[G.R. No. 128538. February 28, 2001]

SCC CHEMICALS CORPORATION, petitioner, vs. THE HONORABLE COURT OF APPEALS, STATE INVESTMENT HOUSE, INC., DANILO ARRIETA and LEOPOLDO HALILI, respondents.

R E S O L U T I O NQUISUMBING, J.:

Before us is a petition for review, pursuant to Rule 45 of the Rules of Court, of the Decision of the Court of Appeals dated in November 12, 1996 in CA-G.R. CV No. 45742 entitled State Investment House, Inc., v. Danilo Arrieta, et al., and SCC Chemical Corporation. The questioned decision affirmed in toto the decision of the Regional Trial Court of Manila, Branch 33, dated March 22, 1993, in Civil Case No. 84-25881, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the latter to pay jointly and severally the plaintiff the following: a) To pay plaintiff State Investment House, Inc., the sum of P150,483.16 with interest thereon at 30% per annum reckond (sic) from April, 1984 until the whole amount is fully paid; b) To pay plaintiff an amount equivalent to 25% of the total amount due and demandable as attorneys fees and to pay the cost(s) of suit.

SO ORDERED.[1]

Equally challenged in this petition is the Resolution of the appellate court dated February 27, 1997, denying SCC Chemicals Corporations motion for reconsideration.

The background of this case, as culled from the decision of the Court of Appeals, is as follows:

On December 13, 1983, SCC Chemicals Corporation (SCC for brevity) through its chairman, private respondent Danilo Arrieta and vice president, Pablo (Pablito) Bermundo, obtained a loan from State Investment House Inc., (hereinafter SIHI) in the amount of P129,824.48. The loan carried an annual interest rate of 30% plus penalty charges of 2% per month on the remaining balance of the principal upon non-payment on the due date-January 12, 1984. To secure the payment of the loan, Danilo Arrieta and private respondent Leopoldo Halili executed a Comprehensive Surety Agreement binding themselves jointly and severally to pay the obligation on the maturity date. SCC failed to pay the loan when it matured. SIHI then sent demand letters to SCC, Arrieta and Halili, but notwithstanding receipt thereof, no payment was made.

On August 2, 1984, SIHI filed Civil Case No. 84-25881 for a sum of money with a prayer for preliminary attachment against SCC, Arrieta, and Halili with the Regional Trial Court of Manila.

In its answer, SCC asserted SIHIs lack of cause of action. Petitioner contended that the promissory note upon which SIHI anchored its cause of action was null, void, and of no binding effect for lack or failure of consideration.

The case was then set for pre-trial. The parties were allowed to meet out-of-court in an effort to settle the dispute amicably. No settlement was reached, but the following stipulation of facts was agreed upon:

1. Parties agree that this Court has jurisdiction over the plaintiff and the defendant and that it has jurisdiction to try and decide this case on its merits and that plaintiff and the defendant have each the capacity to sue and to be sued in this present action;

2. Parties agree that plaintiff sent a demand letter to the defendant SCC Chemical Corporation dated April 4, 1984 together with a statement of account of even date which were both received by the herein defendant; and

3. Parties finally agree that the plaintiff and the defendant SCC Chemical Corporation the latter acting through defendants Danilo E. Arrieta and Pablito Bermundo executed a promissory note last December 13, 1983 for the amount of P129,824.48 with maturity date on January 12, 1984.[2]

The case then proceeded to trial on the sole issue of whether or not the defendants were liable to the plaintiff and to what extent was the liability.

SIHI presented one witness to prove its claim. The cross-examination of said witness was postponed several times due to one reason or another at the instance of either party. The case was calendared several times for hearing but each time, SCC or its counsel failed to appear despite notice. SCC was finally declared by the trial court to have waived its right to cross-examine the witness of SIHI and the case was deemed submitted for decision.

On March 22, 1993, the lower court promulgated its decision in favor of SIHI.

Aggrieved by the verdict, SCC elevated the case to the Court of Appeals where it was docketed as CA-G.R. CV No. 45742.

On appeal, SCC contended that SIHI had failed to show, by a preponderance of evidence, that the latter had a case against it. SCC argued that the lone witness presented by SIHI to prove its claim was insufficient as the competency of the witness was not established and there was no showing that he had personal knowledge of the transaction. SCC further maintained that no proof was shown of the genuineness of the signatures in the documentary exhibits presented as evidence and that these signatures were neither marked nor offered in evidence by SIHI. Finally, SCC pointed out that the original copies of the documents were not presented in court.

On November 12, 1996, the appellate court affirmed in toto the judgment appealed from.

On December 11, 1996 SCC filed its motion for reconsideration, which the Court of Appeals denied in its resolution dated February 27, 1997.

Hence, petitioners recourse to this Court relying on the following assignments of error:I

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PRIVATE RESPONDENT PROVED ITS CAUSE OF ACTION AND OVERCAME ITS BURDEN OF PROOF.

II

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN AWARDING ATTORNEYS FEES TO THE PRIVATE RESPONDENT.

We find the pertinent issues submitted for resolution to be:

(1) Whether or not the Court of Appeals made an error of law in holding that private respondent SIHI had proved its cause of action by preponderant evidence; and

(2) Whether or not the Court of Appeals erred in upholding the award of attorneys fees to SIHI.

Anent the first issue, petitioner contends that SIHI introduced documentary evidence through the testimony of a witness whose competence was not established and whose personal knowledge of the truthfulness of the facts testified to was not demonstrated. It argues that the same was in violation of Sections 36[3] and 48,[4] Rule 130 of the Rules of Court and it was manifest error for the Court of Appeals to have ruled otherwise. In addition, SCC points out that the sole witness of SIHI did not profess to have seen the document presented in evidence executed or written by SCC. Thus, no proof of its genuineness was adduced. SIHI thus ran afoul of Section 2,[5] Rule 132 of the Rules of Court, which requires proof of due execution and authenticity of private documents before the same can be received as evidence. Petitioner likewise submits that none of the signatures affixed in the documentary evidence presented by SIHI were offered in evidence. It vehemently argues that such was in violation of the requirement of Section 34,[6] Rule 132 of the Rules of Court. It was thus an error of law on the part of the appellate court to consider the same. Finally, petitioner posits that the non-production of the originals of the documents presented in evidence allows the presumption of suppression of evidence provided for in Section 3 (e),[7] Rule 131 of the Rules of Court, to come into play.

Petitioners arguments lack merit; they fail to persuade us.

We note that the Court of Appeals found that SCC failed to appear several times on scheduled hearing dates despite due notice to it and counsel. On all those scheduled hearing dates, petitioner was supposed to cross-examine the lone witness offered by SIHI to prove its case. Petitioner now charges the appellate court with committing an error of law when it failed to disallow the admission in evidence of said testimony pursuant to the hearsay rule contained in Section 36, Rule 130 of the Rules of Court.

Rule 130, Section 36 reads:

SEC. 36. Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.

Petitioners reliance on Section 36, Rule 130 of the Rules of Court is misplaced. As a rule, hearsay evidence is excluded and carries no probative value.[8] However, the rule does admit of an exception. Where a party failed to object to hearsay evidence, then the same is admissible.[9] The rationale for this exception is to be found in the right of a litigant to cross-examine. It is settled that it is the opportunity to cross-examine which negates the claim that the matters testified to by a witness are hearsay.[10] However, the right to cross-examine may be waived. The repeated failure of a party to cross-examine the witness is an implied waiver of such right. Petitioner was afforded several opportunities by the trial court to cross-examine the other partys witness. Petitioner repeatedly failed to take advantage of these opportunities. No error was thus committed by the respondent court when it sustained the trial courts finding that petitioner had waived its right to cross-examine the opposing partys witness. It is now too late for petitioner to be raising this matter of hearsay evidence.

Nor was the assailed testimony hearsay. The Court of Appeals correctly found that the witness of SIHI was a competent witness as he testified to facts, which he knew of his personal knowledge. Thus, the requirements of Section 36, Rule 130 of the Rules of Court as to the admissibility of his testimony were satisfied.

Respecting petitioners other submissions, the same are moot and academic. As correctly found by the Court of Appeals, petitioners admission as to the execution of the promissory note by it through private respondent Arrieta and Bermundo at pre-trial sufficed to settle the question of the genuineness of signatures. The admission having been made in a stipulation of facts at pre-trial by the parties, it must be treated as a judicial admission. Under Section 4, [11] Rule 129 of the Rules of Court, a judicial admission requires no proof.

Nor will petitioners reliance on the best evidence rule[12] advance its cause. Respondent SIHI had no need to present the original of the documents as there was already a judicial admission by petitioner at pre-trial of the execution of the promissory note and receipt of the demand letter. It is now too late for petitioner to be questioning their authenticity. Its admission of the existence of these documents was sufficient to establish its obligation. Petitioner failed to submit any evidence to the contrary or proof of payment or other forms of extinguishment of said obligation. No reversible error was thus committed by the appellate court when it held petitioner liable on its obligation, pursuant to Article 1159 of the Civil Code which reads:

ART. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith.

On the second issue, petitioner charges the Court of Appeals with reversible error for having sustained the trial courts award of attorneys fees. Petitioner relies on Radio Communications of the Philippines v. Rodriguez, 182 SCRA 899,909 (1990), where we held that when attorneys fees are awarded, the reason for the award of attorneys fees must be stated in the text of the courts

decision. Petitioner submits that since the trial court did not state any reason for awarding the same, the award of attorneys fees should have been disallowed by the appellate court.

We find for petitioner in this regard.

It is settled that the award of attorneys fees is the exception rather than the rule, hence it is necessary for the trial court to make findings of fact and law, which would bring the case within the exception and justify the grant of the award.[13] Otherwise stated, given the failure by the trial court to explicitly state the rationale for the award of attorneys fees, the same shall be disallowed. In the present case, a perusal of the records shows that the trial court failed to explain the award of attorneys fees. We hold that the same should thereby be deleted.

WHEREFORE, the instant petition is PARTLY GRANTED. The decision dated November 12, 1996 of the Court of Appeals is AFFIRMED WITH MODIFICATION that the award of attorneys fees to private respondent SIHI is hereby deleted. No pronouncement as to costs.

SO ORDERED.

G.R. No. 128538       February 28, 2001SCC CHEMICALS CORPORATION vs. CA

FACTS:            SCC Chemicals Corporation through its chairman, private respondent DaniloArrieta and vice president, Pablo (Pablito) Bermundo, obtained a loan from State Investment House Inc (hereinafter SIHI) in the amount of P129,824.48. The loan carried an annual interest rate of 30% plus penalty charges of 2% per month on the remaining balance of the principal upon non-payment on the due date-January 12, 1984. To secure the payment of the loan, DaniloArrieta and private respondent LeopoldoHalili executed a Comprehensive Surety Agreement binding themselves jointly and severally to pay the obligation on the maturity date.            SCC failed to pay the loan when it matured. SIHI then sent demand letters to SCC, Arrieta and Halili, but notwithstanding receipt thereof, no payment was made.            SIHI filed Civil Case for a sum of money with a prayer for preliminary attachment against SCC, Arrieta, and Halili with the Regional Trial Court of Manila.            In its answer, SCC asserted SIHI's lack of cause of action. Petitioner contended that the promissory note upon which SIHI anchored its cause of action was null, void, and of no binding effect for lack or failure of consideration.            The case was then set for pre-trial. The parties were allowed to meet out-of-court in an effort to settle the dispute amicably. No settlement was reached, but the following stipulation of facts was agreed upon:            1. Parties agree that this Court has jurisdiction over the plaintiff and the    defendant and that it has jurisdiction to try and decide this case on its merits and  that plaintiff and the defendant have each the capacity to sue and to be sued in     this present action;

            2. Parties agree that plaintiff sent a demand letter to the defendant SCC   Chemical Corporation dated April 4, 1984 together with a statement of account of   even date which were both received by the herein defendant; and            3. Parties finally agree that the plaintiff and the defendant SCC Chemical            Corporation the latter acting through defendants Danilo E. Arrieta and Pablito           Bermundo executed a promissory note last December 13, 1983 for the amount of             P129,824.48 with maturity date on January 12, 1984.            The case then proceeded to trial on the sole issue of whether or not the defendants were liable to the plaintiff and to what extent was the liability.            SIHI presented one witness to prove its claim. The cross-examination of said witness was postponed several times due to one reason or another at the instance of either party. The case was calendared several times for hearing but each time, SCC or its counsel failed to appear despite notice. SCC was finally declared by the trial court to have waived its right to cross-examine the witness of SIHI and the case was deemed submitted for decision.            On March 22, 1993, the lower court promulgated its decision in favor of SIHI.

ISSUES:            1. Whether the testimony of private respondent’s witness is hearsay.            2. Whether the promissory note was genuine and genuinely executed as required                      by law.            3. Whether the “best evidence rule” should be applied.RULING:            1. The Court of Appeals correctly found that the witness of SIHI was a competent witness as he testified to facts, which he knew of his personal knowledge. Thus, the requirements of Section 36, Rule 130 of the Rules of Court as to the admissibility of his testimony were satisfied.            Rule 130, Section 36 reads:            SEC. 36. Testimony generally confined to personal knowledge; hearsay      excluded. – A witness can testify only to those facts which he knows of his  personal knowledge; that is, which are derived from his own perception, except  as otherwise provided in these rules.                       Petitioner's reliance on Section 36, Rule 130 of the Rules of Court is misplaced. As a rule, hearsay evidence is excluded and carries no probative value. However, the rule does admit of an exception. Where a party failed to object to hearsay evidence, then the same is admissible.The rationale for this exception is to be found in the right of a litigant to cross-examine. It is settled that it is the opportunity to cross-examine which negates the claim that the matters testified to by a witness are hearsay.However, the right to cross-examine may be waived. The repeated failure of a party to cross-examine

the witness is an implied waiver of such right. Petitioner was afforded several opportunities by the trial court to cross-examine the other party's witness. Petitioner repeatedly failed to take advantage of these opportunities. No error was thus committed by the respondent court when it sustained the trial court's finding that petitioner had waived its right to cross-examine the opposing party's witness. It is now too late for petitioner to be raising this matter of hearsay evidence.

            2. Petitioner's admission as to the execution of the promissory note by it through private respondent Arrieta and Bermundo at pre-trial sufficed to settle the question of the genuineness of signatures. The admission having been made in a stipulation of facts at pre-trial by the parties, it must be treated as a judicial admission. Under Section, 4 Rule 129 of the Rules of Court, a judicial admission requires no proof.

            3. Respondent SIHI had no need to present the original of the documents as there was already a judicial admission by petitioner at pre-trial of the execution of the promissory note and receipt of the demand letter. It is now too late for petitioner to be questioning their authenticity. Its admission of the existence of these documents was sufficient to establish its obligation. Petitioner failed to submit any evidence to the contrary or proof of payment or other forms of extinguishment of said obligation. No reversible error was thus committed by the appellate court when it held petitioner liable on its obligation

FIRST DIVISION PEOPLE OF THEPHILIPPINES,Plaintiff-Appellee,   -versus-   RODRIGO SALAFRANCAy BELLO,

Accused-Appellant.

G.R. No. 173476 Present: 

CORONA, C.J., Chairperson,LEONARDO-DE CASTRO,BERSAMIN,VILLARAMA, JR., and

*PERLAS-BERNABE, JJ. Promulgated: February 22, 2012

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

D E C I S I O N 

BERSAMIN, J.: 

 An ante-mortem declaration of a victim of murder, homicide, or parricide

that meets the conditions of admissibility under the Rules of Court and pertinent jurisprudence is admissible either as a dying declaration or as a part of the res gestae, or both.

 Rodrigo Salafranca y Bello was charged with and tried for murder for the

fatal stabbing of Johnny Bolanon, and was ultimately found guilty of the felony by the Regional Trial Court, Branch 18, in Manila on September 23, 2004. On appeal, his conviction was affirmed by the Court of Appeals (CA) through its decision promulgated on November 24, 2005.[1]

 Salafranca has come to the Court on a final appeal, continuing to challenge

the credibility of the witnesses who had incriminated him. The established facts show that past midnight on July 31, 1993 Bolanon was

stabbed near the Del Pan Sports Complex in Binondo, Manila; that after stabbing Bolanon, his assailant ran away; that Bolanon was still able to walk to the house of his uncle Rodolfo B. Estao in order to seek help; that his uncle rushed him to the Philippine General Hospital by taxicab; that on their way to the hospital Bolanon told Estao that it was Salafranca who had stabbed him; that Bolanon eventually succumbed at the hospital at 2:30 am despite receiving medical attention; and that the stabbing of Bolanon was personally witnessed by Augusto Mendoza, then still a minor of 13 years, who was in the complex at the time.[2]

 As stated, Salafranca fled after stabbing Bolanon. He evaded arrest for a

long period, despite the warrant for his arrest being issued. He was finally arrested on April 23, 2003, and detained at the Manila City Jail.

After trial, the RTC convicted Salafranca, stating: 

The evidence is clear that it was Rodrigo Salafranca who delivered two (2) stabbing blows to the victim while holding Johnny Bolanon with his left arm encircled around Bolanons neck stabbing the latter with the use of his right hand at the right sub costal area which caused Bolanons death. Not only because it was testified to by Augusto Mendoza but corroborated by Rodolfo Estao, the victims uncle who brought Bolanon to the hospital and who relayed to the court that when he aided Bolanon and even on their way to the hospital while the latter was suffering from hard breathing, victim Bolanon was able to say that it was Rodrigo Salafranca who stabbed him.[3]

  The RTC appreciated treachery based on the testimony of Prosecution witness Mendoza on how Salafranca had effectedhis attackagainst Bolanon, observing that by encircling his (accused) left arm, while behind the victim on the latters neck and stabbing the victim with the use of his right hand, Salafranca did not give Bolanon any opportunity to defend himself.[4]The RTC noted inconsistencies in Salafrancas and his witness testimonies, as well as the fact that he had fled from his residence the day after the incident and had stayed away in Bataan for eight years until his arrest. The RTC opined that had he not been hiding, there would be no reason for him to immediately leave his residence, especially because he was also working near the area.[5]

The RTC disposed thus: With the above observations and findings, accused Rodrigo Salafranca is hereby found guilty of the crime of Murder defined and punished under Article 248 as amended by Republic Act No. 7659 in relation to Article 63 of the Revised Penal Code with the presence of the qualifying aggravating circumstance of treachery (248 par. 1 as amended) without any mitigating nor other aggravating circumstance attendant to its commission, Rodrigo Salafranca is hereby sentenced to suffer the penalty ofreclusion perpetua. He shall be credited with the full extent of his preventive imprisonment under Article 29 of the Revised Penal Code. His body is hereby committed to the custody of the Director of the Bureau of Correction, National Penitentiary, MuntinlupaCity thru the City Jail Warden of Manila.

 He is hereby ordered to indemnify the heirs of the victim the sum of P50,000.00 representing death indemnity. There being no claim of other damages, no pronouncement is hereby made. SO ORDERED.[6]

 On appeal, the CA affirmed the findings and conclusions of the RTC,[7] citing the dying declaration made to his uncle pointing to Salafranca as his assailant,[8] and Salafrancas positive identification as the culprit by Mendoza.[9] It stressed that Salafrancas denial and his alibi of being in his home during the incident did not overcome the positive identification, especially as his unexplained flight after the stabbing, leaving his home and employment, constituted a circumstance highly indicative of his guilt.[10]

Presently, Salafranca reiterates his defenses, and insists that the State did not prove his guilt beyond reasonable doubt. 

The appeal lacks merit.Discrediting Mendoza and Estao as witnesses against Salafranca would be

unwarranted. The RTC and the CA correctly concluded that Mendoza and Estao were credible and reliable. The determination of the competence and credibility of witnesses at trial rested primarily with the RTC as the trial court due to its unique and unequalled position of observing their deportment during testimony, and of assessing their credibility and appreciating their truthfulness, honesty and candor. Absent a substantial reason to justify the reversal of the assessment made and conclusions reached by the RTC, the CA as the reviewing court was bound by such assessment and conclusions,[11] considering that the CA as the appellate court could neither substitute its assessment nor draw different conclusions without a persuasive showing that the RTC misappreciated the circumstances or omitted significant evidentiary matters that would alter the result.[12]Salafranca did not persuasively show a misappreciation or omission by the RTC. Hence, the Court, in this appeal, is in no position to undo or to contradict the findings of the RTC and the CA, which were entitled to great weight and respect.[13]

 

Salafrancas denial and alibi were worthless in the face of his positive identification by Mendoza as the assailant of Bolanon. The lower courts properly accorded full faith to such incrimination by Mendoza considering that Salafranca did not even project any ill motive that could have impelled Mendoza to testify against him unless it was upon the truth.[14]

 Based on Mendozas account, Salafranca had attacked Bolanon from behind

and had encircled his left arm over the neck (of Bolanon) and delivered the stabbing blow using the right(hand) and coming from wnnt (sic) up right sideways and another one encircling the blow towards below the left nipple.[15] Relying on Mendozas recollection of how Salafranca had attacked Bolanon, the RTC found treachery to be attendant in the killing. This finding the CA concurred with. We join the CAs concurrence because Mendozas eyewitness account of the manner of attack remained uncontested by Salafranca who merely insisted on his alibi. The method and means Salafranca employed constituted a surprise deadly attack against Bolanon from behind and included an aggressive physical control of the latters movements that ensured the success of the attack without any retaliation or defense on the part of Bolanon. According to the Revised Penal Code,[16]treachery is present when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

 The Court further notes Estaos testimony on the utterance by Bolanon of

statements identifying Salafranca as his assailant right after the stabbing incident. The testimony follows:

 Q Can you tell what happened on the said date? A My nephew arrived in our house with a stab wound on his left chest. Q What time was that?A 12:50 a.m. Q When you saw your nephew with a stab wound, what did he say? A Tito dalhin mo ako sa Hospital sinaksak ako.

 Q What did you do? A I immediately dressed up and brought him to PGH. Q On the way to the PGH what transpired? A While traveling toward PGH I asked my nephew who stabbed him?,

and he answered, Rod Salafranca. Q Do you know this Rod Salafranca? A Yes, Sir. Q How long have you known him? A Matagal na ho kasi mag-neighbor kami. Q If you see him inside the courtroom will you be able to identify him? A Yes, Sir. Q Will you look around and point him to us? A (Witness pointing to a man who answered by the name of Rod

Salafranca.) COURTWhen he told you the name of his assailant what was his condition? A He was suffering from hard breathing so I told him not to talk

anymore because he will just suffer more. Q What happened when you told him that? A He kept silent. Q What time did you arrive at the PGH? A I cannot remember the time because I was already confused at that

time.

 Q When you arrived at the PGH what happened? A He was brought to Emergency Room. Q When he was brought to the emergency room what happened? A He was pronounced dead.[17]

 It appears from the foregoing testimony that Bolanon had gone to the

residence of Estao, his uncle, to seek help right after being stabbed by Salafranca; that Estao had hurriedly dressed up to bring his nephew to the Philippine General Hospital by taxicab; that on the way to the hospital, Estao had asked Bolanon who had stabbed him, and the latter had told Estao that his assailant had been Salafranca; that at the time of the utterance Bolanon had seemed to be having a hard time breathing, causing Estao to advise him not to talk anymore; and that about ten minutes after his admission at the emergency ward of the hospital, Bolanon had expired and had been pronounced dead. Such circumstances qualified the utterance of Bolanon as both a dying declaration and as part of the res gestae, considering that the Court has recognized that the statement of the victim an hour before his death and right after the hacking incident bore all the earmarks either of a dying declaration or part of the res gestae either of which was an exception to the hearsay rule.[18]

 A dying declaration, although generally inadmissible as evidence due to its

hearsay character, may nonetheless be admitted when the following requisites concur, namely: (a) that the declaration must concern the cause and surrounding circumstances of the declarants death; (b) that at the time the declaration is made, the declarant is under a consciousness of an impending death; (c) that the declarant is competent as a witness; and (d) that the declaration is offered in a criminal case for homicide, murder, or parricide, in which the declarant is a victim.[19]

 All the requisites were met herein. Bolanon communicated his ante-mortem

statement to Estao, identifying Salafranca as the person who had stabbed him. At the time of his statement, Bolanon was conscious of his impending death, having sustained a stab wound in the chest and, according to Estao, was then experiencing great difficulty in breathing. Bolanon succumbed in the hospital emergency room a

few minutes from admission, which occurred under three hours after the stabbing. There is ample authority for the view that the declarants belief in the imminence of his death can be shown by the declarants own statements or from circumstantial evidence, such as the nature of his wounds, statements made in his presence, or by the opinion of his physician.[20] Bolanon would have been competent to testify on the subject of the declaration had he survived. Lastly, the dying declaration was offered in this criminal prosecution for murder in which Bolanon was the victim.

 A declaration or an utterance is deemed as part of the res gestae and thus admissible in evidence as an exception to the hearsay rule when the following requisites concur, to wit: (a) the principal act, the res gestae, is a startling occurrence; (b) the statements are made before the declarant had time to contrive or devise; and (c) the statements must concern the occurrence in question and its immediately attending circumstances.[21]

 The requisites for admissibility of a declaration as part of the res gestae concur herein. Surely, when he gave the identity of the assailant to Estao, Bolanon was referring to a startling occurrence, i.e., his stabbing by Salafranca. Bolanon was then on board the taxicab that would bring him to the hospital, and thus had no time to contrive his identification of Salafranca as the assailant. His utterance about Salafranca having stabbed him was made in spontaneity and only in reaction to the startling occurrence. The statement was relevant because it identified Salafranca as the perpetrator. The term res gestae has been defined as those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act.[22] In a general way, res gestae refers to the circumstances, facts, and declarations that grow out of the main fact and serve to illustrate its character and are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation and fabrication.[23] The rule on res gestaeencompasses the exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.[24] The test of admissibility of evidence

as a part of the res gestae is, therefore, whether the act, declaration, or exclamation is so intimately interwoven or connected with the principal fact or event that it characterizes as to be regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony.[25]

 We modify the limiting of civil damages by the CA and the RTC to only the

death indemnity of P50,000.00. We declare that the surviving heirs of Bolanon were entitled by law to more than such indemnity, because the damages to be awarded when death occurs due to a crime may include: (a) civil indemnity ex delicto for the death of the victim (which was granted herein); (b) actual or compensatory damages; (c) moral damages; (d) exemplary damages; and (e) temperate damages.[26]

 We hold that the CA and the RTC should have further granted moral

damages which were different from the death indemnity.[27] The death indemnity compensated the loss of life due to crime, but appropriate and reasonable moral damages would justly assuage the mental anguish and emotional sufferings of the surviving family of the victim.[28]Although mental anguish and emotional sufferings of the surviving heirs were not quantifiable with mathematical precision, the Court must nonetheless strive to set an amount that would restore the heirs of Bolanon to their moral status quo ante. Given the circumstances, the amount of P50,000.00 is reasonable as moral damages, which, pursuant to prevailing jurisprudence,[29] we are bound to award despite the absence of any allegation and proof of the heirs mental anguish and emotional suffering. The rationale for doing so rested on human nature and experience having shown that:

 xxx a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victims family. It is inherently human to suffer sorrow, torment, pain and anger when a loved one becomes the victim of a violent or brutal killing.Such violent death or brutal killing not only steals from the family of the deceased his precious life, deprives them forever of his love, affection and support, but often leaves them with the gnawing feeling that an injustice has been done to them.[30]

 

 The CA and the RTC committed another omission consisting in their non-

recognition of the right of the heirs of Bolanon to temperate damages. It is already

settled that when actual damages for burial and related expenses are not substantiated by receipts, temperate damages of at least P25,000.00 are warranted, for it would certainly be unfair to the surviving heirs of the victim to deny them compensation by way of actual damages.[31]

Moreover, the Civil Code provides that exemplary damages may be imposed in criminal cases as part of the civil liability when the crime was committed with one or more aggravating circumstances.[32] The Civil Code permits such damages to be awarded by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.[33] Conformably with such legal provisions, the CA and the RTC should have recognized the entitlement of the heirs of the victim to exemplary damages because of the attendance of treachery. It was of no moment that treachery was an attendant circumstance in murder, and, as such, inseparable and absorbed in murder. The Court explained so in People v. Catubig:[34]

 The term aggravating circumstances used by the Civil Code, the law

not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code.

 

For the purpose of fixing the exemplary damages, the sum of P30,000.00 is deemed reasonable and proper,[35]because we think that a lesser amount could not result in genuine exemplarity.

 WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals promulgated on November 24, 2005, butMODIFIES the awards of civil damages by adding to the amount of P50,000.00 awarded as death indemnity the amounts of P50,000.00 as moral damages; P25,000.00 as temperate damages; and P30,000.00 as exemplary damages, all of which awards shall bear interest of 6% per annum from the finality of this decision. 

The accused shall further pay the costs of suit. SO ORDERED.

G.R. No. 155208             March 27, 2007

NENA LAZALITA* TATING, Petitioner, vs.FELICIDAD TATING MARCELLA, represented by SALVADOR MARCELLA, CARLOS TATING, and the COURT OF APPEALS, Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Assailed in the Special Civil Action for Certiorari before the Court are the Decision1 dated February 22, 2002 and the Resolution dated August 22, 2002 of the Court of Appeals (CA) in CA-G.R. CV No. 64122, which affirmed the Decision2 of the Regional Trial Court (RTC) of Cadiz City, Negros Occidental, Branch 60.

The present case arose from a controversy involving a parcel of land denominated as Lot 56 of Subdivision plan Psd-31182, located at Abelarde St., Cadiz City, Negros Occidental. The subject lot, containing an area of 200 square meters, was owned by Daniela Solano Vda. de Tating (Daniela) as evidenced by Transfer Certificate of Title (TCT) No. T-4393 issued by the Registry of Deeds of the City of Cadiz.3

On October 14, 1969, Daniela sold the subject property to her granddaughter, herein petitioner Nena Lazalita Tating (Nena). The contract of sale was embodied in a duly notarized Deed of Absolute Sale executed by Daniela in favor of Nena.4 Subsequently, title over the subject property was transferred in the name of Nena.5 She declared the property in her name for tax purposes and paid the real

estate taxes due thereon for the years 1972, 1973, 1975 to 1986 and 1988.6 However, the land remained in possession of Daniela.

On December 28, 1977, Daniela executed a sworn statement claiming that she had actually no intention of selling the property; the true agreement between her and Nena was simply to transfer title over the subject property in favor of the latter to enable her to obtain a loan by mortgaging the subject property for the purpose of helping her defray her business expenses; she later discovered that Nena did not secure any loan nor mortgage the property; she wants the title in the name of Nena cancelled and the subject property reconveyed to her.7

Daniela died on July 29, 19888 leaving her children as her heirs, namely: Ricardo, Felicidad, Julio, Carlos and Cirilo who predeceased Daniela and was represented by herein petitioner.

In a letter dated March 1, 1989, Carlos informed Nena that when Daniela died they discovered the sworn statement she executed on December 28, 1977 and, as a consequence, they are demanding from Nena the return of their rightful shares over the subject property as heirs of Daniela.9 Nena did not reply. Efforts to settle the case amicably proved futile.

Hence, on September 6, 1989, Carlos and Felicidad, represented by her son Salvador, filed a complaint with the RTC of Cadiz City, Negros Occidental against Nena praying for the nullification of the Deed of Absolute Sale executed by Daniela in her favor, cancellation of the TCT issued in the name of Nena, and issuance of a new title and tax declaration in favor of the heirs of Daniela.10 The complaint also prayed for the award of moral and exemplary damages as well as attorney’s fees and litigation expenses. On March 19, 1993, the plaintiffs filed an amended complaint with leave of court for the purpose of excluding Ricardo as a party plaintiff, he having died intestate and without issue in March 1991.11 He left Carlos, Felicidad, Julio, and Nena as his sole heirs.

In her Answer, Nena denied that any fraud or misrepresentation attended the execution of the subject Deed of Absolute Sale. She also denied having received the letter of her uncle, Carlos. She prayed for the dismissal of the complaint, and in her counterclaim, she asked the trial court for the award of actual, exemplary and moral damages as well as attorney’s fees and litigation expenses.12

Trial ensued. On November 4, 1998, the RTC rendered judgment with the following dispositive portion:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in favor of the plaintiffs and against the defendant, and hereby declaring the document of sale dated October 14, 1969 (Exh. "Q") executed between Daniela Solano Vda. de Tating and Nena Lazalita Tating as NULL and VOID and further ordering:

1. The Register of Deeds of Cadiz City to cancel TCT No. 5975 and in lieu thereof to issue a new title in the names of Carlos Tating, Pro-indiviso owner of one-fourth (¼) portion of the property; Felicidad Tating Marcella, Pro-indiviso owner of one-fourth (¼) portion; Julio Tating, Pro-indiviso owner of one-fourth (¼) portion and Nena Lazalita Tating, Pro-indiviso owner of one-fourth (¼) portion, all of lot 56 after payment of the prescribed fees;

2. The City Assessor of the City of Cadiz to cancel Tax Declaration No. 143-00672 and in lieu thereof issue a new Tax Declaration in the names of Carlos Tating, ¼ Pro-indiviso portion; Felicidad Tating Marcella, ¼ Pro-indiviso portion; Julio Tating, ¼ Pro-indiviso portion; and Nena Lazalita Tating, ¼ Pro-indiviso portion, all of lot 56 as well as the house standing thereon be likewise declared in the names of the persons mentioned in the same proportions as above-stated after payment of the prescribed fees;

3. The defendant is furthermore ordered to pay plaintiffs the sum of P20,000.00 by way of moral damages,P10,000.00 by way of exemplary damages, P5,000.00 by way of attorney’s fees and P3,000.00 by way of litigation expenses; and to

4. Pay the costs of suit.

SO ORDERED.13

Nena filed an appeal with the CA. On February 22, 2002, the CA rendered its Decision affirming the judgment of the RTC.14

Nena’s Motion for Reconsideration was denied by the CA in its Resolution dated August 22, 2002.15

Hence, herein petition for certiorari anchored on the ground that the CA "has decided the instant case without due regard to and in violation of the applicable laws and Decisions of this Honorable Court and also because the Decision of the Regional Trial Court, which it has affirmed, is not supported by and is even against the evidence on record."16

At the outset, it must be stated that the filing of the instant petition for certiorari under Rule 65 of the Rules of Court is inappropriate. Considering that the assailed Decision and Resolution of the CA finally disposed of the case, the proper remedy is a petition for review under Rule 45 of the Rules of Court.

The Court notes that while the instant petition is denominated as a Petition for Certiorari under Rule 65 of the Rules of Court, there is no allegation that the CA committed grave abuse of discretion. On the other hand, the petition actually avers errors of judgment, rather than of jurisdiction, which are the proper subjects of a petition for review oncertiorari. Hence, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, the Court decided to treat the present petition for certiorari as having been filed under Rule 45, especially considering that it was filed within the reglementary period for filing the same.17

As to the merits of the case, petitioner contends that the case for the private respondents rests on the proposition that the Deed of Absolute Sale dated October 14, 1969 is simulated because Daniela’s actual intention was not to dispose of her property but simply to help petitioner by providing her with a collateral. Petitioner asserts that the sole evidence which persuaded both the RTC and the CA in holding that the subject deed was simulated was the Sworn Statement of Daniela dated December 28, 1977. However, petitioner argues that said Sworn Statement should have been rejected outright by the lower courts considering that Daniela has long been dead when the document was offered in evidence, thereby denying petitioner the right to cross-examine her.

Petitioner also contends that while the subject deed was executed on October 14, 1969, the Sworn Statement was purportedly executed only on December 28, 1977 and was discovered only after the death of Daniela in 1994.18Petitioner argues that if the deed of sale is indeed simulated, Daniela would have taken action against the petitioner during her lifetime. However, the fact remains that up to the time of her death or almost 20 years after the Deed of Absolute Sale was executed, she never uttered a word of complaint against petitioner.

Petitioner further asserts that the RTC and the CA erred in departing from the doctrine held time and again by the Supreme Court that clear, strong and convincing evidence beyond mere preponderance is required to show the falsity or nullity of a notarial document. Petitioner also argues that the RTC and the CA erred in its pronouncement that the transaction between Daniela and

petitioner created a trust relationship between them because of the settled rule that where the terms of a contract are clear, it should be given full effect.

In their Comment and Memorandum, private respondents contend that petitioner failed to show that the CA or the RTC committed grave abuse of discretion in arriving at their assailed judgments; that Daniela’s Sworn Statement is sufficient evidence to prove that the contract of sale by and between her and petitioner was merely simulated; and that, in effect, the agreement between petitioner and Daniela created a trust relationship between them.

The Court finds for the petitioner.

The CA and the trial court ruled that the contract of sale between petitioner and Daniela is simulated. A contract is simulated if the parties do not intend to be bound at all (absolutely simulated) or if the parties conceal their true agreement (relatively simulated).19 The primary consideration in determining the true nature of a contract is the intention of the parties.20 Such intention is determined from the express terms of their agreement as well as from their contemporaneous and subsequent acts.21

In the present case, the main evidence presented by private respondents in proving their allegation that the subject deed of sale did not reflect the true intention of the parties thereto is the sworn statement of Daniela dated December 28, 1977. The trial court admitted the said sworn statement as part of private respondents’ evidence and gave credence to it. The CA also accorded great probative weight to this document.

There is no issue in the admissibility of the subject sworn statement. However, the admissibility of evidence should not be equated with weight of evidence.22 The admissibility of evidence depends on its relevance and competence while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade.23Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the rules of evidence.24 It is settled that affidavits are classified as hearsay evidence since they are not generally prepared by the affiant but by another who uses his own language in writing the affiant’s statements, which may thus be either omitted or misunderstood by the one writing them.25 Moreover, the adverse party is deprived of the opportunity to cross-examine the affiant.26 For this reason, affidavits are generally rejected for being hearsay, unless the affiants themselves are placed on the witness stand to testify thereon.27 The Court finds that both the trial court and the CA committed error in giving the sworn statement probative weight. Since Daniela is no longer available to take the witness stand as she is already dead, the RTC and the CA should not have given probative value on Daniela’s sworn statement for purposes of proving that the contract of sale between her and petitioner was simulated and that, as a consequence, a trust relationship was created between them.

Private respondents should have presented other evidence to sufficiently prove their allegation that Daniela, in fact, had no intention of disposing of her property when she executed the subject deed of sale in favor of petitioner. As in all civil cases, the burden is on the plaintiff to prove the material allegations of his complaint and he must rely on the strength of his evidence and not on the weakness of the evidence of the defendant.28 Aside from Daniela’s sworn statement, private respondents failed to present any other documentary evidence to prove their claim. Even the testimonies of their witnesses failed to establish that Daniela had a different intention when she entered into a contract of sale with petitioner.

In Suntay v. Court of Appeals,29 the Court ruled that the most protuberant index of simulation is the complete absence, on the part of the vendee, of any attempt in any manner to assert his rights of ownership over the disputed property.30 In the present case, however, the evidence clearly shows

that petitioner declared the property for taxation and paid realty taxes on it in her name. Petitioner has shown that from 1972 to 1988 she religiously paid the real estate taxes due on the said lot and that it was only in 1974 and 1987 that she failed to pay the taxes thereon. While tax receipts and declarations and receipts and declarations of ownership for taxation purposes are not, in themselves, incontrovertible evidence of ownership, they constitute at least proof that the holder has a claim of title over the property.31 The voluntary declaration of a piece of property for taxation purposes manifests not only one’s sincere and honest desire to obtain title to the property and announces his adverse claim against the State and all other interested parties, but also the intention to contribute needed revenues to the Government.32 Such an act strengthens one’s bona fide claim of acquisition of ownership.33 On the other hand, private respondents failed to present even a single tax receipt or declaration showing that Daniela paid taxes due on the disputed lot as proof that she claims ownership thereof. The only Tax Declaration in the name of Daniela, which private respondents presented in evidence, refers only to the house standing on the lot in controversy.34 Even the said Tax Declaration contains a notation that herein petitioner owns the lot (Lot 56) upon which said house was built.

Moreover, the Court agrees with petitioner that if the subject Deed of Absolute Sale did not really reflect the real intention of Daniela, why is it that she remained silent until her death; she never told any of her relatives regarding her actual purpose in executing the subject deed; she simply chose to make known her true intentions through the sworn statement she executed on December 28, 1977, the existence of which she kept secret from her relatives; and despite her declaration therein that she is appealing for help in order to get back the subject lot, she never took any concrete step to recover the subject property from petitioner until her death more than ten years later.

It is true that Daniela retained physical possession of the property even after she executed the subject Absolute Deed of Sale and even after title to the property was transferred in petitioner’s favor. In fact, Daniela continued to occupy the property in dispute until her death in 1988 while, in the meantime, petitioner continued to reside in Manila. However, it is well-established that ownership and possession are two entirely different legal concepts.35Just 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 the sale 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 or cannot clearly be inferred. Possession, along with ownership, is transferred to the vendee by virtue of the notarized deed of conveyance.36 Thus, in light of the circumstances of the present case, it is of no legal consequence that petitioner did not take actual possession or occupation of the disputed property after the execution of the deed of sale in her favor because she was already able to perfect and complete her ownership of and title over the subject property.

As to Daniela’s affidavit dated June 9, 1983, submitted by petitioner, which confirmed the validity of the sale of the disputed lot in her favor, the same has no probative value, as the sworn statement earlier adverted to, for being hearsay. Naturally, private respondents were not able to cross-examine the deceased-affiant on her declarations contained in the said affidavit.

However, even if Daniela’s affidavit of June 9, 1983 is disregarded, the fact remains that private respondents failed to prove by clear, strong and convincing evidence beyond mere preponderance of evidence37 that the contract of sale between Daniela and petitioner was simulated. The legal presumption is in favor of the validity of contracts and the party who impugns its regularity has the burden of proving its simulation.38 Since private respondents failed to discharge the burden of proving their allegation that the contract of sale between petitioner and Daniela was simulated, the presumption of regularity and validity of the October 14, 1969 Deed of Absolute Sale stands.

Considering that the Court finds the subject contract of sale between petitioner and Daniela to be valid and not fictitious or simulated, there is no more necessity to discuss the issue as to whether or not a trust relationship was created between them.

WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 64122, affirming the Decision of the Regional Trial Court of Cadiz City, Negros Occidental, Branch 60, in Civil Case No. 278-C, are REVERSED AND SET ASIDE. The complaint of the private respondents is DISMISSED.

No costs.

SO ORDERED.