is manifest in the minutes of the Revision of Rules Committee. 10Thus —

The new rule would require the testimony of a witnessto offer it at the time the witness is called to testify. Thisis the best time to offer the testimony so that the court'stime will not be wasted. Since it can right away rule onwhether the testimony is not necessary because it isirrelevant or immaterial.

If petitioner was genuinely concerned with the ends of justice being served,her actuations should have been otherwise. Instead, she attempted tocapitalize on a mere technicality to have the estafa case against herdismissed. 11 But even assuming that petitioner's objection was timely, it wasat best pointless and superfluous. For there is no debating the fact that thetestimony of complaining witness is relevant and material in the criminalprosecution of petitioner for estafa. It is inconceivable that a situation couldexist wherein an offended party's testimony is immaterial in a criminalproceeding. Consequently, even if the offer was belatedly made by theprosecution, there is no reason for the testimony to be expunged from therecord. On the contrary, the unoffered oral evidence must be admitted if onlyto satisfy the court's sense of justice and fairness and to stress that substantial justice may not be denied merely on the ground of technicality. 12

WHEREFORE, the decision of the Court of Appeals sustaining the order of theRegional Trial Court of Calamba, Laguna, Br. 35, denying petitioner's motionto dismiss (by way of demurrer to evidence) is AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 94736 June 26, 1998

MELECIO MACASIRAY, VIRGILIO GONZALES, and BENEDICTOGONZALES, petitioners,vs.PEOPLE OF THE PHILIPPINES, HON. COURT OF APPEALS, and ROSALINARIVERA VDA. DE VILLANUEVA,respondents.

MENDOZA, J.:

Petitioners seek a review of the decision of the Court of Appeals in C.A. G.R.SP No. 16106, 1 reversing the ruling of the Regional Trial Court and orderingthe admission in evidence of petitioner Benedicto Gonzales extrajudicialconfession and the transcript of the proceedings of the preliminaryinvestigation of the case, during which Benedicto allegedly made statementsaffirming the contents of his extrajudicial confession.

The facts are as follows:

Petitioners Melecio Macasiray, Virgilio Gonzales, and Benedicto Gonzales arethe accused in Criminal Case No. 33(86) of the Regional Trial Court of SanJose City, presided over by Judge Pedro C. Ladignon. The case is for themurder of Johnny Villanueva, husband of private respondent Rosalina RiveraVillanueva, on February 9, 1986.

It appears that in the course of the trial of the case, the prosecutionintroduced in evidence, as Exhibit B, an extrajudicial confession executed by

petitioner Benedicto Gonzales on March 27, 1986, in which he admittedparticipation in the crime and implicated petitioners Melecio Macasiray andVirgilio Gonzales, his co-accused. Also presented in evidence, as Exhibit D,was the transcript of stenographic notes taken during the preliminaryinvestigation of the case on April 8, 1986 before the fiscal's office. Thistranscript contained statements allegedly given by Benedicto in answer toquestion of the fiscal, in which he affirmed the contents of his extrajudicialconfession.

When the extrajudicial was offered at the conclusion of the presentation of evidence for the prosecution, petitioners objected to its admissibility on theground that it was given without the assistance of counsel. The transcript of the preliminary investigation proceeding was similarly objected to on thesame ground. In its order dated April 14, 1988, the trial court sustained theobjections and declared the two documents to be inadmissible.

It appears that when it was the turn of the defense to present evidence,Gonzales was asked about his extrajudicial confession (Exh. B). On cross-examination, he was questioned not only about his extrajudicial confessionbut also about answers allegedly given by him during the preliminaryinvestigation and recorded in the transcript of the proceeding. As he deniedthe contents of both documents, the prosecution presented them as rebuttalevidence, allegedly to impeach the credibility of Gonzales. Petitioners oncemore objected and the trial court again denied admission to the documents.(Order, dated Oct. 17, 1988)

Private respondent then sought the nullification of the trial court's ordersand succeeded. The Court of Appeals declared the two documents admissiblein evidence and ordered the trial court to admit them. Hence, this petition for

review of the appellate court's decision.There is no dispute that the extrajudicial confession and the statementsrecorded in the transcript in question were taken without the assistance of counsel. Petitioner Benedicto Gonzales was informed of his constitutionalrights in a very perfunctory manner. No effort was made to drive home tohim the seriousness of the situation he was facing. 2 He waived the assistanceof counsel, but did so without counsel's advice and assistance. 3 Both hisconfession and his statement before the fiscal were thus inadmissible underArt. IV, §20 of the 1973 Constitution. The question is whether petitionerswaived objection to the admissibility of the documents, either by failing toobject to their introduction during the trial or by using them in evidence. Indeclaring them to be admissible, the Court of Appeals said:

The documents in question (Annex A and B to Petition),which were denied admission by respondent Judge,were marked for identification as "Exh. B" with sub-

marking and "Exh. D" with sub-marking on "10-11-86"(or October 22, 1986) as appear on their face. Thosemarking show that the documents were introducedduring the prosecution's evidence-in-chief: and,necessarily, they were testified on by a prosecutionwitness (not clear from the record who). The fact that the prosecution proposed to formally offer them inevidence at the close of trial implies that when thedocuments were first introduced through theprosecution witness at the trial, the defense did not object to their introduction. To prevent the introductionof such kind of evidence, the practice is for the defense tomove for its exclusion at any time before commencement of trial. Such failure of the defense may therefore be takenas a waiver of their objection — and the waiver wasmade at the trial by said accused who was in fact assisted

by counsel .Thus, because of such failure to object, the prosecutionsucceeded to introduce the subject documents andcause them to be marked for identification as Exhibits Band D . . .

. . . During the defense turn to present their evidence-in-chief, they called said accused to the witness stand, thenthrough him introduced the question-and-answerstatement (Exh. B) that had previously been deniedadmission by respondent Judge, and on direct examination asked him to testify on said statement; of course, accused denied the contents in the statement. Inother words, not only did the defense waive their objection to the introduction of this statement when first introduced during the prosecution's evidence-in-chief as

well as when introduced through the testimony of Cpl.Renato Bautista given during the prosecution evidence-in-rebuttal, the defense themselves — including thecounsel for accused — introduced such statement as part of their evidence-in-chief . Hence, respondent Judgecommitted a grave abuse of discretion in denyingadmission of this statement (Exh. B) when theprosecution again proposed to formally offer it as theirevidence after the defense had rested.

With respect to the transcript (Exh. D), however, thedefense did not introduce it as part of their evidence-in-chief. Although the prosecution introduced this exhibit during the cross-examination on which said accusedwas confronted during the latter's cross-examination,the same cannot serve as an independent evidence forthe prosecution. The exhibit may be admitted as

prosecution evidence only for the purpose of impeachment, i.e. as a means to test the credibility of said accused and/or his testimony. Therefore,respondent Judge should not have rejected suchtranscript (Exh. D) when formally offered by theprosecution for that limited purpose of impeachment. Indenying this exhibit admission, respondent Judge alsocommitted a grave abuse of discretion.

In fine, the introduction and admission of the twodocuments in question per se was not violative of Sec.20 Art. IV of the 1973 Constitution nor of Sec. 12, Art. IIIof the 1987 Constitution. As stated above, with respect to the sworn statement (Exh. B), this was introduced by



58

the defense themselves at the trial as their evidence-in-chief; hence, in effect this became part of their evidence.As regards the transcript taken during the preliminaryinvestigation of the complaint against said accused andco-accused (Exh. D), this too was deemed admitted, not by a positive act of the defense but by their default forfailure top object to its introduction at the trial duringthe cross-examination of said accused who was assistedby counsel. (Emphasis added)

We think the Court of Appeals erred.

First . Objection to evidence must be made after the evidence is formallyoffered. 4 In the case of documentary evidence, offer is made after all thewitnesses of the party making the offer have testified, 5 specifying thepurpose for which the evidence is being offered. 6 It is only at this time, andnot at any other, that objection to the documentary evidence may be made.

In this case, petitioners objected to the admissibility of the documents whenthey were formally offered. Contrary to the ruling of the appellate court,petitioners did not waive objection to admissibility of the said documents bytheir failure to object when these were marked, identified, and thenintroduced during the trial. That was not the proper time to make theobjection. "Objection to the documentary evidence must be made at the timeit is formally offered, not earlier." 7 Thus, it has been held that theidentification of the document before it is marked as an exhibit does not constitute the formal offer of the document as evidence for the partypresenting it. Objection to the identification and marking of the document isnot equivalent to objection to the document when it is formally offered inevidence. What really matters is the objection to the document at the time it

is formally offered as an exhibit. 8 It may be mentioned in this connection that in one case, 9 objection to theadmissibility of a confession on the ground that no meaningful warning of hisconstitutional rights was given to the accused was raised as soon as theprosecution began introducing the confession, and the trial judge sustainedthe objection and right away excluded the confession. This Court, throughChief Justice Fernando, upheld the action of the trial court over the dissent of Justice Aquino, who argued that the trial court's ruling was premature,considering that the confession was merely being identified. It was not yet being formally offered in evidence. 10 On the other hand, Justice Barredo,concurring, while agreeing that objection to documentary evidence should bemade at the time of formal offer, nonetheless thought that to faithfully carryout the constitutional mandate, objections based on the Miranda right tocounsel at the stage of police interrogation should be raised as early aspossible and the ruling on such objections made just as soon in order not tocreate prejudice in the judge, in the event the confession is found

inadmissible. 11

But the ruling in that case does not detract from the fact that objectionsshould be made at the stage of formal offer. Objections to the admissibility of documents may be raised during trial and the court may rule on them then,but, if this is not done, the party should make the objections when thedocumentary evidence is formally offered at the conclusion of thepresentation of evidence for the other party.

Indeed, before it was offered in evidence, the confession in this case cannot even be considered as evidence to which the accused should object.

Second . Nor is it correct to say that the confession was introduced inevidence by Benedicto Gonzales himself when it was his turn to present evidence for the defense. What happened is that despite the fact that in itsorder of April 14, 1988 the court sustained the objection to the admissibilityof the confession and the statements given by Benedicto Gonzales at the

preliminary investigation, the defense nonetheless asked him questionregarding his confession in reference to his denial of liability. It was thus not for the purpose of using as evidence the confession and the allegedstatements in the preliminary investigation but precisely for the purpose of denying their contents that Gonzales was asked questions. Gonzales deniedhe ever gave the answers attributed to him in the TSN allegedly taken duringthe preliminary investigation.

The defense did not really have to ask Gonzales questions regarding hisconfession inasmuch as the court had already declared both the confessionand the transcript of stenographic notes to be inadmissible in evidence, but certainly the defense should not be penalized for exercising an abundance of caution. In fact, the defense did not mark the confession as one of its exhibits,which is proof of the fact that it did not adopt it as evidence. There is,therefore, no basis for the appellate court's ruling that because the defenseadopted the confession by introducing it in evidence, the defense waived anyobjection to the admission of the same in evidence.

Third . Private respondent justifies the use of the confession and TSN on theground that they are necessary for the purpose of impeaching the credibilityof Benedicto Gonzales and not for the purpose of presenting them asevidence in chief. But as already stated, there was really no need for Gonzalesto deny the contents both of the confession and the TSN since they hadalready been excluded in evidence. There was therefore no use forimpeaching his credibility.

WHEREFORE, the decision of the Court of Appeals is REVERSED and SETASIDE and the orders dated April 14, 1988 and October 17, 1988 of theRegional Trial Court of San Jose City are REINSTATED.

SO ORDERED.

THE HEIRS OF MARCELINO DORONIO, NAMELY: REGINA AND FLORA,BOTH SURNAMED DORONIO, Petitioners,

- versus -

HEIRS OF FORTUNATO DORONIO, NAMELY: TRINIDAD ROSALINADORONIO-BALMES, MODING DORONIO, FLORENTINA DORONIO, AND ANICETA ALCANTARA-MANALO, Respondents.

G.R. No. 169454 December 27, 2007

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D E C I S I O N

REYES, R.T., J .:

For Our review on certiorari is the Decision[1] of the Court of Appeals (CA) reversing that [2] of the Regional Trial Court (RTC), Branch 45,Anonas, Urdaneta City, Pangasinan, in an action for reconveyance anddamages. The CA declared respondents as rightful owners of one-half of thesubject property and directed petitioners to execute a registerable document conveying the same to respondents.

The Facts

Spouses Simeon Doronio and Cornelia Gante, now both deceased, werethe registered owners of a parcel of land located at Barangay Cabalitaan,Asingan, Pangasinan covered by Original Certificate of Title (OCT) No.

352.[3] The courts below described it as follows:

Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de ZacariasNajorda y Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el camino paraVillasis; midiendo una extension superficial mil cientocincuenta y dos metroscuadrados.[4]

The spouses had children but the records fail to disclose theirnumber. It is clear, however, that Marcelino Doronio and Fortunato Doronio,now both deceased, were among them and that the parties in this case aretheir heirs. Petitioners are the heirs of MarcelinoDoronio, while respondentsare the heirs of Fortunato Doronio.

On April 24, 1919, a private deed of donation propter nuptias[5] was executed by spouses Simeon Doronio and Cornelia Gante infavor of Marcelino Doronio and the latter’s wife, Veronica Pico. One of theproperties subject of said deed of donation is the one that it described asfollows:

Fourth – A piece of residential land located inthe barrio of Cabalitian but we did not measure it, thearea is bounded on the north by Gabriel Bernardino; onthe east by Fortunato Doronio; on the south byGeminiano Mendoza and on the west by a road toVillasis. Constructed on said land is a house of light materials – also a part of the dowry. Value …200.00.[6]

It appears that the property described in the deed of donation isthe one covered by OCT No. 352. However, there is a significant discrepancywith respect to the identity of the owner of adjacent property at the eastern

side. Based on OCT No. 352, the adjacent owners are Zacarias Najorda andAlejandro Najorda, whereas based on the deed of donation, the owner of theadjacent property is Fortunato Doronio. Furthermore, said deed of donationremained a private document as it was never notarized.[7]

Both parties have been occupying the subject land for severaldecades[8] although they have different theories regarding its present ownership. According to petitioners, they are now the owners of the entireproperty in view of the private deed of donation propter nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico.

Respondents, on the other hand, claim that only half of theproperty was actually incorporated in the said deed of donation because it stated that Fortunato Doronio, instead of Zacarias Najorda and AlejandroNajorda, is the owner of the adjacent property at the easternside. Respondents posit that the donors respected and segregated thepossession of Fortunato Doronio of the eastern half of the land. They are the

ones who have been possessing said land occupied by their predecessor,Fortunato Doronio.

Eager to obtain the entire property, the heirs of Marcelino Doronioand Veronica Pico filed, on January 11, 1993, before the RTCin Urdaneta,Pangasinan a petition “For the Registration of a Private Deed of Donation”[9] docketed as Petition Case No. U-920. No respondents werenamed in the said petition[10] although notices of hearing were posted on thebulletin boards of Barangay Cabalitaan, Municipalities of Asingan andLingayen.[11]

During the hearings, no one interposed an objection to thepetition.[12] After the RTC ordered a general default,[13] the petition waseventually granted on September 22, 1993. This led to the registration of thedeed of donation, cancellation of OCT No. 352 and issuance of a new Transfer

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Certificate of Title (TCT) No. 44481 in the names of Marcelino Doronio andVeronica Pico.[14] Thus, the entire property was titled in the names of petitioners’ predecessors.

On April 28, 1994, the heirs of Fortunato Doronio filed a pleadingbefore the RTC in the form of a petition in the same Petition Case No. U-920. The petition was for the reconsideration of the decision of the RTC that ordered the registration of the subject deed of donation. It was prayed in thepetition that an order be issued declaring null and void the registration of theprivate deed of donation and that TCT No. 44481 be cancelled. However, thepetition was dismissed on May 13, 1994 on the ground that the decision inPetition Case No. U-920 had already become final as it was not appealed.

Determined to remain in their possessed property, respondent heirs of Fortunato Doronio (as plaintiffs) filed an action for reconveyanceand damages with prayer for preliminary injunction[15] against petitionerheirs of Marcelino Doronio (as defendants) before the RTC, Branch 45,Anonas, Urdaneta City, Pangasinan. Respondents contended, among others,that the subject land is different from what was donated as the descriptionsof the property under OCT No. 352 and under the private deed of donationwere different. They posited that spouses Simeon Doronio and CorneliaGante intended to donate only one-half of the property.

During the pre-trial conference, the parties stipulated, amongothers, that the property was originally covered by OCT No. 352 which wascancelled by TCT No. 44481. They also agreed that the issues are: (1)whether or not there was a variation in the description of the propertysubject of the private deed of donation and OCT No. 352; (2) whether or not respondents had acquired one-half of the property covered by OCT No. 352by acquisitive prescription; (3) whether or not the transfer of the whole

property covered by OCT No. 352 on the basis of the registration of theprivate deed of donation notwithstanding the discrepancy in the descriptionis valid; (4) whether or not respondents are entitled to damages;and (5) whether or not TCT No. 44481 is valid.[16]

RTC Decision

After due proceedings, the RTC ruled in favor of petitioner heirs of Marcelino Doronio (defendants). It concluded that the parties admitted theidentity of the land which they all occupy;[17] that a title once registeredunder the torrens system cannot be defeated by adverse, open and notoriouspossession or by prescription;[18] that the deed of donation in considerationof the marriage of the parents of petitioners is valid, hence, it led to theeventual issuance of TCT No. 44481 in the names of said parents;[19] and that respondent heirs of Fortunato Doronio (plaintiffs) are not entitled todamages as they are not the rightful owners of the portion of the propertythey are claiming.[20]

The RTC disposed of the case, thus:

WHEREFORE, premises considered, the Court hereby renders judgment DISMISSING the hereinComplaint filed by plaintiffs against defendants.[21]

Disagreeing with the judgment of the RTC, respondents appealedto the CA. They argued that the trial court erred in not finding that respondents’ predecessor-in-interest acquired one-half of the propertycovered by OCT No. 352 by tradition and/or intestate succession; that thedeed of donation dated April 26, 1919 was null and void; that assuming that the deed of donation was valid, only one-half of the property was actuallydonated to Marcelino Doronio and Veronica Pico; and that respondentsacquired ownership of the other half portion of the property by acquisitiveprescription.[22]

CA Disposition

In a Decision dated January 26, 2005, the CA reversedthe RTC decision with the following disposition:

WHEREFORE, the assailed Decision dated June28, 2002 is REVERSED and SET ASIDE. Declaring theappellants as rightful owners of one-half of the propertynow covered by TCT No. 44481, the appellees arehereby directed to execute a registerable document conveying the same to appellants.

SO ORDERED.[23]

The appellate court determined that “(t)he intention to donate half

of the disputed property to appellees’ predecessors can be gleaned from the

disparity of technical descriptions appearing in the title (OCT No. 352) of spouses Simeon Doronio and Cornelia Gante and in the deed of donation propter nuptias executed on April 24, 1919 in favor of appellees’

predecessors.”[24]

The CA based its conclusion on the disparity of the followingtechnical descriptions of the property under OCT No. 352 and the deed of donation, to wit:

The court below described the propertycovered by OCT No. 352 as follows:

“Un terreno (Lote 1018),situada en el municipio de Asingan,Linda por el NE; con propriedad deGabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con

propriedad de Geminiano Mendoza y por el NO con el camino paraVillasis; midiendo una extensionsuperficial mil ciento cincuenta y dos metros cuadrados.”

On the other hand, the property donated toappellees’ predecessors was described in the deed of

donation as:

“Fourth – A piece of residential land located in thebarrio of Cabalitian but we did not measure it, the area is bounded onthe north by GabrielBernardino; on the east byFortunato Doronio; on the southby Geminiano Mendoza and on thewest by a road toVillasis. Constructed on said landis a house of light materials – alsoa part of the dowry. Value…200.00.”[25] (Emphasis ours)

Taking not e “that the boundaries of the lot donated to Marcelino

Doronio and Veronica Pico differ from the boundaries of the land owned byspouses Simeon Doronio and Cornelia Gante,” the CA concluded that spouses

Simeon Doronio and Cornelia Gante donated only half of the propertycovered by OCT No. 352.[26]

Regarding the allegation of petitioners that OCT No. 352 isinadmissible in evidence, the CA pointed out that , “while the OCT is written

in the Spanish language, this document already forms part of the records of this case for failure of appellees to interpose a timely objection when it wasoffered as evidence in the proceedings a quo. It is a well-settled rule that anyobjection to the admissibility of such evidence not raised will be consideredwaived and said evidence will have to form part of the records of the case ascompetent and admitted evidence.”[27]

The CA likewise ruled that the donation of the entire property in favorof petitioners’ predecessors is invalid on the ground that it impairs the

legitime of respondents’ predecessor, Fortunato Doronio. On this aspect, theCA reasoned out:

Moreover, We find the donation of the entireproperty in favor of appellees’ predecessors invalid as it impairs the legitime of appellants’ predecessor. Article961 of the Civil Code is explicit. “In default of testamentary heirs, the law vests the inheritance, x x x, inthe legitimate x x x relatives of the deceased, x x x .” AsSpouses Simeon Doronio and Cornelia Gante diedintestate, their property shall pass to their lawful heirs,namely: Fortunato and Marcelino Doronio. Donatingthe entire property to Marcelino Doronio and VeronicaPico and excluding another heir, Fortunato,tantamounts to divesting the latter of his rightful sharein his parents’ inheritance. Besides, a person’s

prerogative to make donations is subject to certainlimitations, one of which is that he cannot give bydonation more than what he can give by will (Article752, Civil Code). If he does, so much of what is donatedas exceeds what he can give by will is deemedinofficious and the donation is reducible to the extent of such excess.[28]

Petitioners were not pleased with the decision of the CA. Hence,this petition under Rule 45.

Issues

Petitioners now contend that the CA erred in:

1. DECLARING ADMISSIBILITY OF THE ORIGINALCERTIFICATE OF TITLE NO. 352 DESPITE OFLACK OF TRANSLATION THEREOF.

2. (RULING THAT) ONLY HALF OF THE DISPUTEDPROPERTY WAS DONATED TO THEPREDECESSORS-IN-INTEREST OF THE HEREINAPPELLANTS.

3. (ITS) DECLARATION THAT THE

DONATION PROPTER NUPTIAS IS INNOFICIOUS,IS PREMATURE, AND THUS IT ISILLEGALAND UNPROCEDURAL.[29]

Our Ruling

OCT No. 352 in Spanish Although Not Translated into English or Filipino Is Admissible For Lack of Timely Objection

Petitioners fault the CA for admitting OCT No. 352 in evidence onthe ground that it is written in Spanish language. They posit that “(d)ocumentary evidence in an unofficial language shall not be admitted as

evidence, unless accompanied with a translation into English or Filipino.”[30]







































































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The argument is untenable. The requirement that documentswritten in an unofficial language must be accompanied with a translation inEnglish or Filipino as a prerequisite for its admission in evidence must beinsisted upon by the parties at the trial to enable the court, where atranslation has been impugned as incorrect, to decide the issue.[31] Wheresuch document, not so accompanied with a translation in English or Filipino,is offered in evidence and not objected to, either by the parties or the court, it must be presumed that the language in which the document is written isunderstood by all, and the document is admissible in evidence.[32]

Moreover, Section 36, Rule 132 of the Revised Rules of Evidenceprovides:

SECTION 36. Objection. – Objection toevidence offered orally must be made immediately afterthe offer is made.

Objection to a question propounded in thecourse of the oral examination of a witness shall bemade as soon as the grounds therefor shall becomereasonably apparent.

An offer of evidence in writing shall beobjected to within three (3) days after notice of theoffer unless a different period is allowed by thecourt.

In any case, the grounds for the objectionsmust be specified. (Emphasis ours)

Since petitioners did not object to the offer of said documentary

evidence on time, it is now too late in the day for them to question itsadmissibility. The rule is that evidence not objected may be deemedadmitted and may be validly considered by the court in arriving at itsjudgment .[33] This is true even if by its nature, the evidence is inadmissibleand would have surely been rejected if it had been challenged at the propertime.[34]

As a matter of fact, instead of objecting, petitioners admitted thecontents of Exhibit “A,” that is, OCT No. 352 in their comment [35] onrespondents’ formal offer of documentary evidence. In the said comment,petitioners alleged, among others, that “Exhibits A, B, C, D, E, F and G, are

admitted but not for the purpose they are offered because these exhibitsbeing public and official documents are the best evidence of that theycontain and not for what a party would like it to prove.”[36] Said evidencewas admitted by the RTC.[37] Once admitted without objection, even though

not admissible under an objection, We are not inclined now to reject it .[38] Consequently, the evidence that was not objected to became propertyof the case, and all parties to the case are considered amenable to anyfavorable or unfavorable effects resulting from the said evidence.[39]

Issues on Impairment of Legitime Should Be Threshed Out in a Special Proceeding, Not in Civil Action for Reconveyance and Damages

On the other hand, petitioners are correct in alleging that the issueregarding the impairment of legitime of Fortunato Doronio must be resolvedin an action for the settlement of estates of spouses Simeon Doronio andCornelia Gante. It may not be passed upon in an action for reconveyance anddamages. A probate court, in the exercise of its limited jurisdiction, is thebest forum to ventilate and adjudge the issue of impairment of legitime as

well as other related matters involving the settlement of estate.[40]

An action for reconveyance with damages is a civil action, whereas

matters relating to settlement of the estate of a deceased person such asadvancement of property made by the decedent, partake of the nature of aspecial proceeding. Special proceedings require the application of specificrules as provided for in the Rules of Court .[41]

As explained by the Court in Natcher v. Court of Appeals:[42]

Section 3, Rule 1 of the 1997 Rules of CivilProcedure defines civil action and special proceedings,in this wise:

x x x a) A civil action isone by which a party sues anotherfor the enforcement or protectionof a right, or the prevention or

redress of a wrong.

A civil action may eitherbe ordinary or special. Both aregoverned by the rules for ordinarycivil actions, subject to specificrules prescribed for a special civilaction.

x x x x

c) A special proceedingis a remedy by which a party seeksto establish a status, a right or aparticular fact.

As could be gleaned from the foregoing, therelies a marked distinction between an action and aspecial proceeding. An action is a formal demand of one’s right in a court of justice in the manner prescribed

by the court or by the law. It is the method of applyinglegal remedies according to definite establishedrules. The term “special proceeding” may be defined as

an application or proceeding to establish the status orright of a party, or a particular fact. Usually, in specialproceedings, no formal pleadings are required unlessthe statute expressly so provides. In specialproceedings, the remedy is granted generally upon anapplication or motion.

Citing American Jurisprudence, a notedauthority in Remedial Law expounds further:

It may accordingly bestated generally that actionsinclude those proceedings whichare instituted and prosecutedaccording to the ordinary rulesand provisions relating to actionsat law or suits in equity, and that special proceedings include thoseproceedings which are not ordinary in this sense, but isinstituted and prosecutedaccording to some special mode asin the case of proceedings

commenced without summons andprosecuted without regularpleadings, which arecharacteristics of ordinary actionsx x x. A special proceeding must therefore be in the nature of adistinct and independent proceeding for particular relief,such as may be institutedindependently of a pending action,by petition or motion upon notice.

Applying these principles, an action forreconveyance and annulment of title with damages is acivil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of

property made by the decedent, partake of the natureof a special proceeding, which concomitantly requiresthe application of specific rules as provided for in theRules of Court.

Clearly, matters which involve settlement and distribution of the estate of the decedent fall withinthe exclusive province of the probate court in theexercise of its limited jurisdiction.

Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged tohave been made by the deceased to any heir may beheard and determined by the court having jurisdictionof the estate proceedings, and the final order of thecourt thereon shall be binding on the person raising thequestions and on the heir.

While it may be true that the Rules used theword “may,” it is nevertheless clear that the same

provision contemplates a probate court when it speaksof the “court having jurisdiction of the estate

proceedings.”

Corollarily, the Regional Trial Court in theinstant case, acting in its general jurisdiction, is devoidof authority to render an adjudication and resolve theissue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No.71075 for reconveyance and annulment of title withdamages is not, to our mind, the proper vehicle tothresh out said question. Moreover, under the present circumstances, the RTCof Manila, Branch 55, was not properly constituted as a probate court so as to validlypass upon the question of advancement made by thedecedent Graciano Del Rosario to his wife, hereinpetitioner Natcher.

We likewise find merit in petitioners’ contention that before any

conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps be taken first .[43] The net estate of thedecedent must be ascertained, by deducting all payable obligations andcharges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. Withthe partible estate thus determined, the legitime of the compulsory heir orheirs can be established; and only then can it be ascertained whether or not adonation had prejudiced the legitimes.[44]



























































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Declaration of Validity of Donation Can Be Challenged by an Interested Party Not Impleaded in Petition for Quieting of Title or Declaratory Relief or Where There is No Res Judicata. Moreover, This Court Can Consider a Factual Matter or Unassigned Error in the Interest of Substantial Justice.

Nevertheless, petitioners cannot preclude the determination of validityof the deed of donation on the ground that (1) it has been impliedly admittedby respondents; (2) it has already been determined with finality by the RTCin Petition Case No. U-920; or (3) the only issue in an action for reconveyance

is who has a better right over the land.[45]

The validity of the private deed of donation propter nuptias infavor of petitioners’ predecessors was one of the issues in this case before

the lower courts. The pre-trial order[46] of the RTC stated that one of theissues before it is “(w)hether or not the transfer of the whole property

covered by OCT No. 352 on the basis of the private deed of donationnotwithstanding the discrepancy in the description is valid.” Before the CA,one of the errors assigned by respondents is that “THE TRIAL COURT ERRED

IN NOT FINDING THAT THE PRIVATE DEED OF DONATION DATED APRIL26, 1919 WAS NULL AND VOID.”[47]

The issue of the validity of donation is likewise brought to Us bypetitioners as they stated in their Memorandum [48] that one of the issues tobe resolved is regarding the alleged fact that “THE HONORABLE COURT OF

APPEALS ERRED IN FINDING THE DONATION INVALID.” We are thus poisedto inspect the deed of donation and to determine its validity.

We cannot agree with petitioners’ contention that respondents may nolonger question the validity of the deed of donation on the ground that theyalready impliedly admitted it. Under the provisions of the Civil Code, a voidcontract is inexistent from the beginning. The right to set up the defense of its illegality cannot be waived.[49] The right to set up the nullity of a void ornon-existent contract is not limited to the parties as in the case of annullableor voidable contracts; it is extended to third persons who are directlyaffected by the contract.[50]

Consequently, although respondents are not parties in the deed of donation, they can set up its nullity because they are directly affected by thesame.[51] The subject of the deed being the land they are occupying, itsenforcement will definitely affect them.

Petitioners cannot also use the finality of the RTC decision in

Petition Case No. U-920[52] as a shield against the verification of the validity of the deed of donation. According to petitioners, the said final decision is onefor quieting of title.[53] In other words, it is a case for declaratory relief underRule 64 (now Rule 63) of the Rules of Court, which provides:

SECTION 1. Who may file petition. – Anyperson interested under a deed, will, contract or otherwritten instrument, or whose rights are affected by astatute, executive order or regulation, or ordinance,may, before breach or violation thereof, bring an actionto determine any question of construction or validityarising under the instrument or statute and for adeclaration of his rights or duties thereunder.

An action for the reformation of aninstrument, to quiet title to real property or removeclouds therefrom, or to consolidate ownership under

Article 1607 of the Civil Code, may be brought underthis rule.

SECTION 2. Parties. – All persons shall bemade parties who have or claim any interest whichwould be affected by the declaration; and nodeclaration shall, except as otherwise provided inthese rules, prejudice the rights of persons not parties to the action. (Emphasis ours)

However, respondents were not made parties in the said PetitionCase No. U-920. Worse, instead of issuing summons to interested parties,the RTC merely allowed the posting of notices on the bulletin boardsof Barangay Cabalitaan, Municipalities of Asingan and Lingayen,Pangasinan. As pointed out by the CA, citing the ruling of the RTC:

x x x In the said case or Petition No. U-920,

notices were posted on the bulletin boardsof barangay Cabalitaan, Municipalities of Asingan andLingayen, Pangasinan, so that there was a notice to thewhole world and during the initial hearing and/orhearings, no one interposed objection thereto.[54]

Suits to quiet title are not technically suits in rem, nor are they,strictly speaking, in personam, but being against the person in respect of the res, these proceedings are characterized as quasi in rem.[55] The judgment in such proceedings is conclusive only between the parties.[56] Thus,respondents are not bound by the decision in Petition Case No. U-920 as theywere not made parties in the said case.

The rules on quieting of title[57] expressly provide that anydeclaration in a suit to quiet title shall not prejudice persons who are not parties to the action.

That respondents filed a subsequent pleading[58] in the samePetition Case No. U-920 after the decision there had become final did not change the fact that said decision became final without their being impleadedin the case. Said subsequent pleading was dismissed on the ground of finalityof the decision.[59]

Thus, the RTC totally failed to give respondents their day incourt. As a result, they cannot be bound by its orders. Generally accepted isthe principle that no man shall be affected by any proceeding to which he is astranger, and strangers to a case are not bound by judgment rendered by thecourt .[60]

Moreover, for the principle of res judicata to apply, the followingmust be present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4) the two actions involve identicalparties, subject matter and causes of action.[61] The fourth element is not present in this case. The parties are not identical because respondents werenot impleaded in Petition Case No. U-920. While the subject matter may bethe same property covered by OCT No. 352, the causes of action aredifferent. Petition Case No. U-920 is an action for declaratory relief while thecase below is for recovery of property.

We are not persuaded by petitioners’ posture that the only issue in

this action for reconveyance is who has a better right over the land; and that the validity of the deed of donation is beside the point.[62] It is precisely thevalidity and enforceability of the deed of donation that is the determiningfactor in resolving the issue of who has a better right over theproperty. Moreover, notwithstanding procedural lapses as to theappropriateness of the remedies prayed for in the petition filed before Us,this Court can brush aside the technicalities in the interest of justice. In someinstances, this Court even suspended its own rules and excepted a case fromtheir operation whenever the higher interests of justice so demanded.[63]

Moreover, although respondents did not directly raise the issue of validity of the deed of donation at the commencement of the case before thetrial court, it was stipulated[64] by the parties during the pre-trialconference. In any event, this Court has authority to inquire into anyquestion necessary in arriving at a just decision of a case before it .[65] Thoughnot specifically questioned by the parties, additional issues may also beincluded, if deemed important for substantial justice to be rendered.[66]

Furthermore, this Court has held that although a factual issue isnot squarely raised below, still in the interest of substantial justice, this Court is not prevented from considering a pivotal factual matter. The SupremeCourt is clothed with ample authority to review palpable errors not assignedas such if it finds that their consideration is necessary in arriving at a just decision.[67]

A rudimentary doctrine on appealed cases is that this Court isclothed with ample authority to review matters, even if they are not assignedas errors on appeal, if it finds that their consideration is necessary at arrivingat a just decision of the case.[68] Also, an unassigned error closely related toan error properly assigned or upon which the determination of the questionraised by the error properly assigned is dependent, will be considered by theappellate court notwithstanding the failure to assign it as an error.[69]

Donation Propter Nuptias of Real Property Made in a Private Instrument Before the New Civil Code Took Effect

on August 30, 1950 is Void

We now focus on the crux of the petition, which is the validity of the deed of donation. It is settled that only laws existing at the time of theexecution of a contract are applicable to it and not the later statutes, unlessthe latter are specifically intended to have retroactive effect .[70] Accordingly,the Old Civil Code applies in this case as the donation propter nuptias wasexecuted in 1919, while the New Civil Code took effect only on August 30,1950.

Under the Old Civil Code, donations propter nuptias must be madein a public instrument in which the property donated must be specificallydescribed.[71] Article 1328 of the Old Civil Code provides that gifts propter nuptias are governed by the rules established in Title 2 of Book 3 of the sameCode. Article 633 of that title provides that the gift of real property, in order

to be valid, must appear in a public document .[72]

It is settled that a donationof real estate propter nuptias is void unless made by public instrument.[73]

In the instant case, the donation propter nuptias did not becomevalid. Neither did it create any right because it was not made in a publicinstrument .[74] Hence, it conveyed no title to the land in question topetitioners’ predecessors.

Logically, then, the cancellation of OCT No. 352 and the issuance of anew TCT No. 44481 in favor of petitioners’ predecessors have no legal

basis. The title to the subject property should, therefore, be restored to itsoriginal owners under OCT No. 352.

Direct reconveyance to any of the parties is not possible as it has not yet been determined in a proper proceeding who among the heirs of spouses


























































































































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Simeon Doronio and Cornelia Gante is entitled to it. It is still unprovenwhether or not the parties are the only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As earlier intimated, there arestill things to be done before the legal share of all the heirs can be properlyadjudicated.[75]

Titled Property Cannot Be Acquired By Another By Adverse Possession or Extinctive Prescription

Likewise, the claim of respondents that they became owners of theproperty by acquisitive prescription has no merit. Truth to tell, respondents

cannot successfully invoke the argument of extinctive prescription. Theycannot be deemed the owners by acquisitive prescription of the portion of the property they have been possessing. The reason is that the property wascovered by OCT No. 352. A title once registered under the torrens systemcannot be defeated even by adverse, open and notorious possession; neithercan it be defeated by prescription.[76] It is notice to the whole world and assuch all persons are bound by it and no one can plead ignorance of theregistration.[77]

The torrens system is intended to guarantee the integrity andconclusiveness of the certificate of registration, but it cannot be used for theperpetration of fraud against the real owner of the registered land.[78] Thesystem merely confirms ownership and does not create it. Certainly, it cannot be used to divest the lawful owner of his title for the purpose of transferring it to another who has not acquired it by any of the modesallowed or recognized by law. It cannot be used to protect a usurper fromthe true owner, nor can it be used as a shield for the commission of fraud;neither does it permit one to enrich himself at the expense of another.[79] Where such an illegal transfer is made, as in the case at bar, thelaw presumes that no registration has been made and so retains title in thereal owner of the land.[80]

Although We confirm here the invalidity of the deed of donation and of its resulting TCT No. 44481, the controversy between the parties is yet to befully settled. The issues as to who truly are the present owners of theproperty and what is the extent of their ownership remain unresolved. Thesame may be properly threshed out in the settlement of the estates of theregistered owners of the property, namely: spouses Simeon Doronio andCornelia Gante.

WHEREFORE, the appealed Decision is REVERSED AND SET ASIDE. A new one is entered:

(1) Declaring the private deed of donation propter nuptias in favor

of petitioners’ predecessors NULL AND VOID; and

(2) Ordering the Register of Deeds of Pangasinan to:

(a) CANCEL Transfer Certificate of Title No.44481 in the names of Marcelino Doronio and VeronicaPico; and

(b) RESTORE Original Certificate of Title No.352 in the names of its original owners, spouses SimeonDoronio and Cornelia Gante.

SO ORDERED.

EN BANC

G.R. No. L-9113 December 24, 1915

BENITO LOPEZ, administrator of the estate of Marcela Emradura,deceased, plaintiff-appellee,vs.TOMAS VALDEZ, defendant-appellant.

MORELAND, J.:

This is an action begun by the administrator of the estate of MarcelaEmradura, deceased, against Tomas Valdez for the recovery of possession of the land described in the complaint on the payment by the plaintiff of thesum of P30. Judgment was for plaintiff and the court ordered delivery of possession of the land described in the complaint on the payment by plaintiff of the P30 mentioned in the complaint. The court also ordered thecancellation of the registration of that portion of the land of Gregorio San

Agustin which includes the land in litigation in this action.Several errors are assigned on this appeal. The first is that there is no proof in the record that appellee was appointed administrator of the estate of Marcela Emradura, deceased.1awphil.net

An examination of the record discloses that this error is well assigned. Thereis no evidence in the record showing that Benito Lopez was ever appointedadministrator of the estate of Marcela Emradura, deceased; nor is there anyindication in the record that the parties to the action acted on the assumptionthat such appointment had been made or that the defendant, by any act of his, estopped himself on this appeal from alleging the error assigned. On thisground alone the judgment would have to be set aside. (Craig vs. Leuterio, 11Phil. Rep., 44.)

The second error assigned is based on the procedure adopted by the court when objections were interposed by counsel for appellant to questionsdesigned to adduce evidence of the contents of written documents when thedestruction or the loss of the documents had not been properly established.It appears from the record that appellee relied on certain written contractsentered into between the appellant and Marcela Emradura during herlifetime to prove the cause of action set out in the complaint. The documentsthemselves were not produced and when counsel for appellee sought toprove by certain witnesses the contents of these documents, without presenting facts justifying secondary evidence with reference thereto,counsel for appellant made the objection that the evidence was incompetent and improper as the documents themselves were the best evidence. Severalof these objections were made, to each of which the court, without a decision

on the objections, stated: "The objection of Mr. Reyes will be taken intoconsideration." The witnesses were thereupon allowed, over the exception of appellant, to answer the questions to which the objections were interposed.A decision on these objections was thus left in abeyance and the trialterminated without a resolution of the questions presented. In spite of that the trial court in its final decision took into consideration the secondaryevidence thus introduced and based its decision thereon.

We are of the opinion that this procedure was prejudicial to the rights andinterests of the appellant.itc-a1f Parties who offer objections to questions onwhatever ground are entitled to a ruling at the time the objection is madeunless they present a question with regard to which the court desires toinform itself before making its ruling. In that event it is perfectly proper forthe court to take a reasonable time to study the question presented by theobjection; but a ruling should always be made during the trial and at suchtime as will give the party against whom the ruling is made an opportunity to

meet the situation presented by the ruling. The disadvantageous position inwhich a party may be put by the reservation of a ruling on an objection to aquestion is illustrated by the case in hand. If the court had given a prompt ruling on the objections, appellant would have had an opportunity to meet the situation presented. If his objection had been overruled, he could havetaken his exception and offered evidence to rebut that adduced by theobjectionable questions. If the ruling had been the other way, appellee wouldhave been under the necessity of offering the documents themselves, at which time appellant would have been able to present any defense to themwhich the facts and circumstances might have required or permitted. Therehaving been no decision during the course of the trial, appellant's counselhad no means of knowing what the ruling of the court would be on theobjection and, consequently, he could not know whether or not he would becompelled to meet any evidence at all; for, if the objection were sustained,then appellee had offered no competent evidence to support his case;whereas, if the objection were overruled, then appellant would not have thebenefit of a ruling on his objection or of the exception taken thereto. We do

not regard the procedure objected to as permissible under the facts andcircumstances of this case and we believe that it prejudiced the substantialrights of appellant.

We are also of the opinion that the error assigned on the merits is also wellassigned. We do not believe that the plaintiff has proved that the estatewhich he represents is entitled to possession of the lands in question. For thereason that the judgment must be reversed on the other grounds mentioned,we do not enter into a lengthy discussion of the evidence. We are of theopinion that the evidence does not support the finding of the court that plaintiff is entitled to possession. In making this decision we do not touch thetitle to the property, the action being simply for possession.

The judgment appealed from is reversed and the complaint dismissed on themerits, without costs in this instance. So ordered.

G.R. No. L-28499 September 30, 1977

VICTORIAS MILLING COMPANY, INC., petitioner,vs.ONG SU AND THE HONORABLE TIBURCIO S. EVALLE IN HIS CAPACITY ASDIRECTOR OF PATENT'S,respondents.

FERNANDEZ, J.:

This is a petition to review the decision of the Director of Patents in InterPartes Case No. 304 entitled "Victorias Milling Company, Inc., petitioner, verus,Ong Su" dated August 15, 1967 denying the petition to cancel the certificateof registration issued by the philippines Patent Office on Jurie 20, 1961 infavor of Ong Su covering the trademark "VALENTINE" and design and usedon refined sugar. 1

The petitioner,

Victorias Milling Company, Inc., a domestic corporation and

engaged in the manufacture and sale of refined granulated sugar is the ownerof the trademark "VICTORIAS" and d design registered in the PhilippinesPatent Office on November 9, 1961.

The respondent Ong Su is engaged in the repacking and sale of refine sugarand is the owner of the trademark "VALENTINE" and design registered in thePhilippines Patent Office on June 20, 1961.

On October 4, 1963, Victorias Mining Company, Inc. filed with the PhilippinePatent Office a petition to cancel the registration of the Ong Su trademark"Valentine."

The petitioner allied that its tradermrk "Victorias" and diamond design hasdistinctive of its sugar long before the respondent used its trademark; that the registration of "Valentine" and design has caused and will cause great



























63

damage to petitioner by reason of mistake, confusion, or deception amongthe purchasers because it is similar to its "Victorias" trademark; that registration was fradulently obtained by Ong Su and that "Valentine" faiselysuggests a connection with Saint Valentine or with an institution or belief connected therewith. 2

In his answer to the petition the respondent averred that he is doingbusiness under the name and style "Valentine Packaging" and has registeredthe trademark "Valentine" with a design for sugar and was issued Certificateof Registration No. 8891 dated June 20, 1961; that the trademark "Victorias"with diamond design and the trademark "Valentine" with a design are twodifferent marks; and that there is absolutely no likelihood of confusion,mistake or deception to purchasers through the concurrent use of the

petitioner's mark "Victorias" with a diamond design and the respondents'mark "Valentine" with a design in connection with sugar. 3

The petitioner's only witness, Pacifica V. Vijandre its vice-president andstockholder, testified that Victorias Milling Company, Inc. has used since1947 the trademark "Victorias" and diamond design with colors of red andblack on sacks of sugar having variable weight and size of 5 lbs., 10 lbs., 25 N.,50 lbs., and 100 lbs.; that the company had transactions on or sales of sugarwith local dealers such as Kim Kee, Chu Yu & Co., Limouan & Co., LuzonMerchandising Corp. and ARCA that the average sale from 1958 to 1962 wasP30,000,000 and for the whole year of 1962 the sale was P46,000,000; that he came to know that the trademark "Valentine" appeared in the market in1962 through the report of his company's field agents; and that except forthe words "Valentine and Victorias", the design and wordings of the bags arepractically the same. 4

The respondent, Ong Su that he adopted and began using his trademark

"Valentine" and design before and continuously after World War II in thePhilippines, particularly on paper bags used as containers for starch, coffeeand sugar; and that since January 1955 he continued using said trademark onrepacked sugar.

Arturo Chicane a witness for the respondent, testified that he was adistribution agent of Ong Su that he travelled a lot but he river own across aninstance when the respondent Ong Su product was mistaken for thepetitioner's product; that he found the diamond design to be quite commonin combination with other words used as trademarks as a background or toenhance their appearance, such as "DIAMOND" and design (Exhibit "54-A"),"EAGLE" and design (Exhibit "53"), and "SUNRISE" and design (Exhibit "55"),not belonging to the petitioner, which are also used on repacked sugar byvarious sugar dealers; and that said designs and the color of the lines onwhich drawn had not been regarded as trademarks but we ornamentation. 5

The Director of Patents denied the petition to cancel the certificate of

registration of the respondent Ong Su covering the trademark "Valentine"and design because:

From the facts of record, I find nothing to sustain thepetition.

There is no question that as to their respective literaldesignation the trademarks are different. One isVALENTINE while the other is VICTORIAS. Thus, as tosound and connotation there is no dispute as to theirdissimilarity.

However, from the evidence and pleadings, it appearsthat petitioner is relying heavily on its diamond design,the color scheme, and the printing sequence orarrangement of such legends as weight, contents andmanufacturer or packer.

I am of the firm belief that the diamond Portion of petitioner's trademark hag not bolstered its cause.Common geometric shapes such as circles, ovals,squares, triangles, diamonds, and the like, when used asvehicles for display on word marks, ordinarily are not retarded as indicia of origin for goods to which themarks are applied, unless of course they have acquiredsecondary meaning. I have scoured the recordscompletely to ascertain if the petitioner has submittedsatisfactory evidence in this regard, but I find absolutelynothing to base a ruling that the triangle (sic) designhas acquired a secondary meaning with respect to itssugar business.

It is the common practice for trademark owners toregister designs forming outline of their distinguishingmark, but when the registrant of such design reliesupon registration in proceeding based upon likelihoodof confusion of purchasers, he assumes the burden of showing that the design portion of the mark has been soused that purchasers recognize the design, standingalone, as indicating goods emanating from theregistrant. Bausch & Lomb Optical Co., v. OverseasFinance & Trading Co., Inc. (ComrPats) 112 USPQ 6.

Considering herein that the petitioner failed to establishthat diamond design component of its mark hasacquired a secondary meaning and that the literalportion of the marks have no similarity, there is noreasonable likelihood of purchaser confusion resulting

from registrant's use of VALENTINE within a diamondand petitioner's use of VICTORIAS within a diamond.

As regards the colors black and red used, it isfundamental in trademark jurisprudence that coloralone, unless displayed in a distinct or arbitrary design,does not function as a trademark, inasmuch as here, orelsewhere, the colors black and red are not so displayedby the petitioner, and are primary colors commonly andfreely used in the printing business.

Finally, as regards the printing sequences orarrangement of such legends as weight, contents, andmanufacturer or packer, I regard it as merely a matterpertaining to the address of the goods' — a matterinvolving unfair competition over which the Patent Office has no jurisdiction. (See: Menzi & Co., Inc, vs.Andres Co Dee. No. 59 dated Oct. 31, 1952, Dir. of Patents.) And in the case of A. E. Staley ManufacturingCo., Inc. vs. Andres Co. v. Tan Tong, citing, Gillette SafetyRazor Go. v. Triangle Mechanical Laboratories, 31 USPQ24; Aladdin Mfg. Co. v. Mantle Lamp Co., 21 USPQ 58;and J. C. Eno (U.S.) Limited v. Deshayas 29 USPQ 179), it was held that the tribunals of the Philippines Patent Office have no jurisdiction over questions of unfaircompetition. At most, the petitioner's recourse is for it to seek relief in civil courts.

The allegations that the registration of VALENTINE wasobtained fraudulently; that it falsely suggests a

connection with St. Valentine; and that it is merelydescriptive or deceptively misdescriptive of sugar haveno basis in law and fact. 6

The petitioner submits that the Director of Patents committed the followingerrors:

I

THE RESPONDENT DIRECTOR OF PATENTS ERRED INHOLDING THAT PETITIONER'S REGISTERED DIAMONDDESIGN IS NOT AN INDEX OF ORIGIN.

II

THE RESPONDENT DIRECTOR OF PATENTS ERRED INHOLDING THAT PETITIONER IS REQUIRED TOESTABLISH THAT ITS DIAMOND DESIGN HAS

ACQUIRED A SECONDARY MEANING.III

THE RESPONDENT DIRECTOR OF PATENTS ERRED INHOLDING PETITIONER'S DIAMOND DESIGN HAS NOTACQUIRED A SECONDARY MEANING.

IV

THE RESPONDENT DIRECTOR OF PATENTS ERRED INHOLDING THAT THE DETAILS OF PETITIONER'SDESIGN THAT HAVE BEEN IMITATED BY RESPONDENTONG SU MERELY PERTAIN TO THE'DRESS OF THEGOODS.'

V

THE RESPONDENT DIRECTOR OF PATENTS ERRED IN

CONFINING HIS COMPARISON OF PETITIONER'S ANDRESPONDENT'S RESPECTIVE TRADEMARKS TO ONESOLE ITEM OF THEIR DESIGN, IGNORING THECOMPLETE LABELS AS ACTUALLY USED IN TRADEAND SEEN BY CONSUMERS.

VI

THE RESPONDENT DIRECTOR OF PATENTS ERRED INTAKING THE POSITION THAT IN CASES OFTRADEMARK CANCELLATION INVOLVING, AMONGOTHERS, OBVIOUS ACTS OF UNFAIR COMPETITION, HENEED NOT TAKE ANY ACTION WHATSOEVER, SINCEHE SUPPOSEDLY HAS NO JURISDICTION IN THEPREMISES.

VII

THE RESPONDENT DIRECTOR OF PATENTS ERRED INHOLDING THAT PETITIONER'S REGISTERED COLORDESIGN DOES NOT FUNCTION AS A TRADEMARK.

VIII

THE RESPONDENT DIRECTOR OF PATENTS ERRED INHOLDING THAT BECAUSE THE LITERAL PORTIONS OFTHE RESPECTIVE TRADEMARKS IN QUESTION,NAMELY, THE RESPECTIVE NAMES 'VICTORIAS' AND'VALENTINE', HAVE NO SIMILARITY, THERE IS NOREASONABLE LIKELIHOOD OF PURCHASERCONFUSION.



64

IX

THE RESPONDENT DIRECTOR OF PATENTS ERRED INASSUMING THAT PETITIONER, OR THE OWNER OFANY IMITATED OR INFRINGED TRADEMARK FORTHAT MATTER, MUST ESTABLISH ACTUALPURCHASER CONFUSION.

X

THE RESPONDENT DIRECTOR OF PATENTS ERRED INPREVENTING THE TESTIMONIES OF RESPONDENTONG SU AND WITNESS ERNESTO DURAN ASREBUTTAL WITNESSES FOR PETITIONER, SAID

RULINGS OF RESPONDENT DIRECTOR CONSTITUTINGREVERSIBLE ERROR AND THE DENIAL OFPROCEDURAL DUE PROCESS.

XI

THE RESPONDENT DIRECTOR OF PATENTS ERRED INHOLDING THAT THE REGISTRATION OF THEVALENTINE TRADEMARK BY RESPONDENT ONG SUWAS NOT PRUDULENTLY OBTAINED.

XII

THE RESPONDENT DIRECTOR OF PATENTS, ACTINGTfIROUGH HEARING OFFICER AMANDO MARQUEZ,ERRED IN ADMITTING RESPONDENT ONG SU'SEXHIBITS PERTAINING TO ONE 'MARIANO ANG SAIDNAME NOT HAVING BEEN CLEARLY ESTABLISHED ASAN ALIAS, ALHTHOUGH ADMITTEDLYUNAUTHORIZED, OF RESPONDENT ONG SU. 7

The contention of petitioner that the diamond design in its trademark is anindex of origin has no merit. The petitioner has not shown that the designportion of the mark has been so used that purchasers recognize the design,standing alone, as indicating goods coming from the registrant. As correctlystated by the Director of Patents, common geometric shapes such asdiamonds ordinarily are not regarded as indicia of origin for goods to whichthe remarks are applied unless they have acquired a secondary meaning. Andthere is no evidence that the diamond design in the trademark of thepetitioner has acquired a secondary meaning with respect to its sugarbusiness. The word "Victorias" is what Identifies the sugar contained in thebag as the product of the petitioner. Indeed, the petitioner has advertised itssugar in bags marked "Victorias" with oval, hexagor. and other designs.

The evidence is that Ong Su has been using his trademark since prior to thelast World War and he obtained the registration thereof on June 20, 1961.Vijandre declared that the petitioner started to use its trademark only in1947. Said trademark was registered on November 9, 1961. It cannot be said,therefore, that the respondent Ong Su imitated the trademark of thepetitioner.

The petitioner avers that purchasers of sugar are likely to confusepetitioner's "Victorias" trademark and respondent Ong Su's "Valentine"trademark because of the following similarities:

1. Both trademarks have the same diamond design withthe slight modification that the lines of the"VALENTINE" diamond design are a little protruding at the ends.

2. The lines forming the diamond design in bothtrademarks consist of two lines, namely, the outer

portion and the inner portion.

3. The outer portion of the diamond design of bothtrademarks has the color black as shown in thespecimens (Exhibits "A" and "B"). The, inner line of thediamond design in both trademarks has the color red.

4. In both trade marks, the word "PURE" in black print appears inside of the upper portion of the diamonddesign.

5. In both trade marks, the word "VICTORIAS" and theword VALENTINE' placed within the diamond designare conspicuously colored red.

6. The letter "V" in Victorias and the letter "V" inValentine are Identically placed.

7. The word "VICTORIAS" and the word "VALENTINE"are Identically arranged, the same containing the samenumber of letters.

8. Immediately below the words "VICTORIAS" and"VALENTINE"appears the words "REFINED SUGAR".

9. underneath the diamond design in both trademarksare the words "FINE GRANULATED" and below saidphrase are the words 'CANE SUGAR'with a smalldiamond design.

10. Both, trade marks are used on refines sugar.

11. The words "PURE," "VALENTINE," "VICTORIAS,""FINE GRANULATED" and "CANE SUGAR" in both trademarks are same has arranged and printed.9

The respondent Ong Su maintains that the alleged are minor for the followingreason:

Appellant attempts to show the possibility or likelihoodof purchaser confusion by pointing out allegedsimilarities in the packages in question, e.g. "PureRefined Sugar" appearing in both marks in question. It should be noted, however, that these words are merelydescriptive commonly applied to the goods, namely,sugar, and cannot be exclusively appropriated by thepetitioner. The other alleged similarities pointed to byappellant — that the lines forming the diamond designin both trademarks consist of two lines, the outerportion and the inner portion; that the diamond designin both tradeniarks has the color black and the innerline of both designs has the red color; that the diamonddesign as used by the petitioner and by respondent areof the same size; that the letter 'V' in Victorias and theletter "V" in "Valentine" are the same size; and that theletter 'V' in VICTORIAS and the letter "V" in theValentine package are Identically pIaced in thediamond; and that — the word "Victorias" and the word"VALENTINE" are Identically arranged within thediamond — are, we submit with respect, minor andinsignificant for the purpose of this petition even if theobservations of appellant are correct.10

It seems clear that the words "Valentine" and "Victorias" and the names andplaces of business of Victorias Milling Company, Inc. and Ong Su are thedominant features of the trademarks in question. The petitioner has not established such a substantial similarity between the two trademarks inquestion as to warrant the cancellation of the trademark 'Valentine'of therespondent Su. The Director of Patents correctly ruled that he has nojurisdiction over the issue of unfair competition. Under Section 27 of theTrade Mark Law, Republic Act No. 166, after actions for unfair competitionshall be brought before the proper Court of First Instance.

The refusal of the Director of Patents to allow respondent Ong Su andwitness Emesto Duran to testify on rebuttal is not a reversible effort.

The only'purpose of the petitioner in proposing to call Ong Su as a witness onrebuttal is to ask the latter if he had judicial authority to use the alias'Mariano'. Ang It appears, however, that the counsel of petitioner had already

extensively cross-examined Ong Su as to a citizenship, alien certificate of registration and the other name Mariano Ang. It seems immaterial whetheror not Ong Su has judicial authority to use Mariano Ang as an alias. There isevidence that even before the last World War, the trademark 'Valentine' anddesign had been used under the name of either Ong Su or Mariano Ang.

The petitioner sought to present Emesto T. Duran as rebuttal witness toprove that there was a confusion among consumers or buyers of sugarcaused by the alleged sorority of the "Victorias" and "Valentine" trademarks.The presentation of Emesto T. Duran as rebuttal witness was objected to bycounsel of the respondent on the ground that the evidence sought to beelicited from Duran did not directly contradict the testimony of witnessChicane The objection was sustained by the hearing officer whose ruling wassubsequently confer by the Director of Patents. Counsel for the petitionermade the following formal offer of proof:

ATTY. GONZALEZ:

Your Honor please, in view of the ruling of theHonorable Director your Honor please on theadmissibility of certain items of evidence, whichresolution dated February 21, 1966 was received byundersigned counsel for the petitioner on February 22,1966, said resolution was setting the hearing of thiscase for this morning, I wish to state, I wish to registermy exception, my respectful exception to saidresolution. In view of the resolution not permitting meto present Mr. Ernesto Duran, my proposed witnesswhom I attempted to present at the last hearing, I wishto offer as proof the following items ol' the testimony of witness Duran. Now as he would go shopping with hisparents and that sometime in the month of February1963 he went to the Aranque market, and while he wasbuying groceries he saw a shelf with five (5) lbs. bag of

sugar with the bag and package he thought wasVICTORIAS. Witness Duran will further testify that hewent to the shelf and pointed to the bag of sugar andhesaid Isang support ng Victorias Ang. That the sugarwas taken by the shopkeeper and when he went homehe found out that the sugar was marked VALENTINE. liewent on again on another time later and saw that theshelf was still filled with five (5) pounds (lbs,) bagVALENTINE sugar. The shelf also has bags of VICTORIAS sugar side by side with VALENTINE sugar,that the package of VALENTINE looked so much alikewill VICTORIAS sugar that he was misled into pointingto VALENTINE and asked for VICTORIAS.



65

HEARING OFFICER:

What is that, is that supposed to be the testimony of witness Duran?

ATTY. GONZALEZ:

Yes, your Honor, I am offering as proof of what thewitness Duran would have testified. Since this office hasruled that I cannot present him an offer of proof is beingmade for purposes of putting on record what he wouldhave testified to on record in accordance with the Rulesof Evidence. 11

Having made the foregoing formal offer of proof, the petitioner cannot complain that it was denied procedural due process.

The proposed testimony of Emesto T. Duran that in February 1963 hewent to Arangue market and bought one bag of sugar which he thought was "Victorias" and when he went home he found out that the sugar wasmarked "Valentine" is not sufficient evidence that the two trademarksare so similar that buyers of sugar are confused. The words "Victorias"and "Valentine" are not similar in spelling and do not have a similarsound when pronounced. Even the diamond designs are different. Thediamond design of the trademark "Valentine" has protruding fines at thecomers. Even an illiterate person can see the difference between the twodiamond designs.

There is no evidence that the respondent Ong Su had obtained theregistration of his trademark "Valentine" and design by means of fraud.The said trademark was registered in the Philippines Patent Office

before the petitioner registered its trademark. The record and evidence show that Ong Su had also used in his business thename Mariano Ang. Hence the licenses and permits in the name of Ong Suand/or Mariano Ang were correctly admitted as evidence.

WHEREFORE the decision of the Director of Patents sought to be reviewed ishereby affirmed, without pronouncement as to costs.

SO ORDERED.

G.R. No. 110107 January 26, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.DOLORES LORENZO Y CORSINO, accused-appellant.

DAVIDE, JR., J.:

For having allegedly killed her husband on 30 July 1990, accused-appellant Dolores Lorenzo y Corsino, a policewoman, was charged with the crime of parricide in an information 1 filed with the Regional Trial Court (RTC),Tuguegarao, Cagayan, on 30 March 1992. The information was docketed asCriminal Case No. 2060-92-TUG and raffled to Branch 5. The accusatoryportion thereof reads as follows:

That on or about July 30, 1990, in the Municipality of Tuguegarao, Province of Cagayan, and within thejurisdiction of this Honorable Court, the said accused,PO1 Dolores C. Lorenzo, armed with a bolo and a fanknife, with intent to kill, with evident premeditation and

with treachery did then and there wilfully, unlawfullyand feloniously attack, assault, stab, hack and chop one,Agapito Lorenzo, her own husband, inflicting upon himseveral injuries on the different parts of his body whichcaused his death.

That in the commission of the offense, the aggravatingcircumstance of cruelty was present.

After due trial, the trial court promulgated on 24 February 1993 2 itsjudgment finding the appellant guilty of the crime of parricide andsentencing her to suffer the penalty of reclusion perpetua and to pay the heirsof the victim P50,000.00.

At the trial, the prosecution presented barangay captain Isabelo Liban andSPO1 Jose Eclipse as its witnesses. The defense presented the appellant herself and Romeo Racheta. The versions of both the prosecution and the

defense are summarized by the trial court as follows:The prosecution's evidence tells the following story:

Agapito Lorenzo and accusedDolores Lorenzo were spousesresiding in Looban, Barangay 12,Balzain, Tuguegarao, Cagayan.Among their neighbors areBarangay Captain Isabelo Liban,Romeo Racheta and Robert Santos.

In the evening of July 30, 1990,SPO1 Jose Eclipse of theTuguegarao PNP Station was in

Balzain, Tuguegarao, Cagayanbecause that was his post for thenight. At about a little past 10:00o'clock that evening, a tricycledriver went to Policeman Eclipseand reported to him a stabbingincident in said Barangay 12;

Policeman Eclipse rushed to thereported crime scene. On his way,he met PO1 Dolores Lorenzo, apolicewoman of his own Stationwho immediately surrendered to

him a blood-stained bolo and a fanknife and told him, "I killed myhusband".

The two proceeded to where thevictim was. In front of the store of Barangay Captain Isabelo Liban,Policeman Eclipse saw Agapitosprawled on the ground withblood all over his body.

Policeman Eclipse called forBarangay Captain Liban to comeout of his house. In the presenceand within the hearing of saidbarangay official, PolicewomanLorenzo again said, "I'm

surrendering because I killed myhusband".

Policeman Eclipse orderedsomebody to get a tricycle to bringthe lifeless body of AgapitoLorenzo to a funeral parlor whilehe and Policewoman Lorenzo went to the Tuguegarao PNP Station.Policeman Eclipse turned overPolicewoman Lorenzo togetherwith the bolo and knife to the DeskOfficer, SPO3 Urbano Aquino.Eclipse then orally made his report to the Desk Officer which wasnoted down in the Police Blotter.

The defense painted anotherpicture of the incident. It's theoryis that it was not PolicewomanLorenzo but a certain Robert Santos who killed Agapito. Here isthe defense's version of theincident.

In the afternoon of July 30, 1990,Agapito Lorenzo and his neighborRobert Santos were in the former'shouse passing the time over abottle of beer grande. WhenPolicewoman Lorenzo arrivedhome from work, Agapito, in thepresence of Robert Santos, met herwith the following intemperate

questions: "Your mother's cunt,why do you arrive only now?Where did you come from? Toavoid further scandal,Policewoman Lorenzo just keepquiet, went to change her clothesand proceeded to the kitchen toprepare supper. Finding nothing tocook, she asked permission fromher husband to go to market.

Policewoman went to market andthen immediately went back hometo cook what she bought. Whilecooking in the kitchen, she heard aheated exchange of wordsbetween Robert Santos and herhusband in the sala of their housepertaining to some bullets and ahand grenade which the lattergave Robert Santos.

Policewoman Lorenzo went to thesala to pacify the quarelling menonly to meet Robert Santosrunning out of the house with abolo and being chased by AgapitoLorenzo who was holding a knifein his hand and whose clotheswere splattered with blood. WhenAgapito overtook Robert, a



66

struggle for the possession of thebolo ensued between the two men.

While wrestling, Agapito droppedhis knife. Policewoman Lorenzopicked it up and tried to stabRobert with it but she was sooverwhelmed by nervousness that she collapsed intounconsciousness. Seconds later on,she regained consciousness andfound herself beside her dyinghusband.

Policewoman Lorenzo stood andpicked up the knife and bolo. It was at this precise time whenPoliceman Eclipse arrived at thescene of the incident.

Policewoman Lorenzo gave theknife and bolo to PolicemanEclipse. The Policeman invited herto go with him to the TuguegaraoPNP Station. She obliged. When thetwo arrived at the police station,Policeman Eclipse, in the presenceof Policewoman Lorenzo, reportedto the Desk Officer that the latterkilled her husband. Since the

policewoman had not yet fullyrecovered her composure, she didnot say anything. 3

The trial court gave full faith and credit to the testimonies of the prosecutionwitnesses. It found nothing on record which showed that their impartialityhad been vitiated or compromised or that they had any motive to falselyimpute upon the appellant the commission of the crime. It further declaredthat when the appellant surrendered the knife and bolo to SPO1 Eclipse andvolunteered the information that she killed her husband, she made anextrajudicial confession and nothing more was needed to prove herculpability. 4 The trial court held that the confession was admissible for it wasnot made in violation of paragraph 1, Section 12, Article III of theConstitution.5 The appellant was neither under police custody nor underinvestigation in connection with the killing of her husband.

The trial court rejected the story of the defense and characterized it as

"palpably a put-up scenario . . . . [A] story which runs against the grain of ordinary reality, controverts logic and assails common sense." 6

First, accused Policewoman Lorenzo testified that it isnot true that she confessed to Policeman Eclipse in thepresence of Barangay Captain Liban that she killed herhusband. If her denial is true, why did she not correct oreven protest when Policeman Eclipse reported to theDesk Officer that she confessed having killed herhusband? Why did she not even try to correct the entryin the police blotter containing said inculpatory report?On the contrary, by some inexplicable quirk, she evenlet the cat out when she presented in evidence Exhibit "1".

Second, accused put forth the theory of her defense: it was not she but Robert Santos who did her husband in.

This theory is shot. If this is true, why did she not tell it to Policeman Eclipse and Barangay Captain Liban at thescene of the crime? Why did she withhold such a veryvital information when she was brought to theTuguegarao PNP Station shortly after the incident? But the biggest "why" is: Why did not the accused, wife of the slain man and policewoman at that, file a criminalcase against Robert Santos?

The accused's explanation was: she was stilluncomposed when she turned over the knife and boloto Policeman Eclipse and even when she was in thepolice station. She did not also file a case against Robert Santos because she found herself the suspect and lateron the accused.

These reasons do not cut ice. They are for the birds. No

one with an ordinary intelligence would buy suchreasons.

Third, the accused never filed a counter-affidavit duringthe preliminary investigation of this case. Not that acounter-affidavit is obligatory but that it afforded theaccused the best opportunity to explain her innocenceand to identify the "real killer" of her husband. Why didshe not grab this chance — as normal people in thesame situation — would have done?

Fourth, accused version is simply implausible.According to Policewoman Lorenzo, when she saw herhusband Agapito chasing Robert out of the house,Agapito's clothes were already bloodied. Since there is

no proof at all that Robert ever sustained any wound,the implication is that Agapito was already hacked andstabbed by Robert inside the former's house.

It is therefore, difficult to believe that Agapito whoalready sustained several wounds could chase Robert — and even harder to imagine that he wrestled withRobert for the possession of the latter's bolo. But why, it may be asked, should Agapito still try to divest Robert of his bolo when he (Agapito) was holding a knife whichhe could have easily used against the latter during thealleged clinching between the two?

Finally, it is very unnatural for "assailant" Robert tohave left his bolo before running away from the scene of the crime. This is a concoction to provide anexplanation for the possession of the accused of a knifeand a bolo.

Fifth, the version of accused and her witness RomeoRacheta are even at variance at a very vital point. Thus,Policewoman Lorenzo said that when Agapito was ableto overtake Robert in front of the store of BarangayCaptain Liban, the two struggled for the possession of the bolo of Robert. Witness Racheta however said that when Agapito chased Robert, he caught up with himwhen he was already cornered. When Robert could nolonger run anywhere else, he turned around, facedAgapito and hacked and stabbed him many times. Suchinconsistency in the version of the two defense

witnesses cannot but heighten one's conviction that thedefense theory is a conjured one. 7

The appellant appealed from the judgment to this Court and in herbrief 8 contends that the trial court erred in:

I. . . . GIVING CREDENCE TO THE TESTIMONIES OFPROSECUTION WITNESSES ISABELO LIBAN AND SPO1JOSE ECLIPSE.

II. . . . NOT HOLDING THAT THE GUILT OF THEACCUSED WAS NOT PROVED BEYOND REASONABLEDOUBT." 9

She discusses these jointly and, in support thereof, she asseverates that thetestimonies of Liban and Eclipse are inconsistent on material points, forwhile Liban declared in court and stated in his sworn statement that he(Liban) came out of his house and heard the appellant confess to Eclipse that

she killed her husband, Eclipse testified that Liban did not come out of hishouse. One of them, she continues, did not tell the truth and argues that atestimony on her alleged confession, which would be devoid of anyevidentiary value without corroboration.

She pleads that this Court discredit both Liban and Eclipse because thetestimony of Liban was improbable while that of Eclipse "was not so firm andresolute as to what was actually allegedly told him by the accused." At onetime, while testifying, he declared that the appellant told him that she"accidentally injured her husband," but on another, he testified that theappellant told him that she "killed her husband." 10 Also, as shown in theentry in the police blotter, 11 Eclipse was reported to have disclosed that theappellant "voluntarily surrendered and asked him to bring her to the policestation because she allegedly killed her husband named Agapito Lorenzo, Jr.together with Robert Santos who first stabbed him"; yet, in his testimony incourt he pinned down only the appellant and mentioned nothing about Santos. Furthermore, she charges the prosecution with suppression of evidence in not presenting as a witness another police officer who Eclipsesaid accompanied him to the scene of the crime and who used a vehiclewhich they rode in going to the police station. 12

Meeting squarely the ratiocinations of the trial court in describing the storyof the defense as a "probably put-up scenario," the appellant asserts that it was error for the trial court to hold her failure to correct the entry in thepolice blotter against her since there is nothing in the records which clearlyshows that she heard Eclipse making the report to the desk officer and that she saw the entry. The appellant also contends that the trial court erredwhen it made capital of her alleged failure to file a criminal complaint against Robert Santos since it was the police's duty to arrest and prosecute Robert Santos, Eclipse having known of Robert Santos' killing of her husband.Besides, she was in detention all throughout and suffering from trauma. Sheavers that the trial court erred when it held against her the failure to file hercounter-affidavit, since that was not obligatory and her non-filing was in

accord with her constitutional right to remain silent. Finally, she contendsthat the conclusions drawn by the trial court in its evaluation of hertestimony and that of her witnesses are mere speculations.

The appellee agrees with the findings of fact and conclusions of the trial court and prays that the challenged decision be affirmed.

The pith of the assigned errors and the focus of the appellant's arguments isthe issue of the witnesses' credibility. It is a well-entrenched rule that whensuch is the issue, appellate courts will generally not disturb the findings of the trial court considering that the latter is in a better position to decide thequestion, having heard the witnesses themselves and observed theirdeportment and manner of testifying during the trial, unless certain facts of value have been plainly overlooked which, if considered, might affect theresult of the case. 13 The trial court has the singular opportunity to observe



67

and consider certain potent aids in understanding and weighing thetestimony of witnesses, such as the emphasis, gesture, and inflection of thevoice of the witnesses while they are on the witness stand. As these are not incorporated into the record, the appellate court cannot avail of them andmust therefore rely on the good judgment of the trial court. 14 The appellant has not convinced us that the trial court plainly overlooked proved facts orcircumstances which, if considered, may affect the result of this case. We thusaccept its assessment of the evidence as correct and consider it binding,there being no showing that it was reached arbitrarily. 15 Our own evaluationthereof yields no cause for the application of the exception to the settled rule.

We agree with the trial court that prosecution witness SPO1 Jose Eclipse toldthe truth when he declared under oath that the appellant surrendered to him

a blood-stained bolo and a fan knife and told him that she killed her husband.Eclipse happened to be on his way to the scene of the stabbing incident which was reported to him by a tricycle driver while he was in theperformance of his official duty at his assigned post in Barangay Balzain,Tuguegarao, Cagayan. Eclipse and the appellant both belonged to the samepolice unit, the PNP at the Tuguegarao station. There is nothing in therecords, and more specifically in the cross-examination of Eclipse and thedirect examination of the appellant, which suggests, even remotely, that Eclipse had any improper motive to implicate a fellow police officer in thecommission of a serious crime or the slightest bias against the appellant which would blemish his objectivity and truthfulness.

If there was any bias, it should have been, logically, in favor of the appellant because of esprit de corps. Eclipse did not allow that sentiment tocompromise his official and public duty as a peace officer. It is settled that theabsence of evidence as to an improper motive strongly tends to sustain theconclusion that none existed and that the testimony is worthy of full faith and

credit, for, indeed, if an accused had nothing to do with the crime, it would beagainst the natural order of events and of human nature and against thepresumption of good faith for a prosecution witness to falsely testify against the accused. 16

The appellant's emphasis on the inconsistency in the testimony of Eclipse asto what she actually told him, i.e., that she "injured" her husband or "killed"him, is misplaced; the latter word was used when the court asked him for theprecise term used by the appellant. 17

Nor is there merit to the claim that Isabelo Liban's testimony must corroborate Eclipse's testimony or the confession of the appellant sincewithout such corroboration Eclipse's testimony would have no probativevalue. This theory could only be a product of a misunderstanding of Section3, Rule 133 of the Rules of Court which provides:

Sec. 3. Extrajudicial confession, not sufficient ground for

conviction. — An extrajudicial confession made by anaccused, shall not be sufficient ground for conviction,unless corroborated by evidence of corpus delicti.

Note that what must be corroborated is the extrajudicial confession and not the testimony of the person to whom the confession is made, and thecorroborative evidence required is not the testimony of another person whoheard the confession but the evidence of corpus delicti. Except whenexpressly required by law, 18 the testimony of a single person, if credible andpositive and if it satisfies the court as to the guilt of the accused beyondreasonable doubt, is sufficient to convict. 19 In determining the value andcredibility of evidence, witnesses are to be weighed, not numbered. 20

As to the corroborative evidence of corpus delicti, the appellant herself doesnot question its presence because she knows that it has beenoverwhelmingly established in this case. Corpus delicti is the body (materialsubstance) upon which a crime has been committed, e.g., the corpse of a

murdered man or the charred remains of a house burned down. In aderivative sense, it means the substantial fact that a crime was committed. It is made up of two elements: (a) that a certain result has been proved, forexample a man has died or a building has been burned, and (b) that someperson is criminally responsible for the act. Section 3, Rule 133 of the Rulesof Court does not mean that every element of the crime charged must beclearly established by independent evidence apart from the confession. It means merely that there should be some evidence tending to show thecommission of the crime apart from the confession. Otherwise, the utility of the confession as a species of proof would vanish if it were necessary, inaddition to the confession, to adduce other evidence sufficient to justifyconviction independently of such confession. Otherwise stated, the otherevidence need not, independently of the confession, establish the corpusdelicti beyond a reasonable doubt. 21

Since the corroboration of Isabelo Liban's testimony was unnecessary, weneed not discuss its intrinsic merits, more especially on its alleged

inconsistencies vis-a-vis the testimony of Eclipse which inconsistencies we,nevertheless, find to be on minor matters. Minor inconsistencies do not affect the credibility of witnesses; on the contrary, they even tend to strengthenrather than weaken their credibility because they erase any suspicion of rehearsed testimony. 22

The claim of suppression of evidence has no merit. The testimony of theother policeman whom Eclipse requested to get a vehicle could only becorroborative in some respects but not of the fact of the surrender of theblood-stained bolo and fan knife and of the appellant's telling Eclipse that shekilled her husband since it was explicitly shown that he was with Eclipse at the precise time of the surrender. The prosecutor and the defense counselasked no further questions of Eclipse to elicit more on the presence of theother policeman. In any event, even if the latter were present, his testimony

would only be corroborative. Furthermore, it has never been shown that thesaid policeman was not available to the defense. The presumption laid downin Section 3(e), Rule 131 of the Rules of Court that "evidence willfullysuppressed would be adverse if produced" does not apply when thetestimony of the witness not produced would only be corroborative, or whenthe said witness is available to the defense because then the evidence wouldhave the same weight against one party as against the other. 23

We do not, however, agree with the trial court's characterization of theappellant's declaration that she killed her husband as an extrajudicial confession. It is only an admission. It is clear from Sections 26 and 33, Rule130 of the Rules of Court that there is a distinction between an admission anda confession. These sections reads as follows:

Sec. 26. Admission of a party . — The act, declaration oradmission of a party as to a relevant fact may be givenin evidence against him.

xxx xxx xxx

Sec. 33. Confession. — The declaration of an accusedacknowledging his guilt of the offense charged, or of anyoffense necessarily included therein, may be given inevidence against him.

In a confession. there is an acknowledgment of guilt. Admission is usuallyapplied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of guilt of the accused or of the criminalintent to commit the offense with which he ischarged. 24 Wharton 25 defines confession as follows:

A confession is an acknowledgment in express terms, bya party in a criminal case, of his guilt of the crimecharged, while an admission is a statement by theaccused, direct or implied, of facts pertinent to the issue,and tending, in connection with proof of other facts, toprove his guilt. In other words, an admission issomething less than a confession, and is but anacknowledgment of some fact or circumstance which initself is insufficient to authorize a conviction, and whichtends only to establish the ultimate fact of guilt.

Underhill26 distinguishes a confession from an admission asfollows:

A confession is defined as an acknowledgment of guilt of the crime charged or of the facts which constitute thecrime; but it is an admission and not a confession if the

facts acknowledged raise an inference of guilt onlywhen considered with other facts.

While Wigmore 27 says:

A confession is anacknowledgment in expresswords, by the accused in a criminalcase, of the truth of the guilty fact charged or of some essential part of it. 28

Nevertheless, whether it was a confession or an admission, it was admissibleagainst the appellant and, having been duly proved, together with the otherfacts and circumstances, the burden of the evidence was shifted to theappellant to disprove, by strong evidence, that she made the admission or,admitting it, to prove that she was not guilty of killing her husband. As earliershown, the trial court characterized her story as "palpably a put-up scenario. . . . [A] story which runs against the grain of ordinary reality, controvertslogic and assails common sense." The five reasons enumerated by it tosupport this conclusion are founded on or are inferred from facts dulyestablished by the prosecution or are otherwise solidly based on commonexperience, logic, and common sense.

The trial court had stated that if indeed the appellant never confessed toEclipse that she killed her husband, she should have protested when Eclipsereported to the desk officer that she had confessed to the killing of herhusband or she should have attempted to correct the entry in the policeblotter containing this inculpatory report. The appellant demonstrated herpenchant for falsehood when, in order to refute this statement, she assertedin her brief that nothing in the record clearly shows that she heard Eclipsemaking the report and that she read the entry in the police blotter. Sheconveniently forgot that on cross-examination she admitted having heardEclipse making the report but claiming that she did not protest because she

was not in her right senses and was in a state of shock at the time. Thus:Prosecutor Saguncio:

Q Did the desk officer ever talk toyou?

A No, sir.

Q So it was only PFC Eclipse whotalked to the desk officer?

A Yes, Sir.



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Q Within your hearing and youheard PFC Eclipse talked to thedesk officer?

A Yes, Sir.

Q And what did PFC Eclipse report to the desk officer?

A The one that is appearing in theexcerpt of the police blotter, sir.

xxx xxx xxx

Court:

Q When you said that you heardPat. Eclipse reported to the deskofficer you meant to say that youheard him telling the police officerthat you killed your husbandAgapito Lorenzo, Jr. together withRobert Santos who first stabbedhim, is that not so?

A Yes, sir.

Court:

Proceed.

Pros. Saguncio:

Q You heard this and you did not make any comment?

A Yes, sir, but because at this time Iwas not in my right senses becauseI was then shocked at that time. 29

The appellant's failure to assert, at any part of the entire event, from the timeshe went with Eclipse to the police station up to the time she was committedto jail and even thereafter until she took the witness stand, that it was not shewho killed her husband only serves to reinforce and strengthen this Court'srespect for the trial court's finding that her story that "it was not she but Robert Santos who did her husband in, "is shot." We find it incredible that apeace officer and a wife of the victim would not forthwith denounce or revealthe identity of the assailant if it were true that it was not she who killed herhusband. This Court has held that the testimony of the accused is not crediblewhere he has adopted an attitude of indifference relative to the crime he is

accused of and where he failed to inform the police authorities and the fiscalduring the investigation that it was not he but somebody else who committedthe murder. 30

Even granting for the sake of argument that the appellant only surrendered ablood-stained bolo and a fan knife but did not admit that she killed herhusband, we find in this case several circumstances whose concordant combination and cumulative effect 31 point to the appellant, to the exclusionof all others, as the guilty party. These circumstances are the following:

1. A tricycle driver reported to Eclipse a stabbingincident and the latter immediately proceeded to whereit took place;

2. Eclipse met the appellant who had with her a blood-stained bolo and a fan knife;

3. The appellant surrendered to Eclipse the blood-

stained bolo and the fan knife;

4. The appellant's husband lay dead nearby with ninechop wounds, thirteen stab wounds, and nine incisedwounds on different parts of his body, with abrasionsand multiple contusions as well; 32

5. Eclipse accompanied the appellant to the policestation and, in her presence, the former reported to thedesk officer that she surrendered to him and told himthat she had killed her husband; the desk officer thenentered this report in the police blotter;

6. Although the appellant heard the report, she did not protest to Eclipse or except to the report; and

7. The appellant never asked the police authorities toinvestigate Robert Santos for his complicity in thekilling of her husband; despite the unhamperedopportunities for her to denounce Santos as the allegedkiller of her husband, she implicated Santos only whenshe testified on 21 January 1993, 33 or after the lapse of nearly two and one-half years after the incident.

These circumstances constitute an unbroken chain which leads to one fairand reasonable conclusion that points to the appellant, to the exclusion of allothers, as the guilty person. The requirements then of Section 4, Rule13334 of the Rules of Court on the sufficiency of circumstantial evidence toconvict the appellant are present. 35

To be appreciated in the appellant's favor, however, is the mitigatingcircumstance of voluntary surrender. The penalty for parricide under Article

246 of the Revised Penal Code is reclusion perpetua to death, which are bothindivisible penalties. In the light of the mitigating circumstance, the properpenalty which should be imposed upon the appellant should be reclusion perpetua, pursuant to Rule 3, Article 63 of the Revised Penal Code.

The challenged decision is then in accordance with the facts and theapplicable laws.

WHEREFORE, the appealed decision of Branch 5 of the Regional Trial Court of Tuguegarao, Cagayan in Criminal Case No. 2060-92-TUG is AFFIRMED.

Costs against the appellant.

SO ORDERED.

G.R. No. 150762 January 20, 2006

COVERDALE ABARQUEZ, y EVANGELISTA, Petitioner,vs.THE PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

CARPIO, J.:

The Case

Before the Court is a petition for review1 assailing the 23 June 2000Decision2 and the 7 November 2001 Resolution3 of the Court of Appeals inCA-G.R. CR No. 21450. The Court of Appeals affirmed the 30 September 1997Decision4 of the Regional Trial Court of Manila, Branch 50 ("trial court") in

Criminal Cases Nos. 94-135055-56. The trial court found Coverdale Abarquezy Evangelista ("Abarquez") guilty beyond reasonable doubt as an accomplicein the crime of homicide in Criminal Case No. 94-135055.

The Charge

The prosecution charged Abarquez with the crimes of homicide andattempted homicide in two Informations,5 as follows:

Criminal Case No. 94-135055

The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of thecrime of HOMICIDE, committed as follows:

That on or about November 21, 1993, in the City of Manila, Philippines, thesaid accused conspiring and confederating with one ALBERTO ALMOJUELA YVILLANUEVA, who has already been charged for the same offense before theRegional Trial Court of Manila, under Crim. Case No. 93-129891 and mutually

helping each other, did then and there willfully, unlawfully and feloniouslywith intent to kill, attack, assault and use personal violence upon oneRICARDO QUEJONG Y BELLO, by then and there stabbing him twice with abladed weapon and hitting him with a gun at the back, thereby inflictingupon the latter mortal wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.6

Criminal Case No. 94-135056

The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of thecrime of ATTEMPTED HOMICIDE, committed as follows:

That on or about November 21, 1993, in the City of Manila, Philippines, thesaid accused conspiring and confederating with one ALBERTO ALMOJUELA YVILLANUEVA, who has already been charged for the same offense before theRegional Trial Court of Manila under Crim. Case No. 93-129892 and mutually

helping each other, with intent to kill, did then and there wilfully, unlawfullyand feloniously commence the commission of the crime of homicide directlyby overt acts, to wit: by then and there holding one JOSE BUENJIJO PAZ YUMALI and stabbing him with a bladed weapon, hitting him on the left arm,but the said accused did not perform all the acts of execution which shouldhave produced the crime of homicide as a consequence, by reason of causesother than his own spontaneous desistance, that is, the injury inflicted uponsaid JOSE BUENJIJO PAZ Y UMALI is only slight and not fatal.

CONTRARY TO LAW.7

Abarquez entered a plea of not guilty to both charges. The cases were triedjointly.

The Version of the Prosecution

On 21 November 1993 at 2:00 p.m., Jose Buenjijo Paz8 ("Paz"), RicardoQuejong ("Quejong") and their friends were in the house of one Boyet at 3342 San Jose St., Sta. Mesa, Manila. They were drinking liquor in celebrationof the birthday of Boyet’s son. About 7:45 p.m., Paz and Quejong decided togo home. Boyet Tong, Abarquez’s son Bardie and Sonito Masula ("Masula")

joined Paz and Quejong. They proceeded towards the exit of San Jose St.

Meanwhile, about six or seven meters away from Boyet’s house, Alberto

Almojuela also known as Bitoy ("Almojuela"), a certain Ising and Abarquezalso known as Dale, were likewise drinking liquor in front of Almojuela’s

house. As the group of Paz was passing towards the main road, Almojuelaand his companions blocked their path.

Almojuela asked Paz, "Are you brave?" Paz replied, "Why?" Almojuela got angry and attacked Paz with a knife. Paz parried the attack with his left armbut sustained an injury. Abarquez held Paz on both shoulders while Bardie



69

pacified Almojuela. Paz asked Abarquez, "What is our atraso, we were goinghome, why did you block our way?" Abarquez answered, " Masyado kangmatapang. Tumigil ka na, tumigil ka na."

Almojuela then confronted Quejong and they had an altercation, followed bya scuffle. Paz tried to get away from Abarquez who continued restraininghim. Upon seeing Almojuela and Quejong fall on the ground, Paz struggled tofree himself from Abarquez. Paz approached Quejong and found him alreadybloodied. It turned out the Almojuela stabbed Quejong with a knife. Paz triedto pull up Quejong but failed. Paz left Quejong and ran instead towards theexit of San Jose St. to ask for help. While Paz was running away, he heardAbarquez shout, "You left your companion already wounded!"

When Paz and his companions returned, they found Quejong still on theground. Almojuela and Abarquez were still in the area. Paz and hiscompanions brought Quejong to the UST Hospital. They next proceeded toPolice Precinct No. 4 to report the incident. However, there was nobody inthe precinct. With Kagawad Villanio Usorio, Paz went to the WPD GeneralHeadquarters to report the incident. At the WPD General Headquarters, theylearned that Quejong died at the UST Hospital. Paz then had his injury treatedby Dr. Vic Managuelod at Jose Reyes Memorial Hospital. The medico-legalcertificate showed that Paz sustained a 3-cm. lacerated wound on his left forearm.

About 9:15 p.m., while SPO1 Danilo Vidad ("SPO1 Vidad") was at the WPDHomicide Division, his station received a call from the UST Hospitalinforming them of the death of Quejong. SPO1 Vidad and PO3 Ed Co went tothe UST Hospital morgue and investigated the incident. They learned that Almojuela, assisted by Abarquez, stabbed Quejong. Upon the execution of sworn statements by Paz and Masula, SPO1 Vidad booked Almojuela and

Abarquez for homicide and frustrated homicide and prepared the referralletter to the inquest prosecutor.

Abarquez voluntarily appeared at the police station. Almojuela voluntarilysurrendered to one SPO4 Soriano at Police Station No. 10 and was turnedover to the WPD Homicide Division.

Dr. Antonio Rebosa9 ("Dr. Rebosa"), a medico-legal consultant at USTHospital, conducted the post-mortem examination and autopsy on Quejong.Dr. Rebosa reported that Quejong sustained two stab wounds and sufferedfrom massive hemorrhage due to penetrating stab wounds to the heart andleft lung. According to Dr. Rebosa, a sharp instrument probably caused thewound. Dr. Rebosa also reported that Quejong sustained abrasions andcontusions on the right upper body, the wrist and on the lower e xtremities.

The Version of the Defense

Abarquez countered that on 21 November 1993, he was in his residence at

3363 San Jose St., Sta. Mesa, Manila. About 7:30 p.m., Almojuela’s wifeinformed him that the group of Paz was challenging Almojuela to a fistfight.Abarquez, being a barangay kagawad, proceeded to Almojuela’s house.Almojuela’s house was about twenty meters away from Abarquez’s house.

When he arrived at Almojuela’s house, Abarquez saw Almojuela on theground being strangled by Quejong. Paz was holding Almojuela’s waist and

boxing him at the stomach. Masula was near Almojuela’s head holding a piece

of stone as if waiting for a chance to hit him. Abarquez shouted at the groupto stop. The group did not heed Abarquez, forcing him to fire a warning shot into the air. Still, the group did not heed Abarquez who then fired a secondwarning shot. Paz, Quejong, and Masula scampered away.

Almojuela told Abarquez that he was merely trying to stop the group of Pazfrom smoking marijuana. Almojuela then went inside his house whileAbarquez went home. On his way home, Abarquez met the Chief Tanod of thebarangay and two kagawads. Kagawad Rudy Lego ("Lego") advised him toreport the incident to the police. They all proceeded to Precinct No. 4 whereLego reported the incident to the desk officer. The desk officer told them that a person had been stabbed. When Abarquez reached their house, he sawpolicemen and media men with their barangay chairman. He informed themthat he had just reported the incident. Upon the request of SPO1 Vidad,Abarquez then went to the police station to shed light on the incident.

Almojuela testified that he was inside his house when his daughter informedhim that there was marijuana smoke coming to their window. He went outside to look for the source of the smoke and saw Quejong, Paz, and Masulasmoking marijuana. Almojuela asked the group to move away as there werechildren inside the house. He was on his way back to the house whenQuejong tried to strangle him. Later, Almojuela heard a gunshot. He alsoheard Abarquez shouting, "Tumigil na kayo." Quejong, Masula, and Paz ranaway.

Winfred Evangelista10 ("Evangelista") testified that he was resting in front of his house when he heard a commotion. He noticed that Paz and Quejongwere quarreling. Evangelista saw Paz kicking Almojuela. Abarquez arrived tobreak up the fight but he was told not to interfere. Abarquez was forced tofire a warning shot and the persons involved in the commotion ran away.

The Ruling of the Trial Court

In its Decision11 dated 30 September 1997, the trial court found Abarquezguilty as an accomplice in the crime of homicide. The trial court held that theprosecution failed to prove that Abarquez was a co-conspirator of Almojuelain the killing of Quejong. Hence, Abarquez could not be convicted as aprincipal in the crime of homicide. However, the trial court ruled that Abarquez, in holding and restraining Paz, prevented the latter from helpingQuejong and allowed Almojuela to pursue his criminal act without resistance.

The dispositive portion of the trial court’s Decision reads:

WHEREFORE, in Criminal Case No. 94-135055, this Court finds the accused,Coverdale Abarquez, guilty beyond reasonable doubt of the crime of homicide only as accomplice and hereby sentences him to suffer anindeterminate penalty ranging from six (6) years of prision correccional toten (10) years of prision mayor. In Criminal Case No. 94-135056, the accusedis hereby acquitted.

With costs de oficio.

SO ORDERED.12

Abarquez appealed the trial court’s Decision before the Court of Appeals.

In its Decision13 of 23 June 2000, the Court of Appeals affirmed the trialcourt’s Decision. The Court of Appeals sustained the trial court in giving morecredence to the testimony of Paz. The Court of Appeals held that theprosecution was able to establish that Abarquez aided Almojuela in fatallystabbing Quejong. The Court of Appeals rejected Abarquez’s allegation that

he was merely at the crime scene to pacify the quarreling parties.

In its 7 November 2001 Resolution,14 the Court of Appeals denied Abarquez’s

motion for reconsideration.

Hence, the petition before this Court.

The Issues

The issues15 Abarquez raises before the Court may be summarized asfollows:

1. Whether the prosecution was able to establish the guilt of theaccused beyond reasonable doubt;

2. Whether the trial court and the Court of Appeals erred in givingmore credence to the testimony of the prosecution witnesses.

Abarquez alleges that the prosecution’s evidence does not satisfy the test of

moral certainty and is not sufficient to support his conviction as anaccomplice. He further alleges that there was a misapprehension of facts andthat the trial court and the Court of Appeals reached their conclusion basedentirely on speculation, surmises and conjectures. Abarquez also assails thecredibility of the witnesses against him.

The Ruling of This Court

The petition is meritorious.

The rule is that the trial court is in the best position to determine the valueand weight of the testimony of a witness. The exception is if the trial court

failed to consider certain facts of substance and value, which if considered,might affect the result of the case.16 This case is an exception to the rule.

Concurrence in Criminal Design

Article 18 of the Revised Penal Code defines accomplices as "those personswho, not being included in Article 17, cooperate in the execution of theoffense by previous or simultaneous acts."17

Two elements must concur before a person becomes liable as an accomplice:(1) community of design, which means that the accomplice knows of, andconcurs with, the criminal design of the principal by direct participation; and(2) the performance by the accomplice of previous or simultaneous acts that are not indispensable to the commission of the crime.18 Mere commission of an act, which aids the perpetrator, is not enough.19 Thus:

The cooperation that the law punishes is the assistance knowingly rendered,which cannot exist without the previous cognizance of the criminal act intended to be executed. It is therefore required in order to be liable as anaccomplice, that the accused must unite with the criminal design of theprincipal by direct participation.20

Indeed, in one case, the Court ruled that the mere presence of the accused at the crime scene cannot be interpreted to mean that he committed the crimecharged.21

Here, in convicting Abarquez, the trial court and the Court of Appeals reliedmainly on the testimony of Paz. Paz testified that he was held by Abarquez onthe shoulders, thus preventing him from helping Quejong who was grapplingwith Almojuela. Paz testified:

q. And what happened in the exchange of words or altercations betweenBitoy and Ricardo Quejong?

a. They grappled with each other, sir.

q. When Bitoy and Ricardo grappled with each other, what did you do, if any?

a. I was intending to help Ricky but I was held back by Dale, sir.

q. And how this Dale hold you?

a. He held my two shoulders, sir.

PROSECUTOR F. G. SUPNET:

I would like to make it of record demonstrated being held by the accusedholding both shoulders, your Honor.

q. Now, when this Dale Abarquez held both on your shoulders, what happened next, if any?



70

a. He got angry scolding us. While scolding me the two

who were grappling each other walking away, sir. (sic)

q. Now, you said Bitoy and Ricky were moving, what happened in the courseof grappling, if any?

You testified that Ricky and Bitoy were grappling each other, what happenedin the course of grappling? (sic)

a. They fell to the ground, sir.

q. After that what happened next, if any?

a. When I saw them fall I struggle and I was able to release from the hold of

Dale and I approach the two. I saw Ricky blooded so I was trying to pull him,sir. (sic)

q. You said you saw Ricky blooded, why was he blooded? (sic)

a. He was stabbed by Bitoy, sir.

q. And did you see what instrument did Bitoy used in stabbing Ricky orRicardo? (sic)

a. It was a knife, sir. (Witness indicating a length about 6 inches including thehandle).

q. Now, you said also that while the two were grappling while you weretrying to free yourself from the hold Dale Abarquez, "Pinagalitan kayo", inwhat way or manner did Dale Abarquez reprimanded you? (sic)

a. You Jose is too brave, sir. (sic)22

xxx xxx xxx

q. You said you were first attacked by Bitoy, is that correct?

a. Yes, sir.

q. After Bitoy pacified Bardy Abarquez, he went after Ricky Quejong, is it not?23

a. They were just arguing, sir.

[q.] And it was during that time when you were held in both shoulders by theaccused [C]overdale Abarquez?

a. Yes, sir.

q. and that Coverdale Abarquez was infront of you, is it not?

a. Yes, sir on my side.

q. And he was holding your shoulder to pacify you and Bitoy from furtherquarrelling you, is it not?

a. That is not the way of pacifying, sir.

q. How can you demonstrate how you were held on the shoulder byAbarquez?

ATTY. GASCON:

Make I make it of record your Honor that the interpreter act as the witnesswhile the witness act as the accused demonstrating holding both hands of interpreter preventing the witness and saying Joey tumigil ka na, joey tumigilka na.

COURT:

q. How many times?

a. Twice, Your Honor.

ATTY. GASCON:

The accused told you Joey tumigil ka na, Joey tumigil ka na because you weretrying to attack Bitoy, is it not?

a. How can I be charged, he was the one holding the knife, sir. (sic)

q. So what was the reason why the accused restrained you and told you Joeytumigal ka na, Joey tumigil ka na. What would be the reason?

a. While I was just talking to Bitoy, when he told me to stop.

COURT:

Does the Court get from you that you are trying to explain to Bitoy when theaccused tried to hold you and prevent you?

a. Yes, sir.

q. That is why the reason you concluded that the accused is not pacifying youbut to stop you from helping the victim?

a. Yes, sir.

xxx xxx xxx

q. The only word that the accused [C]overdale Abarquez uttered was Joey,tumigil ka na, Joey tumigil ka na, is it not?

a. He uttered that you are MATAPANG, Joey tumigil ka na, Joey tumigil kana.24

Paz’s testimony does not show that Abarquez concurred with Almojuela’s

criminal design. "Tumigil " literally means "stop." Clearly, Abarquez wastrying to stop Paz from joining the fray, not from helping Quejong. Paz claimsthat he was only trying to talk to Almojuela. However, Paz could not havebeen merely talking to Almojuela, as he tried to portray, because Almojuelawas already grappling with Quejong at that time. Paz interpreted Abarquez’s

action as an attempt to prevent him from helping Quejong. His interpretationwas adopted by the trial court and sustained by the Court of Appeals. Yet, inhis testimony, Paz admitted that while restraining him, Abarquez wasscolding or reprimanding him and telling him to stop. It was not shown that Abarquez was stopping Paz from helping Almojuela. It is more likely that Abarquez was trying to stop Paz from joining the fight. Abarquez’s act of

trying to stop Paz does not translate to assistance to Almojuela.

In People v. Fabros, 25 the Court explained:

To be deemed an accomplice, one needs to have had both knowledge of andparticipation in the criminal act. In other words, the principal and theaccomplice must have acted in conjunction and directed their efforts to thesame end. Thus, it is essential that both were united in their criminal design.

xxx. The mere fact that the (accused) had prior knowledge of the (principal’s)

criminal design did not automatically make him an accomplice. Thiscircumstance, by itself, did not show his concurrence in the principal’s

criminal intent.

Paz stated that Abarquez did not do anything to stop Almojuela. However,Paz testified that Abarquez’s son Bardie, who was one of Paz’s companions,

was the one trying to pacify Almojuela. The trial court in its factual findingsconfirmed this when it stated that while Abarquez was holding Paz, his sonBardie was pacifying Almojuela.26

The prosecution argues that Abarquez was remiss in his duties as a barangaykagawad in not extending assistance to the then wounded Quejong. This,however, does not necessarily show concurrence in Almojuela’s criminal act.

When Paz ran away, Abarquez shouted at him that he left his woundedcompanion. Apparently, Abarquez was not aware of the extent of Quejong’s

injury and he expected Paz to look after his own companion.

When there is doubt on the guilt of an accused, the doubt should be resolvedin his favor. Thus:

Every person accused has the right to be presumed innocent until thecontrary is proven beyond reasonable doubt. The presumption of innocencestands as a fundamental principle of both constitutional and criminal law.Thus, the prosecution has the burden of proving every single fact establishing guilt. Every vestige of doubt having a rational basis must beremoved. The defense of the accused, even if weak, is no reason to convict.

Within this framework, the prosecution must prove its case beyond any hint of uncertainty. The defense need not even speak at all. The presumption of innocence is more than sufficient.27

We apply in this case the equipoise rule. Where the evidence on an issue of fact is in issue or there is doubt on which side the evidence preponderates,the party having the burden of proof loses.28 Hence:

xxx The equipoise rule finds application if, as in this case, the inculpatoryfacts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the otherconsistent with his guilt, for then the evidence does not fulfill the test of moral certainty, and does not suffice to produce a conviction. Briefly stated,the needed quantum of proof to convict the accused of the crime charged isfound lacking.29

WHEREFORE, we GRANT the petition. We SET ASIDE the 23 June 2000

Decision and 7 November 2001 Resolution of the Court of Appeals in CA-G.R.CR No. 21450, which affirmed the 30 September 1997 Decision of theRegional Trial Court of Manila, Branch 50 in Criminal Cases Nos. 94-135055-56. We ACQUIT Coverdale Abarquez y Evangelista as an accomplice in thecrime of homicide in Criminal Case No. 94-135055. No pronouncement as tocosts.

SO ORDERED.

G.R. No. 157959 March 28, 2007

HEIRS OF VICENTE REYES, represented by DOMINADOR REYES; HEIRSOF APOLONIA REYES SAMSON, represented by MILAGROS FRANCISCO;MONICO REYES PALMARIO; FELICISIMA REYES CHING-CUANCO; JULIAREYES; LEONORA REYES; EDILBERTA REYES; MAXIMA REYES;BIENVENIDO REYES; HEIRS OF MANUEL REYES SAMSON, represented by

ZENADIA FRILLES; MARIO SAMSON; GLISERIO SAMSON; CRISPINSAMSON; NUMERIANO SAMSON; FERMENIA SAMSON, HEIRS OF MARTINSAMSON, represented by MA. CLARA SAMSON; ELPIDIO SAMSON;RICARDO SAMSON; VICTORINO SAMSON; EMILIANO SAMSON, JR.;CARMELITA SAMSON VERGARA; SHEILA ANN SAMSON; FRANCISCOSAMSON AND MAGNO SARREAL, represented by the substituted heirs, AIDA SARREAL and the HEIRS OF CELERINA SARREAL KAMANTIGUE,represented by LAURA S. KAMANTIGUE, Petitioners,vs.THE HONORABLE COURT OF APPEALS, ANATALIA REYES AND GLORIAREYES-PAULINO, Respondents.

D E C I S I O N

AZCUNA, J.:



71

This is a petition for review on certiorar i1 assailing the Decision2 andResolution3 of the Court of Appeals (CA) dated February 10, 2003 and April28, 2003, respectively, in CA-G.R. CV No. 71807.

The case stemmed from the action for partition and accounting filed by thechildren of the siblings of the late Eustaquia Reyes4 against Magno Sarreal,Anatalia Reyes and Gloria Reyes-Paulino, Eustaquia’s husband and nieces,

respectively, in relation to a parcel of land situated in Balintawak, QuezonCity, with an area of Seven Thousand Four Hundred Eighty-Four (7,484)square meters (the "property").

The property was originally registered in the name of Eustaquia underTransfer Certificate of Title (TCT) No. 26031 issued by the Registry of Deedsof Quezon City and was inherited by her prior to her marriage to MagnoSarreal.

On June 5, 1963, Eustaquia leased a portion of the property to ACMEAbrasive Manufacturing Corporation (ACME) for a period of twenty (20)years commencing on June 1, 1963 until June 1, 1983.5 The lease contract provided that ACME as the lessee shall have the right to build, construct andplace additional improvements within the property during the term of thelease subject to the condition, among others, that upon the expiration of suchterm, the ownership of all the improvements found within the leasedproperty would automatically be transferred to the lessor without need forreimbursement.6 The contract was thumbmarked by Eustaquia as the lessor,with Magno Sarreal likewise affixing his signature to the instrument toindicate his marital consent to the transaction.7

On January 24, 1979, Eustaquia purportedly sold the property to privaterespondents Anatalia Reyes and Gloria Reyes-Paulino in a notarizeddocument entitled "Patuluyang Pagbibili ng Lupa" (Deed of AbsoluteSale).8 In the second paragraph of the deed, Eustaquia expressly stated that the property was paraphernal or exclusive in character and did not belong tothe conjugal partnership because it formed part of her inheritance.Accordingly, it was only her signature and thumbmark which appeared onthe deed. Anatalia and Gloria subsequently divided the property betweenthemselves and registered their respective shares under their own names.9

Eustaquia died of natural causes on May 7, 1987.10

On May 17, 1993, the children of the siblings of Eustaquia who predeceasedher filed a complaint with the Regional Trial Court (RTC) of Quezon City forpartition and accounting with receivership against Magno Sarreal andprivate respondents herein, Anatalia Reyes and Gloria Reyes-Paulino. Theyallegedly just discovered that the property was clandestinely, fraudulentlyand unlawfully divided between private respondents who caused itsregistration in their names under TCT Nos. 272976 and 272977 by means of simulated or fictitious and unlawful conveyances. They contended that, not having waived or repudiated their lawful shares and participation in theproperty, they are co-owners of the resulting subdivision lots with privaterespondents, the same being held in trust by the latter for the co-ownership.Similarly, the rents from the market stalls on the property belong not only toprivate respondents but also to them and private respondents should bemade to account for all rents received from the date of Eustaq uia’s death.They further prayed that the property be placed under receivership pendingthe resolution of the case.11

Private respondents filed a joint answer12 t o the complaint claiming, amongothers, that 1) the complaint does not state any cause of action; 2) they arethe owners in fee simple of the property under TCT Nos. 272977 and272976; 3) complainants are not compulsory heirs of Eustaquia; and 4) thetitle to the property has been transferred in the names of privaterespondents pursuant to a valid sale long before the death of Eustaquia.

A separate answer13 was filed on behalf of Magno Sarreal by his purportedguardian ad litem and natural daughter, Aida Sarreal, which admittedvirtually all the allegations of the complaint except the portion which statedthat the property belonged exclusively to Eustaquia. It alleged that theproperty, while originally paraphernal, became conjugal in character becauseof "the improvements introduced therein from the income of the spousesand/or from the income or fruits of their separate properties."

However, at that time, it appeared that the status of Aida Sarreal asguardian ad litem was still in issue in two pending consolidated civil cases,namely, Civil Case No. Q-5148214 and Special Proceeding No. 50893.15 Theappointed guardian ad litem of Magno in those cases, the University of thePhilippines’ Office of Legal Aid, filed a motion to be appointed as guardian ad litem of Magno, which the RTC granted in an order16 dated August 26, 1994.Thereafter, the Office of Legal Aid filed, on his behalf, the answer17 datedSeptember 5, 1994 which now denied for lack of knowledge the personalcircumstances of the complainants, their relationship to their respective

progenitors and to Eustaquia, and the relationship of complainants andprivate respondents to each other and of private respondents to Eustaquia.The paraphernal character of the property was likewise denied, with Magnonow claiming that the property was part of the conjugal partnership from thevery beginning.

On December 12, 1994, Magno died and was substituted as defendant byCelerina Sarreal Kamantigue, his sister, and Aida Sarreal.18 During pre-trial,the parties agreed that the sole issue to be resolved in the case was whetherthe sale of the property to private respondents was simulated or fictitious.

On September 11, 1996, petitioners’ separate applications for receivership

were denied.19 Thereafter, trial ensued. Petitioners presented as witnessesCelerina Sarreal Kamantigue, Monico Reyes Palmario and Aida Sarreal. The

sole witness for the defense, on the other hand, was private respondent Gloria Reyes-Paulino.

After the parties presented their respective evidence, another motion for theappointment of a receiver was filed by the children of Eustaquia’s siblings

but before a ruling could be made thereon, the decision20 dated September 7,2001 was rendered by the RTC on September 12, 2001 in favor of petitionerswhich 1) declared the Deed of Absolute Sale executed between Eustaquia andprivate respondents null and void; 2) ordered the Register of Deeds of Quezon City to cancel TCT Nos. 272976 and 272977; 3) allowed the partitionof the property among the legal heirs of Eustaquia and the legal heirs of herdeceased husband, Magno; 4) appointed the Branch Clerk of Court ascommissioner for the purpose of partitioning the property and rendering an

account of all income received from the date of Eustaquia’s death; 5) pendingpartition, appointed the Clerk of Court as receiver of the property; and 6)ordered the defendants to pay attorney’s fees, litigation expenses and costs

of suit.

Not satisfied, private respondents appealed the decision to the CA. OnFebruary 10, 2003, the CA reversed the decision of the RTC and rendered theassailed Decision,21 the dispositive portion of which reads:

WHEREFORE, the appealed decision is REVERSED and SET ASIDE, andanother is entered:

a) Dismissing the complaint;

b) Revoking the appointment of a receiver over the property insuit;

c) Discharging forthwith the appointed receiver, Atty. Mercedes

Gatmaytan, the Clerk of Court of the Regional Trial Court of Quezon City; and

d) Ordering the discharged receiver to restore forthwith thepossession of the subject property to the appellants Anatalia Reyesand Gloria Reyes-Paulino and render a full accounting andsettlement of her receivership to the latter.

The CA pointed out that during pre-trial, the parties agreed that the soleissue that would limit or control the course of the trial was whether theconveyance of the property to private respondents was simulated orfictitious. The CA ruled that the burden of proof, which rested uponcomplainants in this instance, was not met, after finding that the testimoniesof the complainants’ two witnesses22 to the effect that private respondentshad no means or source of income that would enable them to buy theproperty and that they merely lived with the spouses Eustaquia and MagnoSarreal during their lifetime were mere generalities and fell short of the

"clear, convincing and more than merely preponderant evidence necessary toovercome the notarized deed of sale."23 The CA, moreover, found thetestimony of private respondent Gloria Reyes-Paulino more convincing inthat she was able to establish she was earning an income and that she livedwith her husband independently of the spouses Eustaquia and Magno.

The CA held that the RTC showed undue bias in favor of complainants byresolving the case on issues not agreed upon during the pre-trial, particularlywith regard to the true nature of the property and whether the same wasparaphernal or conjugal. It should be kept in mind that because the propertywas deemed conjugal, the RTC held that the Deed of Absolute Sale which didnot bear Magno’s signature was void.

Thereafter, separate motions for reconsideration24 were filed by the childrenof Eustaquia’s siblings and the heirs of Magno Sarreal. Collaborating counselfor private respondents, on the other hand, filed a notice of entry of appearance with omnibus motion.25 The omnibus motion, attached as Annex

"A" to the notice, prayed for 1) the revocation of the appointment of thereceiver over the property; 2) the discharge of the appointed receiver; and 3)an order for the discharged receiver to restore possession of the property toprivate respondents.

After petitioners interposed their comment/opposition to the omnibusmotion, another collaborating counsel for private respondents filed a noticeof entry of appearance with application for damages against receiver’s

bond26on March 25, 2003 praying that the receiver’s bond in the amount

of P1,000,000.00 be declared liable for damages sustained by privaterespondents. On April 2, 2003, private respondents also filed, with leave of court, a consolidated comment to the motions for reconsideration filed bypetitioners.

In the assailed Resolution dated April 28, 2003, private respondent’s

omnibus motion for the immediate execution of the directives regarding thereceivership and accounting aspects of the CA decision was granted. Private

respondents’ application for damages against the receiver’s bond was, on theother hand, referred to the RTC for hearing and disposition. Finally,petitioners’ motions for reconsideration were denied for lack of merit.

This petition was thereupon filed on May 9, 2003. This Court issued a statusquo order on May 15, 2003, to stop the immediate execution of the CAdecision and resolution.

Petitioners anchor their petition on the following grounds:

1. Respondent Court of Appeals committed serious deviationsfrom the law and settled jurisprudence in holding that the land indispute did not become conjugal property of the late spousesMagno Sarreal and Eustaquia Reyes and in reversing the trial court on the issue of nullity of the deed of sale.











































































































72

2. Respondent Court likewise erred most grievously inoverturning the trial court’s factual findings on the basis of a

uniquely one-sided or lopsided treatment of the facts and in totaldisregard of the tenet in law that issues of credibility should be left for the trial court to resolve because unlike the appellate court, it had the opportunity to observe the demeanor of witnesses at c loserange.

3. Respondent Court acted in grave abuse of discretion tantamount to excess of jurisdiction when it ordered the trial court to issueforthwith a writ of execution of the directives in its decisiondespite their lack of finality.

4. The Resolution turns a blind eye upon the ruling of theHonorable Supreme Court in Heirs of the Late Justice Jose B.L.Reyes vs. Court of Appeals (338 SCRA 282), and has thedeleterious effect of opening the door to a dissipation of the fruitsof the property in dispute to the grave detriment of the petitionersshould the assailed Decision be reversed by the Honorable Court.

The crux of the present controversy involves the resolution of validity orinvalidity of the conveyance of the property to private respondents.

The trial court concluded on the basis of the evidence presented that theDeed of Absolute Sale was void for not embodying the consent of Eustaquia’s

husband. The conclusion was drawn upon the finding of the RTC that theproperty subject of the deed was conjugal in character due to theimprovements constructed thereon at the expense of the conjugalpartnership.

To reiterate, in reversing the decision of the trial court, the CA pointed out

that the RTC had gone beyond the scope of the lone issue agreed upon by theparties during pre-trial, that is, whether the sale of the property to privaterespondents was simulated or fictitious.

The Court is mindful of the rule that the determination of issues at a pre-trialconference bars the consideration of other questions on appeal. A pre-trial ismeant to serve as a device to clarify and narrow down the basic issuesbetween the parties, to ascertain the facts relative to those issues and toenable the parties to obtain the fullest possible knowledge of the issues andfacts before civil trials and thus prevent trials from being carried on in thedark. Thus, to obviate the element of surprise, parties are expected todisclose at a pre-trial conference all issues of law and fact which they intendto raise at the trial, except such as may involve privileged or impeachingmatters.27 The rule, however, is not to be applied with rigidity and admits of certain exceptions.28

There is merit in petitioners’ claim that the limitation upon the issue

embodied in the pre-trial order did not control the course of the trial. Theissue on the nature of the property was embodied in the pleadings filed bythe parties subsequent to the complaint and was actively litigated by themwithout any objection on the part of private respondents. In view thereof, thelatter are deemed to have given their implied consent for the RTC to try thisissue. It is worthy to note that a careful perusal of the RTC decision wouldreveal that the trial court found it unnecessary to make a categorical findingas to whether the deed was simulated or fictitious, the focal point being thecharacter of the property at the time of the transfer to private respondents.While it is true that the RTC cited the evidence introduced by petitioners toestablish that the sale was simulated or fictitious, it did not make a clear anddefinitive ruling on this matter, and instead stated as follows:

While these circumstances may be considered in the determination of thealleged fraud in the transfer of property by way of Deed of Sale allegedlyexecuted by Eustaquia Reyes in favor of defendants Gloria Reyes-Paulino andAnatalia Reyes, the Court is nevertheless confronted with a significant factualelement which, by and in itself alone and independent of circumstancesindicative of fraud, nullifies the said Deed of Sale. There is a clear absence of Magno Sarreal’s signature in the Deed of Sale of the subject property in favorof Gloria Reyes-Paulino and Anatalia Reyes. 29

Contrary to the assumption made by the CA, the

deed was clearly not nullified on the basis that it was simulated or fictitious. Rather, the ruling wasthat the absence of Magno’s conformity rendered the deed of absolute sale

fatally defective. In this regard, the evidence relied upon by the RTC tosupport its conclusion that the property had become conjugal and thereforerequired Magno’s consent was principally the testimony of Monico ReyesPalmario as well as the lease agreement executed with ACME, to wit:

After a careful examination of the testimonial and documentary evidenceadduced by both parties, it appears to the Court that:

x x x

6. The subject property was acquired by Eustaquia Reyes prior to hermarriage to Magno Sarreal. During the lifetime of the marriage,improvements were made thereon as declared in page 4 Paragraph XI(Exhibit "A-7") of the Lease Agreement showing that all improvements in thesaid parcel of land as of June 5, 1983, at the expiration of the lease, shallbelong to the lessors. Witness plaintiff Monico Reyes Palmario likewisetestified that he had been engaged by the spouses as a carpenter andmason to make improvements on the property. He made repairs on thebuildings constructed on the property. He further testified that therewere at least ten (10) houses on the said property and a buildinghousing a knitting company. (TSN of October 2, 1997, p. 10)

x x x

As in the Embrado Case, the sale of the subject property to defendants GloriaReyes-Paulino and Anatalia Reyes was void because Magno Sarreal did not consent to the sale, which consent was necessary because the property isconjugal, hence the consent of Magno Sarreal as spouse is necessary. While it is true that the parcel of land covered by TCT 26031 was acquired byEustaquia Reyes prior to her marriage to defendant Sarreal, it wasestablished that improvements were made consisting of houses,buildings for rent.Likewise, all improvements introduced thereon by Acme-Abrasive Manufacturing Corporation upon the expiration of the lease on June5, 1983 became conjugal properties of Spouses Eustaquia Reyes Sarreal andMagno Sarreal. There is no substantial evidence presented as to the source of funds used in the improvements but it was testified upon that the same weremade during the subsistence of the marriage hence the presumption that the

funds used were conjugal stands. "Under Article 158 of the Civil Code, theland becomes conjugal upon the construction of the building without awaiting reimbursement before or at the liquidation of the partnership uponthe concurrence of two conditions, to wit: (a) the construction of the buildingat the expense of the partnership; and (b) the ownership of the land by one of the spouses (Embrado vs. Court of Appeals, supra)." Thus, in this instant case,while the land originally belonged to Eustaquia Reyes, the same becameconjugal upon the construction of improvements thereon.30

In the present case, the CA considered only the improvements introduced byACME during the subsistence of the latter’s lease to determine whether the

property became conjugal. It ruled in the negative after concluding that theseimprovements were not at the partnership’s expense, but rather at the

expense of the lessee.

It is argued by private respondents that the improvements made by ACMEdid not transform the character of the property from being paraphernal into

being conjugal. The statutory requirement set forth under Article 158 of theCivil Code31 is that the improvements have to be made or undertaken at theexpense of the conjugal partnership. Under the terms of the leaseagreement, the lessee was allowed to build on the property at its ownexpense, subject to the condition that after the termination of the lease,ownership over the same would inure to the benefit of the lessor. This Court agrees that the expense incurred by ACME in constructing the buildings onEustaquia’s property cannot be construed as being converted into anexpense taken against the civil fruits of the property by virtue of the lease.Rather, under the terms of the lease contract, it was the building itself that would inure to the lessor as fruits but only at the end of the lease period onJune 1, 1983. At that time, however, Eustaquia had already sold the land, onJanuary 24, 1979, to private respondents. Hence, the transfer of theownership of the building from the lessee to the lessor could not convert theland into conjugal property since the land itself no longer belonged to one of the spouses at that time.

This notwithstanding, the RTC did not rely solely upon the improvementsintroduced by ACME in ruling that the property became conjugal. Asmentioned above, it likewise gave full faith and credence to the testimony of Monico Reyes Palmario who testified that there were houses and buildingsthat were constructed on the property prior to the purported sale to privaterespondents.

The CA, however, held otherwise, stating that the testimony of privaterespondent Gloria Reyes-Paulino was more credible, thus:

The complaint, however, never mentioned any "house" or a "buildingoccupied by a knitting company"; it confined itself only to a "parcel of land"and "market stalls." Hence, Palmario must be referring to another land andhis lack of certitude is confirmed by his inability to be sure of the number of houses that he was talking about.

Indeed, appellant GLORIA, who is renting one of those "houses" or

apartments from Eustaquia and Magno, and who is thus more knowledgeableof the place and hence, more reliable, declared that they are outside the landin controversy.32

Applying the well-known test of credibility called the actor’s rule, it is thewitness whose action is more closely connected to the point at issue that should be given more credence.33 In the present case, the RTC gave credenceto the testimony of petitioner Monico Reyes Palmario, who claimed heworked as carpenter on the property in question, and there were houses andbuildings constructed on the property including a knitting factory. The CA,however, sustained the testimony of private respondent Gloria Reyes-Paulino, who rented from the spouses Eustaquia and Magno one of the"houses" or apartments, and lived therein, and who testified that thesehouses and buildings were on a different property. As between these twowitnesses, the latter is more reliable since her act of renting and living in oneof the "houses" or apartments makes her the actor more closely related tothe point at issue, i.e., whether or not the houses were on the property inquestion. For while a carpenter would not concern himself with the title of the property, a lessee would normally look into the title covering theproperty leased, including its precise location or boundaries, and in fact Gloria Reyes-Paulino testified that the lot on which the house she rented wasfound had a separate title.

Accordingly, the CA aptly held as follows:

For his part, plaintiff-appellee Monico Reyes Palmario testified on "more orless" ten (10) houses constructed on the land in dispute by EUSTAQUIA andMagno, on which he even had the occasion to work on them as a carpenter,aside from a building occupied by a knitting company, viz.:































"Q And will you also inform this Honorable Court if the spouses MagnoSarreal and Eustaquia Reyes had left any property?

"A Yes, sir, they have a portion of land and a "paupahang bahay".

"Q Do you know where is this parcel of land?

"A Balintawak, sir, Samson Road.

["Q] What city?

"A Balintawak, sir.

x x x x x x x x x

"Q Do you know the area of this parcel of land?"A Seven thousand square meters, sir.

"Q Is that parcel of land you identified the same parcel of land subject matterof this case?

"A Yes, sir.

"Q Mr. witness, do you have any occasion to work on the Seven Thousandsquare meter parcel of land?

"A Yes, sir.

"Q What was that work that you did, Mr. Witness?

"A I worked as a carpenter, sir.

"Q You made mention of house. How many houses are there inside thisproperty?

"A More or less ten (10) houses, sir.

"Q By the way, who was . . . or who spent for the construction of those houses,if you know?

"A The spouses Eustaquia Reyes and Magno Sarreal, sir.

"Q Aside from those houses, do you know if there are other improvements orother building inside the property?

"A Yes, sir, knitting company.

"Q Who owns the building that occupy the factory?

"A Spouses Eustaquia Reyes and Magno Sarreal, sir."

The complaint, however, never mentioned any "house" or a "buildingoccupied by a knitting company;" it confined itself only to a "parcel of land"and "market stalls." Hence, Palmario must be referring to another land andhis lack of certitude is confirmed by his inability to be sure of the number of the houses that he was talking about.

Indeed, appellant GLORIA, who is renting one of those "houses" orapartments from EUSTAQUIA and Magno, and who is thus moreknowledgeable of the place and, hence, more reliable declared that they areoutside the land in controversy.

"Q Now, let us talk about the parcel of land. How far is this parcel of landfrom the place where you were residing in 1979?

"A It is just at the back, sir.

"Q Do you mean to tell us that the land of which your apartment was situatedis not part of the parcel of land with an area of 7,484 square meters?

"A No, sir.

"Q When you say "hindi", the lot on which your apartment was situated has aseparate title of its own?

"A Yes, sir. 34

"Q And the title to that apartment was in the name of the spouses?

"A Yes, sir.

Be that as it may, the improvements referred to by the trial court whichpurportedly made the property conjugal consisted of "houses, buildings forrent" and "improvements introduced thereon by lessee Acme-AbrasiveManufacturing Corporation upon the expiration of the lease on June [1],1983 " It id

partnership upon the concurrence of two conditions, to wit: (a) theconstruction of the building at the expense of the partnership, and (b) theownership of the land by one of the spouses. (Embrado vs. Court of Appeals,supra)" Thus, in this instant case, while the land originally belonged toEustaquia Reyes, the same became conjugal upon the construction of improvements thereon."

The "houses or apartments being outside the land in suit, the onlyimprovements that should be looked into in the case at bench are the"improvements introduced thereon by the lessee Acme-AbrasiveManufacturing Corporation." In this connection, it is worth reiterating that paragraph XI of the contract of lease provided:

"XI

That this contract of lease shall be for a period of TWENTY (20) YEARS fromJune 1st, 1963 and expiring on June 1st 1983; and that upon termination of the period of this contract, the ownership of all the improvements foundwithin the leased property, (except machineries of any kind, stocks, furnitureand other personal property found in the building) shall be automaticallytransferred to the LESSOR without reimbursement and without paying thecost and value thereof to the LESSEE; and that if it is necessary for theLESSEE to execute and deliver papers, documents and other writings,whatsoever to effect the transfer of the ownership of all the saidimprovements to the LESSOR, the LESSEE shall execute and deliver the sameto the LESSOR."

Two (2) decisive facts are clearly discernible therefrom: first, no conjugalfund ever went into the construction of the improvements as they were alldone at the expense of the lessee; and second, the improvements shalldevolve to the ownership of the lessor only upon the expiration of the lease.

The lease expired on June 1, 1983. At that time, the lessor was no longerEUSTAQUIA but the appellants ANATALIA and GLORIA. This is for the simplereason that in the interim, or on January 24, 1979, the lessor EUSTAQUIAsold the land to ANATALIA and GLORIA who thereupon succeededEUSTAQUIA as lessor. Necessarily, ANATALIA and GLORIA became theowners of the land, together with all the improvements thereon, upon theexpiration of the lease on June 1, 1983, being already the lessors on that date.Logically, too, when EUSTAQUIA sold the property, it was still paraphernal,as she correctly repeatedly emphasized in the deed of sale "’paraphernal or

exclusive property’ ko, at hindi ‘conjugal’ naming mag-asawa; ito ay akingminana o isang inheritance property.’" Resultantly, when EUSTAQUIA diedon May 7, 1987, the plaintiffs, including the surviving husband, MagnoSarreal, could no longer inherit the property from her since she was then not anymore the owner thereof .35

Accordingly, since the property sold by Eustaquia to private respondents onJanuary 24, 1979 was paraphernal, the consent of Magno was not requiredand the sale cannot be held invalid on the basis of its absence.

WHEREFORE, the petition is DENIED and the assailed Decision andResolution dated February 10, 2003 and April 28, 2003, respectively,rendered by the Court of Appeals in CA-G.R. CV No. 71807 arehereby AFFIRMED. The status quo order issued by this Court on May 15,2003 is LIFTED effective upon the finality of this Decision.

Costs against petitioners.

SO ORDERED.







