LIST OF CASES IN EVIDENCE (Presentation of Evidence, Authentication, Offer and Objection, Weight and Sufficiency) ----------------------------------

HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and GREGORIO OJOYrespondents. ANTONIO, J.:p Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of respondent Judge, dated July 30, 1975, sustaining the procedure proposed by defense counsel that, in lieu of the testimony of the witnesses for the accused on direct examination in open court, he was filing their affidavits, subject to cross-examination by the prosecution. Per Resolution dated August 22, 1975, this Court issued a temporary restraining order enjoining 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 manifested that for his subsequent witnesses he was filing only their affidavits subject to cross-examination by the prosecution on matters stated in the affidavits and on all other matters pertinent and material to the case. Private prosecutor Atty. Amelia K. del Rosario, one of the petitioners here, objected to the proposed procedure but this notwithstanding, respondent Judge gave his conformity thereto and subsequently issued the questioned Order. Contending that respondent Judge gravely abused his discretion because the aforesaid 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 given orally in open court, and there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law, petitioners instituted the present 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 in open court. The afore-cited Sections 1 and 2 provide: SECTION 1. Testimony to be given in open court. The testimony of witnesses shall be given orally in open court and under oath or affirmation. SEC. 2. Testimony in superior courts to be reduced to writing.- In superior courts the testimony of each witness shall be taken in shorthand or stenotype, the name, residence, and occupation of the witness being stated, and all questions put to the witness and his answers thereto being included. If a question put is objected to and the objection is ruled on, the nature of the objection and the ground on which it was sustained or overruled must be stated, or if a witness declines to answer a question put, the fact and the proceedings taken thereon shall be entered in the record. A transcript of the record made by the official stenographer or stenotypist and certified as correct by him shall be prima facie a correct statement of such testimony 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 Section 78 from Section 32 of General Order No. 58. 2 The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of crossexamination. "The opponent", according to an eminent authority, 3demands confrontation, not for the Idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." There is also the advantage to be obtained by the personal appearance of the witness before the judge, and it is this it enables the judge as the trier of facts "to obtain the elusive and incommunicable evidence of a witness deportment while testifying, and a certain subjective moral effect is produced upon the witness. 4 It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and expression, which may confirm or detract from the weight of his testimony. 5 Certainly, the physical condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his character. These can only be observed by 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 based upon his having had just that opportunity and the assumption that he took advantage of it to ascertain the credibility of the witnesses. This has been explained by Chief Justice Appleton, thus: The witness present, the promptless and unpremeditatedness of his answers or the reverse, their distinctness and particularity or the want of these essentials, their incorrectness in generals or particulars, their directness or evasiveness are soon detected. ... The appearance and manner, the voice, the gestures, the readiness and promptness of the answers, the evasions, the reluctance the silence, the contumacious silence, the contradictions, the explanations, the intelligence or the want of intelligence of the witness, the passions which more or less control-fear, love, have, envy, or revenge are all open to observation, noted and weighed by jury. 6

1. 2. 1979) 3 4. 5. 6. 7. 8. 9 1979) 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

People v. Estenzo People v. Molo

72 SCRA 428 (1976) 88 SCRA (11 January

Ysmael v. Hashim Dela Paz v. IAC Villalon v. IAC People v. Resabal Pp vs. Babiera Pp vs. Julian Sumicad People v. Odencio

48 Phil. (18 March 1927) 154 SCRA 65 (1987) 144 SCRA 443 (1986) 50 Phil. 780 (1927) G.R. No.28871, September 1928 G.R. March 1932 No.L-35524, 19 18

88 SCRA (9 January

People v. Del Castillo People v. Rivera People v. Sandal Bartolome v. IAC Pacific Asia v. NLRC Zalamea v. Court of Appeals Philippine Realty v. Firematic Aznar v. Citibank

25 SCRA 716 (1968) 200 SCRA 786 (1991) 54 Phil. 883 (1930) 183 SCRA 102 (1990) 161 SCRA 122 (1988) 228 SCRA 23 (1993) 522 SCRA 493 (27 April 2007) 519 March 2007) SCRA 287 (28

Heirs of Arcilla vs. Teodoro Heirs of Medina vs. Natividad 2008 Heirs of Lacsa v. CA Vda. de Oate v. CA Hrs. of Santioque v. Calma

G.R. No.162886, 11 August 2008 G.R. No.177505, 27 November 197 SCRA 234 (1991) 250 SCRA 283 (1995) 505 SCRA 665 (2006) G.R. 395 21 August 1999 G.R. No. 105813, 12 G.R. No.94736, 26 June G.R. No.169454, 27 December G.R. No.L-9113, 24 D No.177797, SCRA 407 4 (30

23. Sps. Tan vs. Republic December 2008 24. People v. Libnao January 2003) 25. Pp vs. Romil Marcos

26. Catuira vs. CA September 1994 27 1998 28. 2007 29. Macasiray, et al. vs. Pp Doronio, et al. vs. Doronio Lopez vs. Valdez

ecember 1915 30. 31. 32. 2006) 33. Victorias Milling vs. Ong Su People v. Lorenzo Abarquez v. People Heirs of Reyes v. CA 240 SCRA 624 (1995) 479 SCRA (20 January 519 SCRA 250 (28 March 2007)

G.R. No. L-41166 August 25, 1976 PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO CERBO, petitioners, vs.

Thus, Section 1 of Rule 133 of the Rule 7 requires that in determining the superior weight of evidence on the issues involved, the court, aside from the other factors therein enumerated, may consider the "witness manner of testifying" which can only be done if the witness gives his testimony orally in open court". If a trial judge prepares his opinion immediately after the conclusion of the trial, with the evidence and his impressions of the witnesses fresh in his mind, it is obvious that he is much more likely to reach a correct result than if he simply reviews the evidence from a typewritten transcript, without having had the opportunity to see, hear and observe the actions 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 to secure orderly dispatch of the business of the courts. Under the rules, only questions directed to the eliciting of testimony which, under the general rules 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 facts which he knows of his own knowledge. Thus, on direct examination, leading questions are not allowed, except or, preliminary matters, or when there is difficult in getting direct and intelligible answer from the witness who is ignorant, a child of tender years, or feebleminded, or a deaf mute. 8 It is obvious that such purpose may be subverted, and the orderly dispatch of the business 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 hereby granted and the order of respondent Judge, dated July 30, 1975, in Criminal Case No. 2891 is hereby set aside, and the temporary restraining order issued on August 22, 1975 is hereby made permanent, without any pronouncement as to costs. Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.

(3) Qualified Trespass to Dwelling, before the Municipal Court of Romblon, Romblon in Criminal Case No. 845 and convicted on February 25, 1960. (4) Robbery, before the Court of First Instance of Davao in 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 are entitled to recover civil damages pursuant to the provisions of law. CONTRARY TO LAW. Romblon, Romblon, May 31,1976. (SGD.) CESAR M. SOLIS Assistant Provincial Fiscal At the trial, the prosecution presented the testimonies of (1) the victim's wife, Simeona Gapisa, an eye-witness to the alleged murder; (2) Alejandro Gapisa, a son of the victim who went to the rescue of his father after he was stabbed by accuse-appellant and was able to talk with him before he succumbed to several bolo wounds; (3) Roman man a neighbor of Alejandro; and (4) Dr. Victorio Benedicto, who performed the autopsy and accomplished the Autopsy Report, Exhibits "A" and "A.1 The accused, who offered alibi as a defense, presented his testimony and that of his wife. Barbara Mingo, and Police Patrolman Rodolfo Manunggay and Exhibits 1, a bolo and 1-a, scabbard. The operative facts of the case and the circumstances surrounding the apprehension and investigation of the accused now appellant established by the evidence on record are as follow. In the evening of April 9, 1976 at about 8:00 p.m. at Sitio Dacotan, Barrio Tambac, Municipality of Romblon, Venancio Gapisa and Simeona RapaGapisa, 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 he was 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 she was seized by fear, she managed to peep through the dilapidated buri wall and 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 a flight of two steps. The accused forcibly pushed the sliding door and barged into the house. He inquired from Simeona where Venancio was and she replied that he was asleep. Finding Venancio sleeping near the door, he immediately grabbed his left wrist and started hacking at the sleeping old man. Rudely awakened, Venancio quickly stood up and with his right hand reached for his bolo which was atop the table nearby; but he was not able to retaliate 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, who was at Roman Mangaring's house some 100 meters away. Trembling, she told him that his father was boloed by Boslo, the name by which accusedappellant 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 bleeding profusely and in weakened condition. He was sitting on the floor of the kitchen, defecating in his pants. When Alejandro took him in his arms, Venancio told him that he was boloed by Boslo. Roman Mangaring who was present also inquired from Venancio who his assailant was and elicited the answer, "Boslo". 4 Venancio was then rushed to the hospital and arrived there 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 multiple incised wounds. The wounds sustained were: 1. Incised wound, 10 cms. in length, gaping about 4 cms., slanting in position with the lower portion located anteriorly, penetrating the bone, at the anterolateral aspect of the distal 3rd of the left arm. 2. Incised wound, about 10 cms. in length, gaping, slanting in position, with the lower and located anteriorly, penetrating the bone, located 3 cms. below the wound mentioned above. 3. Incised wound, about 10 cms. in length, gaping slightly at the anterolateral aspect of the neck, left side, slanting, with the lower and located anteriorly penetrating the muscle layer. 4. Incised wound, about 10 cms. gaping, slightly slanting with the lower end located anteriorly, located 3 cms. below the 3rd wound, fracturing the clavicle, the costochondral portion of the 2nd rib and the lateral portion of the sternum, left side.

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 on September 3, 1976 upon accused-appellant Dominador Molo by Hon. Job B. Mandayag of the Court of First Instance of Romblon, 11th Judicial District, in Criminal 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 filed by Asst. Provincial Fiscal Cesar M. Solis, on May 31,1976, as follows: The undersigned Assistant Provincial Fiscal of Romblon accuses DOMINADOR MOLO of the crime of MURDER committed as follows: That on or about the 9th day of April 1976, at around 8:00 o'clock in the evening, at sitio Dacotan, barrio of Tambac municipality of Romblon, province of Romblon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with treachery and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously attack and assault one Venancio Gapisa, with the use of a bolo as a consequence of which he sustained mortal injuries that resulted in his death thereafter. That the killing was attended with the following aggravating circumstances: (A) Dwelling, for the crime was committed in the house of the offended party who has not given any provocation at all. (B) Recidivism in view of the fact that the accused has been charged for (1) Frustrated Murder before the Court of First instance of Mindoro in Criminal Case V542 entitled People va. Dominador Molo and convicted thereof on September 2, 1950; and (2) Murder, before the Court of First Instance of Romblon in Criminal Case No. 862 entitled People vs. Dominador Molo and convicted thereof on July 27, 1961. (C) Reiteration, since he has been charged and convicted before different courts in the following criminal cases: (1) Grave Slander, before the Court of First Instance of Romblon in Criminal Case No. V-669 and convicted on June 5, 1957. (2) Less Serious Physical Injuries, before the Municipal Court of Romblon, Romblon in Criminal Case No. 839 and convicted on October 9, 1959.

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 the distal 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 anterior portion 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 lung inflicting a small wound, about 2-3 cms. causing minimal 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 Antonio Madali took the statement of Simeona Gapisa, who Identified Dominador Molo as the assailant of her deceased husband. 7 Thereafter, PC soldiers and policemen were dispatched to the house of Dominador Molo some one and a half (1-1/2) kilometers away from the scene of the killing. Dominador Molo was placed under arrest and brought by the arresting officers to the poblacion. Investigated at the PC barracks, Molo denied having committed any wrong and having gone to the place of Venancio Gapisa. 8 On April 23, 1976, after additional statements of Alejandro Gapisa, Roman Mangaring and Florencio Guarte were secured, a criminal complaint was filed in the Municipal Court of Romblon. 9 The preliminary examination was conducted by Mayor Peter M. Montojo, for and in the absence of the municipal 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 the accused is probably guilty thereof. 10The accused waived the second stage of the preliminary investigation. 11 On May 31, 1976, an information, as adverted 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 who was an eye- and ear-witness to the incident and the corroborating testimonies of Alejandro Gapisa and Roman Mangaring, who testified on the antemortem 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 aggravating circumstances of dwelling, recidivism and reiteration alleged in the Information, and a mitigating circumstance, voluntary surrender, sentenced the accused on September 3, 1976, as follows: WHEREFORE, this Court renders judgment finding accused Dominador Molo guilty beyond reasonable doubt of the crime of murder, charged in the information and, since after off-setting the lone mitigating circumstance of voluntary surrender with the aggravating circumstance of either dwelling, recidivism or reiteration there remains two aggravating circumstances, sentencing him to suffer the supreme Penalty of death. He is further adjudged to pay the heirs of the deceased Venancio Gapisa, the sum of Twelve Thousand Pesos (P 12,000), and to pay the cost. SO ORDERED. 13 Accused-appellant thru Atty. Pedro Q. Quadra, counsel de oficio now seeks acquittal on the basis of two assigned erors, to wit 1. Appellant was convicted upon proof not beyond reasonable doubt; 2. Identification of the appellant was not proven beyond reasonable doubt. 14 1. In support of the first, he argues that while proof of motive is unnecessary if the evidence of Identification is convincing citing People vs. Cunanan, 19 SCRA 769; People vs. Portugueza, 20 SCRA 901; People vs. Jamero, 24 SCRA 206; 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, Simeona Gapisa, and son, Alejandro Gapisa. 15 2. In support of the second assigned error, appellant contents that his Identity as the assailant was not established beyond reasonable doubt, because of (a) alleged inconsistencies and incredible assertions in Simeona's testimony; (b) physical conditions which rendered it impossible for her to recognized accused-appellant; (c) her alleged admission that she pointed to accuse-appellant as the assailant because he was a hated criminal in their locality; and (d) that the so-called dying declarations should not have been accorded credence, because the victim could not have Identified his assailant. 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 following conclusions as to the nature of the offense committed, the qualifying and aggravating circumstances that attended the commission thereof, and, that the accused is not entitled to the mitigating circumstance of voluntary surrender, thus xxx xxx xxx Since the attack was commenced while Venancio Gapisa was asleep and therefore he could not make a defense, the killing was attended with treachery. Treachery qualifies the killing into murder. (Article 248, Revised Penal Code). Dwelling is an aggravating circumstance because the killing was done in the house of Venancio Gapisa who had not given provocation. (Art. 14 (3), Revised Penal Code). Other aggravating circumstances are recidivism and reiteration. (Article 14, paragraphs 9 and 19, Revised Penal Code). Accused-appellant had been previously convicted of murder, frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling and robbery. (pp. 10-12, tsn., July 12, 1976). Accused-appellant is not entitled to the mitigating circumstance of voluntary surrender. He did not surrender to the authorities. As admitted by him, he was arrested by a combined force of policemen and Philippine Constabulary agents at his residence the day after the killing. (p, 6, tsn., July 29,1976). Since there are three aggravating circumstances and no mitigating circumstance, the penalty properly imposable upon accused-appellant is death. 17 and recommends that the finding of guilt for the offense of murder and the death 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 error may 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 welltaken, and therefore well worth adopting. xxx xxx xxx Appellee concedes that it has failed to show any motive of accused- appellant in killing Venancio Gapisa. Both Simeona Gapisa and Alejandro Gapisa ventured robbery as the motive of accused-appellant (pp. 34, 44, tsn., July 12, 1976). They could not, however, state how much money was taken, from whom it was taken and how it was taken (pp. 34-38, 44-45, tsn., July 12,1976). Lest it be thought that Simeona Gapisa and Alejandro Gapisa gave false testimony, thus rendering themselves untrustworthy 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 motive of accused-appellant. Both Simeona Gapisa and Alejandro Gapisa admitted that accused-appellant had no grudge against Venancio Gapisa and his family and vice-versa (pp. 33-34, 53-54, tsn., July 12, 1976). But even in the absence of proof of motive, the conviction of accused- appellant can stand inasmuch as he had been positively Identified by Simeona Gapisa and by the deceased himself through his dying declaration. Motive need not be shown when there is positive Identification. (People vs. Feliciano, 58 SCRA 383; 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's testimony.Simeona Gapisa who was present when accused-appellant attacked her husband Venancio with a bolo testified on direct and redirect examinations by Assistant Provincial Fiscal Cesar M. Solis and on cross and recross examinations by Atty. Alexander Mortel, counsel de oficio of accused, thus xxx xxx xxx Fiscal Solis:

Q By the way, when you first heard the unusual sound since you were still awake, what did you do? A I lighted a lamp, I first looked at him by peeping thru the wall of our house and once I had recognized his face as that of Dominador Molo I lighted a lamp. Q Was it only the face of Dominador Molo that you recognized outside? A Yes, and he was alone. Q What about his body, did you recognize that body belong to Dominador Molo? A I could see and that was the very body of his including his face because it was bright. Q What provides the brightness that allowed you to recognize him outside the house? A The moon was bright. Q Now, aside from the unusual murmuring sound, did you hear the sound of grinding teeth? A In fact that was what he had done he was murmuring and at the same time sounding like grinding teeth. Q Now, after you lighted a lamp what else did you do inside? A I stood up and stepped back because he had come up into the house. Q Did you not wake up your husband? A I had but he did not notice. Q Now, what did you do with the lamp after you lighted it? A I placed it on top of our trunk which was towards our head. Q Now, how did you know that Dominador had gone up the house? A Because I saw him going up into our house. Q When he went up the house, what did he do? A Once up the house he held my husband by the arm and suddenly pulled out his bolo from his back and hacked him. 20 xxx xxx xxx Q How long have you known him? A Since he was a boy and until he grew up. Q By the way, by what affiliation (sic, should be appelation or name) is he known in your locality? A Boslo. Q If that Dominador Molo the accused in this case known as Boslo is present in the court room, will you be able to point him out in the court? A He is here he is the one sitting. Q Could you not be mistaken? A That is true, it was his very appearance who is looking up in the ceiling. 21

xxx xxx xxx Atty. Mortel: Q Nevertheless, because the moon was a quarter moon only that night April 9 the illumination any object that could be seen is quite pale not so bright as if there was an alladin lamp, correct? A Yes. Q And as a matter of fact when this person whom you said was making murmuring sounds when you peeped through your window he was being illuminated by the beam of the light of the moon and his face seems to be a yellowish and as clear as if there is an alladin lamp, correct? A But I know that he was the very 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 very well on him his color was yellowish was it not? A It was indeed his appearance that I saw and that is exactly how he looked. Q And When you looked at him the first time that night he looked lie Dominador Molo? A It was his very own appearance, his appearance never changed. Q And when you saw him you lighted a lamp, is that right? A I lighted a lamp because he was already there and I was afraid of what he had done to us. Q You mean from the very first time that you saw him he was making murmuring sounds you were already afraid that he would do something bad against you and your husband? A Yes, I was already afraid and my skin seemed to shiver. 22 xxx xxx xxx Q And so when your husband was or rather when your house that night of April 19 was entered into by a person making murmuring sounds outside and boloed to death your husband there was no other conclusion that you made but that it must be Boslo the killer? A Yes, in fact he was the very one it was his very looks. 23 Fiscal Solis: Q And who pushed open that door of yours, was it Dominador Molo 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 the looks of that person was the one who pushed open the door and went inside and hacked your husband? A He was the one it was his very looks and I saw that it is his looks. xxx xxx xxx

Q Now, what is this basis for positively telling us that is Dominador Molo who killed your husband was it because of rumor circulating in the locality of Cogon and that the assailant as to be Dominador Molo because he has killed or because you saw then Dominador Molo committing the act against your husband? A Not only what was given to me by way of information from other people but because of what I actually saw with my eyes. 24 xxx xxx xxx Atty. Mortel: Q Now, according to you when the door was pushed open the person entered and he has the looks of that fellow whom you are pointing to as Dominador Molo, is that correct? A He is the very one. Q And not only that person who entered the looks of that Dominador Molo the accused in this 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 and built of Dominador Molo, is that correct? A Yes, that is his very appearance and could not be altered 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) the precise moment when Simeona recognized the accused, 26 and 2) whether there was a conversation between Simeona and the accused. 27 The records show, however, that the alleged statement given to the police was neither offered as evidence nor shown to witness in order to enable her to 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 impeach Simeona's testimony on the basis of alleged inconsistent statements which she 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 material consequence as to affect the guilt or the innocence of the accused do not detract from the credibility of the witnesses. 29 The discordance in their testimonies on collateral matters heightens their credibility and shows that their testimonies were not coached or rehearsed. 30 Far from being evidence of falsehood, they could justifiably be regarded as a demonstration of good faith. 31 It is also contended that the testimony of Simeona contains inconsistent averments. According to accused-appellant Simeona claimed that she was able to Identify him because of the lamp which was then lighted but that she also declared that the light was put out when the door was opened because of the sudden gust of wind. 32 To support this contention, he quoted Simeona's testimony: Q And when the door was pushed open there was a sudden gust of wind that entered the house, correct? A There was a consequence of the sudden entry. Q And with that sudden entry and gust of wind carried by this fellow 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 an inaccurate representation of Simeona's testimony. For she clarified that her husband was already boloed before the light was snuffed out. Thus, she testified on cross-examination: Atty. Mortel: xxx xxx xxx On re-direct examination, she declared

Q And with that sudden entry and gust of wind carried by that fellow the light was snuffed out, correct? A Yes. Q And in the darkness inside this fellow who entered the house began stabbing and boloing your husband, 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

Fiscal Solis: Q Now, you admitted on cross examination that the lamp was put out now how were you able to know that your husband had attempted to hold his bolo with his right hand and while in that position he was hacked twice by a bolo by the accused Dominador Molo? A That stage occurred when the light 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 attack on her husband. 35 But the transcripts show that appellant's own counsel below, Atty. Alexander Mortel, during the cross-examination, provided the answer to this misgiving : xxx xxx xxx Q When the door was pushed open 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 bolo me. 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 were shocked? A Yes. 36 Appellant also argues that Simeona's account is contrary to physical facts. He claims that if, as she testified, the victim was lying down when attacked, he would sustain stab, not incised wounds. He explains that the natural tendency of a person attacking another who is lying down with a bolo would be to thrust the bolo towards the body and not hack him. 37 This claim is without 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 with it. The first is an awkward if not difficult movement, but the second is natural and can be done with facility. 38 (b) That conditions rendered it impossible for Simeona to recognize accusedappellant. It is contended that Simeona could not have recognized accusedappellant while he was at the foot of the stairs because the banana plants obstructed 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 banana plantation that is covering your yard this quarter moon, the

illumination thereof is obstructing a little by this banana plantation? A But the bananas are not directly obstructing the door of our house because they are standing towards the footpath the part of our house was not obstructed of the light cast by the moon . Q Except by the footpath and the surrounding premises of the east side of the house is shaded because the banana plantation are there to obstruct the illumination of the moon, correct? A No, the light coming from the moon could not be obstructed anymore by that plantation because the main door of our house is fronting a yard. Q Nevertheless, because the moon was a quarter moon only that night April 9 the illumination to any object that could be seen is quite pale not so bright as if there was an alladin lamp, correct ? A Yes. Q And as a matter of fact when this person whom you said was making murmuring sounds when you peeped through your window he was being illuminated by the beam of the light of the moon and his face seems to be a yellowish and as clear as if there is an alladin lamp, correct? A But I know that he was the very 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 very well on him his color was yellowish was it not? A It was indeed his appearance that I saw and that is exactly how he looked. Q And when you looked at him the first time that night he looked like Dominador Molo? A It was his very own appearance his appearance never changed. 40 Indeed, Simeona had no difficulty in recognizing the accused, considering that 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 as the assailant because he was a hated criminal in the locality - not because he was properly Identified as the one who attacked the victim. This claim has no basis in the records. For the testimony of Simeona shows that she was certain of accused-appellant's Identity as assailant and that at one point accusedappellant 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 Dominador Molo 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 the looks of that person was the one who pushed open the door and went inside and hacked your husband? A He was the one it was his very looks and I saw that it is his looks. xxx xxx xxx

Q Now, what is this basis for positively telling us that it is Dominador Molo who killed your husband was it because of rumor circulating in the locality of Cogon and that the assailant as to be Dominador Molo because he has killed or because you saw then Dominador Molo committing the act against your husband? A Not only what was given to me by 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 when the door was pushed open the person entered and he has the looks of that fellow whom you are pointing to as Dominador Molo, is that correct. A He is the very one. Q And not only that person who entered has the looks of Dominador Molo the accused in this 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 and built of Dominador Molo, is that correct? A Yes, that is his very appearance and could not be altered anymore. xxx xxx xxx Court: In your entire testimony you did not mention of any conversation of Dominador Molo as soon as he went up the house, did you not talk to him, did you not converse with him? A No, because he suddenly rushed our house. Q And did he not ask you where is your husband and answered there he is? A That was it he was also asking as he entered. Q So it is clear that you had a conversation with him? A Yes. Q And that is what you stated in the police? A Yes, sir. 43 (d) Re the dying declarations. Appellant claims that the same should not be accorded credence because the victim could not have recognized his assailant, since as testified by Simeona he was asleep when attacked. 44 Again this is inaccurate. It was only at the initial stage of the attack when the victim was asleep, because he was awakened by the first blows and stood up to defend himself Simeona declared: xxx xxx xxx Fiscal Solis: Q How many times did you see Dominador bolo your husband on the left arm? A I saw him boloed my husband twice on the left arm and when my husband noticed that he was being hacked he reached for his bolo with his right arm to which instance Dominador Molo noticing that he was going to use a bolo Dominador hacked him again on the right arm.

Q Was your husband able to take hold of his bolo? A He was able to take hold of the handle only because at this instance he was hacked by Dominador and so the bolo fell from his hands. Q What hand did your husband use in taking hold of his bolo? A Right arm (sic: should be hand). xxx xxx xxx Q But was your husband able to rise from where he was lying to get that bolo? A He was able to rise but he was already weak because his left arm was already wounded. 45 The statements of Venancio Identifying Dominador Molo as his assailant to Alejandro, his son, and Roman, his neighbor are dying declarations. 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 you observe of your father? A When I came up he said, "Ando I have wounds because I was boloed by Boslo. " Q What was his actual physical situation when he uttered these words? A He was already weak, his body was weak. Q How did you observe that he was already very weak, that he was already weak physically? A Because his wounds are big and 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 he dying or not? A He was about to die. Q Now, since he had wounds what did you do with these injuries? A Upon arrival I tied his wounds. Q Which injuries did you bind, what did you tie? A The wounds in the arm because it was dangling. Q Which arm the left or the right? A The left. Q What about the right arm? A It had also many wounds. Q What was your father doing there, in that kitchen? A He was sitting. Q Was he doing anything else from sitting ? A I think he was defecating as a result 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 who boloed him. Q And his answer to you was Boslo? A Yes. Q He called his assailant as Boslo? 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 inferred that he made the incrimination under the conciousness of impending death, 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's widow, Simeona Gapisa, who was an eye-witness to the fatal incident, and that of Alejandro Gapisa, the victim's son, and Roman Mangaring, a neighbor, who both testified on the ante-mortem statements of the victim, establish the guilt of accused-appellant beyond reasonable doubt of the crime of murder qualified by treachery, and aggravated by circumstances of dwelling, recidivism and reiteration, it appearing that accused has been convicted by final judgment of murder, frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling and robbery, and, had served sentences for said crimes. We agree with the Solicitor General that appellant is not entitled the mitigating circumstance of voluntary surrender. For in order that the same may 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 in authority or his agent; and c) his surrender is voluntary, which circumstances are not present in this case. 49 For appellant admitted that on the day after the killing, police authorities surrounded his house and arrested him. The fact that he did not try to escape or did not resist arrest after he was taken into custody by the authorities, does not amount to voluntary surrender. 50 A word about the penalty. It appears that accused-appellant is an incorrigible criminal with clearly anti-social proclivities against which the community has the need if not the right, to defend itself. Where, as in this case, the reformative end of punishment seems to have failed in amending his criminal tendencies he was convicted for frustrated murder in Criminal Case V542, 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 Municipal Court 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 on March 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 social defense. Society had given accused-appellant several chances. It would seem that compassion had not reformed him but had instead made him a hardened criminal and a menace to his fellow men. To spare his life is to endanger the lives 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 Nageeb T. 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 per annum, the mortgage falling due on September 21, 1917; that the said defendant having failed to make payment in accordance with the terms agreed upon, the chattel mortgage was foreclosed and the mortgage property sold by the sheriff on January 15, 1921; that the proceeds of the sale amounted 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 annum from 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 Nageeb T. Hashim has been indebted in the sum of P14,646.47 to the Hashim Commercial & Trading Company, Ltd., a limitedcopartnership, organized under the laws of the Philippine Islands and that, for good and valuable consideration, the said Hashim Commercial & Trading Company, Ltd.,

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 property of the defendants, which prayer was granted. The defendant Hashim in his answer admits all of the allegations of the complaint and consents to the rendition of the judgment in conformity therewith. The defendant Afife Abdo Cheyban Gorayeb in her answer admits that the plaintiff is a corporation duly organized and existing under the laws of 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 his relations, the stockholders is Juan Ysmael & Co., Inc., to defraud her of the alimony 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 P20,000 by reason of the preliminary attachment upon said real property belonging to her exclusively. Upon trial the Court of First Instance rendered judgment in favor of the plaintiff for the full amount demanded under the first cause of action, but dusmissed the second cause of action on the ground that the plaintiff had failed to show that the credit upon which said cause of action is based had been legally assigned to it. Both the plaintiff and the defendant Gorayeb appealed from this judgment. The plaintiff-appellant assigns as error the finding of the trialcourt that the indebtedness 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 action alleged in the complaint. This contention is principally based on a resolution of the stockholders of the Hashim Commercial & Trading Co., Ltd., adopted on October 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 the foreclosure proceedings began as mentioned above, and agree to assume the obligation of this company with the Asia Banking Corporation as stated in the deed dated March 8th, 1921, on condition that this company transfer to 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 whenever required by them; Now, therefore, be it resolved that Mr. A. T. Hashim, President and General Manager of this company, be and hereby is, authorized in an 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 whenever required by them; and be it further. Resolved that the said Mr. A. T. Hashim be and hereby is authorized in an irrevocable manner to execute, acknowledge, and deliver all such documents and intruments in writing as may be necessary to effectuate the foregoing purpose. It does not appear that the assignment authorized by this resolution was ever made and on November 2, 1921, the same stockholders, together with Juan Ysmael & Co., Inc., also a stockholders, adopted another resolution which practically revoked the resolution of October 3, 1921 and which reads as follows: Whereas, on October 3rd, 1921, A. T. Hashim was authorized by the stockholders of Hashim Commercial & Trading Co., Ltd., to transfer the entire stock of the Company, cash on hand, bills receivable, 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 the Asia 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, in the form of an agreement entered into between the Asia Banking Corporation, 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 same approved, and transfer ratified. As will be seen the only assignment actually effected was that to the Asia Banking Corporation. The court below was, therefore, justified in dismissing the second cause of action and if so, the plaintiff's second assignment of error to the effect that the bond in the sum P20,000 fixed by the court below for the 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 in point. Upon the facts shown by the record, Juan Ysmael & Co., Inc. might, perhaps, have compelled the Hashim Commercial & Trading Co. to execute an assignments of the credit in controversy, byt it does not follow that the same facts would constitute a valid assignment as against third parties and that the

prospective assignee may maintain an action against the debtor for the collection of the credit without a formal assignment of such dredit. The debtor 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 in action; a mere equitable right to the assignment thereof is not sufficient. Both under article 51 of the Code of Commerce and under paragraph 6 of article 1280 of the Civil Code, a formal assignment of a credit of over three hundred pesos must be in writing. The formalities for sales of choses in action are governed 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 cause of action in favor of the plaintiff and against the defendant and appellant, jointly and severally, with her husband A. T. Hashim for the sum of P19,134.32, with interest on P11,060.87 thereof at 8 per cent per annum from the 10th day of January,1925. II. The trial court erred in prohibiting appellant from inquiringinto the details of the account set forth in Exhibit 3. III. The trial court erred in refusing to receive the testimony of the defendant 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 her answer 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's books 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 the Court of First Instance of Manila cannot be regarded as a bar to a reasonable inquiry into the character of the debt in the present case. The issues in the two cases are entirely different; the former case dealt with the validity of a chattel 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 in support of her special defense of conspiracy. The third assignment of error cannot be sustained. In offering in evidence the testimony given by Mr. Hemady and the Hashims in the earlier case, the defendant-appellant did not claim that said testimony contained admissions against interest by the parties to the action or their agents; if such had been the case, the testimony would have been admissible without the laying of a foundation and without the witnesses having testified in the case at bar. But the purpose of the offer of the testimony was evidently to impeach the testimony of the same witnesses in the present case and if so, a foundation should have been laid by calling the attention of the witnesses to the former statements so as to give them opportunity to explain before the statements were offered in evidence. In discussing their first assignment of error, counsel for the defendantappellant insist that, taking into consideration the facts of the case and the circumstances 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 contention is not entirely without foundation and though we cannot fully agree with counsel, we do think that, in view of the very apparent unreliability of some of 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 incurred any further indebtedness to the plaintiff since that date. The plaintiff explains that the amount claimed in excess of the sum shown by the ledger represents interest 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 appears that the chattel mortgage debt, upon which the plaintiff's first cause of action is based, is included in the ledger account and it may properly beconsidered as merged therein. It also appears that the account was balanced at the end of the years 1920, 1922 and 1924, and considering the fact that the plaintiff corporation is a well conducted business organization, it seems rather improbable that, in striking its book balances, it would have overlooked the important item of interest if any interest on the book account in question had been agreed upon. The judgment appealed from is, therefore, modified by reducing the plaintiff's recovery to the sum of P12,238.02, with interest at the rate of 6 per cent 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

EMILIO DE LA PAZ, JR., ENRIQUE DE LA PAZ, MANUELA DE LA PAZ, NATIVIDAD DE LA PAZ, MARGARITA DE LA PAZ and ZENAIDA DE LA PAZ, 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 for certiorari 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 the decision of the Intermediate Appellate Court in AC-G.R. SP No. 05472. The records show the following incidents which transpired prior to the filing of the instant petition. On May 12, 1983, Loreto de la Paz filed a complaint against the petitioners with the Regional Trial Court of Rizal for a judicial declaration of ownership of 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 Paz with damages. The case was docketed as Civil Case No. 164-A. Loreto alleged that the subject parcel of land was among the properties adjudicated to her and her mother as a result of a partition submitted by the heirs of Ponciano de la Paz and approved by the court in Civil Case No. 1399 of 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 the properties adjudicated to Loreto and her mother. They claimed that the parcel of land was not accounted for in the probate proceedings but is actually community property of the parties. The parties, except for petitioner Enrique de la Paz, were admittedly compulsory heirs of Ponciano de la Paz who died in 1916. Loreto was the only 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 the recognized natural child of Ponciano; 3) Natividad de la Paz is the daughter of Emilio, recognized natural child of Ponciano; 4) Margarita de la Paz is the daughter of Wenceslao, a recognized natural child of Ponciano; and 5) Zenaida de la Paz, is the daughter of Augusto, another recognized natural child of Ponciano. As regards petitioner Enrique de la Paz, Loreto denied his claim that he is one of the heirs of Ponciano. The petitioners, however, allege that he is also a compulsory heir of Ponciano, he being the son of Ponciano de la 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 March 12, 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 on the 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 taken during 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 the witness as scheduled. He asked for the postponement of the May 23, 1984 hearing. The trial court postponed the trial of the case to May 31, 1984 and later to July 5, and 11, 1984. (p. 16, Court of Appeals' rollo) On August 13, 1984, trial resumed. The petitioners' counsel, however, asked for still another postponement of the cross-examination to give him a chance to go over the stenographic notes. In an order of the same date, the hearing was 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 a commissioner. The motion was granted and Loreto presented additional evidence ex parte in the afternoon of the same day. On this same date, she finished the presentation of her evidence and submitted her case for decision. Despite this development, the petitioners upon their motion were allowed to cross-examine Loreto. On the scheduled hearing set on September 18, 1984, the petitioners' counsel failed to appear, and the cross-examination of Loreto was deferred for the fourth (4th) time. (p. 17, Court of Appeals' rollo) Finally, on November 7, 1984, the petitioners' counsel resumed his repeatedly postponed cross-examination of Loreto. The cross-examination was, however, cut short and rescheduled again on motion of the petitioners' counsel.

Unfortunately, Loreto died on December 1, 1984. An amended complaint was filed for the purpose of substituting the respondents, herein, they being the children and heirs of Loreto. At the resumption of the trial on January 21, 1985, the petitioners moved verbally to strike off the record the entire testimony of Loreto. The motion was denied. A verbal motion for reconsideration was likewise denied. In view of the petitioners' manifestation that they will appeal the ruling the appellate court, the trial court issued on January 24, 1985 a more detailed order 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 controversy as to the contents of this February 11, 1985 order will be discussed later. On February 18, 1985, the petitioners filed a petition with the Intermediate Appellate Court to annul the lower court's orders dated January 24, 1985 and February 11, 1985 and to prohibit the court from further proceeding in Civil Case No. 164-A. The petition for certiorari and prohibition was docketed as AC-G.R. SP. No. 05472. This petition notwithstanding, the lower court continued the proceedings in Civil Case No. 164-A. Thus, on March 29, 1985, the lower court promulgated a decision in Civil Case No. 164-A declaring the private respondents, the children and heirs of Loreto, as the true owners of the subject parcel of land. Damages were also awarded in favor of the private respondents. The dispositive 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 Title No. 901 of the Register of Deeds of Rizal; (b) Ordering the defendants to surrender the owner's duplicate copy of Original Certificate of Title No. 901; (c) Directing the Register of Deeds of Rizal, Pasig Branch to cancel Original Certificate of Title No. 901 and to issue a new one in the names of the plaintiffs; (d) Ordering the defendants jointly and severally to pay to the plaintiffs Five Hundred Thousand Pesos (P500,000.00) as actual damages, Five Hundred Thousand Pesos (P500,000.00) as moral damages, Five Hundred 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. SP No. 05472. The petition was denied due course and dismissed. A motion for reconsideration was denied for lack of merit. Initially, the petitioners filed only a petition to review on certiorari the appellate court's decision and resolution respectively. Upon motion of the petitioners, we admitted the amended petition which now seeks to annul the decision of the lower court in Civil Case No. 164-A aside from setting aside the appellate court's decision and resolution in ACG.R. SP No. 05472. In another resolution dated January 20, 1986, we gave due course to the petition and considered the respondents' comments as answer. We first review the challenged decision and order of the appellate court. The petitioners contend that the appellate committed grave abuse of discretion when 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 a petition of certiorari unless issued in patent abuse of discretion. (See Villalon, Jr. v. Intermediate Appellate Court, 144 SCRA 443; Bautista v. Sarmiento, 138 SCRA 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 nature of the right of cross-examination, to wit: The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. (Savory Luncheonette 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 his adversary 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

the Constitution does not render the right thereto of parties in civil cases less constitutionally based, for it is an indispensable part of the due process guaranteed by the fundamental law. ... Until such cross-examination has been finished, the testimony of the witness cannot be considered as complete and may not, therefore, be allowed to form part of the evidence to be considered by the court in deciding the case. (Bacrach Motor Co., Inc., v. Court of Industrial Relations, 86 SCRA 27 citing Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., supra, Ortigas, Jr. vs. Lufthansa German Airlines, 64 SCRA 610) But we have also ruled that it is not an absolute right which a party can demand at all times. This Court has stated that: xxx xxx xxx the right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take 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 jurisprudence given 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 crossexamination or else it will be deemed waived, and despite the readiness, willingness and insistence of the witness that he be cross-examined, said counsel by his repeated absence and/or unpreparedness failed to do so until death sealed the witness' lips forever. By such repeated absence and lack of preparation on the part of the counsel of private respondents, the latter lost their right to examine the witness, Atty. Morabe, and they alone must suffer the consequences. The mere fact that the witness died after giving his direct testimony is no ground in itself for excluding his testimony from the record so long as the adverse party was afforded an adequate opportunity for cross-examination but through fault of his own failed to cross-examine the witness. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino,supra; at pp. 263-267) In the case at bar, the petitioners' failure to cross-examine Loreto was through no fault of the respondents. As can be gleaned from the record, Loreto was available for cross-examination from the time she finished her direct testimony on March 12, 1984 to November 7, 1984, the last scheduled hearing of the case before her death on December 1, 1984. The petitioners not only kept on postponing the cross-examination but at times failed to appear 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 the subsequent posponements requested by the petitioners. The scheduled trials before 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 the presentation of evidence ex parte. And also during the scheduled hearing on September 18, 1984, when the petitioners were allowed to cross-examine Loreto despite the fact that the case was already deemed submitted for decision, 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 issue hinges on the contents of the February 11, 1985 order. The petitioners argue that 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 February 11, 1985, acts apparently calculated to deprive petitioners, as in fact they were deprived petitioners, as in fact they were deprived of their right to present 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 February 11, 1985 states: In view of the manifestation of the counsel for the plaintiff that he is formally re-offering in evidence all documentary exhibits and testimonial evidence presented and it appearing that the transcript taken during the ex-parte hearing is already available and availed of by counsel for the defendant, he is hereby given ten (10) days from today to file his objections after which this case will be deemed submitted for resolution. In view of the fact that he will appeal the order of this court denying his motion to strike out from the record, the testimony of the plaintiff, Loreto de la Paz, the presentation of the evidence of the defendants is 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 the plaintiff that he is formally re-offering in the evidence all documentary exhibits and testimonial evidence presented and after their admission he will rest his case and it appearing that the transcript taken during the exparte hearing has been long available and availed of by counsel for the defendants, he is hereby given ten (10) days from today to file his objections thereto after which action will be taken on the admission of said exhibits. The said period having lapsed without defendants' counsel filing his comments on the admission of the exhibits A to Z and the sub-marked exhibits are admitted in evidence for Plaintiffs, Defendants' counsel forthwith manifested that he will appeal to the Intermediate Court of Appeals (sic) the ruling of this Court denying his Motion to Strike off from the records the entire testimony of Plaintiff Loreto de la Paz who was partly cross-examined already but who died 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 appeal as already alluded above the Order of this court denying the Motion in question. The court has ruled in its Order of January 21, 1983 that inspite of the attitude of Counsel the trial shall proceed as scheduled. Thus, at the hearing today said Counsel failed to proceed with the trial to present his evidence. This case shall 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 their objections after which the case will be submitted for resolution and that the presentation of evidence for the petitioners was held in abeyance. However, in the other version, the case was declared as already deemed submitted 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 in Civil Case No. 164-A. The record clearly shows that this second version of the February 11. 1985 order was issued without the knowledge of the parties. In fact, on March 14, 1985, the respondents filed an urgent motion to consider the case submitted for decision with the following allegations: 1) that in the hearing of February 11, 1985, the petitioners were required to submit their comment or objection to respondents' offer of evidence and they were given ten (10) days from the said date within which to do so, and thereafter to present their evidence; and 2) that notwithstanding the lapse of more than thirty (30) days, the respondents have not submitted their comment or objection to petitioners' offer of evidence much less have they take any move to present their evidence. (pp. 32033, Court of Appeals' rollo). the respondents would not have filed this motion if the case was already deemed submitted for decision pursuant 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 order dated 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 on February 11, 1985. The issuance of this second version of the February 11, 1985 order prejudiced the petitioners' cause. They were deprived of their right to present evidence in their behalf. Consequently, the decision of the trial court in Civil Case No. 164-A must be declared null and void, Another issue raised by the petitioners centers on whether or not the trial court committed grave abuse of discretion in rendering judgment in Civil Case 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 after the 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 or commit reversible error. It is within its sound discretion to either proceed with the case in the absence of the prayed-for restraining order to refrain from acting on the case until the higher court decides the matter elevated. to it. the circumstances of each case dictate what action shall be take. The final issue raised by the petitioners is with regard to the damages awarded 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; and 3) P50,000.00 as attorney's fees plus exemplary damages which may be deemed just and equitable in the premises. The trial court awarded to the respondents the following: P500,000.00 as actual damages; P500,000.00 as moral damages; P500,000.00 as exemplary damages; P50,000.00 as attorney'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 factual and 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 questioned decision and resolution of the Intermediate Appellate Court, now court of Appeals in AC-G. R. SP No. 05472 are AFFIRMED. The petition is GRANTED in part. The questioned decision of the then Court of First Instance of Rizal in Civil Case No. 164-A is SET ASIDE as null and void. The successor Regional Trial Court is directed to conduct further proceedings and to receive the evidence of the petitioners in Civil Case No. 164-A. SO ORDERED.

Their Motion for Reconsideration having been denied on October 17, 1985, petitioners, resorted to a Petition for Certiorari, Prohibition, and mandamus before the respondent Appellate Court to nullify the Order of September 20, 1985 and to require the Trial Court to allow -the impeaching evidence to remain in the records of the Civil Case. On February 3, 1986, respondent Appellate Court denied due course and dismissed the Petition holding that "rulings of the trial court on procedural questions and admissibility of evidence during the course of the trial are interlocutory in nature and may not be the subject of separate appeal or review on certiorari." Moreover, it reasoned out that, assuming the Trial Court erred in rejecting petitioners' proffered evidence, their recourse is to make 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 lack of merit on February 19,1986. Petitioners now avail of this Petition for Review on certiorari praying among others, for the annulment of respondent Appellate Court's Decision, which sustained 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 in the Disbarment Case for purposes of impeaching their credibility in the Civil Case. 1 Petitioners claim that private respondents' witnesses "have given conflicting testimonies on important factual matters in the disbarment case, which are inconsistent with their present testimony and which would accordingly cast a doubt on their credibility." 2 That is a defense tool sanctioned by Sections 15 and 16 of Rule 132 providing: Sec. 15. Impeachment of adverse party's witness.-A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witnesses, or the record of the judgment, that he has been convicted of an offense. Sec. 16. How witness impeached by evidence of inconsistent statements. -Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so; allowed to explain them If the statements be in writing they must be shown to the witness before any question is put to him concerning them . By issuing its Order to strike, the Trial Court deprived petitioners of their right to impeach the credibility of their adverse parties' witnesses by proving that on former occasions they had made statements inconsistent with the statements made during the trial, despite the fact that such statements are material to the issues in the Civil Case. The subject matter involved in the disbarment proceedings i.e., the alleged falsification of the deed of absolute sale in petitioners' favor, is the same issue raised in the Civil Case wherein the annulment of the said deed of absolute sale is sought. Admittedly, said Order is interlocutory in character. However, since it was issued in patent abuse of discretion, certiorari lies. certiorari may be availed of to contest an interlocutory order to correct a patent abuse of discretion by the lower Court in issuing the same. 3 It may also be applied for when the broader interests of justice so require or when ordinary appeal is not an adequate remedy, 4 as in this case. The offer of evidence, suggested by respondent Appellate Court as a remedy open to petitioners, while procedurally 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 impeaching evidence for judicial appreciation. While proceedings against attorneys should, indeed, be private and confidential except for the final order which shall be made public, 5 that confidentiality is a privileged/ right which may be waived by the very lawyer in whom and for the protection of whose personal and professional reputation it is vested, pursuant to the general principle that rights may be waived unless the waiver is contrary to public policy, among others. 6 In fact, the Court also notes that even private respondents' counsel touched on some matters testified to by NEVAL in the disbarment proceedings and which were the subject of cross examination. ACCORDINGLY, the Court hereby SETS ASIDE respondent Appellate Court's Decision dated February 3, 1986, and Resolution dated February 19, 1986, and directs the Regional Trial Court of La Union, at San Fernando, to allow the testimonies of private respondents (plaintiffs below), more specifically those of Catalina Neval Vda. de Ebuiza, Francisco Ebuiza and Justina Ebuiza San Juan, given in Administrative Case No. 1488 and all other references thereto to remain in the records of Civil Case No. 2799 entitled "Catalina Neval Vda. de Ebuiza, Plaintiff, versus Roman R. Villalon, Jr., et al., Defendants; Children of Patrocinio Ebuiza: Justina, et al., all surnamed Ebuiza Intervenors. "

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 CASES DIVISION), HON. INOCENCIO D. MALIAMAN (PRESIDING JUDGE OF REGIONAL 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. RESOLUTION MELENCIO-HERRERA, J.: On May 16, 1979, Civil Case No. 2799 for "Annulment of Deed of Absolute Sale, Recovery of Possession and Damages" was filed by private respondent Catalina NEVAL Vda. de Ebuiza, mother of the other private respondents all surnamed Ebuiza, against petitioner Atty. Roman R. Villalon, Jr. (briefly, petitioner Villalon) and his sons, before the then Court of First Instance of La Union (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. Case No. 1488) previously filed on July 22, 1975 with this Court by private respondent Francisco EBUIZA, charging petitioner Villalon with falsification of 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 successfully handling Civil Case No. 1418 entitled "Paulino Ebuiza, et all vs. Patrocinio Ebuiza, 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 Solicitor General for investigation, report and recommendation where testimonial evidence was received. The case still pends thereat. In the course of the trial of the Civil Case, petitioners introduced in evidence the testimonies of some of the private respondents, namely, NEVAL, EBUIZA, and Justina Ebuiza San Juan (NEVAL, et als.), in the Disbarment Case for the purpose of impeaching their testimonies in the Civil Case. Private respondents filed a Motion to Strike from the records of the Civil Case all matters relating to the proceedings in the Disbarment Case. Over petitioners' opposition, on September 20, 1985, the Trial Court issued its questioned Order granting the Motion to Strike. The dispositive portion of said Order reads: WHEREFORE, finding the motion to be well-taken, and as prayed for in the motion, all direct references to the proceedings in the disbarment case against Atty. Villalon, Jr. are hereby ordered striking (sic) out from the records and henceforth, further references to such matters are barred. The Trial Court opined that the admission of the contested evidence would violate Section 10, Rule 139 of the Rules of Court providing that "proceedings against 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 139 provides no exception.

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The Temporary Restraining Order heretofore issued is hereby lifted. SO ORDERED.

the deceased to return the carabao that was under his care, but the deceased refused to do so before he was paid the value of the trees destroyed. This naturally 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 to overthrow the evidence of the prosecution; for taking into consideration the short distance between the deaceased's house and that in which the accused slept 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 companions in the house, namely, his wife, his mother-in-law, and his sister-in-law, aside from 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 his having been excluded from the information to be used as a witness for the prosecution; 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 a witness for the Government, does not prevent this witness from telling the truth in this case, especially in the absence of proof showing the interest he might possibly have in testifying against the accused. Neither is the apparent contradiction which may be noted in his declarations before the court of the justice of the peace, and before the court of first instance sufficient to discredit his testimony, for the simple reason that this witness was not given ample 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 the accused. The mere presentation of Exhibit 1, without said declaration having been read to the witness while he testified in the Court of First Instance, is no ground for impeaching his testimony. (U. S. vs. Baluyot, 40 Phil., 385, 406.) The defense also impeaches Carmelo Ordiz's testimony considering the invitation which the accused extended to him as improbable, knowing that he was 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 enemy of the deceased, on account of certain disagreements they had over some land. The defense also contends that the conduct of the accused in going with his family to the deceased's house on the morning of April 25, 1926, helping in the 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 corpse was a sign of guilt. But experience has shown that some criminals have gone to the extreme that the accused did, to avoid all suspicion of guilt. The evidence in the record shows that guilt of the accused beyond a reasonable doubt, and he deserves the penalty provided for in article 403 of the Penal Code. The crime committed is murder, qualified by treachery for, in the commission of the crime, the accused employed ways, means, and forms that tended directly and especially to assure, it, without risk to his person from any defense the assaulted party might make. The trial court imposed the death penalty on the accused, by reason of the aggravating circumstances of evident premeditation, nocturnity, and dwelling, without any mitigating circumstances to offset them. On this point the opinion of the court is divided, with the result that we cannot impose on the 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 discussion of 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 the presence of the said aggravating circumstances. In virtue whereof, we are of the opinion, and so hold, that the accused is guilty of the crime of murder, committed with treachery, on the person of Primo Ordiz, and with the modification of the judgment on review, the penalty ofcadena perpetua is imposed on the accused, with the accessories of Article 54 of the Penal Code, the judgment of the trial court being affirmed in all other respects, with the costs against the appellant. 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 hemorrhage caused by a sharp wound in the left lung, as appears from the death certificate, 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 in common agreement and taking advantage of nocturnity, mutually aiding each other, opened the window and killed Primo Ordiz by means of a shot from a 'Smith' 38 caliber revolver, inflicting a wound in the upper part of the left nipple, which produced the instant 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 Alejo Resabal is that of murder, provided for and penalized in article 403 of the penal Code, with the aggravating circumstances of evident premeditation, nocturnity and dwelling, and imposed on the accused the death penalty, with the accessories of article 53 in case of pardon, and to pay the deceased's heirs the sum of P1,000 by way of indemnity, with he costs of the action. He also ordered that the present case be brought to this court for review, as provided for in section 50 of General Orders No. 58. Counsel for the defense alleges that the trial court erred in not ignoring Glicerio Orit's testimony, and in no acquitting the accused Alejo Resabal on the ground of reasonable doubt. The Attorney-General in turn asks that the judgment rendered, being in accordance 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 the latter, 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 in height, 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 as to the explosion is corroborated by the declaration of the boy Jose Ordiz, who slept 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 uncle Primon 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 hidden by the accused on the land cultivated by the witness Carmelo Ordiz, to whom the accused revealed it, and who, through fear of the police, transferred it to the neighboring lot, burying it at the foot of a tree called "mabago." By following the directions of this witness, Carmelo Ordiz, the chief of police, who investigated the case, found the revolver wrapped in two pieces of cloth Exhibits C and C-1. The revolver was loaded with two bullets and an empty shell, and had a rusty barrel. It must be noted that Exhibit C-1 appears to be a piece of cloth from a pair of drawers, and the chief of police who searched the house where the accused lived, found a piece of a pair of drawers in a trunk that was in the kitchen. Upon examination of said Exhibits F and C-1 by this court, it was found that these two pieces of cloth Exhibit F and C-1 made a complete pair of drawers, all of which shows that the accused tore the piece of cloth Exhibits C-1 from an old pair of drawers in order to wrap up the revolver before putting it in the place indicated by the witness Carmelo Ordiz. This witness testified, furthermore, that on the night of April 24, 1926, the accused believing him to be still an enemy of the deceased Primo Ordiz, and showing him the revolver Exhibit B, invited him to accompany him to do away with Primo Ordiz. On the other hand, the witness Vicente Ambalong corroborates Glicerio Orits testimony to the effect that early in the morning of April 25, 1926, the accused went to the house where the latter was sleeping 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 by the prosecution, some twenty days before the incident the accused had a disagreement with the deceased because of the carabao that destroyed some coconut trees belonging to the deceased Primo Ordiz. The accused requested

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, defendantsappellants. VILLA-REAL, J.: This is an appeal taken by Clemente Babiera, Justo Babiera and Dominga Bores from the judgment of the Court of First Instance of Iloilo finding them guilty of the crime of murder, the first as principal, and the last two as accomplices, sentencing the former to life imprisonment with the accessories of 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 and 59 of the Penal Code, respectively, and all three to indemnify the family of the deceased Severino Haro in the sum of P1,000 jointly and severally, and each of them to pay one-third of the costs of the action in the justice of the peace court and the Court of First Instance. The six alleged errors assigned by the accused as committed by the trial court 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 reasonable doubt. 2. The Exhibit I of the prosecution is not an ante-mortem declaration and is therefore inadmissible as evidence. 3. That the offended party's quarrelsome disposition can be proved in the trial to determine who began the attack. Before discussing the evidence adduced by both parties and determining its weight and probatory value, it is well to decide the questions raised by the appellants 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 Hospital of Iloilo on the morning after the crime was committed. Although said statement in itself is inadmissible as an antemortem declaration, inasmuch as there is nothing to show that at the time he made 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 was near 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 circumstances which would not render it admissible as a dying declaration becomes admissible as such, it is held, if approved or repeated by the declarant after he had abandoned all hope of recovery." (30 Corpus Juris, 257.) Passing now to a consideration of the evidence, the prosecution tried to proved the following facts: Justo Babiera was the owner of two parcels of land situated in the municipality of Oton, Province of Iloilo, Philippine Islands. On October 19, 1922 Justo Babiera executed a contract of sale with the right of repurchase in favor of Basilio Copreros whereby he sold the two parcels of land to the latter for the sum of P124 with the condition that if the vendor did not repurchase them on or before August 1, 1923, the sale would become absolute and irrevocable (Exhibit F). The period for repurchase having expired, Basilio Copreros 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 the registration of the consolidation of his title to said parcels. On the 26th of the said month, Basilio Copreros leased said parcels to Severino Haro, municipal president 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 the peace 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 ground that it did not allege facts sufficient to constitute a cause of action, Justo Babiera appealed to the Court of First Instance of Iloilo (Exhibit M). Later on, said Justo Babiera asked for the dismissal of the complaint for unlawful detainer and filed another one for the recovery of property (Exhibit F). Inasmuch as Severino Haro was already in possession of the aforesaid two parcels of land as lessee, he bore all the expenses in the case of unlawful detainer 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 on shares, Rosendo Paycol, went to where Fermin Bruces was plowing and asked the latter: "Who told you to plow here?" Fermin Bruces replied: "Severino Haro." Then Justo Babiera asked him: "If this Severino tells you to kill yourself, will you do it?" "Of course not," answered Fermin Bruces. After this interchange of words Justo Babiera told Fermin Bruces to stop plowing and to tell his master, Severino Haro, to come and plow himself. Fermin Bruces informed Severino Haro of the incident, and in answer the latter only told him not to mind it, but to go on plowing. On another occasion while Fermin Bruces was transplanting rice on the same lands, Clemente Babiera and Rosendo Paycol arrived and told him that if he continued working they would pull out someone's intestines. Fermin Bruces also informed Severino Haro of these threats, who as before, told him not to mind them, but to go on sowing. On July 23, 1927, Jose Haro, brother of Severino Haro, visited his land in the barrio of Bita, which was under the care of Victoriano Randoquile. He was told by the latter that he lacked palay seeds. At that time, Rosendo Paycol was in his field, Jose Haro and Victoriano Randoquile approached him and asked him to give them some seeds. Rosendo Paycol answered that he could not do so because he needed what he had for his own farms. Haro and Randoquile then asked him: "Which fields do you mean?" "The fields over which Copreros and Babiera are in litigation," answered Rosendo Paycol. Surprised at this answer, Jose Haro told Rosendo Paycol that what he said could not be because the lot in dispute was leased to his brother Severino Haro. Rosendo Paycol replied that attorney Buenaventura Cordova had told Clemente Babiera and Justo Babiera that Severino Haro would never be able to reap or enjoy the fruits of the land, because if they did not win the suit by fair 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 the barrio 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 and his family lived. On August 21, 1927, Severino Haro, as usual, went to visit his land in the barrio of Bita, accompanied by Gregorio Torrija, Benito Carreon and Pedro Tauro. 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 were passing by. Severino Haro then informed Clemente Babiera of what his cow had done on the former's land and told him to take better care of his cow in future and not to let it run loose. He then ordered Fermin Bruces to take the animal to where the Babiera family lived. Severino Haro was not able to return 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 bamboo to light them on their way. Severino Haro went ahead, followed by Pedro Tauro, who carried the torch, some 8 brazas behind, with Gregorio Torrija and Benito Carreon following. On Coming to a place in the road near Rosendo Paycol'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 received another bolo blow in the forehead near the right eyebrow. In trying to defend himself with his hand he was wounded between the index finger and the thumb. He then tried to grasp his assailant but did not succeed and he fell to the ground. Then Justo Babiera appeared and placing himself upon Severino Haro's stomach, held the latter's hands. Later, Dominga Bores appeared on the scene and held both knees of the wounded man. When Justo Babiera arrived, 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 to come near in order to help Severino Haro, but Clemente Babiera raised his bolo in the air and kept on brandishing it to warn everybody off. Pedro Tauro, in fear, stepped back, dropping the torch he carried. Not far from there were also Buenaventura Gabalfin and Gregorio Paycol, who threatened to kill Severino Haro's companions if they helped him. After the torch had been extinguished they heard a voice which they recognized as Severino Haro'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 three revolver shots were heard. When Severino Haro's companions saw that their assailants had already departed, they drew near to where Severino lay stretched 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 copartner on 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 on arriving at the barrio of Santa Monica, they by chance came upon a truck in which were some policemen. They place the wounded man in the same truck and took him to Saint Paul's Hospital in the City of Iloilo. When Severino Haro was 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 examined by 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 palmar arch; another on the left arm; a deep one reaching down to the spinal column on the four slight wounds on the right thigh; the ones on the forehead and the dorsal region being mortal of necessity. All the wounds were caused, in the doctor's opinion, by a sharp-edged and pointed weapon, and while the combatants were on the same plane, except the wounds on the middle of the calf which must have been caused while the assaulted party was on a lower plane than his assailant, and the wounds on the right thigh, which must have been inflicted while the assailant was on a horizontal plane. On the same morning, August 22, 1927, and in the same hospital, Severino Haro made a sworn statement before the deputy fiscal, Edmundo S. Piccio (Exhibit I), relating the occurrence and mentioning the persons who were present. This sworn statement was ratified by him before the same deputy fiscal 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 the following: "Without warning, I received a slash on the left shoulder. On turning back my face, I saw Clemente Babiera, and he then gave me another slash on the forehead 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 defended myself 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's father placed himself upon my stomach, while his (Clemente's) wife sat on my feet, while Justo Babiera, Clemente's father, grasped my two hands and said to me, "There, now draw your revolver" addressing me. I shouted to my companion for help, for I felt I would die and while they approached, Clemente Babiera turned upon them, and said: "Do not approach for you have 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 neither Clemente, nor his father, nor his wife remained, my three companions came up to me from their hiding places. One Aunario, copartner on shares of Jose Abada, 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 the same deputy fiscal, Severino Haro, among other things, said the following: "They repeatedly passed their fingers over my upper lip and at the same time see if I still breathed; they felt and opened my eyelids and then inserted a finger in my pupil, because they believed that if I was insensible, I was already 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 revolver from me. I got up because I was afraid Dominga would shoot me and when I

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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 called Caboloan, 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 the imputation and said that his cow was tied. Severino Haro insisted, and added that said animal had damaged his sugar-cane plantation, and therefore, Fermin Bruces, his copartner on shares caught and tied it, by his order, to a mango tree. Clemente Babiera answered that he left the case in his hands and that he could charge him what he would, for the damages occasioned by his cow. As Severino Haro charged him P2 for the damage, Clemente told him that at the moment he had no money, but that on the following day he would get money from the town market and pay him. Severino Haro accepted the promise and left. Clemente Babiera in turn retired to his house, together with Dominga 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 in the evening while Clemente Babiera was in his house conversing with his father about the land which they had in Caboloan, which was attached by the Government, he suddenly heard a commotion; he went to the porch of the house to see what had happened and saw a number of persons coming one carrying a light and another leading his cow by rope. Clemente Babiera told his father what he saw and went out to meet said persons, and saw Buenaventura 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 asked Severino Haro: "Why are you taking my cow away? Haven't I promised to pay you tomorrow the loss caused by the animal? If you have no confidence in me, then prepare a receipt showing that tomorrow without fail, I will pay you." 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 Clemente Babiera by the hand and pulled him to one side. Clemente Babiera disengaged himself from Severino Haro's grasp, but Margarito Mediavilla struck him with a bolo at the base of his little finger. Feeling himself wounded, Clemente Babiera tried to unsheathe his bolo intending to return the blow to Margarito Mediavilla but failed to do so, because he heard someone say: "Shoot him!" Immediately thereafter he saw Severino Haro with revolver unholstered, and without any loss of time he went up to the latter and at that moment shots were heard. Clemente Babiera then began to slash blindly right and left without considering what he was at, catching Severino Haro in the back, as a result of which the latter fell to the ground on his back. Clemente Babiera threw himself upon him, held him down so he could not get up, and asked him: "Where is your revolver?" Severino Haro answered that he did not have it. Then Clemente Babiera raised Severino Haro'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 Bruces he thought that the latter meant to attack him because he had one hand behind, where he carried his bolo, so Severino turned on him, but his wife, Dominga Bores, restrained him telling him not to approach. One Nario also wanted to approach in order to defend Severino Haro but dared not do so in view of Clemente Babiera's threats. After having made fruitless search for Severino 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 the following morning Dominga Bores went to attorney Buenaventura Cordova's house and informed him of what had happened. Buenaventura Cordova then went to Florencio Mayordomo's house and told Dominga Bores to return to the place of the incident in order to look for the revolver and deliver it to the Constabulary if she found it. Then he accompanied Clemente Babiera to the office of Captain Gatuslao of the Constabulary at Fort San Pedro, to whom they delivered the holster of the revolver and the three shells they had picked up on the night of the incident. Dominga Bores having found the revolver in a furrow near the place of the crime took it to Iloilo and delivered it to Captain Gatuslao of the Constabulary between 9 and 10 o'clock in the morning. Dr. Jose Gonzales Roxas, Constabulary physician, treated Clemente Babiera's wound and certified that the same was 2 centimeters long and half a centimeter 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 the wrist. In rebuttal, the prosecution tried to prove that at about half past five in the morning of August 22, 1927, Dominga Bores was seen in the ground floor of the provincial government building of Iloilo, carrying a package under her arm and from there she went to the public market of Iloilo. There is no question that Severino Haro had leased from Basilio Copreros two parcels of land the ownership of which had passed to him due to Justo Babiera's failure to repurchase them within the stipulated period. Nor is there any question that the latter tried to recover them, first, by an accion publiciana (action for unlawful detainer), and then by an action for the recovery of possession. There is likewise no question that Severino Haro paid the 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 which reason the letter caught said cow, tied it, and notified his master of the matter when the latter went to visit the lands leased by him. Neither is there any question that there was an agreement between Clemente Babiera and Severino Haro whereby the latter ordered his copartner on shares Fermin Bruces, to take the cow near Clemente Babiera's house and tie it up there. In like 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 to the town of Oton, and upon their coming near Rosendo Paycol's house, in which were Clemente Babiera, his father Justo Babiera, and his mistress Dominga Bores, said Severino Haro had an encounter with Clemente Babiera in 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 the prosecution contends, Severino Haro was suddenly and treacherously attacked by Clemente Babiera, aided by his father and his mistress Dominga Bores; or, as the defense contends, Severino Haro notwithstanding the agreement between himself and Clemente Babiera by which the latter was to indemnify him for the damages caused by his cow, wanted to take the animal to town; that in trying to prevent it, Clemente Babiera was grasped by the hand 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 then unsheathed his revolver and fired several shots, in view of which Clemente Babiera 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 into account all the circumstances, previous, coetaneous and subsequently to the incident in question, and to determine who had, or could have had, motives to assault the other. We have seen that Justo Babiera sold two parcels of land to Basilio Copreros with the right of repurchase, and that, having failed to repurchase them within the period stipulated, the title thereto was consolidated, in the purchaser, 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 an action for the recovery of possession. Severino Haro paid the expenses of Basilio Copreros in order to carry on the suits. Such interested intervention on Severino Haro's part without doubt must have vexed Justo Babiera, for in the month of May 1927, he went with his copartner on shares, Rosendo Paycol, to where Fermin Bruces, Severino Haro's copartner, was plowing, and asked him who had ordered him there, and when Fermin Bruces answered that 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 to go and plow himself. Later on, Clemente Babiera, Justo Babiera's son, accompanied by his copartner Rosendo Paycol, seeing that Fermin Bruces went on working the land, told him that if he continued plowing, Clemente would pull out someone's intestines. If all these threats are true, as we believe they are, then Justo Babiera and Clemente Babiera must have borne Severino Haro deep resentment, doubtless believing that it was due to him that 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 to violence. It has been contended by the defense that the defendant-appellant, Clemente Babiera, only acted in defense of his life and property, having been obliged to resort to arms on seeing his life endangered, contending that the provocation consisted in that after Severino Haro had agreed to an indemnity of P2 for the damage caused, the latter wanted to take Clemente Babiera's cow to the town, 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 Haro threatened him with his revolver and fired several shots at him. Examined in the light of the ordinary conduct of men, Severino Haro's alleged attitude, in having tried to take Clemente Babiera's cow after having agreed to accept P2 for the damages, and having ordered that the animal be returned to its owner, is highly illogical, and not a scintilla of evidence has been presented to explain this change of determination, as unexpected as it is unreasonable. With respect to the allegation that Margarito Mediavilla and Severino Haro began the attack, inasmuch as it has not been proved that they were the instigators, it cannot be conceived that they committed said unlawful aggression, for he who has no reason to provoke, has no reason to attack unlawfully. The defense also attempted to prove that Severino Haro was of a quarrelsome disposition, provoking, irascible, and fond of starting quarrels in 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 selfdefense, he may prove the deceased to have been of a quarrelsome, provoking and irascible disposition, the proof must be of his general reputation in the community and not of isolated and specific acts (Underhill Criminal Evidence, par. 325, p.570), such as the accused Clemente Babiera tried to prove, and hence the lower court did not err in not admitting such proof. But even if it had been proved by competent evidence that the deceased was of such a disposition, nevertheless, it would not have been sufficient to overthrow the conclusive proof that it was the said accused who treacherously attacked the deceased.

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Another circumstance which shows the falsity of the theory of the defense is that of having made Buenaventura Cabalfin take part as the person whom Severino Haro employed to lead Clemente Babiera's cow. If Severino Haro's copartner, Fermin Bruces, whom he had told to return said cow to Clemente Babiera 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 defense necessitated a provocation and to that end they conceived the idea of the breach of the supposed agreement on the return of the animal through the payment of an indemnity of P2, making use as an instrument of one on whom the defense could depend to serve as witness, and there was no one better suited for such a purpose than Buenaventura Cabalfin who according to the witnesses 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 one who by order of Clemente Babiera took Severino Haro's revolver from him on the night in question, the defense tried to prove that on the following morning attorney Buenaventura Cordova, a relative of the Babieras, told Dominga Bores to return to the place of the incident and look for said weapon, and that she found it in a furrow near the place and took it to the office of the Constabulary in Iloilo between 9 and 10 o'clock in the morning. But the rebuttal evidence of the prosecution disproved this contention and showed 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 provincial building 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 as having 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 could not 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 the concocted plea of an unlawful attack and self-defense, Clemente Babiera inflicted on himself the slight wound; since, if in order to escape military service there were men who mutilated themselves, who would not wound himself slightly in order to escape a life penalty? The facts related above have been proven beyond a reasonable doubt and constitute the crime of murder defined in article 403 of the Penal Code, there being present at the commission of the crime, the qualifying circumstance of treachery, consisting in the accused Clemente Babiera having attacked Severino Haro suddenly while the latter had his back turned, inflicting various wounds on his body as a result of which he died a week later, said Clemente 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 they could not have been inflicted, or induced Clemente Babiera to inflict them, yet they took part in the commission of the crime by simultaneous acts consisting in the former having mounted Severino Haro's body and held down 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 his revolver, Justo Babiera and Dominga Bores cannot be held as accomplices of the crime of murder, inasmuch as it does not appear to have been proven that they knew the manner in which Clemente Babiera was going to assault Severino Haro, in accordance with the provision of article 79 of the Penal Code, to the effect that the circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the act or their cooperation therein. Although in the instant case the treachery is not considered a generic aggravating, but a qualifying circumstance, nevertheless, it does not fail to produce a special aggravation. To graduate the penalty, we are not to consider any modifying circumstance of the criminal liability, for while it is true that Clemente Babiera took advantage of the darkness of nighttime, this circumstance is included in treachery, inasmuch as, considering the fact that Severino Haro was followed by several companions, the accused would not have been able to conceal himself in the cogon grass nor attack the deceased from behind without being seen in time and prevented from executing his criminal purpose had not been for the darkness of the night. The penalty provided by law for the crime of murder namely, that of cadena temporal in its maximum degree to death must therefore be imposed upon Clemente 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 lower is prision mayor in its full extent, which is the penalty that must be imposed on Justo Babiera and Dominga Bores as accomplices in the crime of homicide (art. 67, Penal Code). In graduating the penalty, the aggravating circumstances of nocturnity must be taken into consideration, without any extenuating circumstances to offset it, and therefore said penalty of prision mayor 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, for which each must answer, of the P1,000 fixed by the trial court, in accordance with the provision of article 124 of the Penal Code, that is, P600 for Clemente Babiera and P400 for Justo Babiera and Dominga Bores, each of the latter being 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 held that Justo Babiera and Dominga Bores are guilty of the crime of homicide as accomplices and each sentenced to ten years and 1 day prision mayor, and to pay the sum of P400 jointly and severally, and Clemente Babiera to pay the sum of P600, the former to be subsidiarily liable for the latter's share, and the latter for the former's share, payment to be made to the heirs of the deceased Severino Haro, the appealed judgment being affirmed in all other respects with 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, Julian Sumicad, guilty of the offense of homicide and sentencing him to undergo imprisonment for twelve years and one day, reclusion temporal, and requiring 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 the gratuitous labor of hauling logs for the construction of a chapel in the barrio above-mentioned. At about 5.30 o'clock in the afternoon on the day mentioned, when the laborers were resting from the work of the day, one Segundo 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 to Cubol, and as the latter passed, the accused said to him, "Segundo, pay me for the 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 the same time he struck the accused with his fist. The accused arose from the log upon which he was sitting and moved backward, trying to escape, but Cubol pursued him and continued striking him with his fists. As the accused receded he found himself cornered by a pile of logs, the wings of which extended out on either side, effectually preventing any further retreat. As Cubol pressed upon him, the accused drew his bolo and delivered a blow on Cubol's right shoulder. Upon this Cubol lunged at the accused with the evident intention of wresting the bolo from the accused. To prevent this the accused struck two other blows with the bolo, inflicting two deep cuts on Cubol's forehead above the left eye. One of these blows broke through the cranium. The other made a cut extending from the left eyebrow to the nose and upper lip. Upon finding a seat on a log nearby. A witness, named Francisco Villegas, who came up in a moment, after learning something about the matter, asked Cubol whether he had struck the accused blows with his fist. Cubols replied that he had. The witness Villegas then turned to the accused, who was standing a short distance away, and told him to put up his bolo and go to the poblacion. Acting upon this suggestion the accused immediately repaired to the office of the justice of the peace and surrendered himself to the authorities. Cubol lived only an hour or so, and died from the effect of the wounds received. In one of the pockets of the deceased a knife was found, and the accused testified that, when he struck the deceased with his 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- inches, and weight of 105 pounds. The deceased appears to have been taller, larger and stronger man. The evidence shows that the deceased was quarrelsome and in the habit of making frequent trouble by fighting in the places where he happened to be present with others. In the local courts he had been convicted and sentenced to jail for assault and battery in two different cases. In another case he was convicted of the offense of inflicting minor physical injuries, being sentenced to imprisonment for one month and one day. In still another case he had been convicted of theft and sentenced 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 and that he had the reputation of being a trouble maker. It is a safe inference from this proof and there is nothing to the contrary, that the deceased was 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 in the death of Segundo Cubol was of his own making, and that the accused was not materially to blame in bringing about the trouble. Two of the elements of self-defense were therefore clearly present, namely, that the deceased was the aggressor and that there was lack of sufficient provocation on the part of the accused. The only further question that can therefore arise in discussion the criminal liability of the accused is whether there was reasonable necessity for the means employed by him to prevent or repel the aggression to which he was subjected. Upon this point it will be noted that, when the aggression was begun by the deceased, the accused retreated until he was cornered in the angle of a pile of logs. His further retreat was this effectually cut off both in the rear and at the sides. In response to the blows which the deceased 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 the record on this point , the sanitary officer who exclaimed the body of the deceased 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. Upon receiving that cut the deceased should have been admonished that further aggression on his part would be met by determined resistance and that any further advance would be at grave peril to himself. Instead of acting upon this 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 reasonably expected to do. Was he to surrender the weapon to his assailant, a larger and stronger man than himself, who was now infuriated by the blood that had been drawn from his shoulder? Or was he justified in keeping the weapon in his hands and, as an ultimate resort, in using it as a means for his own defense? 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 to pass into the hands of his assailant. In judging a question of this kind the reputation of the deceased for violence is pertinent, for it tends to show that when the fatal blows were struck the accused had reasonable grounds for believing that he was in grave peril to life or limb. It is undoubtedly well established in jurisprudence that a man is not, as a rule, 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 such case, 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 the situation where the contestants are in the open and the person assaulted can exercise the option of running away. It can have no binding force in the case where the person assaulted has retreated to the wall, as the saying is, and uses 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 injury which a reckless and infuriated assailant might probably inflict upon him (Browell vs. People, 38 Mich., 732). And it was not incumbent on the accused in this case, when assailed by a bully of known violent disposition, who was larger and stronger than himself. On the contrary, under the circumstances stated, he had the right to resist the aggression with the bolo, and if he unfortunately inflicted a fatal blow, it must be considered to have been given in justifiable self-defense. Upon this point it may be recalled that the deceased, when asked about the circumstances of the homicide, admitted that he himself was the aggressor; and it is noteworthy that he used no word placing blame upon the accused. We are of the opinion that all the elements necessary to constitute justifiable self-defense were present in this case and the accused should have been acquitted. The judgment appealed from will therefore be reversed and the appellant absolved from the information, with costs of both instances de oficio. So ordered.

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. Setie told him that Guiamelon Mama had shot Talib. She advised her uncle not to use his flashlight because Guiamelon was still in the vicinity. Setie also told Towa that Florencio Odencio had shot Oranen. Towa left Talib's house in order to get assistance from his father-in-law. While crossing the trail his flashlight focussed on Florencio Odencio with two companions leaving the scene of the crime. Policemen arrived at Talib's house. Setie informed them that Guiamelon was the gunwielder. They brought Talib to a medical clinic where he was interrogated by Patrolman Joaquin Saada Talib told Saada that his assailants were Guiamelon, Florencio Odencio and Florencio's father, Joseph Odencio. Due to the critical condition of Talib(nagaagonto), he was not able to sign his dying declaration (Exh. B) as taken down by Patrolman Saada Talib was brought to the hospital. He died on the following day. In that unsigned antemortem declaration, Talib revealed that Florencio Odencio suspected that he and Oranen had masterminded the theft of Joseph Odencio's two carabaos, and that, on the other hand, Guiamelon suspected Talib 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 told Patrolman Saada that he wanted to sign it but that he could not do so because of the wound in his arm. Talib also articulated his belief that he was going 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 unsigned antemortem statement, Saada executed an affidavit reciting the circumstances surrounding the taking thereof. Saada testified in court on Talib's dying declaration. The autopsy disclosed that Talib sustained eight gunshot wounds in the back or posterior chest wall. No autopsy was performed on the body of Oranen who, as noted above, died at the scene of the crime. On July 1, 1968, a complaint for double murder was filed in the municipal court against Guiamelon, Florencio Odencio, Joseph Odencio and Angelico Aposaga, Poren's father-in-law. They waived the second stage of the preliminary investigation. On September 19, 1968, an information was filed in the Court of First Instance against Guiamelon Florencio Odencio and Joseph Odencio, The trial court acquitted Joseph and convicted only Florencio 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 when the 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 Estaol, the candidate of the Liberal Party. Florencio's alibi was corroborated by his wife and his brother-in-law, Antonio Cesar. The other accused, Guiamelon Mama, a thirty-year-old farmer, adopted the same line of defense. He declared that he was also in his house when Talib was shot; that he had no misunderstanding with Talib, who is his father's brother-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 came to know his co-accused Florencio Odencio only in jail. The accused presented Samuel Jubilan, a Constabularly Sergeant, who testified that he was present when Patrolman Saada interrogated Talib and that the latter declared that he was not able to recognize his assailant because it was dark. Saada said he did not know of that interrogation made by Jubilan. In disbelieving the alibis of Florencio and Guiamelon, the trial court observed that the accused were indubitably Identified as the assailants in Talib's dying declarations to his wife and Patrolman Saada. Setie Mamalintao in her statement to the police declared that she was able to recognize Florencio and Guiamelon because there was a "big torch" in front of her house and Karaing'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 acquainted with them for a long time. As stated above, two witnesses saw the accused in the vicinity of Talib's house shortly after the shooting. Therefore, the contention of appellants' counsel de oficio that they had not been sufficiently Identified as the killers cannot be sustained. Another contention of counsel de oficio is that the trial court erred in finding that Guiamelon and Odencio conspired to kill Talib and Oranen. That contention is belied by the evidence. Guiamelon and Odencio were seen pacing 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 liquidate the victims because the latter allegedly stole the carabaos of the relatives of the accused. The record does not disclose any reason why Setie Mamalintao and Patrolman Saada would frame up the appellants. The manner in which they shot the victims shows treachery. The shooting was not the product of momentary impulse. There was alevosia because the

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 the Court of First Instance of North Cotabato, finding them guilty of two separate crimes of murder, sentencing each of them to two reclusion perpetuas, and ordering them to pay P12,000 to the heirs of Prowa Talib and P12,000 to the heirs 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 the yard 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 direction where the gunshots emanated, she saw Guiamelon Mama holding a gun near a coconut tree around six brazas away. Then, she heard another volley of shots. She saw Florencio Odencio (Poren), also holding a gun near another coconut tree around ten meters away in the yard of the house of her neighbor, 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 friends and neighbors also residing in Barrio Simsiman. Setie and Guiamelon had cultivated adjacent farmlands. While Setie was comforting her husband, he allegedly told her that he was going to die. He directed her to remember what had happened to him and that they had seen Guiamelon Mama and Poren armed with guns. Prior to that 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, Japal Rongot was on his way to Talib's house. He encountered Guiamelon and Joseph Odencio with both of whom he was well acquainted. He asked Guiamelon why there were gunshots but the latter did not make any reply. Upon reaching Talib's house, Rongot saw Setie crying and holding Talib on her lap. Setie told him that Talib was shot by Guiamelon and she pointed to him Oranen's corpse which was about two arms' length from Talib.

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two malefactors, taking advantage of the cover of night, stationed themselves in a place where they could shoot the victims with impunity without any risk to themselves or without exposing themselves to any retaliation since the victims 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 to inherent improbabilities'' and "motives to falsify the truth". That contention is not correct. Talib's antemortem statement fortifies the testimony of his widow, an eyewitness. We have stressed that two other witnesses saw the appellants leaving the scene of the crime. Moreover, Talib's dying declaration was sufficiently proven. The rule is that a dying declaration may be oral or written If oral, the witness, who heard it, may testify thereto without the necessity, of course, of reproducing exactly the words of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who 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 beyond reasonable doubt. As they were co-conspirators, they are each liable for the two murders. There being no modifying circumstances concomitant with the commission of the two assassinations, the trial court properly penalized each murder with reclusion perpetua(Arts. 64[1] and 248, Revised Penal Code). The trial court's judgment is affirmed with the sole modification that the two appellants should be held solidarityliable for the two indemnities of P12,000 each. In the service of the two reclusion perpetuas, the forty-year limit fixed in article 70 of the Revised Penal Code should be observed. Costs against the appellants. SO ORDERED.

permit him to amend his information and to charge the accused separately, one information for the crime of kidnapping for ransom. On June 26, 1956, a second amended information in Criminal Case No. 137-G was filed by Fiscal Villafranca charging all the accused headed by Arcadio Talavera alias Lt. Alcantara with the simple crime of rebellion. On August 26, 1956, a third information was filed by Fiscal Villafranca eliminating Arcadio Talavera from the information but adding Lt. Alcantara as one of the accused. The crime charged was still for the crime of rebellion. The record shows that this third amended information was provisionally dismissed by the Court on October 16, 1956, on the petition of Fiscal Villafranca and Special Prosecutor Capilitan on the ground that the evidence against the two accused Doroteo Edungan and Buenaventura Miel, who were then the only accused placed in the custody of the law for rebellion, were not sufficient to convict them of rebellion. The record further shows that the entire case was provisionally dismissed on the ground that the rest of the accused had not yet been arrested, subject to the proviso that any time the case may be revived 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 a separate information for the kidnapping for ransom of Elvira Taada de Principe, naming the thirty-three accused in Crim. Case No. 137-G as defendants. This case was docketed as Criminal Case No. 164.

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. 213G 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 dated February 11, 1960, the dispositive portion of which reads as follows: PREMISED on the foregoing considerations the Court hereby finds the accused Jose Estrada GUILTY beyond reasonable doubt of the crime of kidnapping for ransom as defined and punished by Article 267 of the Revised Penal Code, as ultimately amended by Republic Act No. 1084, with the aggravating circumstance of abuse of public office (he being then municipal councilor of Gumaca), without any mitigating circumstance to offset it, and hereby sentences him to die by electrocution as provided by law, ordering his heirs after his execution, to indemnify Elvira Taada Principe or her heirs in case of her death, in the amount of P50,000.00, and to pay the costs. 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 Taada de Principe, a young, prominent patron of Gumaca, Quezon, a member of the rich, well known Principe family, was kidnapped by a band of Hukbalahaps, headed by one Commander Pepe Alcantara. She was detained for 18 days in the Huk lairs deep in the mountains of the Bondoc Peninsula, and was released only upon payment of a ransom of P50,000.00. On account of the kidnapping, three(3) cases, filed one after another, were instituted by the Government against the known suspects. We are presently concerned only with the last of these cases, which has culminated in this appeal. But for a better understanding of this case, We have to make mention of them all in passing. And for this purpose, the statement made by the trial court 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, by Lt. Lucas B. Apolonio of the 38th PC Company stationed at Gumaca and lodged with the justice of the peace court of Gumaca which upon elevation to this Court became Crim. Case No. 137-G for the complex crime of rebellion with kidnapping in which the information was filed by Assistant Provincial Filed Severino I. Villafranca on April 24, 1956. On June 4, 1956, Fiscal Villafranca amended his first information to 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 Supreme Court to the effect that there was no such complex crime of rebellion with kidnapping, Fiscal Villafranca moved the Court to

The record shows that on August 17, 1956, this Court upon petition of Provincial Fiscal Jose O. Lardizabal dismissed the case against Arcadio Talavera as Lt. Alcantara and Provincial Fiscal Lardizabal 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. Alcantara was eliminated but Lt. Alcantara was continued in his stead. The accused Antonio Campaniero alias Nelson de Rosas was discharged 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 was dismissed on December 5, 1957, for insufficiency of evidence. On February 25, 1958, the case against Doroteo Edungan was dismissed upon petition of Special Prosecutor Victor Santillan and Artemio Alejo and of Assistant Provincial Fiscal Eufemio A. Caparros for insufficiency of evidence. On February 26, 1958, the accused Quirino Ravela alias de Leon pleaded guilty as accessory after the fact in the crime of kidnapping for ransom of Elvira Taada and was sentenced accordingly. On February 1, 1960, the accused Clodualdo Camacho pleaded guilty as accessory after the fact and was sentenced accordingly. Isidro Alpay alias Commander Bulaklak, Domingo America alias Laguimay, Ireneo Capisonda alias Erning alias Lope, Benjamin de Jesus @ Amin, Ben Ramirez @ Ben, Pedro Martinez @ Pedro, Santiago Napoles @ Nomver, @ Jaime @ Jimmy @ Jimay, @ Gelacio @ Elioso, @ Liwayway, @ Berna, @ Timoteo, @ Juan, @ De Guzman, @ 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 dismissed provisionally. The accused Alfredo Reyes @ Commander Fred, Emiliano Blasco @ Commander Emy, Rodrigo @ Commander Tony, Victoriano Dayunot @ Torio and Panfilo Rosales @ Predo @ Banaag are all reported dead. For all purposes therefore, Case No. 164-G may be considered a terminated 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 prosecutor from the Department of Justice, Antonio O. Capilitan, after the surrender of some of the Huks who participated in the kidnapping of Elvira Taada de Principe. In this third case, the special prosecutor accused Mateo del Castillo, Jose Estrada and Julio Ceribo and several others under assumed names or aliases of kidnapping for ransom and this case was docketed as Crim. Case No. 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 the Court. The accused Jose Ceribo was discharged from this case to be utilized as witness for the government. The accused Mateo del Castillo has been reported dead. The accused Romaguerra Doe @ Romaguerra was identified as Francisco Rabi and Heling Doe @ Heling was identified as Angel Veran. They both pleaded guilty upon their arraignment on February 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 also both 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 large and have not yet been placed under arrest. During the trial of this case No. 213-G the defense of Estrada asserted that the accused Lt. Alcantara was already in the custody of the Philippine Constabulary and was subpoenaed as witness for the defense but notwithstandingthe efforts of the Court this accused has not been produced by the authorities. He is still charged 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 explains why the decision appealed from concerns only Jose Estrada (herein appellant). Accused Jose Estrada was tried alone by the court below under the corresponding information, alleging as follows: That on or about the 27th day of February, 1956, in the municipality of Gumaca, Province of Quezon, Philippines and within the jurisdiction of this Honorable Court, the aforementioned Accused, together with (1) LT. ALCANTARA, (2) ROMY DOE @ Comdr ROMEO, (3) JOSE MALUBAY @ Comdr PEPE, (4) GALICANO MANAOG @ Comdr BULAKLAK, (6) DOMINADOR AMERICA @ LAGUIMAY, (7) ALFREDO REYES @ Comdr FRED, (8) EMILIANO BLASCO @ Comdr EMMY, (9) RODRIGO DOE Comdr TONY, (10) CLODUALDO CAMACHO @ EFREN, (11) VICTORIANO DAYUNOT @ 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) @ DE DUZMAN, (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 confederating and mutually helping each other, did then and there wilfully, unlawfully, and feloniously through force, threats and intimidation, kidnap ELVIRA TAADA DE PRINCIPE and CARMEN NOCETO, take and carry them away from their dwellings to an uninhabited far distant forest in the mountain of Bondoc Peninsula for 18 days confinement under their custody and control for the purpose of demanding ransom in the amount of FIFTY THOUSAND PESOS (P50,000.00) Philippine currency, which the said Accused did in fact receive on the 16th day of March 1956 in consideration of which amount said kidnapped persons were released to the damage and prejudice of the said offended parties in the said amount. That the following aggravating circumstances are present in the commission 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 and other insignias for disguise. Upon arraignment on November 27, 1956, accused Jose Estrada refused to make any plea to the information against him; hence, the trial court entered for him a plea of "not guilty." His petition for bail had been denied; and since then, Jose Estrada has remained in confinement. Our own examination of the record revealed that the case of the People was established thru the testimonies of 12 prosecution witnesses, namely: Elvira Taada de Principe and Carmen Noceto, the kidnap victims; Reynaldo Principe, Elvira's husband; Marciano Principe, Reynaldo's father; Petra Maego, Basilio Angulo, Beato Glinoga and Jesus Letargo who all had something to do with the negotiations between the kidnappers and the family of the victims, which led to their subsequent release of the kidnapped victims; Antonio Campaniero and Julio Ceribo who were both discharged from the information to be utilized as state witnesses; Gonzalo Mallare, as against whom the case was dismissed for insufficiency of evidence; and Col. Francisco del Castillo, Provincial Commander of Quezon at the time the information in this case was filed in court. Stripped of unessential details, the

testimonies of the principal witnesses may individually be summarized as follows: TESTIMONY OF ELVIRA TAADA DE PRINCIPE: Elvira Taada de Principe was inside her store on the ground floor of the house of her father-in-law in Gumaca, Quezon, at about 4: 00 o'clock in the afternoon of February 27, 1956. She was busy estimating her laundry bills. Three (3) men wearing uniforms similar to those worn by soldiers in the army arrived and entered her store. One of them first inquired for the price of a pack of "Chelsea" cigarettes, and then asked for one. As Elvira reached for the pack of cigarettes, the other two suddenly grabbed her hands and pointed their pistols to her. They pulled her out of the store and dragged her towards the bodega of her father-in-law, Marciano Principe, and then on to the railroad track going to the direction of the elementary school of the town. The two uniformed men were later substituted by two others in civilian clothes who, after holding Elvira by the hand on each side, continued running with her through the coconut plantations toward the mountains. There were gun fires that followed, but the men continued running, taking Elvira Taada de 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 before they continued their way, deeper into the mountain. The leader ordered two of 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 a sawmill site. From there, they continued walking again at dawn of the following day until they came upon a copra kiln; and there the men prepared food. Thereafter, they continued hiking once again until they reached the Huk lairs. There were five huts at the place, all without walls. Elvira Taada de Principe and Carmen Noceto were kept in the one located at the center for two weeks. There were sixteen (16) men in the group that took Elvira and Carmen to the mountains, including the three (3) who originally took Elvira out of her store in Gumaca. Elvira came to know their names because they had nameplates on their 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 the place of the huts, the kidnappers divided into two groups. Lt. Alcantara soon left the place with seven (7) men, leaving the eight (8) others to guard Elvira Taada de Principe and Carmen Noceto. These men left behind were Ladres, Bayas, Gomez, Torres, De Leon, Villazar, Delgado and Mendoza. Lt. Alcantara and Julio Ceribo came back to the place every now and then, bringing food and letters from Elvira's husband. After the lapse of about two weeks, Lt. Alcantara finally told Elvira that she would be released. He showed her letters from her husband, her father and her brother. And on March 15, they left the huts at about 11:00 o'clock in the morning, with Carmen Noceto and others. They moved to another place where they waited for Lt. Alcantara's other companions. In due time, they arrived, and Elvira and Carmen Noceto were then taken to another place which they reached after about an hour's walk. There they met Angulo, Letargo, Erea and Francia who had come all the way from Gumaca and brought the P50,000.00 ransom money. Elvira counted the money, then delivered the same to Lt. Alcantara. Thereafter, Elvira and Carmen Noceto were released. They were not accompanied by anyone of the kidnappers. Lt. Alcantara merely instructed them to follow the course of a river until they could see a house, and there to find one who could guide them to Barrio Magisian, Lopez, Quezon. They followed these instructions and reached the road in said barrio, where they were picked up by a station wagon which took 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 persons running on the railroad track, leading Elvira Taada de Principe by the hands. 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 and dragged her along, telling her that she would just accompany Elvira Taada de Principe. She could not refuse; she was greatly terrified. Her father who was then present was stunned for the "soldier" also pointed his gun at him. She was taken, along with the group of Elvira Taada de Principe, to the far away mountains she had never reached before. They walked all night, then for two days more, resting only when they took their meals. They finally stopped walking, only when they reached a place where there were five huts without walls. She and Elvira Taada de Principe were kept in one of these huts together during the eighteen days that they were held in captivity by their kidnappers. They were allowed to go home only after the arrival of the P50,000.00 ransom money which was brought by Manoling Letargo, Basilio Angulo and two others whom she did not know. Before their release, they were guarded by several men, among them De Leon, Angelo Veran @ Villazar, Antonio Campaniero @ Nelson and Julio Ceribo @ July. Carmen Noceto did not know Elvira Taada de Principe before the kidnapping. She came to know her only when they were kept together in one hut in the mountains. They became intimate with one another later, and Elvira allowed her to read the letters sent to her by her husband while she and Elvira were held captives. TESTIMONY OF BEATO GLINOGA:

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Beato Glinoga was asleep in his house in Barrio Villa Taada, Gumaca, on the night of March 4, 1956, when he was awakened by his barriomate, Leon Calvelo. The former was informed by the latter that some soldiers wanted to see him. Glinoga obliged, and went with Calvelo to the latter's place which was 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 he spoke with one of the supposed "soldiers", Glinoga was not able to recognize any of them. Nevertheless, the person with whom Glinoga spoke introduced himself as Lt. Alcantara, at the same time identifying himself and his companions as the ones who had kidnapped Elvira Taada de Principe. Lt. Alcantara then asked Glinoga if he could deliver a letter to the Principes in Gumaca, to which Glinoga consented. Lt. Alcantara warned him not to reveal that he had seen them to anybody. He also instructed Glinoga to see accused Jose Estrada first before delivering the letter, so that he (Estrada) could accompany him to the house of the Principes, and then to the mountains in Villa Taada where Lt. Alcantara would meet them later, for according to the letter, 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 then meet him (Lt. Alcantara) later in the mountains. Pursuant to such instructions, Glinoga left Villa Taada early the following morning and proceeded to the town of Gumaca, to deliver Lt. Alcantara's letter 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 a letter in answer to Lt. Alcantara's note. He then gave it to Basilio Angulo who was at the house of the Principes at the time, requesting Angulo to go with Glinoga back to Villa Taada and see Lt. Alcantara. Angulo agreed. He went with Glinoga to the mountains in Villa Taada. 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. Basilio Angulo then had a conference with the Huk leader. Asked by one of Lt. Alcantara's men where accused Estrada was, Glinoga gave the information that 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 Huk Commanders in the field. From 1955 up to the time of his surrender on July 18, 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 Jose Estrada 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; Fredo talked with Estrada in Gumaca, as Nelson stood guard. Estrada showed up in Barrio Biga, three days later, at about 2:00 o'clock in the afternoon. Aside from 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 who the richest man in Gumaca was, and the former answered that "he would suggest the Principe family" (ang maimumungkahi ko po ay ang pamilya Principe). 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 Estrada recommended his wife, Elvira Taada de Principe, who could easily be ransomed. Lt. Alcantara agreed to the suggestion of Estrada saying, "if that is the 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." Estrada then 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, together with others in their Unit, would be "borrowed" by Lt. Alcantara to supplement the men of the "Tadtad Unit" and join them in the execution of the plan to kidnap Elvira Taada de Principe. And thenceforth, Nelson began receiving orders directly from Lt. Alcantara. In the afternoon of February 27, 1956, Lt. Alcantara and his men came down from Barrio Biga and entered the town proper of Gumaca, Quezon. Alias Essi, @ Loring and @ Nelson stood guard near the railroad station. After taking Elvira Taada de Principe, they fled and went through the mountains for three days and three nights, with short stops to rest at some points on the way. They hid Elvira Taada de Principe in Barrio Laguio between the municipalities of Lopez, Gumaca and Macalelon. Carmen Noceto was also taken by them to the mountains with Elvira that same day. On July 18, 1956, @ Nelson surrendered to the authorities. He did not know then what the penalty for kidnapping for ransom was. He was investigated in Camp Natividad on July 22. Having just surrendered then, he was afraid to be implicated in the Principe kidnapping therein. Later, he was investigated again in Lucena. He then decided to tell the truth and did not mind anymore the consequences. He gave his statement (Exh. X) wherein he revealed his participation in the Principe kidnapping case and the role played therein by accused Jose Estrada, on September 5, 1956. Having known the truth from the said statement, both the investigator and the prosecutor then told Nelson

that he would be a witness against Estrada after his discharge from the information. 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. Nieva promised Nelson to work out his case with Malacaang, should he agree not to testify against Estrada in court. Nieva urged him to deny the truth of his statement (Exh. X) when the trial comes, and to testify that he had executed it only because he had been maltreated, rewarded and given promises. Nieva gave him P20.00 on that occasion. Nelson at first denied having written Exhibit 2 (a letter signed by Nelson addressed to Estrada, on January 24, 1957), wherein Nelson appears to be telling Estrada that they were then in a bad fix; that Col. Castillo had come to know that Congressman Roces of the CAFA was coming to see them, and he believed that Estrada was the one who had written the congressman, and then caused Nelson and his companions to make a "turn about;" that because of that suspicion of Col. Castillo, they were no longer permitted to talk with any visitors; that Nelson, Gregana and Pedro Masilungan Estrada's former adversaries 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 be urging 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 PC investigations had forced them to sign; and to request Nieva to intercede in their behalf in Malacaang in order to put an end to the doings of the Provincial Commander in Quezon). On January 27, 1957, Nelson wrote another letter, Exhibit 10 (styled "to whom it may concern," Nelson appears to be declaring here that he and his companions knew nothing about the kidnapping of Elvira Principe, much less, the alleged conference with Estrada regarding the same; that they signed their "statements" only because they have been threatened, the investigators telling them that they would be prosecuted if they would not cooperate with the Government; that they had been required to drink plenty of water; that they had been made to testify against 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 be requesting Antonio Nieva also for "cigarette money" and for his letters to be returned to him). Nelson wrote another letter on the same date, which he signed with the name of Pedro Masilungan. (This letter, Exh. 1, purports to show that Pedro Masilungan had also been forced to sign his "statement" and to testify against Estrada by Capt. Zita). Nelson explained that he wrote to Estrada because he had been coerced by two insular prisoners who were allowed to enter his cell, warning him that his life would be in danger, should he 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 same cell at the time. A few days thereafter, probably on January 31, 1957, Nelson, along with Julio Ceribo, @ Sonia, Pedro Masilungan, Antonio Batanes and others, was taken by 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 the same when he was taken before General Cabal who examined him on the said statement. He, likewise, affirmed the truth thereof before President Ramon Magsaysay before whom he was seen in the office of Secretary Balao at Camp Murphy. 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 any lies before the highest authority of the land. He stated in those letters that he did not know Estrada, because he merely wanted to make Estrada believe that he would really make a "turn about". But the same is false; it was only the idea of Antonio Nieva. Nieva had told them that Estrada was ever willing to 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 "cigarettes money". Nelson had been discharged from the information on March 20, 1957; but he was still under PC custody because he had demanded such protection pending the termination of the case. TESTIMONY OF JULIO CERIBO: Julio Ceribo testified that he was a surrendered Huk; he joined the Hukbalahaps 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 knew about the kidnapping of Elvira Taada 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 Biga where it was agreed to kidnap her because she was the one pointed to by Estrada; first, Lt. Alcantara approached Comdr. Teddy Corazon, and then the latter 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 was asked by Lt. Alcantara then as to who was the richest in Gumaca, and Estrada suggested Elvira Taada de Principe because she could easily be ransomed; Estrada explained that if it were her husband to be kidnapped, it would be hard for the family to ransom him because the properties of the Principes were in the name of Elvira's husband, Reynaldo Principe; Lt. Alcantara agreed, and about one week after that conference, they came down to Gumaca and took Elvira; he stood guard in one of the streets in the town during the kidnapping; one of his companions took along Carmen Noceto on the way so that Elvira Taada de Principe would have a companion; it was about 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 the mountains between Macalelon and Lopez, Quezon; they hid them there for two weeks in one of five huts they built; Elvira was later ransomed by her husband; Basilio Angulo and three other persons brought the ransom money of P50,000.00, after which both Elvira and Carmen Noceto were released; they kidnapped Elvira Taada de Principe because they were in need of a large sum of money; on August 7, 1956, he was with the Huks that had an encounter with the government forces in Usiwan Lucban, Quezon; there he was wounded in the right foot, and soon, unable to withstand the deprivations anymore, he decided to have a "new life"; he proposed to surrender 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 Majayjay Laguna; from there, he was taken to Canlubang where he was questioned as to when he first joined the Huks; then he was transferred to Lucena City where he was investigated by Eddie Recuenco; after that he was brought to the 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 his brother who secured the services of Atty. Ribong; his brother showed to him his discharge papers, but he was still kept in the stockade at Lucena City with Nelson, he was not released; and when he was investigated there in connection with the kidnapping of Elvira Taada de Principe, he had to admit; at first he wanted to deny it, but when Nelson pointed to him, he was frightened 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 this case; 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 had been told; that the penalty for kidnapping was severe and "we had better be dead than caught alive;" but the truth is he was really with the kidnappers who took Elvira Taada de Principe; he knew Atty. Franco, the latter introduced 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 where they talked about his case; he told him (Atty. Franco) that he could not deny the circumstances because they were all true; they met again after that in the stockade in Lucena when Atty. Franco brought some typewriter papers which he was asked to sign; the papers (Exh. 16) was shown to him, but he would 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 to sign it at once because the soldiers might come; he insisted that he should sign it because he was his lawyer, and it was for his benefit for his acquittal; 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 he was granted leave; Atty. Franco instructed him to go to Manila because he would prepare an affidavit, but he did not go there, he left Majayjay immediately even if he had not fully enjoyed his 19-day leave; he later told Capt. Alejo (government prosecutor) that Atty. Franco had made him sign Exh. 16; its contents, except for his age, are not true; for the truth is that he knew everything about the kidnapping of Elvira Taada de Principe; the document 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 in Lucena with Nelson, he knew that Nelson was writting letters, and that he (Nelson) was sign their names on the letters, but Nelson never showed the letters to him; he came to know the letters to accused Estrada only when the said letters were later discovered; he knew Col. Yan, he was taken before him at Camp Crame; Col. Yan asked him whether or not his declarations in his statement (Exh. H) were true, and he confirmed them; he was next taken before Gen. Cabal, before whom he declared that he had executed Exh. H voluntarily, i.e., that he was not maltreated by the PC; later he was taken before the late President Magsaysay in the office of the Secretary Balao, and there, he also affirmed the truth of his statement before the President.

received the money for, soon, he received the typewriter and the mimeographing machine, Comdr. Matta informing him then that Estrada had sent 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 the expenses of the two persons who had brought them; this typewriter and mimeographing machine he acquired thru Estrada's help, was delivered by him to the 26th BCT when he surrendered; he met Estrada in about a week before February 23, 1956, at noon, in Barrio Biga, Gumaca, Quezon; he was with Comdr. Teddy then, in his way to contact a certain teacher who had previously promised to help him buy some supplies; he failed to contact the teacher, and as he approached Lt. Alcantara to bid him goodbye, he heard the conversation between Lt. Alcantara and accused Estrada; Lt. Alcantara asked Estrada if Elvira Taada de Principe was the richest woman in Gumaca who could be kidnapped, and Estrada answered that she was; that was all that he heard; Lt. Alcantara then borrowed some of his men and firearms; and when his men rejoined him later, they reported to him that they had participated in the kidnapping; he recalled that he came from Barrio Malimatik, Lopez, when he went to Barrio Biga, Gumaca; he was with Comdr. Emy; those present in that meeting in Barrio Biga, Gumaca, Quezon were Estrada, Lt. Alcantara, Comdr. Teddy Corazon, Emy, Fredo and others; on March 20, 1957, he surrendered 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 the meeting in Biga, Gumaca, where he saw and heard the conversation during the meeting between Estrada and Lt. Alcantara, because he did not want his name linked with the latter; he wanted to avoid any mention about the kidnappings in the Bondoc Peninsula, because he feared that he would be included in it; that is why, when he was taken before Secretary Balao in Camp Murphy, he told him not to ask him about the kidnapping; but when he later met Antonio Campaniero @ Nelson, Melchor Gregana @ Rony and Julio Ceribo @ July who have knowledge of the secrets of these kidnappings, and the purchase of the typewriter and the mimeographing machine thru Estrada, and after knowing that Nelson, Ceribo and Angel Veran were already accused of the kidnapping, he decided to reveal the matter; and he believed that if the government were to be convinced of his loyalty they would realize that 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 its campaign for peace and order; he had contacted his former companions in the Bondoc Peninsula so that they may return and live peacefully; on November 27, 1957, about 92 of them surrendered. Other witnesses testified for the prosecution, but their testimonies deal largely on how the ransom money of P50,000.00 was finally agreed upon and delivered to Lt. Alcantara thru couriers. Thru them, the letters of Lt. Alcantara to the Principes and vice versa (Exhibits A to E) and the photograph of Lt. Alcantara (Exh. F) were identified. This picture and other exhibits, where admitted as evidence for the prosecution. For his defense, accused Jose Estrada denied his complicity in the commission of the kidnapping of Elvira Taada de Principe in the afternoon of February 27, 1956. He swore that he had never been to Barrio Biga, Gumaca, in the month of February, 1956, much less ever conferred with any Lt. Alcantara for the alleged purpose of pointing to Elvira Taada de Principe as the best kidnap victim in Gumaca. His testimony may be reduced as follows: he knew Elvira Taada de Principe; her family was his neighbors, and his younger brother, Fernando, was the godson of Elvira's father; he was elected councilor of Gumaca from 1948 to 1951; again he was elected councilor for the 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 Scouts Organization; President, PTA District league; President (twice), Purok Castillo; Vice President, Jaycees of Gumaca; Chairman, Civilian Affairs Organization; and Vice Chairman, Red Cross Campaign in 1951 for Quezon Province; the barracks of the 8th BCT in Gumaca was constructed through him; he was the moving spirit in the construction of Camp Natividad in 1948, which now houses the 38th PC Company; he joined the pacification campaign in the towns of Quezon which brought about the surrender of several firearms; he exerted efforts for the construction of the Army Officers Quarters of the 26th BCT in Calauag, Quezon; he is an informant of the Philippine Army; as such informant, he had caused the arrest of several persons; and he was commended by Col. Baltazar for his effort and cooperation with the Army; he came to know prosecution witness Antonio Campaniero alias Nelson only in court, and it is not true that he and Huk Fredo 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 he had sent them, to Congressman Roces of the CAFA; he did not know also Huk Comdr. Teddy Corazon, for he came to know him only in court; Teddy Corazon told him in jail than that it was not true that he had instructed Huk Nelson 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 merely implicated him because the PC had forced him to include him; detained prisoners Gutierrez and Mangubat were present when Ceribo told him so; he likewise did not know Huk Gonzalo Mallare (prosecution witness) before the trial, and it is not true that they met each other before; there is no truth in Mallare's testimony that he (accused) purchased a typewriter and a mimeographing machine for him; in fact, when he learned that the said typewriter and a mimeographing chine was loaded in one of his trucks for delivery to the Huks, he informed Captain Daza of the Army about it, only that Capt. Daza happened not to be there at the time; there is also no truth in the testimony of Beato Glinoga; this prosecution witness, as a matter of fact, begged his forgiveness after testifying against him, when they met in the office 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

TESTIMONY OF GONZALO MALLARE: Gonzalo Mallare testified that he was a former Huk, he surrendered to the authorities 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 was maltreated; they released him, later, however, because the Communist Party had then not yet been declared illegal; but after that he went up the mountains, and from the position of mere clerk in the Manila office of the Huks, he rose to higher positions; he was again apprehended by the PC in 1949, 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 the HMB, which he learned from Dr. Jesus Lava with jurisdiction in the province 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 was then operating in the Bondoc Peninsula; Estrada told him then that he was a friend of the Huks and the civilians, and that he was influential with the Army; Estrada told him further, that if he could be of help to him, he would do it; remembering that he was in need of a typewriter and a mimeographing machine 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 gave P650.00 P500.00 coming from him, and P150.00 coming from Comdr. Onoy to Comdr. Matta, for delivery to Estrada; he knew that Estrada

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(Estrada) and his brother to a fight; in fact, Beato Glinoga became his own witness after the relief of Col. Castillo as provincial commander of Quezon; he was combat officer in the guerrilla forces; charges of murder were filed against him after liberation, but he had been given the benefits of the guerrilla amnesty; he was also accused in the Barretto kidnapping case, but his participation there was only that he had contacted the kidnappers at the behest of the family of the victims, for purposes of reducing the amount demanded by the Huks; on the day of the kidnapping of Elvira Taada de Principe, he was at home; upon learning about it, he helped the family in raising the ransom money, he was the largest copra dealer in Gumaca; his customers owed him not less than P60,000.00; Elvira Taada de Principe's father-in-law, Marciano Principe, was also one of the largest copra dealers in the 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 the Barrettos of Gumaca, of De Leon of Catanauan and of Elvira Taada de Principe of Gumaca; he (Estrada) had not been the victim of kidnapping. Asked by the court whether kidnappings disappeared in Gumaca after his arrest, 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; they were both Huks, and had occasion to meet each other in the mountains; the last time he met Ceribo was on November 25, 1956, when Ceribo was also confined in the provincial jail of Lucena; he asked him (Ceribo) then why he was detained, and the latter answered that he was being used as witness against accused Estrada; there were many detention prisoners at the time they talked to each other, among them were Hilarion Gutierrez, Juanito Bautista, 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 going to testify against Estrada when according to him he did not know the said accused, Ceribo answered that the investigators had promised to discharge him from the complaint, and that was the only way he (Ceribo) could save himself; and Ceribo told him: "Ikaw ang tumayo sa aking kalagayan kulang lamang akoy patayin sa bugbog;" Ceribo further confided to him that had he known such treatment would happen to him, "he would not have surrendered." Other witness PEDRO MANGUBAT, a co-accused of Estrada in the Barretto kidnapping case; CENON ENTIOSCO, a prisoner serving sentence for robbery with rape and physical injuries, and also for illegal possession of firearm; and HILARION GUTIERREZ, another detention prisoner on charges of murder and robbery of which he was later convicted testified that they were all in the provincial jail of Quezon when prosecution witness Julio Ceribo was brought in there; that they all heard the conversation between Ramos and Ceribo on the one hand, and between Ceribo and accused Estrada on the other hand, and that they knew that Ceribo had told accused Estrada then that he (Ceribo) did not know Estrada. Col. ESTANISLAO BALTAZAR testified that in 1952, he was commanding officer of the 26th BCT, stationed in Calauag, Quezon; in one of the meetings he held in the town hall of Gumaca, asking the people to cooperate with the Army in its campaign against the dissidents, one of those present stood up and said, "How can you expect the people to help the Armed Forces when they do not treat the barrio people well, they are taken to the headquarters of the Army and there they are maltreated and compelled to admit crimes which they did not commit?"; he knew later on that that man who had spoken was Councilor Estrada; and soon he solicited his help; Estrada rendered valuable services to the Army then, for he had extensive connections with the barrio people and he supplied valuable information as to 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 BCT Commander, and that they (the Huks) had an upper hand. He admitted further that the information supplied by Estrada was always late, that was why they had no encounter with the dissidents. They almost caught up with the Huks in a barrio when they went to the place to verify the report made by Estrada, for the residents informed them that the Huks had left only about an hour 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 valuable information regarding the movements of the Huks. In May, 1954, Estrada reported to them the presence of Huks near the boundary of Lopez and Gumaca, and they went to the place to verify the report; unluckily, the Huks had left the day before when they reached the barrio they had visited. He was in command of the PC Detachment in Gumaca when Elvira Taada de Principe 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 30 minutes, 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 as commanding officer of Love Company, 26th BCT; even before he was stationed 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 the place; and as expected, Estrada rendered valuable services; one time, Estrada informed him that there were three (3) amazons who were willing to surrender, and he soon brought them Huk Amazons Liwayway, Leonor and 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 the information supplied by Estrada; on May 2, 1954, they received information from Estrada that the Huks had loaded some things on one of his trucks, for delivery to Barrio Labnig; he sent men to verify the report and there was an encounter; they did not catch up with the Huks, however; and according to Estrada, the things loaded on his truck were a typewriter and a mimeographing machine. The defense later placed the victim, Elvira Taada de Principe, on the witness stand. From her testimony, the defense elicited the fact that during her confinement in the mountains, Lt. Alcantara inquired from her, if she was the wife 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 kidnapping of Elvira, and who had been sentenced already in this case upon a plea of "guilty" testified that while in the mountains, he overheard the conversation between Lt. Alcantara and Elvira Taada, wherein Lt. Alcantara asked the victim if she was "Doctora". To this question, Elvira answered that she was not the doctora; she cried then and said, "I am the poorest among the Principes." MARCELO BARRAL, a resident of Gumaca who sells copra to the Principes, testified that he was in the house of Marciano Principe when Elvira arrived from the mountains after her release. He then heard Elvira talk to her sister Consuelo 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 had testified for the prosecution), BEATO GLINOGA was placed on the stand by the defense. He then made a complete turn about regarding the previous instructions of Lt. Alcantara for him to see first accused Estrada before delivering the ransom note to the Principes for the reason that Estrada knew all 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 proceed to the house of the Principes, without mention whatsoever of the name of Estrada; that he made mention of and implicated Estrada, upon orders of the PC investigators that he should mention Estrada in his affidavit, and which orders he followed, because they would not stop maltreating him; that on his way to the house of the Principes, he met Federico Caparros and another man, 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 Principes when 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 them that he was going to the poblacion, showing to them a letter which he pulled out 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 he was the counsel of Julio Ceribo in this case, and another case for rebellion in Laguna; that he prepared Ceribo's statement (Exh. 16) at the instance of Julio Ceribo who had supplied the facts contained in the said statement; that he prepared 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 its contents; and that Julio Ceribo swore to it before Notary Public Rodolfo Garduque 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 after he 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 in Pitogo, Quezon; Estrada was their informer when he was stationed there, and Estrada helped in the surrender of many Huks; ha approached Col. Castillo regarding 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 to him 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 also confided to him that he was interested in monetary considerations which he itemized 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 him P50,000.00 he would still be economizing by P16,000.00; he then immediately went to see the President and asked for the relief of Col. Castillo as Provincial Commander of Quezon, and President Magsaysay then gave him a 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 Quezon Province;" he never expected to hear from Gen. Cabal the same words which Col. Castillo had confided to him, and in exasperation he exclaimed: "it seems to 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; he recalled that he used to be in good terms with Col. Castillo before, but he became indifferent to him when he (Castillo) failed to stop him from taking interest in the Estrada case telling him that P20,000.00 was not enough; he insisted 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 and all 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 prosecution witness Julio Ceribo on the witness stand in order that he could explain why he allegedly had testified falsely against accused Estrada when he testified for the prosecution in this case, but the court below did not allow the defense to put back the witness. The trial appears to have been delayed also for a considerable time because the defense had made attempts to produce Lt. Alcantara in court, in which attempt they failed. Gen. Yan testified that a certain 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 del Castillo, who testified as follows: he was Provincial Commander of Quezon from May 2, 1956 to July 7, 1958; he was on a mission then the prosecution of all the kidnapping cases in the Bondoc Peninsula, namely: the case of Wee King of Catanauan (1954); of Saturnino Barretto and his children of Gumaca (1952); of Ex-Mayor Yumul of Lopez (1955); of Rosita de Leon of Catanauan (1955); and of Elvira Taada Principe (this case, 1956); he had no personal grudge against Estrada, for even before he came to Quezon as provincial commander, Estrada was already accused in the kidnapping case of Saturnino Barretto and his children; Antonio Nieva and many other persons 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 did not prosecute him, however, on those immoral proposals because it was hard to prove, as there were no witnesses; Nieva used to approach him during the time of his rest near his house; later, he learned that Antonio Nieva had tampered with the witnesses for the prosecution; so, he ordered his men to put Nieva "off limits" in his camp; Nieva complained to higher authorities in Quezon City, that was why said higher authorities called him there to the PC Headquarters; 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 this case; and he never demanded P50,000.00 as consideration for the quashing of 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 prosecution to establish the guilt of accused Jose Estrada are as follows: The Hukbalahaps in and around the mountains of the Bondoc Peninsula were the friends of accused Jose Estrada. With and through his help, the chairman of the educational committee of the HMB in the region, acquired a typewriter and a mimeographing 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 Taada de Principe on February 27, 1956,3 Huk Lt. Pepe Alcantara met with other Huk Commanders in Barrio Biga, Gumaca, Quezon. Lt. Alcantara gave some instructions to Comdr. Teddy Corazon then, and the latter ordered huks @ Nelson and @ Fredo to contact councilor Estrada of Gumaca in the poblacion and to tell him to see Lt. Alcantara in Barrio Biga. 4 Alias Nelson and @ 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.5During that meeting between them, Lt. Alcantara asked Estrada who (for purposes of kidnapping) was the richest man in Gumaca, and Estrada answered in Tagalog, "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 we kidnap?" Estrada suggested Elvira Taada Principe who "could easily be ransomed." Lt. Alcantara agreed to the suggestion of Estrada saying: "if that is the case, yes, let us kidnap Elvira Taada Principe, 6 it will be good for us to kidnap Elvira Taada Principe."7 The huk lieutenant told Estrada further: "you will be advised when the kidnapping will take place;"8 and Estrada answered: "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 to Gumaca and kidnapped Elvira Taada Principe from the store on the ground floor 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 the mountains near the boundaries of the towns of Gumaca, Lopez and Macalelon. The Huks kept them there for about two weeks. 10 Thereafter, Lt. Alcantara and some of his men went to Barrio Villa Taada, 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 Taada Principe, Lt. Alcantara asked Beato Glinoga to deliver his letter to the Principes. He instructed Glinoga to see Councilor Estrada first in the town, so that the latter could accompany him to the house of the Principes, and then to the mountains where he (Lt. Alcantara) would later meet them. 11 The chosen courier followed the orders of the Huk Commander. He went to the poblacion of Gumaca the following morning. He looked for Estrada, but he failed to contact him. So, he went directly to the house of Marciano Principe and personally delivered the letter of Lt. Alcantara entrusted to him.12 Marciano Principe read the letter of the Huk Commander, and then wrote an answer. He gave the same to Basilio Angulo, a compadre of his who was at the house at the time, and requested him to join Beato Glinoga back to Lt. Alcantara in Barrio Villa Taada. The courier and the emissary went

together and met Lt. Alcantara that same evening, in the mountains of Villa Taada?13 Basilio Angulo and Lt. Alcantara then had a conference. As they did, one of the huks present nudged Glinoga and inquired from him where Estrada 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 pure concoction. Naturally, he vehemently denied the truth of the above inculpatory facts proven by the prosecution, by showing that he could not have been in Barrio Biga, Gumaca, nor conferred with Lt. Alcantara at the place in February, 1956, because he never left the town of Gumaca during the said 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 the prosecution. He tried hard to convince the trial court that a man of his stature and character an elective official of social prominence and with substantial income, and commended by a ranking PC officer for "his exploits and undertakings" as an "informer" of the Army could not have been in league with the Huks in the mountains, and propose to them a neighbor and family friend as an object of the heinous crime of kidnapping for ransom. His version, however, failed to convince the trial court of his innocence of the crime imputed to him. Accused Jose Estrada has appealed from the decision. Appellant contends that the trial court had fallen into grave error in giving faith and credit to the testemonies of huks Antonio Campaniero @ Nelson, Julio Ceribo @ July, and Gonzalo Mallare @ Commander Romy. Attention is called to the fact that Nelson and Ceribo former co-accused turned state witnesses had no choice but to testify against appellant in consideration of the prosecution's promise to discharge them from the information and save their 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 the circumstances, it is argued, these witnesses had no option but to testify as the prosecution desired to secure the conviction of the appellant at all cost. There should be no quarrel that Nelson and Ceribo must have testified as state witnesses in consideration of the prosecution's promise to discharge them from the information in this case; but that is not true with respect to witness Gonzalo Mallare, who appears to have testified long after the case against him had been dismissed for insufficiency of evidence. But these circumstances alone short of any showing that in consideration of the State's leniency, these witnesses had been ordered and had agreed, not only to testify for the prosecution but also to prevaricate in their espousal of the People's cause cannot detract from their credibility. We have examined the testimonies of these witnesses with painstaking solicitude, in our sincere desire 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, they never fell into serious contradictions in their long declarations, which could reasonably be expected if they were merely concocting lies. On the contrary, they withstood the ordeals of the lengthy cross-examinations, explaining every point on which the counsels for the defense dwelled, in a straightforward and satisfactory way. The above contention of appellant, therefore, cannot be accepted. Much emphasis is placed by appellant upon the circumstance that during his confinement in the provincial jail in Lucena City, prosecution witness Nelson (then confined in the PC stockade) had written several letters addressed to him and his witness, Antonio Nieva, altogether purporting to show that Nelson had been telling them that he and his companions who had previously given statements implicating herein appellant in the commission of the crime, before the government investigators, did not really know him (Estrada); and that they implicated herein appellant in their said statements because they were maltreated by the investigators into signing them. It is our considered opinion, however, after considering the surrounding circumstances under which the letters adverted to were written, that their contents are false. Nelson declared that Antonio Nieva talked with him before he wrote the letters. Nieva explained to him that by testifying as state witness, he cannot be relieved of his responsibility in the commission of the crime. Pointing out that he (Nelson) was not just a witness but an accused (Nelson had not been discharged from the information at the time), Nieva warned Nelson that he would also be punished like Estrada, and perhaps go to the electric chair. With assurance of his close connection with Malacaang, Nieva promised Nelson that he could do something about this case in Malacaang, and Estrada would be willing to help them, provided they would not testify against the latter, otherwise, something bad would happen to them. 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 lamang kalabanin si Jose Estrada ay siya ang bahalang humango sa aming mga testigo at kung kakalabanin namin ay mapapasama kami, at binigyan po kami ng P20.00 suhol. At sinabi pa niyang siya ang bahalang lumakad sa Malacaang at sa panahong kami ay bibistahan gaya nito ay tanggihan namin at sabihin na kung kaya kami 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 stockade and asked who were the witnesses against Estrada in this case; and the witnesses 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 make him believe that they will not testify against him. Nelson explained that he believed this to be a threat on their lives, for he thought that they might have been bribed to liquidate them. So, he wrote the letter, in the presence of the said prisoners. With respect to a portion of another letter (Exh. 10), dated January 27, 1957 (letter was styled "to whom it may concern"), Nelson asked Estrada to give him some amount for cigarettes, and herein appellant would capitalize on this apparent weakness of character of Nelson to destroy his credibility. We are more inclined, however, to disregard this theory because We found that the witness had frankly admitted that he did it because Antonio Nieva had assured them that Estrada was willing to help them, and while confined in jail they (the witnesses) had agreed to milk him. In fact, in another portion of the said letter, Nelson had asked Estrada to return his letter; and Nelson explained in court later that he wanted to destroy the letter because if Col. Castillo should come to know about the lies he had told therein the more they would suffer (lalo kaming mahihirapan). Thus, he explained 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 kami kausapin ni Tony Nieva na gawin namin ang lahat ng paraan sa pagsisinungaling, tanggihan namin ang mga "statement" na nilagdaan naming kusangloob. Nangangahulugang babaligtad kami sa katotohanan tungo sa kasinungalingan.16 This jibes with the other evidence of the prosecution of record, and admitted by the witness for the defense concerned, that Antonio Nieva, for having shown extraordinary interest in this case, had thereafter been ordered "off limits" inside the PC camp. Finally, there is another circumstance that adds a ring of truth to the testimony of Nelson. Col. Castillo testified that Antonio Nieva had complained to higher authorities about him. This is admitted by defense witness Nieva who declared that he went to see the late President Magsaysay and General Cabal, and asked for the relief of Col. Castillo as provincial Commander of Quezon province by reason of his actuations in this case. As a result of Nieva's Complaint, Col. Castillo was called by higher authorities 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 Quezon City, the said official asked him if the contents of his affidavit (Exh. X, wherein he 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, before whom 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 affirmation before President Magsaysay on the same occasion. And when asked why he did not mention about the letters (Exhibits 2, 3, 10, 11 & 12) now heavily relied upon by herein appellant, Nelson declared outright in court that the contents of the said letters were not true, and he was afraid to tell any falsehood to the highest authority of the land. Such explanations, considered in the light of the surrounding circumstances, leave no iota of doubt that the witness had told the truth in court. Again herein appellant would capitalize upon the circumstances that both witnesses Ceribo and Mallare have made apparently contradictory statements (affidavits) at different times during their confinement. More specifically, it is pointed out that Mallare had disclaimed any knowledge about the kidnapping in the Bondoc Peninsula in his statement (Exh. 17) which is contrary to his later declaration in court that he heard the conversation between Lt. Alcantara and herein appellant in Barrio Biga, Gumaca, regarding the kidnapping of Elvira Taada 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. He learned later, however, that these persons were already accused in this case, and knowing that they knew all the secrets of the kidnapping, he decided to reveal his knowledge thereof. At any rate, it will be noted that Mallare's testimony regarding the involvement of appellant in this case was merely cumulative in nature, a disregard of which would not affect at all the testimonies of Nelson and Ceribo regarding the same point. And so with the alleged contradiction between the statement of Ceribo before the PC on September 12, 1956, and his subsequent affidavit prepared by his counsel on April 16, 1957. It is true that in the one (Exh. H) Ceribo had inculpated Estrada, while in the other (Exh. 16) he had exonerated him; but Ceribo explained that the contents of the latter are false. He declared that when the said document was taken to him inside the PC stockade, it was already prepared. His counsel had manifested to him that it was necessary for his acquittal, for which reason he signed it without first reading its contents. We believe this explanation of the witness is sufficient, for We find no reason for his counsel to prepare the latter affidavit when We consider the fact that Ceribo had long been discharged from the information before it was prepared. And as the trial court had aptly observed, the said affidavit was no longer necessary for the acquittal of the witness. Add to this suspicious character of Exh. 16 the unshaken testimony of the witness that its contents are 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 into nothingness. 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, and then testify for the defense. This, it is pointed out, was a denial of herein appellant's right to due process. We cannot agree. Section 14, Rule 132 of the Rules of Court explicitly provides that the court may grant or withhold leave to 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 the part of the trial court to have denied as it did, the request of the defense to recall Ceribo. The record is loaded with circumstances tending to show insidious attempts, too obvious to be overlooked, to tamper with the witnesses for the prosecution. Under the circumstances, to allow such a procedure would only encourage the perversion of truth and make a mockery of court proceedings. A certain alleged statement attributed to Lt. Alcantara, is here also relied upon by appellant to show that he (appellant) did not really suggest Elvira Taada Principe to be the kidnap victim. It appears that soon after Elvira was taken 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 time she 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 does not necessarily follow, however, that herein appellant did not really make the suggestion 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 was guilty of suppression of evidence, on account. alone of the circumstance that the highest authorities of the Army had failed to produce Lt. Alcantara in court, as desired by the defense. It is true that the prosecutor in this case was a 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 inference that he had prevailed upon his superior officers in the Armed Forces not to obey 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 was at the time "in the field of operation and his whereabouts was unknown." We see 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 criminal intention of Lt. Alcantara and his men to kidnap somebody from Gumaca for ransom. It seems, however, that they had no definite person in mind in the beginning. So much so, that they had to call for herein appellant, a councilor and 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, pinpointing Elvira, wife of one of the Principes, as the ideal victim, with the explanation that the Principe family would not meet with any difficulty in producing the ransom money for her release. Lt. Alcantara and his men became convinced of appellant's suggestion and reasoning, and then and there they decided to kidnap Elvira Taada Principe. The Huk leader told appellant that he (appellant) would be informed accordingly when the kidnapping was to be effected and the latter answered that Lt. Alcantara could count upon him all the time. Appellant knew, and must have realized the frightful consequences of being kidnapped by the Huks. He was not unaware of previous other kidnappings of prominent citizens in the Bondoc Peninsula the kidnapping of 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 in either the loss of honor of the victims, payment of huge amounts for ransom by 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 Taada Principe, who was not only detained 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. These circumstances, 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 and his men to proceed with the criminal design, thus making herein appellant a principal by inducement. However, for failure to obtain the necessary number 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 this modification, decision is affirmed by way of ordering appellant to pay the civil liability and the costs. On equitable considerations, no costs in this instance.

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 an order rendered by the Regional Trial Court at Kalookan City, Branch 129, in a prosecution 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's theory that he wilfully caused the fire in the early morning of May 21, 1987 which totally burned and destroyed the second and third floors of the "I Love You 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 demonstrate Sembrano's culpability was Benjamin Lee, a room boy of the restaurant and bath. Lee testified on direct examination at the hearing of December 8, 1987. His testimony was essentially that Sembrano had run out of the VIP room where the fire had started and refused to heed his (Lee's) call to stop. Lee took the witness stand again on April 26, 1987 during which he was crossexamined by defense counsel, gave additional evidence on redirect examination, was again questioned on recross-examination by the same defense counsel, and thereafter allowed to step down. 2 The prosecution completed presentation of its evidence-in-chief in due course. But before it could rest its case, and two (2) months or so after Benjamin Lee had completed his testimony, the defendant's original counsel, Benjamin Formoso, withdrew his appearance and was substituted by another attorney, Eduardo S. Rodriguez. 3The latter then filed a motion on June 8, 1988 to recall Benjamin Lee for further examination. 4 The ground relied upon by Atty. Rodriguez was simply that after he had reviewed the record of Benjamin Lee's testimony, he came to the conclusion that " there seems to be many points and questions that should have been asked but were not profounded (sic) by the other defense counsel who conducted.. (the crossexamination). It was on this averment, and counsel's reference to "the gravity of the offense charge (sic)" and the need "to afford the accused full opportunity to defend himself," that Lee's recall for further cross examination 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 again appear before the Court for further cross-examination. These efforts met with no success; and the trial had to be postponed several times. It appears that Lee had terminated his employment and moved elsewhere without indicating his new address. So, on October 1, 1990 the private prosecutor filed a "Manifestation and Motion" drawing attention to the inability to procure the re-appearance of witness Lee for which "the prosecution could not be held liable," and to the fact that "Lee has already been thoroughly examined by the former defense counsel," and praying upon these premises "that the farther examination of Benjamin Lee be dispensed with and ... the prosecution ... allowed to terminate 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 the witness is not the fault of the defense. 7 In the same order, the Court also set the "reception of further evidence for the prosecution, if any, ... on October 23, 1990 xx as earlier scheduled." Subsequently, it denied the private prosecutor's motion for reconsideration of the order. 8 Hence, the action at bar, instituted by the Office of the Solicitor General. The writ of certiorari prayed for will issue. The Trial Court acted with grave abuse of discretion in authorizing the recall of witness Benjamin Lee over the objections 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 recall of 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 a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests 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. The discretion to recall a witness is not properly invoked or exercisable by an applicant's mere general statement that there is a need to recall a witness "in the interest of justice," or "in order to afford a party full opportunity to present his case," or that, as here, "there seems to be many points and questions that should have been asked" in the earlier interrogation. To regard expressed 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 propound additional questions is essential before the Court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movant's part, for instance, that particularly identified material points were not covered in the cross-examination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. Absent such particulars, to repeat, there would be no foundation for a trial court to authorize the recall of any witness.

In the case at bar, the respondent Trial Court granted the defendant's motion for recall on nothing more than said movant's general claim that certain questions unspecified, it must be stressed had to be asked. In doing so, it acted without basis, exercised power whimsically or capriciously, and gravely abused its discretion. So, too, the respondent Court acted whimsically, capriciously, and oppressively, in other words, gravely abused its discretion, in ordering the striking out of the entire testimony of Benjamin Lee after it appeared that he could no longer be found and produced for further examination. In the first place, the Court acted unilaterally, without any motion to this effect by the defense and thus without according the prosecution a prior opportunity to show 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 would have been elicited by further cross-examination rendering valueless all that the witness had previously stated. It should be stressed that Lee was subjected both to cross-examination and recross-examination by former counsel of the accused Sembrano. Obviously the latter was satisfied that there had been sufficient cross-examination of the witness. Absence of crossexamination may not therefore be invoked as ground to strike out Lee's testimony (as being hearsay). And there is no showing whatever in this case that it was the prosecution that placed the witness beyond the reach of the Court, much less of the expected nature or tenor of his additional testimony which, because not presented, would necessarily cause the evidence earlier given 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's challenged 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, defendantsappellants. AVANCEA, C.J.: The Moros Sandal, Arimao, Lonsing, Mama, and Pampang appeal from the judgment of the Court of First Instance of Lanao convicting them of murder committed on the 18th of February, 1929, upon the person of Eleno Lamorena, and sentencing each of them to twenty years of cadena temporal, with the accessories of law, to indemnify the heirs of the deceased jointly and severally in the amount of P1,000, and to pay their proportional part of the costs. On the date mentioned, in Abaga, District of Monungan, Province of Lanao, Inambar, a Moro woman, heard the appellant Sandal call the deceased, and later saw them engaged in conversation. While the two were talking, appellant Pampang went up to them and with a hammer struck the deceased on the back of the neck, felling him to the ground. Sandal and the rest of the appellants, Lonsing, Arimao, and Mama, then closed in on the fallen man beating him to death. Moro Dimaponong testified that early in the morning of that day, he saw Eleno, the deceased, in Tomas Permites' warehouse, while the appellants were nearby constructing a house. When witness returned to the warehouse, he saw neither the deceased nor the defendants where he had seen them before. On that night as he was going home, witness saw appellants near a sawmill, carrying the corpse of Eleno, which they threw into the river. During the 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 following lesions: The right side of the neck and the right shoulder were bruised; the neck was fractured and the right shoulder dislocated; the right eye was bruised; marked cyanosis and acute hemorrhage of both eyes which were somewhat sunken; marked cyanosis of the lips with the incisors jutting forward 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 Tomas Permites went to Manila to look after certain matters he left Eleno in charge of his interests in Monungan. While Permites was in Manila, the appellants caused some injuries to his carabaos, as a result of which Eleno had a dispute with them. Eleno sent word of what had happened to Permites in Manila, and when the latter returned to Monungan, he verified the facts and filed a complaint against the appellants. Eleno was to be the principal witness, and the 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 the conclusion of the trial court that the appellants killed Eleno in the manner described 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 deals with the trial court's refusal to admit a certain witness presented by the defense. The court took this stand for the reason that this witness had been present during the hearing notwithstanding the court's order that all witnesses leave the court room. Under such circumstances it lies within the court's discretion to admit or reject the testimony of the witness. And although we are of opinion that the court below should have admitted the testimony of this witness, especially when he stated that he did not hear what the other witnesses testified, yet there is nothing to show that this error has affected the appellants' defense. There is nothing to show what this witness would have testified if admitted, and so it cannot be held that his failure to testify has materially affected the appellants' defense. The appellants also assign as an error the fact that the trial court failed to require the fiscal to exhibit the testimony given by the witnesses during the preliminary investigation conducted by the justice of the peace. But the only effect of this failure was to entitle the defense to adduce secondary evidence touching the testimony of said witnesses, for the purpose of attacking their veracity, should they have been presented as witnesses during the trial. Neither did the trial court commit an error in refusing the defense an extension of time to present Doctor Feliciano, for this is a matter wholly within 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 this witness's testimony. Wherefore, the judgment appealed from is affirmed, with costs against the appellants. So ordered.

In 1916, Epitacio Batara died in Isabela. Five years later or in 1921, Maria Gonzales and her grandchildren, Calixto and Resurreccion Bartolome, returned to Laoag. As they found that the house on their lot was destroyed by fire, they boarded in someone else's house. Calixto constructed a bamboo fence around his grandfather's lot and he and Resurreccion, who was studying in Laoag, cleaned it. Resurreccion went back to Isabela after Maria Gonzales' death in 1926. 7 It was also in that year when Doroteo Bartolome, to whom Epitacio had entrusted his land, migrated to Davao City. Doroteo died there two years later. 8 Thereafter, the Director of Lands instituted cadastral proceedings over the land involved herein (Cadastral Case No. 53). On October 23, 1933, Ursula Cid, 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 the north by the property of Rufo Manuel and Eugenia Andrada, on the east by the provincial road, on the south by the property of Doroteo Bartolome, and on the west by the property of Nieves Caday and Eugenia Andrada, and with a house as improvement thereon. The land was allegedly acquired by Ursula Cid through inheritance from Doroteo Bartolome, the father of Ursula's deceased husband, Bernabe. 10 More than three months later or on January 30, 1934, Resurreccion Bartolome also filed an answer in the same cadastral case claiming ownership over a portion of Lot No. 11165 with an area of 864 square meters described as bounded on the north by the property of the heirs of Rufo Manuel, 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 stated that 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 portion she had claimed to Maria Bartolome, whom she later described as the daughter of Doroteo Bartolome. 12 In 1939, Ursula Cid and her children also migrated to Davao City leaving their house on Lot No. 11165 to a lessee, Severino Ramos. Ursula and her son, Dominador Bartolome, instructed Maria Bartolome, the sister of Bernabe, to receive the rentals for the house from Severino Ramos. 13 Maria Bartolome also paid the taxes on the property until 1948, when Dominador took over the task. 14 But on September 22, 1950, Maria Bartolome, as "administrator of 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 the property 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 small amount, which could have been about P50, in consideration of the lease contract. 17 In June, 1968, the Court of First Instance of Ilocos Norte sent out notices for the "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 and Resurreccion Bartolome filed their answers to the petition in the cadastral case, 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 the children of Doroteo Bartolome and that she and her co-heirs had been excluded in Ursula Cid's answer to the petition. She therefore prayed that the answer 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 coownership over Lot No. 11165 with Clemente, Julia and Rosario Bartolome and Ursula Cid, the widow of Bernabe. She likewise alleged therein that she and her siblings inherited the 1660-square meter lot from Doroteo Bartolome. 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 her amended 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 fifty years; that she "acquired by inheritance from Bernabe Bartolome, who together with her, purchased the . . . lot which used to be three adjoining lots from their respective owners;" and that Lot No. 11165 had been declared for tax 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 the trial 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 pesos from the spouses Domingo Agustin and Josefa Manrique; 23 [b] another document dated February 18, 1913 executed by Ignacia Manrique in favor of Bernabe Bartolome evidencing the sale of another lot also for fifteen pesos; 24 and [c] still another deed executed by Maria Gonzales y Paguyo on February 9, 1917 in favor of Bernabe Bartolome and Ursula Cid ceding to the latter 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 decision the dispositive portion of which is quoted above. The court entertained only the answers of Ursula Cid and Resurreccion Bartolome. It found that the lots described 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

G.R. No. 76792 March 12, 1990 RESURRECCION BARTOLOME, ET AL., petitioners, vs. THE INTERMEDIATE APPELLATE COURT (now Court of Appeals) and HEIRS OF SPOUSES BERNABE BARTOLOME and URSULA CID, respondents. FERNAN, C.J.: This is a petition for review on certiorari of the decision of the then Intermediate Appellate Court "adjudicating the whole Lot No. 11165 in favor of" Bernabe Bartolome and Ursula Cid, thereby reversing the decision 2 of the Regional Trial Court of Ilocos Norte, Branch XII at Laoag City. The dispositive portion of the latter decision states:
1

WHEREFORE, judgment is hereby rendered adjudicating the eastern portion to the heirs of the late Epitacio Batara measuring 27 meters from south to north by 32 meters from east to west, with an area of 864 square meters, bounded on the east by the Provincial Road; on the north by the heirs of Rufo Manuel; on the west by a portion of the same Lot No. 11165; and on the south by Lot No.11164; the remaining portion to the heirs of Doroteo Bartolome, bounded on the east by the portion of Lot No. 11165 adjudicated to the heirs of Epitacio Batara and heirs of Rufo Manuel; on the north by Eugenio Andrada; on the west by Nieves Caday or Lot No. 11166; and on the south by Lot No. 11164. Likewise, the heirs of Epitacio Bartolome Batara are hereby ordered to reserved (sic) the road right of way for 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 corresponding Decree be issued accordingly. IT IS SO ORDERED. The record shows that a 725-square meter portion of said Lot No. 11165 located in Barrio 11, Laoag, Ilocos Norte, was first declared as his property by Epitacio Batara under tax declaration No. 5708 dated May 23, 1906. 3 The property 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" as improvement. Tax declaration No. 5708 was superseded by tax declaration No. 37576 labelled as a "revision of declaration of real property (urban)" dated April 23, 1914. 4 The residential lot described in the latter tax declaration 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 and Pedro. The latter died a bachelor and without issue. Catalina, who married someone surnamed Bartolome, bore five children named Isabela, Tarcila, Calixto, Resurreccion and Ruperta. In 1912, before he left Laoag to settle in Culalabo, Gamo (Burgos), Isabela, Epitacio entrusted the lot to his cousin, Doroteo Bartolome, who owned the lot bounding Epitacio's property on the south. 5 Maria Gonzales remained in the lot for sometime. When she later followed Epitacio to Isabela, she allowed Doroteo Bartolome to continue taking charge of the property. 6

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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 had filed their respective answer(s) or after the declaration of a general default," did not confer ownership on her because said possession was interrupted and merely tolerated by all the parties during the pendency of the case. 26 Ursula Cid appealed to the then Intermediate Appellate Court. In its decision reversing the lower court, the appellate court held that the deeds of sale presented 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 the lot from its acquisition and her exercise of rights of ownership over it vested her 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 review on 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 cadastral case. 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 the handwritten document in Ilocano stating that in consideration of the amount of P103.75, Maria Gonzales y Paguyo sold to the spouses Bernabe Bartolome and Ursula Cid 772 square meters of land bounded on the north by the property of Pedro Manuel, on the east by the Bacarra road, on the south by the property of Doroteo Bartolome and on the west by the property of Bernabe Bartolome. The third sheet or page 2 thereof contains a warranty against 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 the possession of his mother, Ursula Cid, when he was just eleven years old. He noticed that the document had a fourth page containing the signature of Maria Gonzales and that all four pages were sewn together. 27 However, when the document was entrusted to him by his mother in 1947 as he was then representing the family in litigation concerning the land, the document's fourth page was already missing. 28 He stated that his mother told him that the fourth page was lost during the Japanese occupation while they were evacuating from Davao City. 29 Dominador Bartolome also presented in court a sworn statement in Ilocano executed by Ursula Cid on February 19, 1937. 30 In her statement, Ursula Cid declared that the sale of the lot to her and her husband by Maria Gonzales was evidenced by a written instrument; that the land had been transferred in the name of her husband; that she had been paying taxes therefor, and that they had been in continuous possession of the land for more than twenty years. 31 Rule 132 of the Rules of Court provides: Sec. 22. Evidence of execution not necessary. Where a private writing is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its execution and authenticity need be given. We agree with the appellate court that the first two requirements ordained by 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 in 1983. 32 It was presented in court by the proper custodian thereof who is an heir 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. We hold, however, that the missing page has nonetheless affected its authenticity. Indeed, its importance cannot be overemphasized. It allegedly bears the signature of the vendor of the portion of Lot No. 11165 in question and therefore, it contains vital proof of the voluntary transmission of rights over the subject of the sale. Without that signature, the document is incomplete. Verily, an incomplete document is akin to if not worse than a document 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 was executed in 1917, Ursula Cid would have had it in her possession when she filed her answer in Cadastral Case No. 53 in 1933. Accordingly, she could have stated therein that she acquired the portion in question by purchase from Maria Gonzales. But as it turned out, she only claimed purchase as a mode 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 the property. 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 private writing must be proved either by anyone who saw the writing executed, by evidence of the genuineness of the handwriting of the maker, or by a subscribing witness. The testimony of Dominador Bartolome on Exhibit 4 and 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 be genuine. 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 be infirm. Under Article 834 of the old Civil Code, Maria Gonzales, as a surviving spouse, "shall be entitled to a portion in usufruct equal to that corresponding by way of legitime to each of the legitimate children or descendants who has not 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 conjugal property remained after all the partnership obligations and debts had been paid, the surviving spouse or her heirs could not assert any claim of right or title in or to the community property which was placed in the exclusive possession and control of the husband as administrator thereof. 36 Hence, in the 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 the institution of cadastral proceedings, or at least the publication of the notice therein issued, has the effect of suspending the running of the prescriptive period. Hence, the appellate court erred in ascribing acquisitive prescription in favor of Ursula Cid "up to the present." 38 Neither can Ursula Cid successfully assert that prior to the institution of the cadastral proceedings, she and her husband had gained acquisitive prescription over the property. Until Doroteo Bartolome migrated to Davao City in 1926, he was in possession of the whole lot including the portion entrusted 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 1933 failed to give him an advantage. It is short of the 10-year actual, adverse and uninterrupted 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 the person claiming to be the owner of a piece of land. Furthermore, while it is true that the property had been declared for tax purposes by Bernabe Bartolome and that, subsequent to his death, taxes thereon 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 the cadastral case, a tax declaration in the name of the alleged property owner or of his predecessor-in-interest, does not prove ownership. It is merely an indicium of a claim of ownership. 41 In the same manner, neither does the payment of taxes conclusively prove ownership of the land paid for. The foregoing discussion notwithstanding, the Court is unprepared to decree 824 square meters of Lot No. 11165 in favor of Resurreccion Bartolome and her co-heirs to the estate of Epitacio Batara. The revised declaration of real property 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 area greater than what their grandfather claimed as his own. Similarly, what remains of Lot No. 11165 after the portion herein adjudicated to Resurreccion Bartolome and her co-heirs has been determined, may not be granted to the heirs of Bernabe Bartolome and Ursula Cid exclusively. The two other deeds of sale presented as Exhibits 2 and 3 having been found worthless 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 the property, having been inherited from Doroteo Bartolome, must be shared in equal portions by his children or their heirs. WHEREFORE, the appealed decision of the then Intermediate Appellate Court is hereby reversed and set aside. The eastern portion of Lot No. 11165 with an area of 772 square meters is hereby adjudicated in favor of the heirs of Epitacio Batara who are herein represented 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 TEODORO RANCES, respondents. FELICIANO, J.: The petitioner, Pacific Asia Overseas Shipping Corporation (Pascor, in short), seeks the annulment and setting aside of the Resolutions of the public respondent National Labor Relations Commission (NLRC) dated 14 August 1986 and 19 November 1986, denying Pascor's appeal for having been filed out of time and denying its Motion for Reconsideration, respectively. Sometime in March 1984, private respondent Teodoro Rances was engaged by petitioner Pascor as Radio Operator of a vessel belonging to Pascor's foreign principal, the Gulf-East Ship Management Limited. Four (4) months

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later, and after having been transferred from one vessel to another four times for misbehaviour and inability to get along with officers and crew members of each of the vessels, the foreign principal terminated the services of private respondent Rances citing the latter's poor and incorrigible work attitude and incitement of others to insubordination. 1 Petitioner Pascor filed a complaint against private respondent with the Philippine Overseas Employment Administration tion (POEA) for acts unbecoming a marine officer and for, character assassination," which case was docketed as POEA Case No: M-84-09-848. Private respondent denied the charges set out in the complaint and by way of counterclaim demanded an amount of US$ 1,500.00 which a court in Dubai had, he contended, awarded in his favor against petitioner's foreign principal. In due course, on 4 September 1985, the POEA found private respondent liable for inciting another officer or seaman to insubordination and challenging a superior officer to a fist fight and imposed six (6) months suspension for each offense or a total of twelve (12) months suspension, with a warning that commission of the same or similar offense in the future would be met with a stiffer disciplinary sanction. The POEA decision passed over sub silentiothe counterclaim 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 to carry out and enforce the same award obtained by him in Dubai allegedly against Pascor's foreign principal which he had pleaded as a counterclaim in POEA Case No: M-84-09-848. Private respondent claimed that be had filed an action in the Dubai court for US$ 9,364.89, which claim was compromised by the 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 the amount sent to [her] Private respondent further claimed that since his wife did not "agree with" the amount given to her as 'an allotment for the 3-month period (of April, May and June 1984), he was entitled to recover the additional 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 unidentified translator and a copy of a transmittal letter dated 23 September 1984 signed by one Mohd Bin Saleh "Honorary Consul for Philippines." The full texts of the purported English translation of the Dubai award and of the transmittal letter are set out in the margin. 4 In its answer filed on 11 December 1985, petitioner Pascor made four principal arguments: that the copy of the Dubai decision relied upon by private respondent could not be considered as evidence, not having been properly authenticated; that Pascor was not a party to the Dubai court proceedings; that the POEA had no jurisdiction over cases for the enforcement of foreign judgments; and that the claim had already been resolved in POEA Case No: M-84-09-848, having been there dismissed as a counterclaim. In a decision dated 14 April 1986, the POEA held petitioner Pascor liable to pay private respondent Rances the amount of US$ 1,500.00 "at the prevailing rate of exchange at the time of payment." This decision was served on petitioner's counsel on 18 April 1986, which counsel filed a 'Memorandum on Appeal and/or Motion for Reconsideration" on 29 April 1986. Private respondent moved the next day for dismissal of the appeal and for issuance of a writ of execution, upon the ground that petitioner's appeal had been 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 had been occasioned by an excusable mistake. On 20 May 1986, the POEA issued an order denying petitioner's appeal for having been filed out of time. Petitioner moved for reconsideration, paid the docket fee and posted the required supercedes bond in connection with its appeal. 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 as flied out of time. Petitioner's Motion for Reconsideration was similarly denied. In the present Petition for certiorari and mandamus with prayer for Preliminary 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 the part of petitioner Pascor to file, in a timely manner, its Memorandum on Appeal which, in the circumstances of this case, should not have been disregarded by respondent NLRC. The circumstances surrounding the one (1) day delay in the filing of petitioner's Memorandum on Appeal are summed up by petitioner in the following terms: 30.1. Mr. Ruben de la Cruz, who was newly hired as messenger in the law firm representing the petitioner was tasked with the delivery of the memorandum on

appeal in the afternoon of April 28, 1986 (the last day for filing the same). 30.2. When Mr. de la Cruz read the caption of the memorandum, he noted that the same is addressed to the respondent NLRC and he erroneously concluded that it should be filed with the offices of the NLRC in Intramuros, Manila. 30.3. Wen Mr. de la Cruz presented petitioner's Appeal at the docket section of respondent NLRC, he was advised 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 error immediately proceeded to the offices of the POEA in order to have petitioner's (PASCOR's) appeal received but unfortunately, by the time he arrived thereat, the POEA office had already closed for the day. Thus, the appeal 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 1986 executed by Evelyn G. Sauza, receive . receiving clerk of respondent NLRC stating 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 filed with 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 a sufficient 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 NLRC should have recognized and heeded the requirements of orderly procedure and substantial justice which are at stake in the present case by allowing the appeal. In Siguenza v. Court of appeals, 5 the Court stressed that the right to appeal should not be lightly disregarded by a stringent application of rules of procedure especially where the appeal is on its face meritorious and the interests 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 the remedy of appeal and ruled: An appeal is an essential part of our judicial system. We have advised the courts to proceed with caution so as not to deprive a party of the right to appeal (National Waterworks and Sewerage Authority v. Municipality of Libmanan, 97 SCRA 138) and instructed that every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, freed from the constraints of technicalities (A. One Feeds, Inc. v. Court of Appeals, 100 SCRA 590).<re||an1w> The rules of procedure are not to be applied in a very rigid and technical sense. The rules of procedure are used only to help secure 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 the perfection of the appeal does not warrant its dismissal. And again inRamos 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 can be excused on the basis of equity. We should emphasize, however, that we have allowed the of an appeal in some cases where a sent application of the rules would have denied it only when to do so would serve the demands of substantial justice and in the exercise of our equity junction. In the case at bar, the petitioner's delay in their record on appeal should not be strictly construed as to deprive them of the right to appeal especially since on its face the appeal appears to be impressed appeal especially with merit. 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 Rances was enforcement of the decision rendered by c. Dubai Court which purported to award him, among other things, an additional amount of US$ 1,500.00

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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$ salary for three (3) months stated in the compromise of 1,500 TJS$ 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 the court in a decision dated September 12, 1984. Xerox copy of the decision is hereto attached as Annex "B" and the authentication as Annex "B-l' and made an integral part thereof. 3. Pertinent portion of the decision referred to above reads as follows: Both parties came to a decision that the opponent would pay to the claimant the amount of Five Thousand & Five Hundred dollars for the withdrawal of the claimant and providing him return ticket to his country. The opponent declared that he would pay One Thousand & Five Hundred Dollars to the opponent in case the wife of the claimant doesn't agree with the amount sent to. 4. During the hearing leading to the Compromise, I emphasized that the allotment I was giving my wife was US$ 765.00 per month and at the time the case was filed the allotment was already 3 months in arrears which already amounted to US$ 2,295.00. 5. The amount sent my wife which is only P 13,393.45 through PASCOR and confirmed by a Certification of the Philippine National Bank, Dagupan City Branch, hereto attached as Annex 'C' is definitely very meager compared to the exchange value of US$ 2,295.00; 6. My wife certainly did not agree and cannot agree or admit that only P 13,393.45 will be given her as an allotment for the 3-month period; hence, urder the Compromise Agreement, we are entitled to recover the additional US$ 1,500.00; 7. The agreement insofar as the additional remittance to my wife of US$1,500.00 is reasonable in that adding the same to the P13,393.45 my wife received would sum up to US$2,295.00 corresponding to the accumulated 3 month allotment due my wife. WHEREFORE, premises considered, it is respectfully prayed of this Honorable Office to Cause or require respondent to remit and/or pay the undersigned or his wife of the amount of US$ 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 the Dubai Court decision; he did not submit any copy of the 'Compromise Agreement' (assuming that to have been reduced to writing) which he presumably believed to have been absorbed and superseded by the Dubai decision. That the cause of action set out in respondent Rances' complaint was enforcement of the Dubai decision is further, indicated in the decision dated 14 April 1986 rendered by the POEA. This decision provided in part as follows: Complainant alleged that his original claim of US$ 9,364.89 for unpaid salaries, termination pay and travel expenses was filed in Dubai. In a decision rendered by the Dubai Court, his claim was compromised in the amount of US$ 5,500.00 plus return plane ticket. The amount of US$ 1,500.00 will be paid to his wife if she does not agree with the amount sent to her. The three (3) months unremitted allotments refers to the months of April, May and June 1984. As evidenced by the Allotment Shp, respondent approved the authority given 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 for allotment cover the three (3) month period was only P

13,393.45. The basis of complainant's claim is the reservation in the decision of the Dubai Court which states that in case the wife of the claimant does not agree with the amount sent to her, the opponent shall pay US$ l,500.00. 9 Clearly, therefore, respondent Rances' action was for enforcement of the Dubai decision to the extent that such decision provided for payment of an additional amount of US$1,500.00 and that respondent relied upon such decision. Petitioner argues vigorously that the POEA had no authority and jurisdiction to enforce the judgment of a foreign court. Under Section 1, Rule 1, Book VI of the POEA Rules and Regulations, it will be seen that the POEA has jurisdiction to decide all cases 'involving employer employee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment, including seamen." Respondent Rances, however, relied not upon the employer - employee relationship between himself and petitioner corporation and the latter's foreign principal, but rather upon the judgment obtained by him from the Dubai Court which had apparently already been partially satisfied by payment to respondent Rances of US$ 5,500.00. The POEA has no jurisdiction to hear and decide a claim for enforcement of a foreign judgment. Such a claim must be brought before the regular courts. The POEA is not a court; it is an administrative agency exercising, inter alia, adjudicatory or quasi-judicial functions. Neither the rules of procedure nor the rules of evidence which are mandatorily applicable in proceedings before courts, are observed in proceedings before the 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 proved before the POEA. The Dubai decision purports to be the written act or record of an act of an official body or tribunal of a foreign country, and therefore a public 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 official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal 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 the office 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, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. Sec. 26. What attestation of copy must state. Whenever a copy of a writing is attend for the purpose of 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 be under the official seal of the attesting officer, if there be any, 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 issued by 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 a faithful copy of the original decision, which attestation must furthermore be authenticated 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 by Section 25. 11 There is another problem in respect of the admissibility in evidence of the Dubai decision. The Dubai decision is accompanied by a document which purports to be an English translation of that decision., but that translation is legally defective. Section 34 of Rule 132 of the Revised Rules of Court requires that documents written in a non-official language hke Arabic) shall not be admitted as evidence unless accompanied by a translation into English or Spanish or Filipino. 12In Ahag v. Cabiling, 13 Mr. Justice Moreland elaborated on the need for a translation of a document written in a language other than an official language: ... Moreover, when there is presented in evidence an exhibit written in any language other than Spanish, if there is an appeal, that exhibit should be translated into Spanish by the official interpreter of the court, or a translation should be agreed upon by the parties, and both original and translation sent to this court. In the case before us, there is an untranslated exhibit written in the Visayan language. 14 In Teng Giok Yan v. Hon. Court of Appeals, et al., 15 the Court, speaking through Mr. Justice Montemayor, had occasion to stress the importance of having a translation made by the court interpreter who must, of course, be of

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recognized competence both in the language in which the document involved is written and in English. The Court said: [t]he trial court was certainly not bound by the translation given by the Chinese Embassy, specially in the absence of a delete assurance that said translation was correct and that it was made by the Embassy Adviser himself. On the other hand, the translation made by the court interpreter is official and reliable not only because of the recognized ability of said interpreter to translate Chinese characters into English, but also because said interpreter was under the direct supervision and control of the court. .... 16 In the instant case, there is no showing of who effected the English translation of the Dubai decision which respondent Rances submitted to the POEA. The English translation does not purport to have been made by an official court interpreter of the Philippine Government nor of the Dubai Government. Neither the Identity of the translator nor his competence in both the Arabic and English languages has been shown. The English translation submitted by the respondent is not sworn to as an accurate translation of the original decision in Arabic. Neither has that translation been agreed upon by the parties as a true and faithful one. The foregoing does not exhaust the difficulties presented by reliance upon the Dubai decision. The Dubai Court decision, even on the basis of the English translation submitted by respondent Rances, does not purport on its face to have been rendered against petitioner Pascor nor against the foreign principal of petitioner. Respondent Rances simply assumed that the decision was rendered 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 face purported to be rendered against petitioner Pascor, we must note that petitioner Pascor has expressly denied that jurisdiction had ever been acquired by the Dubai court over the person of Pascor in accordance with the Rules of Procedure applicable before the Dubai Court. 17 Respondent Rances has not proved the contents of the Dubai Rules of Procedure governing acquisition of jurisdiction over the person of a non-resident defendant. Finally, if it be assumed (arguendo, once more) that the Dubai Court had indeed acquired jurisdiction over the person of Pascor's foreign principal Gulf East Ship Management Ltd. it still would not follow that Pascor would automatically be bound by the Dubai decision. The statutory agency (or suretyship) 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 may involve a contract of employment with a Filipino seaman. We conclude that the POEA acted without or in excess of jurisdiction in rendering 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 November 1986 denying petitioner's appeal and Motion for Reconsideration. This, however, is without prejudice to the right of respondent Rances to initiate another proceeding before the POEA against petitioner Pascor, this time on the basis alone of the contract of employment which existed between said respondent and petitioner or petitioner's foreign principal; there, respondent Rances may seek to show that he is still entitled to the allotments which 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 are hereby NULLIFIED and SET ASIDE. The Temporary Restraining Order issued by this Court on 8 December 1986 is hereby made PERCENT. No pronouncement as to costs. SO ORDERED.

Petitioners-spouses Cesar C. Zalamea and Suthira Zalamea, and their daughter, Liana Zalamea, purchased three (3) airline tickets from the Manila agent of respondent TransWorld Airlines, Inc. for a flight to New York to Los Angeles on June 6, 1984. The tickets of petitioners-spouses were purchased at a discount of 75% while that of their daughter was a full fare ticket. All three tickets represented confirmed reservations. While in New York, on June 4, 1984, petitioners received notice of the reconfirmation of their reservations for said flight. On the appointed date, however, petitioners checked in at 10:00 a.m., an hour earlier than the scheduled flight at 11:00 a.m. but were placed on the wait-list because the number of passengers who had checked in before them had already taken all the 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 a party of two." Out of the 42 names on the wait list, the first 22 names were eventually allowed to board the flight to Los Angeles, including petitioner Cesar Zalamea. The two others, on the other hand, at No. 34, being ranked lower than 22, were not able to fly. As it were, those holding full-fare tickets were given first priority among the wait-listed passengers. Mr. Zalamea, who was holding the full-fare ticket of his daughter, was allowed to board the plane; while his wife and daughter, who presented the discounted tickets were denied boarding. According to Mr. Zalamea, it was only later when he discovered 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, they were constrained to book in another flight and purchased two tickets from American 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 in favor of petitioners in its decision 1 dated January 9, 1989 the dispositive portion of which states as follows: WHEREFORE, judgment is hereby rendered ordering the 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 by Suthira and Liana Zalamea from American Airlines, to enable 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's ticket 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 for TWA Flight 007, (4) Two Hundred Fifty Thousand Pesos (P250,000.00), Philippine Currency, as moral damages for all the plaintiffs' (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 are recoverable 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 in the United States and is specifically allowed under the Code of Federal Regulations by the Civil Aeronautics Board, no fraud nor bad faith could be imputed on respondent TransWorld Airlines. Moreover, while respondent TWA was remiss in not informing petitioners that the flight was overbooked and that even a person with a confirmed reservation may be denied accommodation on an overbooked flight, nevertheless it ruled that such omission or negligence cannot under the circumstances 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 the wait-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 decision under review is hereby MODIFIED in that the award of moral and exemplary damages to the plaintiffs is eliminated, and the defendant-appellant is hereby ordered to pay the plaintiff the following amounts: (1) US$159.49, or its peso equivalent at the time of the payment, representing the price of Suthira Zalamea's ticket for TWA Flight 007; (2) US$159.49, or its peso equivalent at the time of the payment, representing the price of Cesar Zalamea's ticket for TWA Flight 007; (3) P50,000.00 as and for attorney's fees.

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 in TWA Flight 007 departing from New York to Los Angeles on June 6, 1984 despite possession of confirmed tickets, petitioners filed an action for damages before the Regional Trial Court of Makati, Metro Manila, Branch 145. Advocating petitioner's position, the trial court categorically ruled that respondent TransWorld Airlines (TWA) breached its contract of carriage with petitioners and that said breach was "characterized by bad faith." On appeal, however, the appellate court found that while there was a breach of contract on respondent TWA's part, there was neither fraud nor bad faith because under the Code of Federal Regulations by the Civil Aeronautics Board of the United States of America it is allowed to overbook flights. The factual backdrop of the case is as follows:

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(4) The costs of suit. SO ORDERED. 4 Not satisfied with the decision, petitioners raised the case on petition for review on certiorari and alleged the following errors committed by the respondent Court of Appeals, to wit: I. . . . IN HOLDING THAT THERE WAS NO FRAUD OR BAD FAITH ON THE PART OF RESPONDENT TWA BECAUSE IT HAS A RIGHT TO OVERBOOK FLIGHTS. II. . . . IN ELIMINATING THE AWARD OF EXEMPLARY DAMAGES. III. . . . IN NOT ORDERING THE REFUND OF LIANA ZALAMEA'S TWA TICKET AND PAYMENT FOR THE AMERICAN 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 allegedly authorizing overbooking has never been proved. Foreign laws do not prove themselves nor can the courts take judicial notice of them. Like any other fact, they must be alleged and proved. 6 Written law may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody. The certificate may be made by a secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. 7 Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its customer service agent, in her deposition dated January 27, 1986 that the Code of Federal Regulations of the Civil Aeronautics Board allows overbooking. Aside from said statement, no official publication of said code was presented as evidence. Thus, respondent court's finding that overbooking is specifically allowed by the US Code of Federal Regulations has no basis in fact. Even if the claimed U.S. Code of Federal Regulations does exist, the same is not 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 are residents and nationals of the forum and the ticket is issued in such State by the defendant airline. 8 Since the tickets were sold and issued in the Philippines, the applicable law in this case would be Philippine law. Existing jurisprudence explicitly states that overbooking amounts to bad faith, entitling the passengers concerned to an award of moral damages. In Alitalia Airways v. Court of Appeals, 9 where passengers with confirmed bookings were refused carriage on the last minute, this Court held that when an airline issues a ticket to a passenger confirmed on a particular flight, on a certain 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, then the carrier opens itself to a suit for breach of contract of carriage. Where an airline had deliberately overbooked, it took the risk of having to deprive some passengers of their seats in case all of them would show up for the check in. For the indignity and inconvenience of being refused a confirmed seat on the last minute, said passenger is entitled to an award of moral damages. Similarly, in Korean Airlines Co., Ltd. v. Court of Appeals, 10 where private respondent was not allowed to board the plane because her seat had already been given to another passenger even before the allowable period for passengers to check in had lapsed despite the fact that she had a confirmed ticket and she had arrived on time, this Court held that petitioner airline acted in bad faith in violating private respondent's rights under their contract of carriage and is therefore liable for the injuries she has sustained as 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 the necessary ticket, baggage claim and clearance from immigration all clearly and unmistakably showing that she was, in fact, included in the passenger manifest of said flight, and yet was denied accommodation in said flight, this Court did not hesitate to affirm the lower court's finding awarding her damages. A contract to transport passengers is quite different in kind and degree from any other contractual relation. So ruled this Court in Zulueta v. Pan American World Airways, Inc. 12 This is so, for a contract of carriage generates a relation attended with public duty a duty to provide public service and convenience to its passengers which must be paramount to self-interest or enrichment. Thus, it was also held that the switch of planes from Lockheed 1011 to a smaller Boeing 707 because there were only 138 confirmed economy class passengers who could very well be accommodated in the smaller planes, thereby sacrificing the comfort of its first class passengers for the 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 consideration entitles the passenger to an award of moral damages. 13 Even on the assumption that overbooking is allowed, respondent TWA is still guilty of bad faith in not informing its passengers beforehand that it could breach the contract of carriage even if they have confirmed tickets if there was overbooking. Respondent TWA should have incorporated stipulations on overbooking on the tickets issued or to properly inform its passengers about these policies so that the latter would be prepared for such eventuality or would have the choice to ride with another airline. Respondent TWA contends that Exhibit I, the detached flight coupon upon which were written the name of the passenger and the points of origin and destination, 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 I was used for flight 007 in first class of June 11, 1984 from New York to Los Angeles. Moreover, respondent TWA was also guilty of not informing its passengers of its alleged policy of giving less priority to discounted tickets. While the petitioners had checked in at the same time, and held confirmed tickets, yet, only one of them was allowed to board the plane ten minutes before departure time because the full-fare ticket he was holding was given priority over discounted tickets. The other two petitioners were left behind. It is respondent TWA's position that the practice of overbooking and the airline system of boarding priorities are reasonable policies, which when implemented do not amount to bad faith. But the issue raised in this case is not the reasonableness of said policies but whether or not said policies were incorporated 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 petitioners were duly apprised of the overbooked condition of the flight or that there is a hierarchy of boarding priorities in booking passengers. It is evident that petitioners had the right to rely upon the assurance of respondent TWA, thru its agent in Manila, then in New York, that their tickets represented confirmed seats without any qualification. The failure of respondent TWA to so inform them when it could easily have done so thereby enabling respondent to hold on to them as passengers up to the last minute amounts to bad faith. Evidently, respondent TWA placed its self-interest over the rights of petitioners under their contracts of carriage. Such conscious disregard of petitioners' rights makes respondent TWA liable for moral damages. To deter breach of contracts by respondent TWA in similar fashion in the future, we adjudge respondent TWA liable for exemplary damages, as well. Petitioners also assail the respondent court's decision not to require the refund of Liana Zalamea's ticket because the ticket was used by her father. On this score, we uphold the respondent court. Petitioners had not shown with certainty that the act of respondent TWA in allowing Mr. Zalamea to use the ticket of her daughter was due to inadvertence or deliberate act. Petitioners had also failed to establish that they did not accede to said agreement. The logical conclusion, therefore, is that both petitioners and respondent TWA agreed, albeit impliedly, to the course of action taken. The respondent court erred, however, in not ordering the refund of the American Airlines tickets purchased and used by petitioners Suthira and Liana. The evidence shows that petitioners Suthira and Liana were constrained to take the American Airlines flight to Los Angeles not because they "opted not to use their TWA tickets on another TWA flight" but because respondent TWA could not accommodate them either on the next TWA flight which was also fully booked. 14 The purchase of the American Airlines tickets by petitioners Suthira and Liana was the consequence of respondent TWA's unjustifiable breach of its contracts of carriage with petitioners. In accordance with Article 2201, New Civil Code, respondent TWA should, therefore, be responsible for all damages which may be reasonably attributed to the non-performance of its obligation. In the previously cited case of Alitalia Airways v. Court of Appeals, 15 this Court explicitly held that a passenger is entitled to be reimbursed for the cost of the tickets he had to buy for a flight to another airline. Thus, instead of simply being refunded for the cost of the unused TWA tickets, petitioners should be awarded the actual cost of their flight from New York to Los Angeles. On this score, we differ from the trial court's ruling which ordered not only the reimbursement of the American Airlines tickets but also the refund of the unused TWA tickets. To require both prestations would have enabled petitioners to fly from New York to Los Angeles without any fare being paid. The award to petitioners of attorney's fees is also justified under Article 2208(2) of the Civil Code which allows recovery when the defendant's act or omission has compelled plaintiff to litigate or to incur expenses to protect his interest. However, the award for moral damages and exemplary damages by the trial court is excessive in the light of the fact that only Suthira and Liana Zalamea were actually "bumped off." An award of P50,000.00 moral damages and another P50,000.00 exemplary damages would suffice under the circumstances obtaining in the instant case. WHEREFORE, the petition is hereby GRANTED and the decision of the respondent Court of Appeals is hereby MODIFIED to the extent of adjudging respondent TransWorld Airlines to pay damages to petitioners in the following amounts, to wit: (1) US$918.00 or its peso equivalent at the time of payment representing the price of the tickets bought by Suthira and Liana Zalamea from American Airlines, to enable them to fly to Los Angeles from New York City;

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(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.

OWNER. The cost of making good any/all work shall be solely borne by the CONTRACTOR. xxxx 7.0. The CONTRACTOR warrants the Sprinkler System installations under this contract to be free from faults or defects in materials and workmanship for a period of One (1) year from the date of initial operations. Faults caused by or due to ordinary wear and tear or those caused by the OWNER or its employees are excluded from this guarantee.1awphi1.nt

G.R. No. 156251

April 27, 2007

PHILIPPINE REALTY HOLDINGS CORPORATION, Petitioner, vs. FIREMATIC PHILIPPINES, INC., Respondent. DECISION CALLEJO, SR., J.: This is a Petition for Review on Certiorari of the of the Court of Appeals (CA) in CA-G.R. CV No. 63791 and its Resolution2 dated November 19, 2002. The Antecedents On December 12, 1989, Philippine Realty and Holdings Corporation (PRHC), entered into a Construction Agreement3 with Firematic Philippines, Inc. (Firematic) for the installation of a sprinkler system in the proposed Tektite Towers, located at Tektite Road corner Pearl Avenue, Mandaluyong, Metro Manila. 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 the Contract, thus: 1.0 The CONTRACTOR, in consideration of the payments to be made by OWNER, of certain sums of money in the manner hereinafter specified, shall fully and faithfully deliver, perform and undertake to finish and supply all the materials, tools, equipment, supervision and to do all the skills and labor necessary or proper for the due completion of the Sprinkler System for the abovementioned project, and does hereby warrant and guarantee that the said work and labor shall be performed in the most proper and workmanlike manner and in full conformity with the corresponding plans and specifications duly prepared therefor and/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 the quantity and quality of materials within the premises of the construction site, and rejecting or returning defective materials. 3.0 The CONTRACTOR is hereby expressly required to refer to all Mechanical, Plumbing, Electrical, Structural and Architectural plans and specifications and shall investigate any possible interference and conditions affecting its contract work. 4.0 All materials supplied by the CONTRACTOR shall be in conformity with the Sprinkler System specifications prepared by R. 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 have been specifically mentioned or indicated on the drawings, shall be furnished and installed by CONTRACTOR, if necessary to complete the system in accordance with the best practice of Sprinker System and to the satisfaction of the OWNER.4 Under Article I of the Contract, the following documents were incorporated into 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 duly signed by the Owner and the Contractor consisting of Two (2) sheets.5 Article IX of the Contract enumerates the responsibilities of Firematic relative to the supply and installation of the sprinkler supplies: 1.0. The CONTRACTOR shall remove all portions of work which the OWNER or its representative may condemn as in any way having failed to conform with the corresponding Sprinkler Systems plans and specifications, and the CONTRACTOR shall properly make good all such work so condemned by the Decision1

The CONTRACTOR further warrants all equipment and accessories thereto to be 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 said period of guarantee shall be replaced by the CONTRACTOR at no cost to the OWNER. On December 11, 1990, PRHC informed6 Firematic that it had decided to delete Phase II (Tower II) from the original contract, and consequently, the contract price for Phase I was reduced to P22,153,424.52.7 However, by reason of the change orders approved by PRHC, the contract price was increased to P24,773,376.48.8 On December 13, 1990, PRHC and Firematic entered into another Construction Agreement9 under which the latter undertook to supply, deliver and install the fire alarm system for Phase I of the Tektite Project for a total contract price of P3,780,000.00. This agreement contains substantially the same 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 xxxx 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 require products to bear labels indicating the listing, or approval of items of equipment, components, devices, assemblies and apparatus; by an internationally recognized testing laboratory for the specific service intended. 1.03. STANDARD SPECIFICATIONS AND CODES: xxxx 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 complete performance of the works called for under this agreement, a fixed amount of PESOS: THIRTY THREE MILLION NINE HUNDRED NINETY FIVE THOUSAND 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 approved by the Owner and the Architect and due to official increase in minimum wage as covered by the Labor Cost Adjustment Clause below. x x x It is understood that 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 or alterations by correcting, altering or deducting from the work to be undertaken or being undertaken by the CONTRACTOR. All such work shall be evidenced by Change Orders signed by the OWNER and shall be executed under the conditions hereof and of the Contract Documents. No claims for additions or deductions to the Contract Price herein stipulated by reason of extra or alteration shall be valid unless ordered in writing by the Owner. The value of any extra work or alterations shall be separately agreed upon by the parties in writing. Any value of Change Orders approved shall be considered as part of the Contract 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 claim against 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 due to 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 and PRHC approved the use of 500 GPM (12 LB-F model) Peerless Vertical Turbine Fire Pumps.14 To facilitate the purchase of the approved model and specifications of the fire pumps from Technotrade Industrial Sales, Inc., and pursuant to the financial assistance earlier requested by Firematic, the latter presented to PRHC for approval Purchase Order No. 108 15 dated August 6, 1992. PRHC approved the purchase order. The subject materials were delivered and eventually installed by Firematic.

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On the other hand, the Technical Specifications for Fire Alarm and Detection System16 provides: 2.01. FIRE ALARM CONTROL PANEL (FACP): xxxx B. The FACP shall be solid state design with full capability for sensing automatic detectors, and manual stations and have the provision for integrating with security system.17 Paragraph 9 of Bid Bulletin No. dated September 10, 1990 provides that the requirement for interfacing with Security System Section under Section 2.01(B) is actually for interfacing with the Building Management System (BMS).19 The materials were installed by Firematic. The project became operational and was turned over to PRHC, which then issued the Certificate of Completion.20 The Municipal Mayor issued a Certificate of Occupancy in favor of PRHC on January 12, 1993.21 In the meantime, PRHC requested the Connel Bros. Co., Philippines for a quotation of the Peerless UL/FU Fire pump similar to those installed by Firematic in Tektite Tower I.22 However, Connel Bros. Philippines, Inc. replied by letter dated September 2, 1993 that it would be difficult for them to 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 supplies installed.24 However, PRHC rejected the claim. On October 20, 1993, PRHC, through counsel, sent a letter25 to Firematic claiming that, based on its Purchase Order, the brand "Peerless" should have been used; however, the manufacturer of the brand (Peerless Pump Co., USA), did not have any record of having manufactured the pumps that Firematic delivered and installed on the 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 inquired about the fire incident that occurred at Tower II while construction was ongoing.26 In response to the inquiry, the City Fire Marshall issued a report27 dated June 10, 1994 stating that "said fire could have turned into a conflagration size without the swift response of the company guards on duty plus 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 a dealer of "Peerless" pump. On January 12, 1995, Firematic sent its final billing29 and a demand letter30 prepared by its counsel to PRHC for the payment of the latters balance of the contract price amounting to P3,919,283.13, including the unacted charge order attached thereto.1vvphi1.nt In answer to the final billing of Firematic, PRHC denied31 liability for the following reasons: 1.[The] installation is incomplete and has not been fully commissioned. 2.[The] Fire Alarm Panels could not be interfaced with Building Management System as required in [the] contract x x x. 3.[The] Fire Alarm Panels do not follow the specifications required in the contract. In a dated March 6, 1995, PRHC informed Firematic that all the fire pumps and accessories supplied by it shall be removed, and the cost of replacement, including the labor cost of the installation, would be chargeable to 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 Purchase Orders: (1) P.O. dated November 15, 1993 for pumps obtained from Connel Bros. Company Pilipinas, Inc. amounting to US$ 61,925.00; 34 (2) P.O. dated October 25, 1994 for fire and jockey pumps installation amounting to P318,750.00;35 and (3) P.O. dated October 4, 1995 for materials purchased from Electro Systems, for a total amount of P450,000.00.36 The Peerless pumps bought by PRHC to replace the pumps Firematic had installed were higher 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 Regional Trial Court of Makati, and was docketed as Civil Case No. 95-394. Firematic alleged in its complaint that when it followed up its final billings and retention money, the PRHC, under new management, refused to pay its obligation. It further claimed that the PRHCs reason, that the sprinkler system and fire alarm system were defective was so flimsy because the sprinkler and fire alarm systems were certified to be in good condition. Firematic also asserted that because of PRHCs 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 attorneys fees equivalent to 25% of the amount recoverable. The complaint contained the following prayer: letter32 118

WHEREFORE, Premises Considered, it is respectfully pray (sic) of the Honorable Court that after trial a judgment be rendered ordering the defendant 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 attorneys 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 submitted first 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 actual works completed in accordance with the technical specifications amounted only 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 was concerned. As to the fire alarm contract, PRHC alleged that it paid a total sum of P3,247,966.49, but it turned out that the works actually completed in accordance with the specifications of the contract amounted only to P2,857,655.10. PRHC insisted that Firematic committed fraud in the performance of its obligations under the two contracts in (1) actually delivering 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 could not be connected or interfaced with the Building Management System. In its Reply,41 Firematic alleged that the provision on arbitration had force and effect only during the execution and performance of the agreement or contract and not after its termination. It further asserted that the total contract 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, with the 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 were under 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 fire alarm system could not be interfaced with its system because it was the latters responsibility to provide for an interface device. On September 1, 1998, PRHC filed a Motion for Leave to Amend Answer to Conform to Evidence42 which Firematic opposed. On October 26, 1998, the trial court granted the motion and thereby admitted the Amended Answer.43 In its Amended Answer, PRHC claimed that, with respect to the fire sprinkler system, the actual works completed by Firematic amounted to only P20,613,302.45. Thus, it (PRHC) made an overpayment ofP1,485,000.00. As to the fire alarm system, the works actually completed in accordance with the technical specifications amounted to only P2,597,966.49. Again, there was an overpayment of P650,000.00. By way of counterclaim, PRHC averred that Firematics 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; the baseless and unfounded suit caused it to suffer besmirched reputation, for which 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 from committing fraud in the performance of the contract, Firematic should be ordered to pay exemplary damages in the amount ofP10,000.00; and since the unfounded suit compelled PRHC to obtain the services of counsel, Firematic should be made to pay 25% of the amount recovered as attorneys fees.44 After trial on the merits, the RTC ruled in favor of PRHC. The fallo of the decision45 reads: IN VIEW OF THE FOREGOING, judgment is hereby rendered dismissing the above 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 the Peerless pump were bought) representing the purchase price of the genuine Peerless fire pumps,P318,750.00 representing the amount to install the replacement fire pumps, P450,000.00 representing the amount of supply and installation of replacement fire alarm panels plus P25,000.00 as attorneys fees. SO ORDERED.46 The RTC concluded that in failing to deliver genuine Peerless Pumps as agreed upon, and to install fire alarm system that could be interfaced with the system, Firematic failed to comply with the technical specifications of the contracts.47 Aggrieved, Firematic appealed to the CA, raising the following errors: I.

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THE HONORABLE COURT ERRED IN FINDING PLAINTIFF-APPELLANT OF HAVING FAILED TO DELIVER AND TRANSFER TO DEFENDANT-APPELLEE SPRINKLER SYSTEM AND FIRE ALARM SYSTEMS IN ACCORDANCE WITH THE CONTRACTS. II. THE HONORABLE COURT ERRED IN FINDING THE PEERLESS FIRE PUMPS AS FAKE. III. THE HONORABLE COURT ERRED IN FINDING PLAINTIFF-APPELLANT OF HAVING FAILED TO COMPLY WITH THE TECHNICAL SPECIFICATIONS OF THE FIRE ALARM SYSTEM CONTRACT. IV. DEFENDANT IS LIABLE TO PLAINTIFF-APPELLANT FOR THE DAMAGES PRAYED FOR.48 On July 10, 2002, the CA rendered judgment reversing the decision of the RTC. The fallo reads: WHEREFORE, the foregoing considered, the Decision appealed from is hereby ANNULLED. The appellee is hereby ORDERED to pay, in view of the above premises and computations, the sum of P852,566.96, with legal interest from 7 March 1995, the date the complaint was filed. 49 The CA declared that PRHCs belated claim was highly doubtful since PRHC had ordered the pumps from Technotrade, albeit through the Firematic, and were inspected and scrutinized by its consultants who are experts in their fields.50 The appellate court likewise agreed with Firematic that the documents presented in evidence by PRHC to prove that the pumps supplied by Technotrade were not genuine "Peerless" pumps are inadmissible for being hearsay.51 According to the CA, it is possible that it was not the appellant but Technotrade that was guilty of fraud in supplying dubious pumps to PRHC.52 However, the CA affirmed the findings of the RTC that appellant committed a breach of contract in installing the fire control panels because of its failure to comply with the requirement of interfacing with its system. Since PRHC was constrained to incur P450,000.00 to undo the work of Firematic, it was convinced that the unfinished work amounted to P1,372,507.07. Thus, the appellate court held that Firematic was liable to PRHC for a total amount of P1,822,507.07, while PRHC had an unpaid obligation to Firematic amounting 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 for Reconsideration and Clarification54 and Motion for Partial Reconsideration,55 respectively. On November 19, 2002, the CA issued the following Resolution: 56 WHEREFORE, premises considered, the Decision of 10 July 2002 is hereby MODIFIED, and instead of P852,566.96, the appellee is hereby ORDERED to pay 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 courts ruling reversed on the following grounds: 1. The Court of Appeals committed reversible error when it came out with a conclusion based on a manifestly mistaken inference or based on misapprehension of facts, inasmuch as its findings are contradictory to the evidence on record. Specifically, the Court of Appeals committed reversible error when it ruled that the fire pumps supplied and delivered by FIREMATIC to PHILREALTY conformed to the technical specifications of the sprinkler system contract despite evidence to the contrary. 2. The Court of Appeals committed reversible error when it again came out with a conclusion based on a manifestly mistaken inference. Specifically, the Court of Appeals committed reversible error when it unjustifiably disregarded petitioners 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 came out with a conclusion based on a manifestly mistaken inference and based on misapprehension of facts. Specifically, the Court of Appeals erred that the issuance of a Certificate of Completion proved the genuineness of fire pumps and the compliance with the technical specifications of the contract.58 The threshold issue raised is whether or not the fire pumps supplied and delivered by respondent to petitioner conformed to the technical specifications of the contract. Petitioner argues that while it is true that the particular model of the pumps for the fire control system was not specified in the technical specifications for fire 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 to such specification, respondent in fact submitted for approval the brochure of Peerless Pumps. Petitioner further insists that it was respondent who brought 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 its responsibility under the contract. Moreover, petitioner asserts, because respondent failed to dispute its claim and present proof that the fire pumps delivered were genuine, it had impliedly admitted that the fire pumps were not original Peerless pumps. Petitioner further contends that the issuance of the certificate of completion and the fact that the fire pumps were used did not cure their defects. For its part, respondent contends that the fire pumps were inspected, examined and tested by petitioners technical staff, and that t he latter found them to be operational. Thus, it cannot now be permitted to belatedly complain. According to respondent, petitioner admitted that when the fire pumps were changed, the replacement pumps installed by the latter were higher in terms of capacity. Respondent likewise reiterates that the evidence presented by petitioner to prove that the fire pumps were not genuine is inadmissible in evidence for being hearsay. It claimed that the CA erred in ordering petitioner to pay to it the principal amount of only P852,566.96. Respondent maintains that, as shown by the evidence on record, petitioner owed 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 prays for the following relief: 1.) The herein Petition for Review on Certiorari filed by Petitioner Philippine 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 Thousand Four Hundred Eighteen & 87/100 (P10,399,418.89) Pesos, for the fully completed installation of the Fire Sprinkler 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 by way of actual damages; b.) Five Hundred Thousand (P500,000.00) Pesos as and by way of exemplary, nominal or moderate damages; c.) Attorneys fees at the rate of Twenty (sic) (25%) percent of the award of actual damages abovementioned; d.) Such other reliefs and remedies as may be just and equitable 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 to maintain the judgment on other grounds, but he cannot seek modification or reversal of the judgment or affirmative relief unless he has also appealed (or filed a separate petition).61 Thus, due to respondents failure to institute a separate petition before this Court, the CA decision must perforce be considered 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 to present proofs of the genuineness of the pumps; (2) respondent failed to answer petitioners letters requiring it to present the aforesaid proofs, thus, estoppel by silence applies; and (3) the manufacturer of the Peerless pumps verbally 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 a transaction bears the burden of proof. The circumstances evidencing fraud are as varied as the people who perpetrate it in each case. It may assume different shapes and forms; it may be committed in as many different ways. Thus, the law requires that fraud be established, not just by preponderance of evidence, but by clear and convincing evidence.62 In this case, petitioner relied on the principle of estoppel by silence, as well as on Letter No. L/93-27263 and Letter No. L/94-04364 of Connel Bros. to prove 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:

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With reference to your letter dated November 15, 1993, please find attached a (sic) copy of facsimile message dated December 15, 1993 from our principal, Peerless Pump, USA. Please take note that they normally trace the authenticity of the pump through the pump model and pump serial number. It would be then difficult for the factory to trace whether they have indeed records of transactions with Technotrade-USA because the pump model and serial number that you furnished 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 Road Ortigas Center, Pasig, M.M. Attention: MR. EDUARDO B. BANAAG Vice President Subject: EXISTING FIRE PUMPS AT TEKTITE TOWER I Gentlemen: We apologize for the delay in our reply to your letter of December 16, 1994 regarding your clarification on the above subject. Please find attached a (sic) copy of our Letter No. F/93-071 dated December 20, 1993 addressed to our principal wherein we enclosed your above stated letter . However, inspite of constant follow-ups and reminder, we could not have a confirmation from our principal on your requested information. Mr. John Kahren, Peerless Pumps Director for International Sales, verbally advised that they have no access or capability to verify whether there is such an organization named Technotrade operating in the U.S.A. They can only confirm that they never had direct negotiation with Technotrade in record and as such, Technotrade is not a dealer of Peerless pump. We hope the above statement will in any way answer your requested clarification. Very truly yours, E.L. STA. MARIA, JR. Asst. Vice President Machineries Department ELS: LTV Att.: 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 also appears 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 with Technotrade, and as such, the latter is not a dealer of the pumps. Well-entrenched is the rule that a private certification is hearsay where the person who issued the same was never presented as a witness. The same is true of letters. While hearsay evidence may be admitted because of lack of objection by the adverse partys counsel, it is nonetheless without probative value.65 Stated differently, the declarants of written statements pertaining to disputed facts must be presented at the trial for cross-examination.66 The lack 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 probative value.67 Petitioner asserts that respondent impliedly admitted that the fire pumps it installed were "not of Peerless origin" because of its failure to dispute petitioners accusation and to present proofs that the fire pumps delivered were genuine. Thus, petitioner contends that estoppel by silence applies to respondent. The principle of estoppel in pais applies wherein one, by his acts, representations or admissions, or by his own silence when he ought to speak out, intentionally or through culpable negligence, induces another to believe certain 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 existence of such facts.68

We find the principle inapplicable in the present case. Acording to respondents Managing Director Jojie S. Gador, she did not com pletely keep silent on petitioners accusation. She testified that when petitioner refused to pay respondent, she went to the Fire Department of the City of Pasig and made an inquiry regarding the fire incident that took place at the Tektite project.69 In answer to this inquiry, the Fire Department issued a Certification70stating, inter alia, that the office71 was very much delighted because the management of Tektite Tower had substantially complied with the safety requirements of Presidential Decree No. 1185.72 In making such inquiry, respondent in effect denied petitioners accusation that the fire pumps it had installed were defective; as such, the principle of estoppel by silence 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. The burden of proof to show that the pumps were not genuine fell upon petitioner. However, the records show that petitioner failed to discharge this burden. Clearly, the evidence relied upon is not sufficient to overturn (1) the presumption of good faith; (2) that private transactions have been fair and regular;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 its Resolution 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. DECISION 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 City dated May 29, 1998 in Civil Case No. CEB-16474; and the CA Resolution dated May 26, 2004 denying petitioners motion for reconsideration. The facts are as follows: Emmanuel B. Aznar (Aznar), a known businessman2 in Cebu, is a holder of a Preferred Master Credit Card (Mastercard) bearing number 5423-39200786-7012 issued by Citibank with a credit limit of P150,000.00. As he and his wife, Zoraida, planned to take their two grandchildren, Melissa and Richard 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 Kuala Lumpur for his group worth P237,000.00. On July 17, 1994, Aznar, his wife and grandchildren left Cebu for the said destination. 4 Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and Indonesia, the same was not honored. 5 And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it was again dishonored for the reason that his card was blacklisted by Citibank. Such dishonor forced him to buy the tickets in cash.6 He further claims that his humiliation caused by the denial of his card was aggravated when Ingtan Agency spoke of swindlers trying to use blacklisted cards.7 Aznar and his group returned to the Philippines 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, Cebu City, claiming that Citibank fraudulently or with gross negligence blacklisted his Mastercard which forced him, his wife and grandchildren to abort important tour destinations and prevented them from buying certain items in their tour.9 He further claimed that he suffered mental anguish, serious anxiety, wounded feelings, besmirched reputation and social humiliation due to the wrongful blacklisting of his card. 10 To prove that Citibank blacklisted his Mastercard, Aznar presented a computer print-out, denominated as ONLINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi (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 Aznars card. It also contended that under the terms and conditions governing the issuance and use of its credit cards, Citibank is exempt from any liability for the dishonor of its cards by any merchant affiliate, and that its liability for any action or incident which may be brought against it in relation to the issuance and use of its credit cards is limited to P1,000.00 or the actual damage proven whichever is lesser.13

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To prove that they did not blacklist Aznars card, Citibanks Credit Card Department Head, Dennis Flores, presented Warning Cancellation Bulletins which contained the list of its canceled cards covering the period of Aznars trip.14 On May 29, 1998, RTC Branch 20, Cebu City, through Judge Ferdinand J. Marcos, rendered its decision dismissing Aznars complaint for lack of merit.15 The trial court held that as between the computer printout16presented by Aznar and the Warning Cancellation Bulletins17 presented by Citibank, the latter had more weight as their due execution and authenticity were duly established by Citibank.18 The trial court also held that even if it was shown that Aznars 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 case saying that Judge Marcos could not be impartial as he himself is a holder of a Citibank credit card.20 The case was re-raffled21 and on November 25, 1998, the RTC, this time through Judge Jesus S. De la Pea of Branch 10 of Cebu City, issued an Order granting Aznars motion for reconsideration, as follows: WHEREFORE, the Motion for Reconsideration is hereby GRANTED. The DECISION dated May 29, 1998 is hereby reconsidered, and consequently, the defendant 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 attorneys fees; and d) P200,000.00 as litigation expenses.22 Judge De la Pea ruled that: it is improbable that a man of Aznars stature would fabricate Exh. "G" or the computer print-out which shows that Aznars 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 testify as she was in a foreign country and cannot be reached by subpoena; taking judicial notice of the practice of automated teller machines (ATMs) and credit card facilities which readily print out bank account status, Exh. "G" can be received as prima facie evidence of the dishonor of Aznars Mastercard; no rebutting evidence was presented by Citibank to prove that Aznars Mastercard was not dishonored, as all it proved was that said credit card was not included in the blacklisted cards; when Citibank accepted the additional deposit of P485,000.00 from Aznar, there was an implied novation and Citibank was obligated to increase Aznars credit limit and ensure that Aznar will not encounter any embarrassing situation with the use of his Mastercard; Citibanks failure to comply with its obligation constitutes gross negligence as it caused Aznar inconvenience, mental anguish and social humiliation; the fine prints in the flyer of the credit card limiting the liability of 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 administrative case against Judge De la Pea for grave misconduct, gross ignorance of the law and incompetence, claiming among others that said judge rendered his decision without having read the transcripts. The administrative case was held in abeyance pending the outcome of the appeal filed by Citibank with the CA.24lawphi1.net On January 30, 2004, the CA rendered its Decision granting Citibanks appeal thus: WHEREFORE, the instant appeal is GRANTED. The assailed order of the Regional Trial Court, 7th Judicial Region, Branch 10, Cebu City, in Civil Case No. 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 case is REINSTATED. SO ORDERED.25 The CA ruled that: Aznar had no personal knowledge of the blacklisting of his card and only presumed the same when it was dishonored in certain establishments; such dishonor is not sufficient to prove that his card was blacklisted by Citibank; Exh. "G" is an electronic document which must be authenticated pursuant to Section 2, Rule 5 of the Rules on Electronic Evidence26 or under Section 20 of Rule 132 of the Rules of Court27 by anyone who saw the document executed or written; Aznar, however, failed to prove the authenticity of Exh. "G", thus it must be excluded; the unrefuted testimony of Aznar that his credit card was dishonored by Ingtan Agency and certain establishments abroad is not sufficient to justify the award of damages in his favor, absent any showing that Citibank had anything to do with 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 Aznars credit card by said establishments.28 Aznar filed a motion for reconsideration which the CA dismissed in its Resolution dated May 26, 2004.29 Parenthetically, the administrative case against Judge De la Pea was activated and on April 29, 2005, the Courts Third Division30 found respondent judge guilty of knowingly rendering an unjust judgment and ordered his suspension for six months. The Court held that Judge De la Pea erred in basing his Order on a manifestation submitted by Aznar to support his Motion for Reconsideration, when no copy of such manifestation was served on the adverse party and it was filed beyond office hours. The Court

also noted that Judge De la Pea 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: the CA erroneously made its own factual finding that his Mastercard was not blacklisted when the matter of blacklisting was already a non-issue in the November 25, 1998 Order of the RTC; the RTC found that Aznars Mastercard was dishonored for the reason that it was declared over the credit limit; this factual finding is supported by Exh. "G" and by his (Aznars) testimony; the issue of dishonor on the ground of DECL OVERLIMIT, although not alleged in the complaint, was tried with the implied consent of the parties and should be treated as if raised in the pleadings pursuant to Section 5, Rule 10 of the Rules of Civil Procedure;32 Exh. "G" cannot be excluded as it qualifies as an electronic evidence following the Rules on Electronic Evidence which provides that print-outs are also originals for purposes of the Best Evidence Rule; Exh. "G" has remained complete and unaltered, apart from the signature of Nubi, thus the same is reliable for the purpose for which it was generated; the RTC judge correctly credited the testimony of Aznar on the issuance of the computer print-out as Aznar saw that it was signed by Nubi; said testimony constitutes the "other evidence showing the integrity and reliability of the print-out to the satisfaction of the judge" which is required under the Rules on Electronic Evidence; the trial court was also correct in finding that Citibank was grossly negligent in failing to credit the additional deposit and make the necessary entries in its systems to prevent Aznar from encountering any embarrassing situation with the use of his Mastercard. 33 Citibank, in its Comment, contends that: Aznar never had personal knowledge 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; Aznars 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" to establish that it was Nubi who printed the same; assuming further that Exh. "G" is admissible and Aznars credit card was dishonored, Citibank still cannot be held liable for damages as it only shows that Aznars credit card was dishonored for having been declared over the limit; Aznars cause of action against Citibank hinged on the alleged blacklisting of his card which purportedly caused its dishonor; dishonor alone, however, is not sufficient to award Aznar damages as he must prove that the dishonor was caused by a grossly negligent act of Citibank; the award of damages in favor of Aznar was based on Article 117034 of the Civil Code, i.e., there was fraud, negligence or delay in the performance of its obligation; there was no proof, however that Citibank committed fraud or delay or that it contravened its obligations towards 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 whose stature is such that he is expected to be more prudent with respect to his transactions cannot later on be heard to complain for being ignorant or having been forced into merely consenting to the contract. 35 In his Reply, Aznar contended that to a layman, the term "blacklisting" is synonymous with the words "hot list" or "declared overlimit"; and whether his card was blacklisted or declared over the limit, the same was dishonored due 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 extinctive novation; 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 an electronic document." V. Whether or not the "On Line Authorization Report" constitutes electronic 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 crediting the 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 any merchant 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 to establish his case based on a preponderance of evidence. The party that alleges a fact also has the burden of proving it.40

35

In the complaint Aznar filed before the RTC, he claimed that Citibank blacklisted his Mastercard which caused its dishonor in several establishments in Malaysia, Singapore, and Indonesia, particularly in Ingtan Agency 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 to prove with a preponderance of evidence that Citibank blacklisted his Mastercard or placed the same on the "hot list."41 Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by Citibank and only presumed such fact from the dishonor of his card. Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to be authentic". 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 Merchants store, I do not know, they called up somebody for verification then later they told me that "your card is being denied". So, I am not in a position to answer that. I do not know whom they called up; where they verified. So, when it is denied thats 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 presumed that it was blacklisted? A. Definitely. Q. So your statement that your card was allegedly blacklisted is only your 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 Aznars Mastercard is not sufficient to support a conclusion that said credit card was blacklisted by Citibank, especially in view of Aznars own admission that in other merchant establishments in Kuala Lumpur and Singapore, his Mastercard was accepted and honored.43 Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out handed to Aznar by Ingtan Agency, marked as Exh. "G", to prove that his Mastercard was dishonored 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 execution were not sufficiently established by petitioner. The prevailing rule at the time of the promulgation of the RTC Decision is Section 20 of Rule 132 of the Rules of Court. It provides that whenever any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either by (a) anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the maker. Aznar, who testified on the authenticity of Exh. "G," did not actually see the document executed or written, neither was he able to provide evidence on the genuineness of the signature or handwriting of Nubi, who handed to him said 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 Authorization Activity Report where it is shown that the Preferred Master Card Number 5423392007867012 was denied as per notation on the margin of this Computer Print Out, is this the document evidencing the dishonor of your Preferred Master Card? xxxx A Yes sir, after that Ingtan incident, I went straight to the Service Agency there and on the left hand side you will be able to see the name of the person in-charged [sic] there certifying that really my card is being blacklisted and there is the signature there of the agency. ATTY. NAVARRO: The witness, your honor, is pointing to the signature over the handwritten name of Victrina Elnado Nubi which I pray, your honor, that the Computer Print Out be marked as our Exhibit "G" and the remarks at the left hand bottom portion of Victorina Elnado Nubi with her signature thereon be encircled and be marked as our Exhibit "G-1". xxxx Q Mr. Aznar, where did you secure this Computer Print Out marked as Exhibit "G"? A This is provided by that Agency, your honor. They were the ones who provided 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 Master Card 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, the authentication of Exh. "G" would still be found wanting. Pertinent sections of Rule 5 read: Section 1. Burden of proving authenticity. The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. Section 2. Manner of authentication. Before any private electronic document 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 person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction 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 the satisfaction of the judge." The Court is not convinced. Aznars 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 be considered as sufficient to show said print-outs 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 the print-out from the agency; Aznar also failed to show the specific business address of the source of the computer print-out because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print-out.45 Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as 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 was confirmed 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 Merchants store, I do not know, they called up somebody for verification then later they told me that "your card is being denied". So, I am not in a position to answer that. I do not know whom they called up; where they verified. So, when it is denied thats presumed to be blacklisted.46 (Emphasis supplied) Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which pertains to entries in the course of business, to support Exh. "G". Said provision 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 to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. Under this rule, however, the following conditions are required: 1. the person who made the entry must be dead, or unable to testify; 2. the entries were made at or near the time of the transactions to which they refer; 3. the entrant was in a position to know the facts stated in the entries; 4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; 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, there appears on the computer print-out the name of a certain "Victrina Elnado Nubi" and a signature purportedly belonging to her, and at the left dorsal side were handwritten the words "Sorry for the delay since the records had to be retrieved. Regards. Darryl Mario." It is not clear therefore if it was Nubi who encoded the information stated in the print-out and was the one who printed the same. The handwritten annotation signed by a certain Darryl Mario even suggests that it was Mario who printed the same and only handed the print-out to Nubi. The identity of the entrant, required by the provision above mentioned, was therefore not established. Neither did petitioner establish in what professional capacity did Mario or Nubi make the entries, or whether the entries were made in the performance of their duty in the ordinary or regular course of business or duty.

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And even if Exh. "G" is admitted as evidence, it only shows that the use of the credit 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 was gross negligence on the part of Citibank in declaring that the credit card has been 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, petitioner did not clarify.48 As plaintiff in this case, it was incumbent on him to prove that 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 for damages. The claim of petitioner that Citibank blacklisted his card through fraud or gross negligence is likewise effectively negated by the evidence of Citibank which 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 July 10, 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 737), for August 8, 1994 (Exhibit[s] 8, 8-1 to 8-20) which show that plaintiffs 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 Asian countries showed that said Citibank preferred mastercard had never been placed in a hot list or the same was blacklisted, let alone the fact that all the credit cards which had been cancelled by the defendant bank were all contained, reported and listed in said Warning Cancellation Bulletin which were 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 plaintiffs credit car (sic) was not among those found in said bulletins as having been cancelled for the period for which the said bulletins had been issued. Between said computer print out (Exhibit G) and the Warning Cancellation Bulletins (Exhibits 3 to 8 and their submarkings) the latter documents adduced by defendant are entitled to greater weight than that said computer print out presented by plaintiff that bears on the issue of whether the plaintiffs 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 these Warning Cancellation Bulletins (or WCB) have been duly established and identified by defendants own witness, Dennis Flores, one of the banks officers, who is the head of its credit card department, and, therefore, competent to testify on the said bulletins as having been issued by the defendant bank showing that plaintiffs preferred master credit card was never blacklisted or placed in the Banks hot list . But on the other hand, plaintiffs computer print out (Exhibit G) was never authenticated or its due execution had never been duly established. Thus, between a set of duly authenticated commercial documents, the Warning Cancellation Bulletins (Exhibits 3 to 8 and their submarkings), presented by defendants (sic) and an unauthenticated private document, plaintiffs computer print out (Exhibit G), the former deserves greater evidentiary weight supporting the findings of this Court that plaintiffs 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 his account which was accepted by Citibank, there was an implied novation and Citibank was under the obligation to increase his credit limit and make the necessary entries in its computerized systems in order that petitioner may not 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 to stand on. Citibank never denied that it received petitioners additional deposit. 50 It even claimed that petitioner was able to purchase plane tickets from Cebu to Kuala Lumpur in the amount of P237,170.00, which amount was beyond hisP150,000.00 limit, because it was able to credit petitioners 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 we can approve a P250,000.00 purchase with a P150,000.00 credit limit. 51 xxx ATTY. NERI: For the record, your honor, the deposit of P450,000.00 was made as per exhibit of the plaintiff on June 28. The purchase of the tickets amount to P237,000.00 was approved and debited on the account of Mr. Aznar on July 20, your honor. The deposit was made about a month before the purchase 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, your honor. (Emphasis supplied) COURT: (to witness) Q So, I think Atty. Navarro is only after whether a credit line could be extended? 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 transaction could be approved was by way of advance payment which actually happened in this case because there is no way that the P237,000.00 can be approved with the P150,000.00 credit limit.52 (Emphasis supplied) The allegations of blacklisting not having been proved, is Citibank liable for damages for the dishonor of Aznars Mastercard? Again, the answer is no. Citibank, in its attempt to evade liability, invokes paragraphs 7 and 15 of the terms 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, [the cardholder] will not hold [Citibank] responsible for any defective product or service purchased through the Card. xxxx 15. LIMITATION OF LIABILITY. In any action arising from this agreement or any incident thereto which [the cardholder] or any other party may file against [Citibank], [Citibanks] 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 Citibanks Mastercard constitute a contract of adhesion. It is settled that contracts between cardholders and the credit card companies are contracts of adhesion, so-called, because their terms are prepared by only one party while 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 any reason x x x". While it is true that Citibank may have no control of all the actions 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 is dishonored by any merchant affiliate for any reason. Such phrase renders the statement vague and as the said terms and conditions constitute a contract of adhesion, any ambiguity in its provisions must be construed against the party who prepared the contract,55 in this case Citibank. Citibank also invokes paragraph 15 of its terms and conditions which limits its liability to P1,000.00 or the actual damage proven, whichever is lesser. Again, such stipulation cannot be considered as valid for being unconscionable as it precludes payment of a larger amount even though damage may be clearly proven. This Court is not precluded from ruling out blind adherence to the terms of a contract if the attendant facts and circumstances show that they should be ignored for being obviously too onesided.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 the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff a concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that 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 duty should be the proximate cause of the injury.57 It is not enough that one merely suffered sleepless nights, mental anguish or serious anxiety as a result of the actuations of the other party. It is also required that a culpable act or omission was factually established, that proof that the wrongful act or omission of the defendant is shown as the proximate cause of the damage sustained by the claimant and that the case is predicated on 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 recoverable only if the defendant has acted fraudulently or in bad faith, or is found guilty of gross negligence amounting to bad faith, or in wanton disregard of his contractual obligations. The breach must be wanton, reckless, malicious or in bad faith, oppressive or abusive.61 While the Court commiserates with Aznar for whatever undue embarrassment he suffered when his credit card was dishonored by Ingtan Agency, especially when the agencys 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 Citibank breached any obligation that would make it answerable for said suffering.

37

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 the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury to those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person 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.

NOW THEREFORE, and considering all the above premises, the Court finds and so holds that Applicant MA. LOURDES A. TEODORO, having sufficient title over this land applied for hereby renders judgment, which should be, as it is hereby CONFIRMED and 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 in toto the Decision of the MTC. Petitioners filed a Motion for Reconsideration but 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 with the CA. On September 12, 2003, the CA promulgated its presently assailed Decision dismissing the Petition. Petitioners filed a Motion for Reconsideration but the same was denied by the CA in its Resolution15 dated March 24, 2004. Hence, the herein petition based on the following grounds: A. The Honorable Court of Appeals did not rule in accordance with the prevailing rules and jurisprudence when it held that the belated filing, after more than two (2) years and three (3) months from the initial application for land registration, of a sworn certification against forum shopping in Respondent's application for land registration, constituted substantial compliance with SC Admin. Circular No. 04-94. B. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence when it held that the certification of non-forum shopping subsequently submitted by respondent does not require a certification from an officer of the foreign 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 with prevailing 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 by both parties. D. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence when it sustained the decision of the RTC which affirmed in toto the decision of the MTC and in not 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 facts made by the Honorable Court of Appeals in the instant Petition.17 The Courts Ruling The petition is bereft of merit. The CA ruled correctly when it held that the belated filing of a sworn certification 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-forum shopping 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 inadvertence do not constitute a justifiable circumstance that could excuse her noncompliance with the mandatory requirements of the above-mentioned Circular and Rule; that subsequent compliance with the requirement does not 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 or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his knowledge, no such other action 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 same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding

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 and substituted by her son Sharmy Arcilla, represented by their attorney-infact, SARAH A. ARCILLA, petitioners, vs. MA. LOURDES A. TEODORO, respondent. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules 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 filed with the Regional Trial Court (RTC) of Virac, Catanduanes an application for land registration of two parcels of land located at Barangay San Pedro, Virac, Catanduanes. The lots, with an aggregate area of 284 square meters, are denominated as Lot Nos. 525-A and 525-B, Csd.-05-010483-D of the Virac Cadastre. Respondent alleged that, with the exception of the commercial building constructed thereon, she purchased the subject lots from her father, Pacifico Arcilla (Pacifico), as shown by a Deed of Sale3 dated December 9, 1966, and that, prior thereto, Pacifico acquired the said lots by virtue of the partition of the estate of his father, Jose Arcilla evidenced by a document entitled Extrajudicial Settlement of Estate.4 Respondent also presented as evidence an Affidavit of Quit-Claim5 in favor of Pacifico, executed by herein petitioners 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 said court as provided under Republic Act No. 7691.6 In their Opposition dated August 19, 1996, petitioners contended that they are the owners pro-indiviso of the subject lots including the building and other improvements constructed thereon by virtue of inheritance from their deceased parents, spouses Vicente and Josefa Arcilla; contrary to the claim of respondent, the lots in question were owned by their father, Vicente, having purchased the same from a certain Manuel Sarmiento sometime in 1917; Vicente's ownership is evidenced by several tax declarations attached to the record; petitioners and their predecessors-in-interest had been in possession of the subject lots since 1906. Petitioners moved to dismiss the application of respondent and sought their declaration as the true and absolute owners 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 for Admission7 contending that through oversight and inadvertence she failed to include in her application, the verification and certificate against forum shopping required by Supreme Court (SC) Revised Circular No. 28-91 in relation 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 shopping simultaneously 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 upon motion 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 to comply with SC Administrative Circular No. 04-94 was not willful, deliberate or 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 to Dismiss Application. On June 25, 2001, the MTC rendered a Decision10 the dispositive portion of which reads as follows:

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administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a cause for administrative sanctions. This Rule was preceded by Circular No. 28-91, which originally required the certification of non-forum shopping for petitions filed with this Court and the CA; and SC Administrative Circular No. 04-94, which extended the certification requirement for civil complaints and other initiatory pleadings filed in all courts and other agencies. In Gabionza v. Court of Appeals,18 this Court has held that Circular No. 28-91 was designed to serve as an instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure which is to achieve substantial justice as expeditiously as possible.19 The same guideline still applies in interpreting what 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 or simply disregarded, for these prescribed procedures insure an orderly and speedy administration of justice.21 However, it is equally settled that litigation is not merely a game of technicalities. 22 Rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice.23 Their strict and rigid application, which would result in technicalities 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 partylitigant the amplest opportunity for the proper and just determination of his cause free from the constraints of technicalities.26 It must be kept in mind that while the requirement of the certificate of nonforum shopping is mandatory, nonetheless the requirement must not be interpreted too literally and thus defeat the objective of preventing the undesirable practice of forum shopping.27 In Uy v. Land Bank of the Philippines,28 the Court ruled, thus: The admission of the petition after the belated filing of the certification, therefore, is not unprecedented. In those cases where the Court excused non-compliance with the requirements, there were special circumstances or compelling reasons making the strict application of the rule clearly unjustified. In the case at bar, the apparent merits of the substantive aspects of the case should be deemed as a "special circumstance" or "compelling reason" for the reinstatement of the petition. x x x29 Citing De Guia v. De Guia30 the Court, in Estribillo v. Department of Agrarian Reform,31 held that even if there was complete non-compliance with the rule on certification against forum-shopping, the Court may still proceed to decide the case on the merits pursuant to its inherent power to suspend its own 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 any error 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 land registration 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 one who invited the attention of the court to the inadvertence committed by her counsel, should be deemed as special circumstances or compelling reasons to decide 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 since there is no showing that respondent is guilty of forum shopping, to dismiss respondent's petition for registration would entail a tedious process of refiling the petition, requiring the parties to re-submit the pleadings which they have already filed with the trial court, and conducting anew hearings which have already been done, not to mention the expenses that will be incurred 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 country is not covered by Section 24, Rule 132 of the Rules of Court. There is no merit to petitioners contentions that the verification and certification subsequently submitted by respondent did not state the country or city where the notary public exercised her notarial functions; and that the MTC 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 deemed admissible for any purpose in the Philippines for failure to comply with the requirement of Section 24, Rule 132 of the Rules of Court that the notarized document must be accompanied by a certificate issued by an officer in the foreign service of the Philippines who is stationed in the country in which a record of the subject document is kept, proving or authenticating that the person who notarized the document is indeed authorized to do so and has custody 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. For foreign public documents to be admissible for any purpose here in our courts, the same must be certified by any officer of the Philippine legation stationed in the country where the documents could be found or had been executed. However, after judicious studies of the rule, Sec. 24, Rule 132 of the 1997 Rules of Court basically pertains to written official acts, or records of the official of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country. This is so, as Sec. 24, Rule 132 explicitly refers only to paragraph (a) of Sec. 19. If the rule comprehends to cover notarial documents, the rule 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 certification provided under Sec. 24, Rule 132 of the Rules of Court, is devoid of any merit. What is important is the fact that the respondentapplicant certified before a commissioned officer clothed with powers 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, is inapplicable to the present case because the Rules of Evidence which were in effect at that time were the old Rules prior to their amendment in 1989. The rule applied in Lopez, which was decided prior to the effectivity of the amended Rules of Evidence,35 was Section 25, Rule 132, to wit: Sec. 25. Proof of public or official record An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal 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 the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed 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 132 became Section 24, Rule 132; and the amendment consisted in the deletion of the introductory phrase "An official record or an entry therein," which was substituted 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 documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal 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 the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis supplied) Section 19(a) of the same Rule provides: Sec. 19. Classes of documents. - For the purpose of their presentation in evidence, documents are either public or private. Public documents are: (a) The written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. It cannot be overemphasized that the required certification of an officer in the foreign service under Section 24 refers only to the documents enumerated in Section 19(a), to wit: written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers of the Philippines or of a foreign country. The Court agrees with the CA that had the Court intended to include notarial documents as one of 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 made applicable to all public or official records without any distinction because the old rule did not distinguish. However, in the present rule, it is clear under Section 24, Rule 132 that its provisions shall be made applicable only to the documents referred to under paragraph (a), Section 19, Rule 132.

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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 courts findings of fact, especially when affirmed by the CA, are generally binding and conclusive upon this Court.36 There are recognized exceptions to this rule, among which are: (1) the conclusion is grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse 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 specific evidence on which the factual findings are based; (7) the finding of absence of facts is contradicted by the presence of evidence on record; (8) the findings of the CA are contrary to the findings of the trial court; (9) the CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) the findings of the CA are beyond the issues of the case; and (11) such findings are contrary to the admissions 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 the findings of fact of the lower courts. Petitioners insist that the documents which were presented in evidence by respondent to prove her ownership of the subject lot are rife with defects and inconsistencies. Petitioners contend that the subject lot should not have been 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 said settlement; the Deed of Sale should be declared null and void because the seller, Pacifico Arcilla, was not the owner of the subject lands at the time the said Deed was executed; the Affidavit of Quitclaim is not valid and has no force and effect considering that the document indicates that the signatures of 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 disputed property was sold by Jose Arcilla to Manuel Sarmiento in 1908 is a single Tax Declaration in the name of the latter, with a notation that the property was acquired 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 from Sarmiento. Petitioners were only able to present tax declarations in Vicente's name 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 prove ownership but are at best anindicium of claims of ownership.38 Payment of taxes is not proof of ownership, any more than indicating possession in the concept of an owner.39 Neither a tax receipt nor a declaration of ownership for taxation purposes is evidence of ownership or of the right to possess realty 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 to include 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 by tax 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 the statements contained therein and to the authenticity of the signatures.41 Notarized documents enjoy the presumption of regularity which 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 they are all notarized. To overthrow such presumption of regularity, the countervailing evidence must be clear, convincing and more than merely preponderant, which petitioners failed to present.43 An examination of the subject Extrajudicial Settlement of Estate clearly shows that the disputed lot forms part of the properties adjudicated in favor of Pacifico Arcilla, respondents predecessor-in-interest. Moreover, petitioners themselves admit that the Extrajudicial Settlement being referred to in the Affidavit of Quitclaim executed by petitioner and her co-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 said Extrajudicial Settlement as well as the notary public who acknowledged the same and the Document Number, Page Number, Book Number and Series Number all coincide with those appearing in the document evidencing the Extrajudicial Settlement of the Estate of Jose Arcilla. Hence, what has been waived by petitioners is their right, if any, to the properties mentioned in the said Affidavit of Quitclaim, which includes the presently disputed lot. Petitioners posit that they are not bound by the subject Extrajudicial Settlement because they did not participate in nor did they sign the document evidencing such settlement and that their mother who signed on their behalf was not, in fact, authorized to do so. However, the Court agrees with the ruling of the RTC that the Extrajudicial Settlement is a public document, the same having been notarized; that such document is entitled to

full faith and credit in the absence of competent evidence showing that its execution was tainted with defects and irregularities which would warrant a declaration of nullity; that in the absence of evidence showing that the person who signed in behalf of herein petitioners was, in fact, not authorized to do so, the presumption that she had the authority, as stated in the Extrajudicial 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 the ground that the signatories thereto are not residents of Virac, Catanduanes and that they affixed their signature in places other than Virac, Catanduanes where 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 the affiants appearing therein were never contested nor raised as an issue and that petitioner Sarah Arcilla herself acknowledged her own signature in the said Affidavit. In any event, the law does not require that parties to a document notarized by 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 the notary public. What is necessary is that the persons who signed a notarized document are the very same persons who executed and personally appeared before 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 petitioner Rene Arcilla, all of herein petitioners, including their now deceased mother Josefa and sister Nora, executed and personally acknowledged before the notary public the subject Affidavit of Quitclaim. Hence, aside from Rene, the said 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 formers behalf. However, settled is the rule that: A member of the bar who performs an act as a notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him. The acts of the affiants cannot be delegated to anyone for what are stated therein are facts of which they have personal knowledge. They should swear to the document personally and not through any representative. Otherwise, their representatives name should appear in the said documents as the one who executed the same. That is the only time the representative can affix his signature and personally appear before 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 to acknowledge the document.45 Thus, the herein subject Affidavit of Quitclaim may not be binding on Rene. Nonetheless, with or without Renes participation in the quitclaim, respondents ownership of the subject lots has been established by preponderance of evidence, as unanimously found by the MTC, the RTC and the CA. Finally, petitioners' physical occupation of the commercial building which they erected on the disputed property does not necessarily prove their ownership 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 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. 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 lot 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.46(Emphasis supplied) The Extrajudicial Settlement of Estate in favor of Pacifico, respondents predecessor-in-interest, the Affidavit of Quitclaim and the Deed of Sale in favor of respondent establish respondents ownership over the disputed property. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated September 12, 2003 and its Resolution of March 24, 2004 in CA-G.R. SP No. 72032 are AFFIRMED. Costs against petitioners. SO ORDERED.

G.R. No. 177505

November 27, 2008

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HEIRS OF GORGONIO MEDINA, namely: LEONOR T. MEDINA, RAMON T. MEDINA, ABIEL T. MEDINA, ILUDIVINA M. ROSARI, CONCEPCION DE LA CRUZ, LEONOR M. BAKKER, SAMUEL T. MEDINA, VICTOR T. MEDINA, TERESITA M. SABADO, JOSEFINA M. CANAS and VERONICA M. DE GUZMAN, petitioners, vs. BONIFACIO NATIVIDAD, represented by PHILIP M. NATIVIDAD, respondents. DECISION 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 with modification 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 16 April 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 two thousand three hundred thirty nine (2,339) square meters, agreed to divide and allot for themselves the said land. A sketch4 signed by the co-owners showed the respective portions of land allotted to each. Gorgonio D. Medina received 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, Tirso Medina 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 Tirso Medina against the co-owners of Lot 1199, among whom are Gorgonio Medina and Bonifacio Natividad. Bonifacio Natividad had likewise already bought the share of Dominica Medina in the land. The parties entered into a compromise agreement which they submitted to the Court. On 20 November 1989, the RTC approved the agreement and rendered its decision based on the same.6 The Compromise Agreement as quoted by the Court reads: COMPROMISE AGREEMENT COME NOW the parties, assisted by their respective counsel(s), and unto this Honorable Court respectfully submit this Compromise Agreement in full and final settlement of their differences, to wit: 1. The parties herein are the exclusive co-owners of that certain parcel of land located at the Poblacion, Guimba, Nueva Ecija, known as Lot 1199, Guimba Cadastre and more particularly described 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. N40711), situated in the Poblacion, Municipality of Guimba, Province of Nueva Ecija. x x x containing an area of TWO THOUSAND THREE HUNDRED AND THIRTY NINE (2,339) SQUARE METERS, more or less. x x x. xxxx 2. The herein parties recognize and acknowledge that their respective shares in the property aforementioned as appearing in the aforesaid Original Certificate of Title No. 130366 have been modified by agreement between them to allot a portion thereof to their co-owner, Vivencio M. Ruiz, to compensate for valuable services rendered to the parties vis--vis the said property, separate and apart from his rightful share therein as participating heir of Maria Medina; 3. The plaintiff Tirso Medina hereby withdraws any/all statements appearing on record which he may have made in said case in the course of his testimony therein, and hereby asks the Honorable Court that said statements be expunged or withdrawn from the record; 4. The foregoing considered, the parties have determined that it is to their mutual convenience and advantage, and in accord with their common desire to preserve and maintain the existing family harmony 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" where the property is subdivided into Lot 1, 2, 3, 4, 5, and 6 and adjudicated, as follows:

a. To Bonifacio Natividad, Lot No. 1, consisting of 480 square meters, more or less, representing the interests of Dominica Medina which was sold to him per document 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 370.21 square meters, more or less, as compensation for valuable services rendered; free and clear from any/all liens or encumbrances whatsoever or from the claims of any person whomsoever, except the present tenant/s thereon; c. To the heirs of MARIA MEDINA, Lot No. 2 consisting of 370.21 square meters, more or less, without prejudice to sales and dispositions already made by the respective heirs of their interests and participations therein; d. To TIRSO MEDINA, Lot No. 4 consisting of 369.29 square meters, more or less; e. To the heirs of PACIFICO M. RUIZ, Lot No. 5 consisting of 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 decision dated 20 November 1989 which reads in part: [T]hat the parties thereafter, engaged the services of one common geodetic engineer in the person of Rolly Francisco to conduct the survey and effect the subdivision of Lot 1199, which was subdivided 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 now corresponds to Lot No. 4 adjudicated to Tirso Medina; Lot 1199-B with an area of 371 sq. ms., which lot now corresponds to Lot No. 5 adjudicated to Pacifico Ruiz; Lot 1199-C with an area of 371 sq. ms., which lot now corresponds to Lot No. 6 adjudicated to Gorgonio Medina; Lot 1199-D with an area of 482 sq. ms., which lot now corresponds to Lot No. 1 adjudicated to Bonifacio Natividad; Lot 1199-E with an area of 372 sq. ms., which lot now corresponds to Lot No. 2 adjudicated to Heirs of Maria Medina; and Lot 1199-F with an area of 372 sq. ms., which lot now corresponds to Lot No. 3 adjudicated to Vivencio M. Ruiz; that in this subdivision made by the geodetic engineer, there was no change in the designation of the particular places adjudicated to the parties, except the change in areas allotted after the actual survey made. WHEREFORE, finding the motion to be in order, the Court resolves to 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 square meters, was registered in the name of Gorgonio Median for which Transfer Certificate of Title (TCT) No. NT-230248 of the Registry of Deeds for the Province 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, a Complaint for Annulment of TCT No. NT-230248 and Damages.10 It impleaded as respondents Abiel Medina and Veronica de Guzman who are occupying the said land. Bonifacio asks, among other things, that 1/3 of said land be surrendered to him because he had bought the same from Gorgonio Medina. In the Answer11 filed by Abiel Medina and Veronica de Guzman, they argued, inter alia, that Philip Natividad had no legal capacity to sue because the Special Power of Attorney annexed to the Complaint did not grant him

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such authority. They further added that the Complaint failed to implead all the parties-in-interest considering that the ownership of the land covered by TCT No. NT-230248 had already passed to eleven heirs of Gorgonio Medina. Bonifacio, thru Philip, filed a Motion for Bill of Particulars 12 praying that an order be issued by the court directing Abiel Medina and Veronica de Guzman to 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 trial court granted the motion.14 Defendants complied with the courts 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 Amended Complaint with prayer that summons upon eight heirs be made through publication.16 The Amended Complaint impleaded all the heirs of Gorgonio Medina (petitioners herein). In said amended complaint, a special power of attorney17dated 21 September 2001 allegedly executed by Bonifacio Natividad in the State of Washington, United States of America, and acknowledged 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 from said Gorgonio Medina by virtue of Deed of Absolute Sale executed on March 29, 1972 and notarized by Atty. Inocencio B. Garampil under Doc. No. 435, Page No. 87, Book No. 1, Series of 1972, which lot is now titled in the name of Gorgonio Medina under Transfer Certificate 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 covers the lot I bought from Gorgonio Medina; 3. To represent me in all proceedings/hearings of the abovementioned case/s up to its termination; 4. To enter into a fair and reasonable compromise agreement and do all acts for the protection and preservation of my rights and interest over the above-mentioned lot; 5. To negotiate/transact with all persons, secure and sign all necessary documents for the attainment of the above purposes. In an Order dated18 30 January 2002, the trial court approved the motion and admitted the Amended Complaint. It directed the issuance of the corresponding summons, the same to be published in a newspaper of general circulation for three consecutive weeks. As to plaintiffs 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 to Dismiss19 which the trial court denied on 20 August 2002.20 On 10 September 2002, the heirs filed their Answer raising the following defenses: prescription, laches, lack of cause of action, lack of legal capacity to sue by Attorney-in-Fact, indefeasibility of TCT No. NT-230248 and lack of jurisdiction over the case for failure of the plaintiff to comply with the mandatory requirement of the Katarungang Pambarangay. Plaintiff filed his Reply dated 18 September 2002 specifically denying the allegations contained 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 371 square meters. This title was one of the titles issued as transfer from 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 Medina and his co-heirs decided by RTC Branch 33. c. The late Gorgonio Medina executed a Deed of Absolute Sale over 1/3 portion of his share in a parcel of land (Lot 1199, CAD-162 Guimba Cadastre) owned in common by him and his co-heirs. d. The land subject of the deed of sale is not the one covered by TCT No. 230248. Issues: 1. Whether the deed of sale of sale may be given effect notwithstanding the fact that the subject thereof is different from the portion covered by TCT No. 230248. 2. Whether Mr. Philip Natividad is duly authorized to represent his father, Bonifacio Natividad in this case.23 The parties manifested that after they shall have filed their respective memoranda, 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 the improvements thereon and to account for, and deliver to the plaintiff the income derived therefrom from the institution of this case up to the execution of this decision.

No pronouncement as to damages there being no reservation made by the plaintiff to present evidence thereof.24 On the issue of Philip Natividads authority to represent his father, the court ruled that it was convinced that Philip was authorized to represent his father by virtue of a notarized special power of attorney executed by Bonifacio attached to the amended complaint. It explained that the document was a public 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 the State of Washington, USA. In the absence of any evidence to show that said special 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 by Gorgonio 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 declared that the 1/3 portion of the land covered by TCT No. NT-230248 shall be deemed the object of the deed of sale. It agreed with Bonifacio that what was sold by Gorgonio Medina to him (Bonifacio) was his share, right and participation in the land known as Lot 1199. At the time of the sale, Lot 1199 was 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 the partition. It added that justice demanded that a portion of what was adjudicated 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. Since there was an express trust created between Gorgonio Medina and Bonifacio Natividad, the action to compel the defendants to convey the property to Bonifacio did not prescribe. It explained that it is only when the trustee repudiates the trust that the prescriptive period of 10 years commences to run. In the instant case, Gorgonio Medina (trustee) repudiated the trust on 5 July 1993 when TCT No. NT-230248 was issued in his name. Thus, the filing of the complaint on 11 June 2001 was well within the ten-year prescriptive period. On 22 December 2003, the petitioner-heirs of Gorgonio Medina filed a Notice of Appeal informing the trail court that they were appealing the decision to the Court of Appeals.25 A Notice of Appeal having been seasonably filed by the 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 Execution Pending Appeal27 which the trial court denied, it having lost jurisdiction over the case because the appeal was already perfected when the motion was filed.28 On 20 November 2006, the Court of Appeals rendered its decision affirming with modification the decision of the trial court. It disposed of the case as follows: WHEREFORE, the Decision of the RTC, Branch 33, Guimba, Nueva Ecija, dated December 10, 2003, is hereby AFFIRMED with the MODIFICATION ordering the defendants-appellants to convey to plaintiff-appellee an area equivalent to 90 square meters of the land covered by TCT No. NT-230248.29 The appellate court affirmed the findings of the trial court, but ruled that the trust established between the parties was an implied or constructive trust, and not an express trust. It added that what should be conveyed to Bonifacio Natividad 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 one of the two portions owned by Gorgonio Medina in the entire lot. Finally, it declared that the contention that the Complaint should have been dismissed for lack of cause of action, considering that the Special Power of Attorney executed abroad by Bonifacio Natividad in favor of his son was not properly authenticated before a consular officer, put a premium on technicalities at the expense of substantial justice. Litigation, it said, should, as much as possible, be decided on the merits and not on technicalities. Petitioners filed a Motion for Reconsideration30 which the Court of Appeals denied in a resolution dated 16 April 2007.31 Hence, the instant petition raising the following issues: WHETHER OR NOT THE COMPROMISE AGREEMENT THAT THE TRIAL COURT APPROVED IN CIVIL CASE NO. 781-G NOVATED THE DEED OF ABSOLUTE SALE DATED 29 MARCH 1972 BETWEEN GORGONIO MEDINA AND BONIFACIO NATIVIDAD. WHETHER OR NOT BONIFACIO NATIVIDAD IS ESTOPPED BY LACHES. WHETHER OR NOT THE REGISTRATION OF LOT NO. 1199-C IN THE NAME OF GORGONIO MEDINA WAS IN FRAUD OF BONIFACIO NATIVIDAD. WHETHER OR NOT A CONSTRUCTIVE TRUST WAS CREATED BETWEEN GORGONIO MEDINA AND BONIFACIO NATIVIDAD. WHETHER OR NOT BONIFACIO NATIVIDADS CAUSE OF ACTION HAS ALREADY PRESCRIBED. WHETHER OR NOT THE COMPLAINT STATES A CAUSE OF ACTION.

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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 error in not finding that the respondent was without any cause of action. Petitioners argue: The Complaint in this case was instituted by Philip M. Natividad in the name of Bonifacio Natividad upon the strength of a Special Power of Attorney executed by the latter in Washington, U.S.A. While the document appears to have been acknowledged before Phyllis Perry, a Notary Public for the jurisdiction of the State of Washington, U.S.A., it was not presented before a Philippine Consular 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 accompanied with a certificate that such officer has the custody thereof made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by an officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, authenticated by the seal of his office. In the absence of the requisite certification and authentication of the public document, the same cannot be proved and, therefore, inadmissible as evidence. Bonifacio Natividads 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 to institute the action on behalf of his father, Philip Natividad is deemed to have instituted it on his own. Philip Natividad not being a party to the Deed of Absolute Sale between Gorgonio Medina and Bonifacio Natividad, he is undoubtedly not the real party in interest because he does not have any material interest in the contract which is the source of Bonifacio Natividads 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 have brought 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 his father (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 public document, 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 to represent his father. The Court of Appeals considered the fact that the special power of attorney was not properly authenticated before a consular office to be a mere technicality and could not be the basis for the dismissal of the complaint for lack of cause of action. On his part, respondent said the notarized special power of attorney which he appended to the complaint is a public document. It carries with it the presumption of regularity and any suspicion on the authenticity and due execution thereof cannot stand against said presumption absent evidence which is clear and convincing. The question to be answered is: Is the Special Power of Attorney supposedly authorizing Philip Natividad to file the instant case in behalf of his father admissible in evidence? In Lopez v. Court of Appeals,33 we have ruled that a special power of attorney executed in a foreign country is, generally, not admissible in evidence as a public document in our courts. In said case, we said: Is the special power of attorney relied upon by Mrs. Ty a public document? We find that it is. It has been notarized by a notary public or by a competent public official with all the solemnities required by law of a public document. When executed and acknowledged in the Philippines, such a public document or a certified true copy thereof is admissible in evidence. Its due execution and authentication need not be proven unlike a private writing. Section 25,34 Rule 132 of the Rules of Court provides Sec. 25. Proof of public or official record. An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal 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 the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the 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 notary public or other competent official in a foreign country, it cannot be admitted in evidence unless it is certified as such in accordance with the foregoing provision of the rules by a secretary of embassy or legation, consul general, consul, vice

consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept of said public document and authenticated by the seal of his office. A city judge-notary who notarized the document, as in this case, cannot issue such certification. Considering that the record of the case does not disclose any compliance with the provisions of Section 25, Rule 132 of the Rules 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 the private respondents in the name of her principal as her authority through a special power of attorney had not been duly established in evidence. The litigation was not commenced by the real partyin-interest or by one duly authorized by the said party. This being so, the Metropolitan Trial Court, the Regional Trial Court and the Court of Appeals never acquired jurisdiction over the person of the real party-in-interest Angelita Lopez. For lack of the requisite jurisdiction, all the proceedings in the said courts are null and void ab initio. All proceedings therein should be and are hereby set aside. Accordingly, it is Our considered opinion, and We so hold, that a special power of attorney executed before a city judge-public notary in a foreign country, without the certification or authentication 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 attorney involved was executed and acknowledged before Phyllis Perry, a Notary Public of the State of Washington, USA. This being the case, a certification or authentication, as required by Section 25 (now Section 24), Rules of Court, by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any other officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office, is required. A notary public in a foreign country is not one of those who can issue the required certificate. The records are bereft of evidence showing that there was compliance with Section 25 (now Section 24). Non-compliance therewith will render the special power of attorney not admissible in evidence. Not being duly established in evidence, the special power of attorney cannot be used by Philip Natividad to represent his father, Bonifacio Natividad, in this legal action 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 special power of attorney executed before a notary public in a foreign country without the requirements mentioned in Section 25 (now Section 24) of the Rules of Court cannot be admitted in evidence before Philippine courts. Both lower courts and respondents contention that the lack of consular authentication is a mere technicality that can be brushed aside in order to uphold substantial justice, is untenable. The failure to have the special power of attorney authenticated is not merely a technicality -- it is a question of jurisdiction. In Lopez, we pronounced that jurisdiction over the person of the real party-in-interest was never acquired by the courts. As a result, all proceedings in the lower courts were declared null and voidab initio and thus set 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. Following our pronouncement in Lopez, all proceedings before these courts are voided and set aside. In light of this, we find no need to discuss the other issues raised. WHEREFORE, premises considered, the instant petition is GRANTED. All the proceedings before the Regional Trial Court of Guimba, Nueva Ecija, Branch 33 (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 CABAISMAGPAYO, petitioners, vs. COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCO ENCARNACION 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, and BERNARD 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 1987 affirming with modification the decision of the Regional Trial Court of Guagua, Pampanga, in favor of private respondents, and its resolution dated 14 August 1987 denying the motion for reconsideration.

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This petition which originated with the Regional Trial Court of Guagua, Pampanga involves two (2) cases, namely: Civil Case No. G-1190 and Civil Case No. G-1332. 1 Civil Case No. G-1190 is an action for recovery of possession with damages and preliminary injunction filed by herein petitioners, the heirs of Demetria Lacsa, against Aurelio Songco and John Doe based on the principal allegations that petitioners are heirs of deceased Demetria Lacsa who, during her lifetime, was the owner of a certain parcel of land consisting partly of a fishpond 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 are neither co-owners of the land nor tenants thereof, thru stealth, fraud and other forms of machination, succeeded in occupying or possessing the fishpond of said parcel of land and caused the open space therein to be cleared for expanded occupancy thereof, and refused to vacate the same despite petitioner's demands on them to vacate. 2 Civil Case No. G-1332 is an action also by herein petitioners against private respondents before the same lower court for cancellation of title, ownership with damages and preliminary injunction, based on the allegations that they are the heirs of Demetria Lacsa who was the owner of the land also involved in Civil Case No. G-1190; that the herein private respondents and their predecessors-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 all the fish were transferred to the adjoining fishpond owned by the private respondents; that on 31 October 1923 and 15 March 1924, by presenting to the Register of Deeds of Pampanga certain forged and absolutely simulated documents, 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 the damage and prejudice of the petitioners; and that a preliminary injunction was necessary to prevent the private respondents from disposing of said property. 3 Private respondents denied the material allegations of both complaints and alleged 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 missing when the truth of the matter was that OCT No. RO-1038 (11725) in the name of Demetria Lacsa, had long been cancelled and superseded by TCT No. 794 in the name of Alberta Guevarra and Juan Limpin by virtue of the document entitled "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE PARTICION EXTRA-JUDICIAL" entered into by the heirs of Demetria Lacsa; that the latter TCT was in turn superseded by TCT No. 929 issued in the name of Inocencio Songco (father of private respondents) by virtue of a document entitled "ESCRITURA DE VENTA ABSOLUTA" executed by spouses Juan Limpin and Alberta 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, by force and intimidation, took possession of a portion of the fishpond in the land and occupied a hut therein, that at that time, private respondents had 3,000 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 private respondents to suffer unrealized income and profits, sleepless nights, wounded feelings and serious anxiety which entitled them to actual, moral and 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 in Civil 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 the said Civil Case No. G-1190, and learning the land subject of the two (2) abovementioned cases (sic), said plaintiffs filed a Motion for Leave to Admit Amended and/or Supplemental Complaint. 3. That the said motion was denied by the Honorable Court, hence, said plaintiffs filed Civil Case No. G-1332, the above-entitled case, with the same cause of action as that of the proposed Amended and/or Supplemental Complaint; 4. That the evidences of both parties in Civil Case No. G1190 and in the above-entitled case are practically and literally the same; 5. That in view of the foregoing, and in order to avoid duplicity of action by repeatedly presenting the same act of evidences and same set of witnesses, the parties mutually 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 in the above-entitled case, and upon submission for resolution of Civil Case No. G-1190, the above-entitled

case shall likewise be deemed submitted for resolution on the basis of the evidence presented in the same Civil Case 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 by Demetria Lacsa under Original Certificate of Title No. 11725. After Demetria Lacsa died her two daughters Alberta Guevarra and Ambrocia Guevarra with their respective husbands Juan Limpin and Damaso Cabais entered into an extrajudicial partition of the properties left by Demetria Lacsa under the document "Traduccion Al 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 to Alberta Guevarra and which deed was duly registered in the Office of the Registry of Deeds of Pampanga as evidenced by the certification of the Deputy Register of Deeds marked as Exhibit "3-C". Aside from the "Traduccion Al Castellano de la Escritura de Particion Extrajudicial" written in the Spanish language, the spouses Alberta Guevarra and Juan Limpin and the spouses Ambrosia Guevarra and Damaso Cabais executed on April 7, 1923, another deed of partition in the Pampango dialect marked as Exhibit "3-D" "wherein the fishpond in question was adjudicated to Alberta Guevarra. As a consequence, Original Certificate of Title No. 794 (Exhibit "4") was issued to spouses Alberta Guevarra and Juan Limpin. On January 20, 1924, the spouses Juan Limpin and Alberta Guevarra sold the fishpond in question to Inocencio Songco under the deed 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 the certification of the Deputy Register of Deeds marked Exhibit "7-B". As a result of the sale, Transfer Certificate of Title No. 794 (Exhibit "4") in the name of the spouses Alberta Guevarra and Juan Limpin was cancelled by the Office of the Registry of Deeds of Pampanga and Transfer Certificate of Title No. 929 was issued to Inocencio Songco." 7 The lower court thus held that the fishpond in question belongs to the private respondents, having been inherited by them from their deceased father Inocencio Songco. 8 The dispositive portion of the judgment in favor of private respondents reads: WHEREFORE, JUDGMENT is hereby rendered In Civil Case No. G - 1190 (A) Ordering the dismissal of the complaint in Civil Case No. G-1190; In Civil Case No. G-1332 (B) Ordering the dismissal of the complaint in Civil Case No. 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 Demetria Lacsa; (D) Ordering the plaintiffs to restore possession of the fishpond 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 for moral 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 for exemplary 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 lower court: I. IN FAILING TO APPRECIATE THE PREPONDERANCE OF EVIDENCE IN FAVOR OF THE PLAINTIFFSAPPELLANTS THAT THE TWO DOCUMENTS (EXHS. 3 & 7 AND THEIR SUB-MARKINGS) WERE FORGED AND

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ABSOLUTELY SIMULATED DOCUMENTS. HENCE, NULL AND VOID; II. IN HOLDING THAT THERE WAS NO EVIDENCE THAT THE SIGNATURE OF JUAN LIMPIN AND THUMBMARK OF ALBERTA GUEVARRA APPEARING ON THE EXCRITUA DE VENTA ABSOLUTA (EXHS. 7 & 7-A) WERE FORGED; III. IN APPRECIATING IN FAVOR OF THE APPELLEES THE DOCUMENTS PRESENTED BY WITNESS JESUS CRUZ WHEN THEIR SOURCES COULD NOT BE ACCOUNTED FOR AND THEIR AUTHENTICITY IS IN QUESTION; IV. IN HOLDING THAT INOCENCIO SONGCO, THE PREDECESSOR-IN-INTEREST OF THE APPELLEES WAS AN INNOCENT PURCHASER FOR VALUE; V. IN HOLDING THAT TRANSFER CERTIFICATE OF TITLE NO. 929 WAS ISSUED TO INOCENCIO SONGCO BY THE REGISTERED TRY OF DEEDS OF PAMPANGA; VI. IN HOLDING THAT ORIGINAL CERTIFICATE OF TITLE NO. RO-1038 (11725) WAS ISSUED BY THE COURT (CFI-III PAMPANGA) IN EXCESS OF OR WITHOUT JURISDICTION AND THEREFORE NULL AND VOID; VII. IN FAILING TO APPRECIATE THAT THE VOLUNTARY ABANDONMENT OF THE FISHPOND IN QUESTION BY THE APPELLEES WAS A RECOGNITION OF APPELLANTS' TITLE TO IT; VIII. IN AWARDING DAMAGES TO THE APPELLEES. 10 The Court of Appeals rendered a decision in the appealed case, the dispositive portion of which reads: WHEREFORE, the decision appealed from is hereby AFFIRMED with the modification that appellants are not liable for moral and exemplary damages as well as attorney'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, this petition. Petitioners assign the following alleged errors to the Court of Appeals: I. IN APPLYING THE "ANCIENT DOCUMENT RULE" ON THE QUESTIONED DOCUMENT ENTITLED "ESCRITURA DE PARTICION EXTRAJUDICIAL" AND "ESCRITURA DE VENTA ABSOLUTA; AND MARKED DURING THE TRIAL AS EXHIBITS "3" AND "7", RESPECTIVELY, FOR THE RESPONDENT HEREIN; II. IN DISREGARDING THE MANDATORY REQUIREMENT OF THE NOTARIAL LAW WHICH TOOK EFFECT AS EARLY AS FEBRUARY 1, 1903; III. IN DISREGARDING THE RULE ON PROOF OF PUBLIC OR OFFICIAL RECORD, (SEC. 25, RULE 132, RULES OF COURT) 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 The rule states that: Sec. 22. Evidence of execution not necessary. Were a private writing is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its execution and authenticity need be given. It is submitted by petitioners that under this rule, for a document to be classified 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 unblemished by alterations and is otherwise free from suspicion. 15 Thus, according to petitioners, exhibits "3" and "7", entitled "Traduccion Al Castellano de la Escritura 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 the alleged 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 and authenticity, it is not enough that it be more than thirty (30) years old; it is also necessary that the following requirements are fulfilled; (1) that it is produced 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 la Escritura de Particion Extrajudicial" was executed on 7 April 1923 whereas the second document, exhibit "7", entitled "Escritura de Venta Absoluta" was

executed on 20 January 1924. These documents are, therefore, more than thirty (30) years old. Both copies of the aforementioned documents were certified as exact copies of the original on file with the Office of the Register of Deeds of Pampanga, by the Deputy Register of Deeds. There is a further certification 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 third parties, must be recorded with the appropriate Register of Deeds. The documents in question, being certified as copies of originals on file with the Register of Deeds of Pampanga, can be said to be found in the proper custody. 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 be genuine, petitioners did not present any conclusive evidence to support their allegation of falsification of the said documents. They merely alluded to the fact that the lack of signatures on the first two (2) pages could have easily led to their substitution. We cannot uphold this surmise absent any proof whatsoever. As held in one case, a contract apparently honest and lawful on its face must be treated as such and one who assails the genuineness of such contract must present conclusive evidence of falsification. 19 Moreover, the last requirement of the "ancient document rule" that a document 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 or circumstances of suspicion cannot be held to detract from the fact that the documents in question, which were certified as copied of the originals on file with the Register of Deeds of Pampanga, are genuine and free from any blemish or circumstances of suspicion. The documents in question are "ancient documents" as envisioned in Sec. 22 of Rule 132 of the Rules of Court. Further proof of their due execution and authenticity is no longer required. Having held that the documents in question are private writings which are more than thirty (30) years old, come from the proper repository thereof, and are unblemished by any alteration or circumstances of suspicion, there is no further need for these documents to fulfill the requirements of the 1903 Notarial Law. Hence, the other contentions of the petitioners that the documents do not fulfill the mandatory requirements of the Notarial Law 20 and that the proper person or public official was not presented to testify on his certification of the documents in question, 21 need not be resolved as they would no longer serve any 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 OATE, substituted by her heirs MARIA MATOALAMEDA, AIDA MATO, ZOE MATO, PACITA MATO and JUAN MATO II, petitioners, vs. THE COURT OF APPEALS and EULALIA M. TAGUBA, respondents. KAPUNAN, J.: Petitioners challenge the decision of the trial court, as affirmed by respondent court, for lack of basis. They argue that the lower court and the Court of Appeals erred in considering evidence not formally offered by private 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 then Court of First Instance of Cagayan, Branch II by Eulalia Marcita Taguba in her capacity as administratrix of the estate of the deceased Leonor Taguba against Elvira Mato Vda. de Oate. As the trial court found, the deceased Leonor Taguba bought the subject parcel of land from Elvira Mato Vda. de Oate sometime in 1976 for a consideration of P5,000.00 payable in four (4) installments. Accordingly, she paid 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 After full payment was made on July 29, 1976, the parties however failed to reduce their contract in writing. On December 30, 1976, Leonor Taguba died. The instant complaint was filed when demand was made upon Elvira Mato Vda. de Oate to execute a public document of sale in favor of the deceased and her heirs and she refused. The trial court rejected the petitioners' defense that Elvira Mato Vda. de Oate contracted a verbal loan from Leonor Taguba in the amount of P12,000.00 payable within a period of 4 years with 12% interest. Also disbelieved was the allegation that two (2) parcels of land covered by TCT No. 5167 and TCT No. 5168 (the land in dispute) were mortgaged by Elvira Mato Vda. de Oate to Leonor Taguba as security for the payment of the loan and 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 portion of which reads: WHEREFORE judgment is hereby rendered as follows:

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1. Declaring the agreement between the late Leonor Taguba and deceased defendant Elvira Mato Vda. de Oate entered into on 20 January 1976, as a contract of "to sell"; 2. Ordering the defendants to execute the proper document to give effect to the contract within thirty (30) days, otherwise, this Court shall be forced to order the 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 in the name of the Estate of Leonor Taguba; 3. Ordering the plaintiff to prosecute their money claims against deceased defendant's estate in accordance with Section 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's factual findings. They contended that the trial court erred when it took cognizance of the plaintiff's evidence, particularly Exhibits "F," "F-1," "F-2" and "F-3", which had been marked but never formally submitted in evidence as required by the Rules of Court. Consequently, it was claimed that the trial court erred in relying on the said evidence in deciding for private respondents. On December 13, 1993, respondent court affirmed the decision of the trial court. 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 in evidence for having complied with the two (2) requisites for admission enunciated in our jurisprudence, 7 that is, (1) evidence must be duly identified by testimony duly recorded and (2) it must be incorporated in the records of the case. A motion for reconsideration of said decision was denied for lack of merit on June 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 NOT RULING THAT DOCUMENTS WHICH ARE MARKED AS EXHIBITS BUT NOT FORMALLY OFFERED ARE NOT TO BE CONSIDERED BY THE COURT; THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING THAT SINCE THERE WAS NO FIXED PURCHASE PRICE OF THE LAND AGREED UPON BY THE PARTIES, SPECIFIC PERFORMANCE COULD NOT BE AVAILED BY THE BUYER TO FORCE THE OWNER OF THE LAND TO EXECUTE 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 no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. 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 particular document is identified and marked as an exhibit does not mean that it has already 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 between identification of documentary evidence and its formal offer as an exhibit. We said that the first is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit while the second is done only when the party rests its case and not before. A party, therefore, may opt to formally offer his evidence if he believes that it will advance his cause or not to do so at all. In the event he chooses to do the latter, the trial court is not authorized by the Rules to consider the same. However, in People v. Napat-a 11 citing People v. Mate, 12 we relaxed the foregoing rule and allowed evidence not formally offered to be admitted and considered by the trial court provided the following requirements are present,viz.: first, the same must have been duly identified by testimony duly recorded and, second, the same must have been incorporated in the records of 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 dated January 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 another P1,000.00 dated July 29, 1976, all showing the varying amounts paid by Leonor Taguba to Elvira Mato Vda. de Oate. 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 March 5, 1984, Eulalia Marcita Taguba identified the said exhibits in her testimony which was duly recorded. She testified as follows: ATTY. LUCERO:

Q Now, you said that the offer of P5,000.00 selling price accepted by your sister and that she paid P2,250.00 on January 20, 1976 (Exhibit "F") how about the balance on the consideration? A The amount of Seven hundred fifty (P750.00) pesos to make it Three thousand (P3,000.00) pesos was paid on February 23, 1976 and the two (2) at One thousand pesos (P1,000.00) were paid on March 20, 1976 and July 29, 1976, ma'am. COURT: Was that admitted by the other party? ATTY. LUCERO: May we put it on record that the amount of P750.00 was paid by Miss Leonor B. Taguba on February 23, 1976, Your Honor. COURT: First receipt is P2,250.00. 13 xxx xxx xxx ATTY. LUCERO: The receipt for the amount of Two Thousand two hundred fifty (P2,250.00) pesos be marked as Exhibit "F", Your Honor. COURT: Mark it as Exhibit "F." 14 ATTY. LUCERO: May we request Your Honor that the amount of 750.00 receipt be marked as Exhibit "F-1" dated February 23, 1976; Exhibit "F-2" is the receipt for P1,000.00 paid on March 20, 1976; all in all, the amount is P5,000.00 including Exhibit "J" or rather Exhibit "F-3" which is the amount of P1,000.00 and was paid apparently on July 29, 1976 as partial payment for the parcel of land covered by TCT No. 5167 (sic),Your Honor. xxx xxx xxx COURT: Q Will you look at Exhibit "F3" and tell the Court if you know this Exhibit and why do you know this? A This was the receipt prepared by my sister paid to Elvira M. Vda. de Oate the amount of One thousand (P1,000.00) pesos as the payment of the land she purchased. Q Why do you say that the same receipt was prepared by your late sister Leonor Taguba? A Yes ma'am because I was present 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 who testified on the exhibits in question. 16 Herein subject exhibits were also incorporated and made part of the records of 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 is likewise devoid of merit. Private respondent's evidence and testimony remain unrebutted that the contract price for the parcel of land in question is P5,000.00. WHEREFORE, finding no reversible error on the part of respondent court, the decision appealed from is hereby AFFIRMED in toto. SO ORDERED.

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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 AKOL and LUCIA CALMA-AKOL, and the REGISTER OF DEEDS OF THE PROVINCE OF TARLAC, respondents. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari of the Decision 1 of the Court of Appeals (CA) in CA-G.R. CV No. 65352 affirming the Decision2 of the Regional Trial Court (RTC) in Civil Case No. 8634, as well as the Resolution dated November 21, 2003 which denied the motion for reconsideration thereof. On March 31, 1932, the Governor General granted a homestead patent over a 20.9740-hectare parcel of land located in Barrio Tibag, Tarlac, Tarlac. On the basis of said patent, Original Certificate of Title (OCT) No. 1112 was issued by the Register of Deeds on April 21, 1932. The title was cancelled by Transfer Certificate of Title (TCT) No. 13287. On November 27, 1953, TCT No. 13287 was cancelled by TCT No. 19181 under the names of Agatona Calma, Fabian Calma, Emilio Calma and Demetria Calma.3 On September 23, 1954, the parties executed a contract of lease in favor of the Spouses Lope A. Akol, who then 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 the administration of his estate was filed in the RTC of Tarlac docketed as Special Proceedings No. 1262. Lucia Calma was appointed as administratrix of the estate. 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 and Fabian Calma. Meanwhile, in 1967, a 20.564-ha parcel of land located in Tibag, Tarlac and identified as Lot No. 3844 of Pat-H-132104 - prt. was declared for taxation purposes 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 in Tibag, Tarlac City. The case was docketed as Civil Case No. 8634. The heirs claimed that on March 31, 1932, Emilio was awarded Homestead Patent 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; OCT No. 1112 was issued to Emilio on April 21, 1932, and from then had enjoyed full ownership and dominion over the said lot; and prior to his death, Emilio ordered Felimon to work for the recovery of the said property. 7 They further averred that when Felimon went to the Register of Deeds of Tarlac for a final verification, he discovered that the lot covered by OCT No. 1112 was already registered in the names of Agatona, Fabian, Emilio and Demetria, all surnamed 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 matter of subsequent cadastral proceedings, and any title issued pursuant thereto would be void. They prayed that judgment be rendered in their favor, as follows: WHEREFORE, it is most respectfully prayed that after due notice and 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 and validity 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. 19181 and 13287 the estimation of which is left to the sound discretion of the Honorable Court; 2. Ordering the Defendants to pay to the Plaintiffs the amount of P50,000.00 as attorneys 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 been abandoned, and (c) the complaint stated no cause of action. 10 The court denied the motion. The heirs of Calma filed their answer, reiterating the grounds and allegations in their motion to dismiss by way of special and affirmative 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 no record of the said title, nor TCT No. 13287. 12 He discovered from the said office 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, cancelled and replaced by TCT No. 71286 also in the names of Agatona Calma and her co-heirs. On cross-examination, Felimon declared that his father, Emilio, mentioned the 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 in 1990 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 the Lands Management Bureau (LMB) stating that on March 1 to 6, 1930, a parcel 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 Geodetic Engineer. Neither did the plaintiffs present the employee of the Bureau who prepared 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 Cadastral Survey 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 no available records of Homestead Application No. 132104 and Homestead Patent No. 18577 dated March 31, 1932.16 Felino Cortez, Chief, Ordinary and Cadastral Decree Division of the Land Registration Authority (LRA), certified that 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 been issued; and the lot was subject to the annotation "con patent No. 18577 segun report 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. He explained that in 1987 and 1988, his office had to be reconstructed, and titles and documents had to be moved from one place to another. 18 The Register of Deeds issued a certification19 dated September 10, 1998 stating that despite diligent efforts, he could not locate OCT No. 1112 or any document showing how it was cancelled. The Records Officer of the Register of Deeds in Tarlac City also certified that OCT No. 1112 and TCT No. 13287 could not be found despite 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 Order 22 granting the demurrer and dismissing the complaint on the ground that plaintiffs failed to establish their case. The heirs of Santioque appealed said order to the CA claiming that I THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFFSAPPELLANTS FAILED TO PROVE THAT ORIGINAL CERTIFICATE OF TITLE NO. 1112 WAS ISSUED IN THE NAME OF EMILIO SANTIOQUE, THE PLAINTIFFS PREDECESSOR-IN-INTEREST, DESPITE THE FACT THAT SUFFICIENT, ADEQUATE AND CONVINCING EVIDENCE HAVE BEEN PRESENTED TO PROVE THAT SAID OCT 1112 WAS ISSUED IN THE NAME OF EMILIO SANTIOQUE. II THE TRIAL COURT ERRED IN RESORTING TO SPECULATIONS, SURMISES AND CONJECTURES WHEN IT RULED THAT OCT 1112 COULD HAVE BEEN ISSUED TO ANOTHER PERSON OTHER THAN THE LATE EMILIO SANTIOQUE. III THE TRIAL COURT ALSO RESORTED TO SPECULATIONS, SURMISES AND CONJECTURES WHEN IT HELD THAT THERE WAS NO EVIDENCE TO PROVE THAT PATENT NO. 18577 WAS ISSUED TO EMILIO SANTIOQUE, THUS DISREGARDING THE COMPETENT AND SUFFICIENT EVIDENCE ADDUCED BY PLAINTIFFSAPPELLANTS TO PROVE THAT SAID PATENT WAS ISSUED TO EMILIO SANTIOQUE. IV THE TRIAL COURT ERRED IN HOLDING THAT TCT NO. 19181 ISSUED TO DEFENDANTS-APPELLEES WAS PRESUMED TO HAVE BEEN ISSUED IN THE ORDINARY COURSE OF BUSINESS WHEN IN FACT ITS ISSUANCE IS PLAINLY FRAUDULENT AND EVIDENTLY ANOMALOUS. V THE TRIAL COURT ERRED IN SWEEPINGLY CONCLUDING THAT DEFENDANTS-APPELLEES HAVE ACQUIRED THE SUBJECT PROPERTY BY ACQUISITIVE PRESCRIPTION AND IN RULING THAT PLAINTIFFS-APPELLANTS HAVE SLEPT ON THEIR RIGHT FOR MANY YEARS AND THAT THEY HAVE CONSTRUCTIVE

47

NOTICE OF THE ISSUANCE OF DEFENDANTS-APPELLEES TITLE, THUS THEY ARE ESTOPPED BY LACHES. VI THE TRIAL COURT ERRED IN REFUSING WITHOUT VALID CAUSE TO ISSUE SUBPOENA DUCES TECUM AND AD TESTIFICANDUMTO THE REGISTER OF DEEDS OF TARLAC AND THE LAND REGISTRATION AUTHORITY IN ORDER TO SHED LIGHT ON THE WHEREABOUTS 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 National Bureau 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 said letter were the following certifications and investigation reports of the LRA: 1. Xerox copy of TCT No. 71826 dated September 13, 1967 under the names of Agatona Calma, Emilio Calma, Dorotea Calma and Lucia 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 name of Agatona Calma, et al;27 4. Certified xerox copy of Tax Declaration No. 35226 in the names of Agatona Calma, et al;28 5. Certified xerox copy of the Investigation Report of Mr. Felix Cabrera Investigator, Land Registration Authority, dated September 30, 1999, finding that there are no documents in the Registry supporting the cancellation of OCT 1112 and the issuance of TCT Nos. 13287, and that TCT No. 71826 is irregularly issued inasmuch as no transaction which would justify its issuance appears in the Primary Entry Book;29 6. Certification of Mr. Andres B. Obiena, Records Officer I of the Register of Deeds of Tarlac, Tarlac, dated April 5, 1999, that OCT No. 1112 could not be located in the archives; 30 7. Certification of Mr. Meliton I. Vicente, Jr., Community Environment and Natural Resources Officer of the DENR, Region III, that Lot No. 3844 is already covered by Homestead Application No. 132104 with Patent No. 1877 issued to Emilio Santioque on March 31, 1932;31 8. Certified xerox copy of Record Book Page 383 signed by Florida S. Quiaoit, Records Management Unit, CENRO III-6, Tarlac City, showing that Emilio Santioque is a claimant of Lot No. 3844 under Homestead Application No. HA-132104 and Patent No. 1877;32 9. Certified xerox copy of Area Sheet over Lot 3844 prepared for Emilio 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, showing that Emilio Santioque was the claimant of Lot No. 3844, under PatH-132104 Part.34 The heirs of Santioque did not present the said documents at the trial below but 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 documents submitted by the heirs of Santioque, as their authenticity had not been established and the signatories therein were not presented for crossexamination. It noted that none of the "crucial documents" were presented in the trial court. Assuming that OCT No. 1112 was indeed issued to Emilio Santioque, the claim of his heirs was nevertheless barred by laches; the latter must bear the consequences of their fathers inaction. The heirs of Santioque filed a motion for reconsideration, which the CA resolved to deny on November 21, 2003.37 The heirs of Santioque, now petitioners, seek relief from this Court on the following issues: I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT GIVING CREDENCE TO THE CERTIFICATIONS, DOCUMENTS, RECORDS AND PICTURES SUBMITTED BY PETITIONER BEFORE THE SAID COURT ON THE GROUND THAT THEY WERE NOT SUBMITTED IN EVIDENCE AT THE TRIAL AND THAT THEIR AUTHENTICITY HAS NOT BEEN ESTABLISHED, DESPITE THE FACT THAT PETITIONERS FAILURE TO SUBMIT THE SAME AS EVIDENCE BEFORE THE TRIAL COURT AND TO ESTABLISH THEIR AUTHENTICITY WAS DUE TO THE PREMATURE AND UNJUSTIFIED DISMISSAL OF THEIR COMPLAINT, WHICH WAS TANTAMOUNT TO DENIAL OF THEIR RIGHT TO BE HEARD AND TO DUE PROCESS. II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT DESPITE PETITIONERS FAILURE TO PRESENT THEIR ORIGINAL CERTIFICATE OF TITLE, OCT NO. 1112, SUFFICIENT AND CONVINCING EVIDENCE WERE ADDUCED BY PETITIONERS TO PROVE THAT SAID TITLE WAS ISSUED TO THEIR PREDECESSOR-IN-INTEREST, EMILIO SANTIOQUE. ON THE OTHER HAND, SINCE PETITIONERS COMPLAINT WAS DISMISSED BY THE TRIAL COURT ON RESPONDENTS DEMURRER TO EVIDENCE, THE RESPONDENTS FAILED EITHER (1) TO CONTROVERT THE EVIDENCE ADDUCED BY PETITIONERS IN SUPPORT OF THEIR CLAIM OVER THE SUBJECT PROPERTY OR THEIR PRETENSION OF FACTS. III. THE HONORABLE COURT OF APPEALS GRAVELY MISAPPREHENDED THE FACTS OF THE CASE WHEN IT HELD THAT RESPONDENTS ARE IN ACTUAL POSSESSION OF THE SUBJECT PROPERTY, DESPITE CLEAR ABSENCE OF EVIDENCE BY RESPONDENTS TO SUPPORT THEIR CLAIM OF POSSESSION AND AS EVIDENCED BY THE PICTURES SUBMITTED BY PETITIONERS. IV. THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS DID NOTHING TO RECOVER THEIR CERTIFICATE OF TITLE, OCT NO. 1112, IN A DIRECT ACTION IF INDEED SAID OCT NO. 1112 WAS ISSUED TO EMILIO SANTIOQUE AND INVALIDLY CANCELLED AND REPLACED WITH TCT NO. 13287 IN THE NAME OF RESPONDENTS, AND THAT THE PETITIONERS SHOULD BEAR THE CONSEQUENCES OF THEIR FATHER EMILIO SANTIOQUES 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 THE LOWER COURT IS PROPER, INSTEAD OF A DECISION ON THE MERITS.38 Petitioners contend that the appellate court erred in not giving credence to the certifications, records, documents and pictures they attached to their appellants brief. They aver that they had not yet discovered the said documents when they presented their evidence at the trial court; hence, they could have presented the documents and their affiants during the rebuttal stage of the proceedings had the trial court not prematurely aborted the proceedings before it. They insist that they were denied their right to due process when the trial court granted respondents demurrer to evidence and dismissed the case.39 Petitioners aver that they have clearly shown and proven their claim over the property, particularly through Tax Dec. No. 19675 and the contents of the Record Book. They posit that judicial notice should be taken that tax declarations are usually issued in the name of the prospective owner upon a showing of the basis of ownership. On the other hand, respondents have no factual and evidentiary basis to support their claim over the subject property since they have not adduced before the trial court any documentary and testimonial evidence to support ownership of the property. Petitioners further contend that they have clearly shown, through the pictures they submitted before the appellate court, that respondents have not been in actual 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 since they have been vigilant in protecting their rights. They contend that Emilio was old and sickly and died at an old age. Laches presupposes negligence, and neither Emilio nor his successors were negligent in protecting their rights over the subject property. It took sometime before they could lodge a complaint against respondents because they had to make inquiries first and retrieve documents from different offices to support their claim. 41 For their part, respondents aver that there were no indicia of proof that OCT No.1112 was really issued to Emilio. The evidence proffered by the petitioners only tends to prove that Emilio was a mere claimant. It is not incumbent upon the respondents to present any proof that they are the owners of the subject lot because the property is registered in their name. The mere fact that the records are not available would not ipso factomean that the transactions made affecting OCT No. 1112 were irregular. 42 Respondents further aver that the appellate court was correct in not giving credence to the documents, which were not submitted during the trial even though they were obtainable at that time. To allow the introduction of these documents on appeal would violate the essence of due process as the respondents 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 Emilios claim ripened i nto full ownership. Respondents likewise agree with the finding of the appellate court that the complaint is already barred by prescription and laches. 43 The petition is without merit.

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The core issues in this case are: (1) whether the trial court erred in granting the 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 the RTC granting the demurrer is correct. Demurrer to evidence authorizes a judgment on the merits of the case without the defendant having to submit evidence on his part as he would ordinarily have to do, if it is shown by plaintiffs 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, the plaintiff has shown no right to relief.45 Where the plaintiffs evidence together with such inferences and conclusions as may reasonably be drawn therefrom does not warrant recovery against the defendant, a demurrer to evidence should be sustained.46 A demurrer to evidence is likewise sustainable when, admitting every proven fact favorable to the plaintiff and indulging in his favor all conclusions fairly and reasonably inferable therefrom, the plaintiff has failed to make out one or more of the material elements of his case,47 or when there is no evidence to support an allegation necessary to his claim.48 It should be sustained where the plaintiffs evidence is prima facie insufficient for a recovery.49 Petitioners, as plaintiffs below, were obliged to prove their claim in their complaint that their father, Emilio, applied for and was granted Homestead Patent No. 18577, and that OCT No. 1112 was issued by the Register of Deeds in his name on the basis of said patent. Petitioners had the burden of proof to present evidence on the fact in issue to establish their claim by their own evidence required by law.50 More so, where, as in this case, on the face of TCT No. 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 the basis of a homestead patent. It must be stressed that the original certificate of title carries a strong presumption that the provisions of law governing the registration of land have been complied with. The OCT enjoys a presumption of validity. Once the title is registered, the owners can rest secure on their ownership and possession.51 Once a homestead patent granted in accordance with 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 registration law.52 In the present case, petitioners failed to prove the material allegations in their 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 with approval the ruling of the RTC: The plaintiffs failed to prove that OCT [N]o. 1112 was issued in the name of Emilio Santioque. It was issued all right, but there is no evidence it was in the name of Emilio Santioque. OCT [N]o. 1112 could have been in the name of another person. Exhibit "B" merely shows that Emilio Santioque is a survey claimant. Exhibit "A" contradicted all these claims of plaintiffs. It is stated therein that Lot No. 3844 of Tarlac Cadastre, Cadastral Case [N]o. 61, L.R.C. Record No. 1879 was previously decided but no final decree of registration has yet issued thereon. Hence, there was already a decision by the cadastral court. In whose favor the land was awarded is a mystery up to the date. There is also no evidence that [P]atent [N]o. 18577 was issued to Emilio 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 to annotation quote: "con patent no. 18577 segun report of the B.L." ", this being the very reason why no decree of registration was issued pursuant to the cadastral proceeding.53 Petitioners even failed to present Homestead Application No. 132104 allegedly filed by Emilio with the Bureau of Lands. In fact, as evidenced by the 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, The Public 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 been improved and cultivated. The period within which the land shall be 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 soon as he is ready to acquire the title. If at the date of such notice, the applicant shall prove to the satisfaction of the Director of Lands, that he has resided continuously for at least one year in the municipality in which the land is located, or in a municipality adjacent to the same, and has cultivated at least one-fifth of the land continuously since the approval of the application, and shall make affidavit that no part of said land has been alienated or encumbered, and that he has complied with all the requirements

of this Act, then, upon the payment of five pesos, as final fee, he shall be entitled to a patent. Petitioners failed to present competent and credible evidence that Emilio Calma complied with the aforesaid requirements before his death. Petitioners rely on Tax Dec. No. 19675 to substantiate their claim over the subject property. However, it is axiomatic that tax receipts and tax declarations 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 the certifications which petitioners submitted before it on the ground that the said 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 has been formally offered,55 otherwise, the opposing party would be denied due process of law.56 Thus, the Court explained in one case that A formal offer is necessary since judges are required to base their findings of fact and judgment onlyand strictlyupon the evidence offered by the parties at the trial. To allow a party to attach any document to his pleading and then expect the court to consider it as evidence may draw unwarranted consequences. The opposing party will be deprived of his chance to examine the document and object to its admissibility. The appellate court will have difficulty reviewing documents not previously scrutinized by the court below.57 Petitioners, however, contend that they could have presented the said documents during the rebuttal stage of the proceedings before the trial court. It bears stressing, however, that a plaintiff is bound to introduce all evidence that supports his case during the presentation of his evidence in chief. 58 A party holding the affirmative of an issue is bound to present all of the evidence on the case in chief before the close of the proof, and may not add to it by the device of rebuttal.59 After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only. 60 Generally, rebuttal evidence is confined to that which explains, disproves, or counteracts evidence introduced by the adverse party. It is not intended to give 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 the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. This is usually allowed when the evidence is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered.62 It is true that petitioners failed to adduce rebuttal evidence because respondents filed a Demurrer to Evidence. However, petitioners should have filed a motion for new trial based on newly-discovered evidence under Rule 37, Section 2 of the 1997 Rules of Civil Procedure after the trial court granted the 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 trial court.63 Assuming this claim to be true, the Court notes however, that petitioners nevertheless failed to establish that they could not, with reasonable diligence, have discovered and produced the documents at the trial, and prove that such documents would probably alter the result, if presented. The documents belatedly submitted by petitioners on appeal can hardly 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 if admitted, they would not, in any 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 in ten years, the point of reference being the date of registration of the deed or the date of issuance of the certificate of title over the property. 64Even if we reckon 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 ten years have already elapsed since then until the time the petitioners filed their complaint on February 29, 1998. An action for reconveyance is imprescriptible only when the plaintiff is in actual possession of the property.65 In the present case, there is no showing that petitioners were in actual possession of the subject property. In any event, petitioners cause of action is likewise barred by laches. The essence of laches or "stale demands" is the failure or neglect for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier, thus giving rise to the presumption that the party entitled to assert it either has abandoned or declined 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 ecessors 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 is no available record to prove that patent No. 18577 was in the name of Emilio Santioque. (Exhibit "B-1")." We add that nowhere

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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 o f another title over Lot No. 3844 could be reckoned only from 1953 when TCT No. 19181 was issued to replace TCT No. 13287, still appellants and their predecessors-in-interest waited 45 years before bringing the action below. Meanwhile, Lot No. 3844 became the subject of various litigations among appellees and with third parties, as well as several transactions, such as the contract of lease between Emilio Calmas heirs and spouses Lope A. Akol from 1954 -1964 (Entry No. 46563); the Assignment of Leasehold rights to Rehabilitation 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 the appellees, who as the registered owners are also presumed to be in possession of the same. While the indefeasibility of the Torrens title of appellees can be claimed 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 in their fathers 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 based upon grounds of public policy which requires for the peace of society the discouragement of stale actions, and unlike the statute of limitations is not a mere question of time but primarily a question of the inequality or unfairness of permitting a right or claim 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 to assert their claim over the disputed property for almost thirty (30) years constituted laches. The question of laches is addressed to the sound discretion of the court. Laches being an equitable doctrine, its application is controlled by equitable considerations, although the better rule is that courts under the principle of equity will not be guided or bound strictly by the statute of limitations or doctrine of laches when 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 defendants have been in actual possession of the property for more than ten (10) years, the registered title of plaintiffs over the property cannot be lost by prescription or laches ( Board of Liquidators vs. Roxas, 179 SCRA 809); or that an action by the registered owner to recover possession based on a Torrens title is not barred by laches (Dablo vs. Court of Appeals, 226 SCRA 621). However, the laches committed by the appellants pertained to the establishment of their very title itself. Only after they have recovered their title could they then have standing to question the title of the appellants and recover possession of the subject lot. Besides, it has been held that an action for reconveyance or quieting of title instituted only after thirty (30) years could be barred by laches (City Government of Danao vs. Monteverde Consunji, 358 SCRA 107). This being so, all the more should an action to recover title, filed after 45 years, be barred by laches where the complainants 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. 65352 are AFFIRMED. Cost against the petitioners. SO ORDERED.

assailed Resolution, the appellate court denied the spouses Tans Motion for Reconsideration. The factual milieu of this case is as follows: The spouses Tan were natural-born Filipino citizens, who became Australian citizens on 9 February 1984.4 They seek to have the subject property registered in their names. The subject property was declared alienable and disposable on 31 December 1925, as established by a Certification5 dated 14 August 2000 issued by the Department of Environment and Natural Resources (DENR), Community Environment and Natural Resources Office (CENRO), Cagayan de Oro City. Prior to the spouses Tan, the subject property was in the possession of Lucio and Juanito Neri and their respective spouses. Lucio and Juanito Neri had declared the subject property for taxation purposes in their names under Tax Declarations No. 8035 (1952),6 No. 15247 and No. 1523 (1955).8 The spouses Tan acquired the subject property from Lucio and Juanito Neri and their spouses by virtue of a duly notarized Deed of Sale of Unregistered Real Estate Property9 dated 26 June 1970. The spouses Tan took immediate possession of the subject property on which they planted rubber, gemelina, and other fruit-bearing trees. They declared the subject property for taxation purposes 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 Casio (Casio) claimed a portion of the subject 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, where it was docketed as Civil Case No. 88-204. On 29 August 1989, the RTC rendered a Decision18 in Civil Case No. 88-204 favoring the spouses Tan and declaring their title to the subject property thus "quieted." Casio appealed the said RTC Decision to the Court of Appeals where it was docketed as CAG.R. CV No. 26225. In a Resolution19dated 15 November 1990, the appellate court dismissed CA-G.R. CV No. 26225 for lack of interest to prosecute. Casio 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 UDK10332, the Court denied Casios Petition for being insufficient in form and substance. The said Resolution became final and executory on 3 June 1991. 21 Refusing to give up, Casio filed an Application for Free Patent on the subject property before the Bureau of Lands.22 On 8 December 1999, Casios application was ordered cancelled23 by Officer Ruth G. Sabijon of DENRCENRO, Cagayan de Oro City, upon the request of herein petitioner Pedro Tan, 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 Csd10-002779 prepared in the name of Casio was also ordered cancelled24 by the 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 Title25 to the 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 the spouses Tan invoked the provisions of Act No. 496 26 and/or Section 48 of Commonwealth Act No. 141,27 as amended. In compliance with the request28 of the Land Registration Authority (LRA) dated 29 August 2000, the spouses Tan filed on 5 October 2000 an Amended Application for Registration of Title29 to the subject property. The Office of the Solicitor General (OSG) entered its appearance in LRC Case No. N-2000-055 on behalf of the Republic, but failed to submit a written opposition to the application of the spouses Tan. When no opposition to the application of the spouses Tan was filed by the time of the initial hearing of LRC Case No. N-2000-055, the RTC issued on 23 April 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 the testimony of John B. Acero (Acero), nephew and lone witness of the spouses Tan. Acero recounted the facts already presented above and affirmed that the spouses Tans possession of the subject property had been open, public, adverse and continuous.30 After Aceros 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-2000-055 granting the application of the spouses Tan, the dispositive portion of which reads: WHEREFORE, [Spouses Tan] having conclusively established to the satisfaction of this Court their ownership of the [subject property], Lot 1794, Pls-923, situated in Villanueva, Misamis Oriental, 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 accordance with 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 following assignment of errors:

G.R. No. 177797

December 4, 2008

SPS. PEDRO TAN and NENA ACERO TAN, petitioner, vs. REPUBLIC OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J.: This case is a Petition for Review on Certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure seeking to reverse and set aside the Decision1 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, the appellate court reversed and set aside the Decision3 dated 9 May 2001 of the Regional Trial Court (RTC) of Misamis Oriental, 10th Judicial Region, Branch 39, Cagayan de Oro City, in LRC Case No. N-2000-055, and ordered herein petitioners, spouses Pedro and Nena Tan (spouses Tan), to return the parcel of land known as Lot 1794, Ap-10-002707, Pls-923, with an area of 215,698 square meters, located in Calingagan, Villanueva, Misamis Oriental (subject property) to herein respondent, Republic of the Philippines (Republic). In its

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I. The trial court erred in ruling that [herein petitioners Spouses Tan] and their predecessors-in-interest have been in open, continuous and notorious possession of subject property for the period required by law. II. The trial court erred in granting the application for land registration despite the fact that there is a disparity between the area as stated in [the Spouses Tans] application and the tax declarations of Juanito Neri, Lucio Neri, and [herein petitioner Pedro Tan]. III. The trial court erred in granting the application for land registration despite the fact that [the Spouses Tan] failed to present the original tracing cloth plan. IV. The trial court erred in relying on the Decision dated [29 August 1989] by the RTC-Branch 24, Cagayan de Oro City which declared [the Spouses Tans] "title" on the subject [property] "quieted." V. The trial court erred in not finding that [the Spouses Tan] failed to overcome the presumption that all lands form part of the public domain.33 On 28 February 2006, the Court of Appeals rendered a Decision in CA-G.R. CV No. 71534 granting the appeal of the Republic, and reversing and setting aside the 9 May 2001 Decision of the RTC on the ground that the spouses Tan failed to comply with Section 48(b) of Commonwealth Act No. 141, otherwise known 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 12 June 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 Decision of the Court of Appeals. To refute the finding of the appellate court that they and their predecessors-in-interest did not possess the subject property by 12 June 1945 or earlier, the spouses Tan attached to their Motion a copy of Tax Declaration No. 4627covering the subject property issued in 1948 in the name of their predecessor-in-interest, Lucio Neri. They called attention to the statement in Tax Declaration No. 4627 that it cancelled Tax Declaration No. 2948. Unfortunately, no copy of Tax Declaration No. 2948 was available even in the Office of the Archive of the Province of Misamis Oriental. The spouses Tan asserted that judicial notice may be taken of the fact that land assessment is revised by the government every four years; and since Tax Declaration 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 fide 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 for Registration of Title to the subject property in the year 2000 generally invoking the provisions of Act No. 496 and/or Section 48 of Commonwealth Act 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, to wit: (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 application before the RTC, then it can be reasonably inferred that they are seeking the judicial confirmation or legalization of their imperfect or incomplete 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 under Section 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 such lands or an interest therein, but whose titles have not been perfected 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 the Land Registration Act, to wit: (a) [Repealed by Presidential Decree No. 1073]. (b) Those who by themselves or through their predecessors-in- interest 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 of ownership, since June 12, 1945, or earlier, immediately preceding the filing of the application for confirmation of title, except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this chapter. (c) Members of the national cultural minorities who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of lands of the public domain suitable to agriculture whether disposable or not, under a bona fide claim of ownership since June 12, 1945 shall be entitled to the rights granted in subsection (b) hereof. (Emphasis supplied.) Not being members of any national cultural minorities, spouses Tan may only be entitled to judicial confirmation or legalization of their imperfect or incomplete title under Section 48(b) of the Public Land Act, as amended. The Court notes that Presidential Decree No. 1073, amending the Public Land Act, 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, the two requisites which the applicants must comply with for the grant of their Application for Registration of Title are: (1) the land applied for is alienable and disposable; and (2) the applicants and their predecessors-in-interest have occupied and possessed the land openly, continuously, exclusively, and adversely 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 the government such as a presidential proclamation or an executive order or administrative action, investigation reports of the Bureau of Lands investigator or a legislative act or statute. Until then, the rules on confirmation of imperfect title do not apply.43 In the case at bar, the spouses Tan presented a Certification from the DENRCENRO, Cagayan de Oro City, dated 14 August 2000, to prove the alienability and disposability of the subject property. The said Certification stated that the subject property became alienable and disposable on 31 December 1925. A certification from the DENR that a lot is alienable and disposable is sufficient to establish the true nature and character of the property and enjoys a presumption of regularity in the absence of contradictory evidence.44 Considering that no evidence was presented to disprove the contents of the aforesaid DENR-CENRO Certification, this Court is dutybound 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 the public domain as early as 31 December 1925, they still failed to satisfactorily establish compliance with the second requisite for judicial confirmation of imperfect or incomplete title, i.e., open, continuous, exclusive and notorious possession and occupation of the subject property since 12 June 1945 or earlier. Through the years, Section 48(b) of the Public Land Act has been amended several times. Republic v. Doldol45provides a summary of these amendments: The original Section 48(b) of C.A. No. 141 provided for possession and occupation of lands of the public domain since July 26, 1894. This was superseded by R.A. No. 1942, which provided for a simple thirty-year prescriptive period of occupation by an applicant 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) now reads: (b) Those who by themselves or through their predecessors-in- interest 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 preceding the filing of the application for confirmation of title except when prevented by wars or force majeure. Those shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions 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 or incomplete title, the possession and occupation of the piece of land by the applicants, by themselves or through their predecessors-in-

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interest, since 12 June 1945 or earlier. This provision is in total conformity with Section 14(1) of the Property Registration Decree heretofore cited. (Emphasis ours.) As the law now stands, a mere showing of possession for thirty years or more is not sufficient. It must be shown, too, that possession and occupation had started on 12 June 1945 or earlier.46 It is worth mentioning that in this case, even the spouses Tan do not dispute that the true reckoning period for judicial confirmation of an imperfect or incomplete title is on or before 12 June 1945. They also admit that based on the previous evidence on record, their possession and occupation of the subject property fall short of the period prescribed by law. The earliest evidence of possession and occupation of the subject property can be traced back 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 indulgence of 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 had argued before the Court of Appeals, the spouses Tan point out that Tax Declaration No. 4627 was not newly issued but cancelled Tax Declaration No. 2948; and should the Court take judicial notice of the fact that tax assessments are revised every four years, then Tax Declaration No. 2948 covering 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 evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. On the basis thereof, it is clear that evidence should have been presented during trial before the RTC; evidence not formally offered should not be considered. In this case, it bears stressing that Tax Declaration No. 4627 was only submitted by the Spouses Tan together with their Motion for Reconsideration of the 28 February 2006 Decision of the Court of Appeals. The reason given by the Spouses Tan why they belatedly procured such evidence was because at the time of trial the only evidence available at hand was 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 mere showing 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 Tan unsatisfactory. The spouses Tan filed their application for registration of title to 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 as it was only submitted by the Spouses Tan when they filed their Motion for Reconsideration of the 28 February 2006 Decision of the appellate court. And even if this Court, in the interest of substantial justice, fairness and equity, admits and take into consideration Tax Declaration No. 4627, issued in 1948, it would still be insufficient to establish open, continuous, exclusive and notorious possession and occupation of the subject property by the Spouses 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 June 1945, the cut-off date under the law for acquiring imperfect or incomplete title to public land. For the Court to conclude from the face of Tax Declaration No. 4627 alone that the subject property had been declared for tax purposes before 12 June 1945 would already be too much of a stretch and would require it to rely on mere presuppositions and conjectures. The Court cannot simply take judicial notice that the government revises tax assessments every four years. Section 129 of the Revised Rules of Evidence provides particular rules on which matters are subject to judicial notice and when it is mandatory47 or discretionary48 upon the courts or when a hearing is necessary.49 It is unclear under which context this Court must take judicial notice of the supposed four-year revision of tax assessments on real properties. Moreover, the power to impose realty taxes, pursuant to which the assessment of real property is made, has long been devolved to the local government units (LGU) having jurisdiction over the said property. Hence, the rules pertaining to the same may vary from one LGU to another; and regular revision of the tax assessments of real property every four years may not 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, exclusive and 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 tax purposes does not prove ownership.51They may be good supporting or collaborating 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 for acquiring imperfect or incomplete title to the land. As a final observation, the spouses Tan purchased the subject property and came 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 property to that of their predecessors-in-interest. While the spouses Tan undoubtedly possessed and occupied the subject property openly, continuously, exclusively and notoriously, by immediately introducing improvements on the said property, in addition to declaring the same and paying realty tax thereon; in contrast, there was a dearth of evidence that their predecessorsin-interest possessed and occupied the subject property in the same manner. The possession and occupation of the subject property by the predecessorsin-interest of the spouses Tan were evidenced only by the tax declarations in the names of the former, the earliest of which, Tax Declaration No. 4627, having been issued only in 1948. No other evidence was presented by the spouses Tan to show specific acts of ownership exercised by their predecessors-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 by Section 48(b) of the Public Land Act, as amended, this Court has no other option but to deny their application for judicial confirmation and registration of their title to the subject property. Much as this Court wants to conform to the States policy of encouraging and promoting the distribution of a lienable public lands to spur economic growth and remain true to the ideal of social justice, our hands are tied by the laws stringent safeguards against registering imperfect titles.52 The Court emphasizes, however, that our ruling herein is without prejudice to the spouses Tan availing themselves of the other modes for acquiring title to alienable and disposable lands of the public domain for which they may be qualified 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 herebyAFFIRMED. No costs. 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 the Regional Trial Court, Branch 65, Tarlac City, finding appellant Agpanga Libnao and her co-accused Rosita Nunga guilty of violating Article II, Section 4 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 oc lock dawn, in the Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping with one another, without being lawfully authorized, did then and there willfully, unlawfully and feloniously make delivery/transport with intent to sell marijuana leaves wrapped in a transparent plastic weighing approximately eight (8) kilos, which is in violation of Section 4, Article II of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended. CONTRARY TO LAW."2 During their arraignment, both entered a plea of Not Guilty. Trial on the merits 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 on suspected drug dealers in the area. They learned from their asset that a certain woman from Tajiri, Tarlac and a companion from Baguio City were transporting illegal drugs once a month in big bulks. On October 19, 1996, at about 10 oclock in the evening, Chief Inspector Benjamin Arceo, Tarlac Police Chief, held a briefing in connection with a tip which 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 Roberto Aquino were assigned to man the checkpoint. At about 1:00 oclock in the morning of the following day, SPO1 Gamotea and PO3 Ferrer flagged down a passing tricycle. It had two female passengers seated inside, who were later identified as the appellant Agpanga Libnao and her co-accused Rosita Nunga.3 In front of them was a black bag. Suspicious of the black bag and the twos uneasy behavior when asked about its ownership and content, the officers invited them to Kabayan Center No.2 located at the same barangay. They brought with them the black bag. Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to witness the opening of the black bag. In the meantime, the two women and the bag were turned over to the investigator on duty, SPO3 Arthur Antonio.

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As soon as the barangay captain arrived, the black bag was opened in the presence of the appellant, her co-accused and personnel of the center. Found inside it were eight bricks of leaves sealed in plastic bags and covered with newspaper. The leaves were suspected to be marijuana. To determine who owns the bag and its contents, SPO3 Antonio interrogated the two. Rosita Nunga stated that it was owned by the appellant. The latter, in turn, disputed this allegation. Thereafter, they were made to sign a confiscation 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 San Fernando, Pampanga on October 23, 1996. Forensic Chemist Daisy P. Babu conducted a laboratory examination on them. She concluded that the articles were marijuana leaves weighing eight kilos.4 For their part, both accused denied the accusation against them. Rosita Nunga testified that in the evening of October 19,1996, she went to buy medicine for her ailing child at a pharmacy near the Tarlac Provincial Hospital. The child was suffering from diarrhea, occasioned by abdominal pain. To return to their house, she boarded a tricycle bound for Barangay Tariji, where she resides. Along the way, the tricycle she was riding was flagged down by a policeman at a checkpoint in Barangay Salapungan. She was taken aback when the officer invited her to the Kabayan Center. It was there that she was confronted with the black bag allegedly containing eight bricks of marijuana leaves. She disputed owning the bag and knowing its contents. She also denied sitting beside the appellant in the passengers seat inside the tricycle, although she admitted noticing a male passenger behind the driver. Remarkably, appellant did not appear in court and was only represented by her lawyer. The latter marked and submitted in evidence an affidavit executed by one Efren Gannod, a security guard of Philippine Rabbit Bus Lines in Tarlac, Tarlac. The sworn statement declared that at about 0220H on October 20, 1996, SPO2 Antonio arrived at their terminal and arrested a certain woman who boarded their Bus No. 983. The incident was recorded in the companys 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 reasonable doubt of the offense of violation of Article II, Section 4 of RA 6425 in relation to RA 7659, they are hereby sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos. SO ORDERED."5 Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she assigned the following errors: "1. The Honorable Regional Trial Court failed to appreciate the contention of the defense that the right of accused against illegal and unwarranted arrest and search was violated by the police officers who arrested both accused. 2. The Honorable Court failed to appreciate the contention of the defense that the right of the accused to custodial investigation was deliberately violated by the peace officers who apprehended and investigated the accused. 3. The Honorable Court miserably failed to evaluate the material inconsistencies in the testimonies of the prosecutions witnesses which inconsistencies cast doubt and make incredible the contention and version of the prosecution. 4. The Honorable Court gravely abused its discretion when it appreciated and considered the documentary and object evidence of the prosecution not formally offered amounting to ignorance of the law."6 We are not persuaded by these contentions; hence, the appeal must be dismissed. In arguing that her arrest was unlawful, appellant capitalizes on the absence of a warrant for her arrest. She contends that at the time she was apprehended by the police officers, she was not committing any offense but was merely riding a tricycle. In the same manner, she impugns the search made on her belongings as illegal as it was done without a valid warrant or under 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 be conducted by law enforcers only on the strength of a search warrant validly issued 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 no search warrant and warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."7

The constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against "unreasonable" searches and seizures. Searches and seizures are as a rule unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause is that between persons and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants and warrants of arrest.8 Be that as it may, the requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is not absolute. There are certain 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 under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought.10 Peace officers in such cases, however, are limited to routine checks where the examination of the vehicle is limited to visual inspection.11 When a vehicle is stopped and subjected to an extensive search, such would be constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains as item, article or object which by law is subject to seizure and destruction.12 In earlier decisions, we held that there was probable cause in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused;13 (b) where an informer positively identified the accused who was observed to be acting suspiciously; 14 (c) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a quantity of marijuana; 15 (d) where Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so;16 (f) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy -- one who participated in the drug smuggling activities of the syndicate to which the accused belong -- that said accused were bringing prohibited drugs into the country; 17 (g) where the arresting officers had received a confidential information that the accused, whose identity as a drug distributor was established in a previous test-buy operation, would be boarding MV Dona Virginia and probably carrying shabu with him;18 (h) where police officers received an information that the accused, who was carrying a suspicious-looking gray luggage bag, would transport 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 given by 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 surveillance operation for three months in the area. The surveillance yielded the information that once a month, appellant and her co-accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of October 19, 1996, the police received a tip that the two will be transporting drugs that night riding a tricycle. Surely, the two were intercepted three hours later, riding a tricycle and carrying a suspicious-looking black bag, which possibly contained the drugs in bulk. When they were asked who owned it and what its content was, both became uneasy. Under these circumstances, the warrantless search and seizure of appellants bag was not illegal. It is also clear that at the time she was apprehended, she was committing a criminal 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 warrantless arrest is when the person to be arrested is caught committing a crime in flagrante delicto, thus: "Section 5. Arrest without Warrant; when lawful. - A peace officer or a private person may, without warrant, arrest a person: (a) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances 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 final judgment or temporarily confined while his case is pending, or has escaped 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 lawyer when police officers interrogated her. She claimed that she was not duly informed of her right to remain silent and to have competent counsel of her choice. Hence, she argues that the confession or admission obtained therein should be considered inadmissible in evidence against her. These contentions deserve scant attention. Appellant did not make any confession during her custodial investigation. In determining the guilt of the appellant and her co-accused, the trial court based its decision on the

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testimonies of prosecution witnesses and on the existence of the confiscated marijuana. We quote the relevant portion of its decision: "Earlier in the course of the proceedings, the court then presided by 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 to rest on good authority and will therefore reiterate its inadmissibility. Since the prosecution had not presented any extrajudicial confession extracted from both accused as evidence of their guilt, the court finds it needless to discuss any answer given by both accused as a result of the police interrogation while in their custody. By force of necessity, therefore, the only issue to be resolved by the court is whether or not, based on the prosecutions 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 latters failure to formally offer them. Absent any formal offer, she argues that they again must be deemed inadmissible. The contention is untenable. Evidence not formally offered can be considered by the court as long as they have been properly identified by testimony duly recorded and they have themselves been incorporated in the records of the case.23 All the documentary and object evidence in this case were properly identified, presented and marked as exhibits in court, including the bricks of marijuana.24 Even without their formal offer, therefore, the prosecution can still establish the case because witnesses properly identified those exhibits, and their testimonies are recorded.25 Furthermore, appellants counsel had cross-examined the prosecution witnesses who testified on the exhibits.26 Appellant also assails the credibility of the testimonies of the prosecution witnesses. She first cites the inconsistency between the testimony of SPO1 Marlon Gamotea, who said that it was SPO2 Antonio who opened the black bag containing the marijuana; and that of SPO2 Antonio, who declared that the bag was already open when he arrived at the Kabayan Center. She then focuses on the police officers failure to remember the family name of the driver of the tricycle where she allegedly rode, claiming that this is improbable and contrary to human experience. Again, appellants arguments lack merit. The alleged inconsistencies she mentions refer only to minor details and not to material points regarding the basic 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 who opened the bag is clearly immaterial to the guilt of the appellant. Besides, it is to be expected that the testimony of witnesses regarding the same incident may be inconsistent in some aspects because different persons may have different recollections of the same incident.28 Likewise, we find nothing improbable in the failure of the police officers to note and remember the name of the tricycle driver for the reason that it was unnecessary for them to do so. It was not shown that the driver was in complicity with the appellant and her co-accused in the commission of the crime. To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are law enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption.29 In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in arresting the appellant. Against the credible positive testimonies of the prosecution witnesses, appellants defense of denial and alibi cannot stand. The defense of denial and alibi has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most cases involving violation of the Dangerous Drugs Act. 30 It has to be substantiated by clear and convincing evidence.31 The sole proof presented in the lower court by the appellant to support her claim of denial and alibi was a sworn statement, which was not even affirmed on the witness stand by the affiant. Hence, we reject her defense. IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial court 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 a fine of two million pesos is hereby AFFIRMED. SO ORDERED.

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 as the Dangerous Drugs Act of 1972 in an information filed by the Office of the City Fiscal of Zamboanga City with the Regional Trial Court of Zamboanga City. The information alleged: That on or about June 7, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI six (6) sticks of marijuana cigarettes, knowing same to be 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 as charged 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 the prosecution witnesses, all of them Narcom agents, wherein the appellant sold six (6) sticks of marijuana to Sgt. Amado Ani, a member of the operation, who acted as the poseur-buyer. The other target of the operation, a certain Ballena 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 another person was selling marijuana at Talon-Talon more particularly at Lucy's Store, the Narcom Agents conducted a surveillance in said place riding on two motorcycles a day before the raid. They saw the accused selling marijuana. The following day, again, the Narcom Agents held a conference and each of them was briefed by their team leader. One of them who was Sgt. Amado Ani was to act as poseur buyer while others, namely: Sgt. Jesus Belarga, Sgt. Bernardo Lego and Sgt. Julieto Vega 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, and Vega; while Sgt. Amado Ani, the poseur buyer, proceeded to the Lucy's store. There he met the accused Romil Marcos who asked said poseur buyer how much he was buying and the latter answered him P10.00 worth. The accused entered the store, gave the P10.00 marked money given by Sgt. Ani to his companion Ballena and the latter gave the accused Romil Marcos the six sticks of marijuana cigarettes which were wrapped. Sgt. Ani examined the same and upon verifying that it was marijuana, he proceeded to the street and made the pre-arranged signal by wiping his face with a handkerchief. The three Narcom Agents rushed to the place where Sgt. Amado Ani was. However, after Sgt. Ani gave the signal, he returned to where the accused Romil Marcos and alias Ballena were, introduced himself as Narcom Agent and grabbed the accused Romil Marcos but the latter was able to escape. While escaping, the Narcom Agents saw him throw a stick of marijuana cigarette which Sgt. Belarga retrieved. Later, they apprehended Romil Marcos and brought 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 marijuana cigarettes that were sold by the said accused Romil Marcos to the poseur buyer, Sgt. Ani. The Five sticks were examined by the PCCI and found the same to be positive 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 testify against Ballena who was actually the target of the buy-bust operation. He testified 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 was temporarily laid off. That while he was at the Lucy's Store, a motorcycle stopped in the store. Immediately, the people on board said motorcycle chased a certain Ballena who is his neighbor. That Ballena's complete name is Romeo Ballena who is known as Mimi or Mi. Then he heard a shot when they were chasing Ballena but does not know who fired the same. The people on board the motorcycle were not able to catch up with Ballena, so they returned to the store. Upon returning to the store, one of them pointed at him and said that he was a companion of Ballena at the same time handcuffing him. At that time there were many people at the Lucy's Store numbering about thirty; that there

G.R. No. 91646 August 21, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMIL MARCOS Y ISIDRO, accused-appellant. GUTIERREZ, JR., J.:

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were three CAFGUs who arrived in the place and one of them asked the people who were riding earlier in the motorcycle what were those shots for. One of them in the motorcycle answered that they must not interfere as they are Narcom Agents, and the CAFGU did not interfere. After that they placed him between the motorcycle driver and the other person and took him with them to Calarian; that the persons who took him were the same people who chased Ballena; that while on their way to Calarian, one of the two persons who chased Ballena in a motorcycle told him that he must act as witness against Ballena. However, said accused told them that he would not like to testify because he does not know what was that about. They said that they are going to place him in jail because he does not want to be a witness against Ballena. (RTC Decision, p. 6, Rollo, p. 21) In his appeal the appellant assigns the alleged errors of the trial court as follows: A. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON TESTIMONIES OF PROSECUTION WITNESSES WHICH WERE NOT PROPERLY OFFERED IN EVIDENCE AND ON REAL EVIDENCE CONSISTING OF SIX (6) STICKS OF MARIJUANA WHICH WERE NOT ALSO OFFERED IN EVIDENCE. B. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON THE TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION WHICH WERE FRAUGHT WITH SERIOUS DOUBT, AND THEREFORE, CLEARLY APPEAR TO BE INCREDIBLE AND UNBELIEVABLE. C. THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT THE GUILT OF ACCUSEDAPPELLANT HAS BEEN PROVED BEYOND REASONABLE 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. Athena Elias Anderson were not formally offered, hence, the trial court erred in considering their testimonies. He cites sections 34 and 35, Rule 132 of the Rules of Court to prove his point, to wit: Sec. 34. Offer of Evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. Sec. 35. When to make offer. As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. xxx xxx xxx Contrary to the assertion of the appellant, Sgt. Amado Ani's testimony was formally offered by the prosecution. Hence, when Sgt. Ani was called to testify for the prosecution, Prosecuting Fiscal Deogracias Avecilla said that Sgt. Amado Ani's testimony was being offered "to the effect that he was the poseur-buyer of this case." (TSN October 23, 1989, p. 15) As regards the other mentioned prosecution witnesses, we agree with the appellant that their testimonies were not formally offered at the time the said witnesses were called to testify. However, the records reveal that the testimonies of the prosecution witnesses were offered during the formal offer of documentary evidence by the prosecuting Fiscal. The appellant did not object to such offer. In such a case we rule that the appellant is now estopped from questioning the inclusion of the subject testimonies by the trial court in convicting him of the crime charged. At any rate, the appellant was not deprived of any of his constitutional rights in 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) marijuana sticks as evidence for the prosecution despite the fact that they were not offered as evidence. The record reveals that when the prosecuting Fiscal offered the prosecution's documentary evidence among these offered was Inhibit "E" which was described as "the wrapper containing the six (6) sticks handrolled cigarette which were sold by the accused Romil Marcos to the poseur-buyer Sgt. Ani, and as part of the testimony of the Forensic Chemist Athena Anderson and Sgt. Belarga and also Sgt. Mihasun" Marcos alleges that nowhere in the offer of documentary evidence is there a mention as regards the six (6) sticks of marijuana sold by the appellant to Sgt. Ani during the buy-bust operation. Under these circumstances, the appellant argues that the appellant 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 to the six (6) marijuana sticks sold by the appellant to Sgt. Ani during the buybust operation. It is to be noted that Exhibit "E" was offered as evidence in

relation to the testimonies of Sgt. Belarga, Forensic Chemist Athena Anderson and Sgt. Mihasun. The record is clear to the effect that in their testimonies, Sgt. Belarga, Forensic Chemist Athena Anderson and Sgt. Mihasun referred to Exhibit "E" as the six (6) sticks of marijuana sold by the appellant to Sgt. Ani during 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 in probative weight or value." The appellant focuses on the alleged inconsistent statements of the Narcom agents as regards how long they have known their informant 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 all. Whether or not the prosecution witnesses, particularly the Narcom agents have known their informant Bobby for one year is not a material point in the crime of illegal sale of marijuana drug under Section 4, Art. II of the Dangerous Drugs Act. This crime requires merely the consummation of the selling 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 the appellant and the same was presented as evidence in court. Proof of the transaction is sufficient. (People v. Catan, supra; and People v. Mariano, 191 SCRA 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 identified the 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'clock in the morning, who were those who proceeded to Bandariba, Talon-Talon, this City? A We were together with Sgt. Belarga, Sgt. Lago and Sgt. Vega. Q And from your headquarters to Talon-Talon, this City, how did you go? A We went there to Bandariba by using the motorcycle. Q What particular place at Bandariba, Talon-Talon, Zamboanga City, did your group go? A We stopped first at a little vulcanizing area near the road. Q What did you do there in that area of vulcanizing? A Our team leader, Sgt. Lego and Sgt. Vega left at the vulcanizing area. Q How about you? A I proceeded to the vicinity where the Lucy store is located. Q How far is this vulcanizing to Lucy store where you proceeded? A About 30 to 40 meters. Q You were able to proceed to the Lucy store? A Yes, sir. Q What happened when you were at the Lucy Store? A In front of the store I was met by Romil Marcos and he asked me what 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 this question of Romil Marcos? A I said "mayroon ba tayong stock?" COURT: Q What do you mean by that? A "If you have marijuana stock." FISCAL AVECILLA:

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Q Did Romil answer you when you asked 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 near the waiting shed." Q What happened when you were told to wait in the waiting shed? A After a while, Romil Marcos left and went inside in a portion of the store. Q What happened there, if any? A When he came back, he brought a paper wrapper where the six (6) sticks of marijuana cigarettes were found inside. Q How did you know inside that wrapper are the six sticks of marijuana? A I opened the wrapper and I found these six sticks of marijuana cigarettes inside. Q Do you know where Romil got this wrapper in which you found the six sticks of marijuana cigarettes? A Yes, sir. Q Please tell the court. A Romil told me, "you wait for a while". I saw he approached a certain fellow whom we later came to know as Ballena. Then that person got the money from Romil Marcos, placed inside his pocket and he got inside from his pocket the paper wrapper containing several sticks of marijuana. Q You have been talking about this Romil Marcos. Would you be able to recognize if you see him again? A Yes, sir. Q Please look inside the courtroom and see around, and go down from the witness stand and tap him on his shoulder. (Witness pointed to a man in court who identified himself as Romil Marcos when asked) (TSN, October 23, 1989, pp. 18-19) Second, the appellant points out the supposed inconsistency of the testimonies of Sgt. Ani, the poseur-buyer and prosecution witness Athena Elias Anderson, document examiner and forensic chemist of the PC/INP Crime Laboratory Service, Recom IX, Zamboanga City, who examined the six (6) marijuana sticks (Exhibit "E") submitted for analysis as regards the wrapper containing the six (6) marijuana sticks which were sold to the former 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 sticks wrapped 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 identification purposes. (TSN, p. 8, October 23, 1989) The records further reveal that the six (6) sticks of marijuana examined and analyzed by Anderson were identified in court by Sgt. Belarga as the same six (6) sticks of marijuana sold by 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 TSN pp. 12-13, October 25, 1989) In sum we find no compelling reason to disturb the findings of facts of the trial court. We give credence to the narration of the incident by the prosecution witnesses who are police officers and presumed to have performed their duties in a regular manner in the absence of any evidence to the contrary. (People v. Napat-a, 179 SCRA 403 [1989]; People v. Castillo y Martinez, G.R. No. 93408, April 10, 1992.) Moreover, the buy-bust operation was methodically executed with surveillance operations done one (1) day before the arrest of the appellant. We find the procedure adapted by the police officers in consonance with the application of regularity in the performance 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 suffer imprisonment of reclusion perpetua. The proper penalty to be imposed on appellant should be life imprisonment, not reclusion perpetua and a fine of TWENTY THOUSAND PESOS (P20,000.00) in accordance with Sec. 4, Article II of Republic Act No. 6425, as amended. (People v. Catan, supra). WHEREFORE, the judgment appealed from is AFFIRMED except for the MODIFICATION 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 offered at the time the witness is called to testify, as required in Sec. 35, in relation to Sec. 34, Rule 132, of the Revised Rules on Evidence? 1 On 8 June 1990, two (2) Informations for estafa were filed against petitioner Concepcion M. Catuira with the Regional Trial Court of Calamba, Laguna, for having issued two (2) checks in payment of her obligation to private complainant Maxima Ocampo when petitioner had no sufficient funds to cover the same, which checks upon presentment for payment were dishonored 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) under Sec. 15, Rule 119, of the 1985 Revised Rules on Criminal Procedure. 3Petitioner contended that the testimony of private respondent Ocampo was inadmissible in evidence since it was not properly introduced when she was called to testify as mandated in Sec. 35, Rule 132, of the Revised Rules on Evidence. Petitioner also argued that even if the testimony of private respondent was considered, the evidence of the prosecution still failed 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 Appeals through a petition for certiorari, prohibition and mandamus. In a similar move, the appellate court rejected her petition and sustained the trial court in its denial of the motion to dismiss. Hence, this recourse seeking to annul the decision of the Court of Appeals rendered on 27 February 1992 as well as its resolution of 1 June 1992. 4 Petitioner claims that the Court of Appeals erred when it accepted the testimony of private respondent despite the undisputed fact that it was not offered at the time she was called to testify; her testimony should have been stricken off the record pursuant to Sec. 34, Rule 132, which prohibits the court from considering evidence which has not been formally offered; and, it was error for respondent appellate court to declare that petitioner's objection was not done at the proper time since under Sec. 36, Rule 132, 5 objection to evidence offered orally must be made immediately after the offer is made. Evidently, petitioner could not have waived her right 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 is presented and the records plainly show that the opportunity for petitioner to object 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 be formally introduced is to enable the court to rule intelligently upon the objection to the questions which have been asked. 7 As a general rule, the proponent must show its relevancy, materiality and competency. Where the proponent offers evidence deemed by counsel of the adverse party to be inadmissible 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 be made at the earliest opportunity, lest silence when there is opportunity to speak may operate as a waiver of objections. 8 Thus, while it is true that the prosecution failed to offer the questioned testimony when private respondent was called to the witness stand, petitioner waived this procedural error by failing to object at the appropriate

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time, i.e., when the ground for objection became reasonably apparent the moment private respondent was called to testify without any prior offer having been made by the proponent Most apt is the observation of the appellate court: While it is true that the prosecution failed to offer in evidence the testimony of the complaining witness upon calling her to testify and that it was only after her testimony and after the petitioner moved that it be stricken 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 should have objected to the testimony of the complaining witness when it was not first offered upon calling her and should not have waited in ambush after she had already finished testifying. By so doing she did not save the time of the Court in hearing the testimony of the witness that after all according to her was inadmissible. And for her failure to make known her objection at the proper time, the procedural error or defect was waived. 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 witness to offer it at the time the witness is called to testify. This is the best time to offer the testimony so that the court's time will not be wasted. Since it can right away rule on whether the testimony is not necessary because it is irrelevant or immaterial. If petitioner was genuinely concerned with the ends of justice being served, her actuations should have been otherwise. Instead, she attempted to capitalize on a mere technicality to have the estafa case against her dismissed. 11 But even assuming that petitioner's objection was timely, it was at best pointless and superfluous. For there is no debating the fact that the testimony of complaining witness is relevant and material in the criminal prosecution of petitioner for estafa. It is inconceivable that a situation could exist wherein an offended party's testimony is immaterial in a criminal proceeding. Consequently, even if the offer was belatedly made by the prosecution, there is no reason for the testimony to be expunged from the record. On the contrary, the unoffered oral evidence must be admitted if only to 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 the Regional Trial Court of Calamba, Laguna, Br. 35, denying petitioner's motion to dismiss (by way of demurrer to evidence) is AFFIRMED. Costs against petitioner. SO ORDERED.

It appears that when it was the turn of the defense to present evidence, Gonzales was asked about his extrajudicial confession (Exh. B). On crossexamination, he was questioned not only about his extrajudicial confession but also about answers allegedly given by him during the preliminary investigation and recorded in the transcript of the proceeding. As he denied the contents of both documents, the prosecution presented them as rebuttal evidence, allegedly to impeach the credibility of Gonzales. Petitioners once more 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 orders and succeeded. The Court of Appeals declared the two documents admissible in 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 statements recorded in the transcript in question were taken without the assistance of counsel. Petitioner Benedicto Gonzales was informed of his constitutional rights in a very perfunctory manner. No effort was made to drive home to him the seriousness of the situation he was facing. 2 He waived the assistance of counsel, but did so without counsel's advice and assistance. 3 Both his confession and his statement before the fiscal were thus inadmissible under Art. IV, 20 of the 1973 Constitution. The question is whether petitioners waived objection to the admissibility of the documents, either by failing to object to their introduction during the trial or by using them in evidence. In declaring 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 submarking and "Exh. D" with sub-marking on "10-11-86" (or October 22, 1986) as appear on their face. Those marking show that the documents were introduced during the prosecution's evidence-in-chief: and, necessarily, they were testified on by a prosecution witness (not clear from the record who). The fact that the prosecution proposed to formally offer them in evidence at the close of trial implies that when the documents were first introduced through the prosecution witness at the trial, the defense did not object to their introduction. To prevent the introduction of such kind of evidence, the practice is for the defense to move for its exclusion at any time before commencement of trial. Such failure of the defense may therefore be taken as a waiver of their objection and the waiver was made at the trial by said accused who was in fact assisted by counsel. Thus, because of such failure to object, the prosecution succeeded to introduce the subject documents and cause them to be marked for identification as Exhibits B and D . . . . . . During the defense turn to present their evidence-inchief, they called said accused to the witness stand, then through him introduced the question-and-answer statement (Exh. B) that had previously been denied admission by respondent Judge, and on direct examination asked him to testify on said statement; of course, accused denied the contents in the statement. In other 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 evidencein-rebuttal, the defense themselves including the counsel for accused introduced such statement as part of their evidence-in-chief. Hence, respondent Judge committed a grave abuse of discretion in denying admission of this statement (Exh. B) when the prosecution again proposed to formally offer it as their evidence after the defense had rested. With respect to the transcript (Exh. D), however, the defense did not introduce it as part of their evidence-inchief. Although the prosecution introduced this exhibit during the cross-examination on which said accused was confronted during the latter's cross-examination, the same cannot serve as an independent evidence for the 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 such transcript (Exh. D) when formally offered by the prosecution for that limited purpose of impeachment. In denying this exhibit admission, respondent Judge also committed a grave abuse of discretion. In fine, the introduction and admission of the two documents in question per se was not violative of Sec. 20 Art. IV of the 1973 Constitution nor of Sec. 12, Art. III of the 1987 Constitution. As stated above, with respect to the sworn statement (Exh. B), this was introduced by

G.R. No. 94736 June 26, 1998 MELECIO MACASIRAY, VIRGILIO GONZALES, and BENEDICTO GONZALES, petitioners, vs. PEOPLE OF THE PHILIPPINES, HON. COURT OF APPEALS, and ROSALINA RIVERA 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 ordering the admission in evidence of petitioner Benedicto Gonzales extrajudicial confession and the transcript of the proceedings of the preliminary investigation of the case, during which Benedicto allegedly made statements affirming the contents of his extrajudicial confession. The facts are as follows: Petitioners Melecio Macasiray, Virgilio Gonzales, and Benedicto Gonzales are the accused in Criminal Case No. 33(86) of the Regional Trial Court of San Jose City, presided over by Judge Pedro C. Ladignon. The case is for the murder of Johnny Villanueva, husband of private respondent Rosalina Rivera Villanueva, on February 9, 1986. It appears that in the course of the trial of the case, the prosecution introduced in evidence, as Exhibit B, an extrajudicial confession executed by petitioner Benedicto Gonzales on March 27, 1986, in which he admitted participation in the crime and implicated petitioners Melecio Macasiray and Virgilio Gonzales, his co-accused. Also presented in evidence, as Exhibit D, was the transcript of stenographic notes taken during the preliminary investigation of the case on April 8, 1986 before the fiscal's office. This transcript contained statements allegedly given by Benedicto in answer to question of the fiscal, in which he affirmed the contents of his extrajudicial confession. When the extrajudicial was offered at the conclusion of the presentation of evidence for the prosecution, petitioners objected to its admissibility on the ground that it was given without the assistance of counsel. The transcript of the preliminary investigation proceeding was similarly objected to on the same ground. In its order dated April 14, 1988, the trial court sustained the objections and declared the two documents to be inadmissible.

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the defense themselves at the trial as their evidence-inchief; hence, in effect this became part of their evidence. As regards the transcript taken during the preliminary investigation of the complaint against said accused and co-accused (Exh. D), this too was deemed admitted, not by a positive act of the defense but by their default for failure top object to its introduction at the trial during the cross-examination of said accused who was assisted by counsel. (Emphasis added) We think the Court of Appeals erred. First. Objection to evidence must be made after the evidence is formally offered. 4 In the case of documentary evidence, offer is made after all the witnesses of the party making the offer have testified, 5 specifying the purpose for which the evidence is being offered. 6 It is only at this time, and not at any other, that objection to the documentary evidence may be made. In this case, petitioners objected to the admissibility of the documents when they were formally offered. Contrary to the ruling of the appellate court, petitioners did not waive objection to admissibility of the said documents by their failure to object when these were marked, identified, and then introduced during the trial. That was not the proper time to make the objection. "Objection to the documentary evidence must be made at the time it is formally offered, not earlier." 7 Thus, it has been held that the identification of the document before it is marked as an exhibit does not constitute the formal offer of the document as evidence for the party presenting it. Objection to the identification and marking of the document is not equivalent to objection to the document when it is formally offered in evidence. 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 the admissibility of a confession on the ground that no meaningful warning of his constitutional rights was given to the accused was raised as soon as the prosecution began introducing the confession, and the trial judge sustained the objection and right away excluded the confession. This Court, through Chief 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 be made at the time of formal offer, nonetheless thought that to faithfully carry out the constitutional mandate, objections based on the Miranda right to counsel at the stage of police interrogation should be raised as early as possible and the ruling on such objections made just as soon in order not to create 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 objections should 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 the documentary evidence is formally offered at the conclusion of the presentation 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 in evidence by Benedicto Gonzales himself when it was his turn to present evidence for the defense. What happened is that despite the fact that in its order of April 14, 1988 the court sustained the objection to the admissibility of the confession and the statements given by Benedicto Gonzales at the preliminary investigation, the defense nonetheless asked him question regarding his confession in reference to his denial of liability. It was thus not for the purpose of using as evidence the confession and the alleged statements in the preliminary investigation but precisely for the purpose of denying their contents that Gonzales was asked questions. Gonzales denied he ever gave the answers attributed to him in the TSN allegedly taken during the preliminary investigation. The defense did not really have to ask Gonzales questions regarding his confession inasmuch as the court had already declared both the confession and 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 defense adopted the confession by introducing it in evidence, the defense waived any objection to the admission of the same in evidence. Third. Private respondent justifies the use of the confession and TSN on the ground that they are necessary for the purpose of impeaching the credibility of Benedicto Gonzales and not for the purpose of presenting them as evidence in chief. But as already stated, there was really no need for Gonzales to deny the contents both of the confession and the TSN since they had already been excluded in evidence. There was therefore no use for impeaching his credibility. WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE and the orders dated April 14, 1988 and October 17, 1988 of the Regional 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 ROSALINA DORONIO-BALMES, MODING DORONIO, FLORENTINA DORONIO, AND ANICETA ALCANTARA-MANALO, Respondents. G.R. No. 169454 December 27, 2007

x--------------------------------------------------x DECISION 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 and damages. The CA declared respondents as rightful owners of one-half of the subject 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, were the registered owners of a parcel of land located atBarangay 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 Zacarias Najorda y Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados.[4] The spouses had children but the records fail to disclose their number. It is clear, however, that Marcelino Doronio and Fortunato Doronio, now both deceased, were among them and that the parties in this case are their heirs. Petitioners are the heirs of MarcelinoDoronio, while respondents are 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 in favor of Marcelino Doronio and the latters wife, Veronica Pico. One of the properties subject of said deed of donation is the one that it described as follows: Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. 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 is the one covered by OCT No. 352. However, there is a significant discrepancy with 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 and Alejandro Najorda, whereas based on the deed of donation, the owner of the adjacent property is Fortunato Doronio. Furthermore, said deed of donation remained a private document as it was never notarized.[7] Both parties have been occupying the subject land for several decades[8] although they have different theories regarding its present ownership. According to petitioners, they are now the owners of the entire property in view of the private deed of donationpropter nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico. Respondents, on the other hand, claim that only half of the property was actually incorporated in the said deed of donation because it stated that Fortunato Doronio, instead of Zacarias Najorda and Alejandro Najorda, is the owner of the adjacent property at the eastern side. Respondents posit that the donors respected and segregated the possession 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 Doronio and 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 were named in the said petition[10] although notices of hearing were posted on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen.[11] During the hearings, no one interposed an objection to the petition.[12] After the RTC ordered a general default,[13] the petition was eventually granted on September 22, 1993. This led to the registration of the deed 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 and Veronica 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 pleading before the RTC in the form of a petition in the same Petition Case No. U920. 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 the petition that an order be issued declaring null and void the registration of the private deed of donation and that TCT No. 44481 be cancelled. However, the petition was dismissed on May 13, 1994 on the ground that the decision in Petition 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 reconveyance and damages with prayer for preliminary injunction[15] against petitioner heirs 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 descriptions of the property under OCT No. 352 and under the private deed of donation were different. They posited that spouses Simeon Doronio and Cornelia Gante intended to donate only one-half of the property. During the pre-trial conference, the parties stipulated, among others, that the property was originally covered by OCT No. 352 which was cancelled by TCT No. 44481. They also agreed that the issues are: (1) whether or not there was a variation in the description of the property subject 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. 352 by acquisitive prescription; (3) whether or not the transfer of the whole property covered by OCT No. 352 on the basis of the registration of the private deed of donation notwithstanding the discrepancy in the description is 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 the identity of the land which they all occupy;[17] that a title once registered under the torrens system cannot be defeated by adverse, open and notorious possession or by prescription;[18] that the deed of donation in consideration of the marriage of the parents of petitioners is valid, hence, it led to the eventual issuance of TCT No. 44481 in the names of said parents;[19] and that respondent heirs of Fortunato Doronio (plaintiffs) are not entitled to damages as they are not the rightful owners of the portion of the property they are claiming.[20] The RTC disposed of the case, thus: WHEREFORE, premises considered, the Court hereby renders judgment DISMISSING the herein Complaint filed by plaintiffs against defendants.[21] Disagreeing with the judgment of the RTC, respondents appealed to the CA. They argued that the trial court erred in not finding that respondents predecessor-in-interest acquired one-half of the property covered by OCT No. 352 by tradition and/or intestate succession; that the deed 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 actually donated to Marcelino Doronio and Veronica Pico; and that respondents acquired ownership of the other half portion of the property by acquisitive prescription.[22] CA Disposition In a Decision dated January 26, 2005, the CA reversed the RTC decision with the following disposition: WHEREFORE, the assailed Decision dated June 28, 2002 is REVERSED and SET ASIDE. Declaring the appellants as rightful owners of one-half of the property now covered by TCT No. 44481, the appellees are hereby 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 following technical descriptions of the property under OCT No. 352 and the deed of donation, to wit: The court below described the property covered by OCT No. 352 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 Zacarias Najorda y Alejandro Najorda; por el SO con

propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados. On the other hand, the property donated to appellees predecessors was described in the deed of donation as: Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials also a part of the dowry. Value 200.00.[25] (Emphasis ours) Taking note that the boundaries of the lot donated to Marcelino Doronio and Veronica Pico differ from the boundaries of the land owned by spouses Simeon Doronio and Cornelia Gante, the CA concluded that spouses Simeon Doronio and Cornelia Gante donated only half of the property covered by OCT No. 352.[26] Regarding the allegation of petitioners that OCT No. 352 is inadmissible 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 was offered as evidence in the proceedings a quo. It is a well-settled rule that any objection to the admissibility of such evidence not raised will be considered waived and said evidence will have to form part of the records of the case as competent and admitted evidence.[27] The CA likewise ruled that the donation of the entire property in favor of petitioners predecessors is invalid on the ground that it impairs the legitime of respondents predecessor, Fortunato Doronio. On this aspect, the CA reasoned out: Moreover, We find the donation of the entire property in favor of appellees predecessors invalid as it impairs the legitime of appellants predecessor. Article 961 of the Civil Code is explicit. In default of testamentary heirs, the law vests the inheritance, x x x, in the legitimate x x x relatives of the deceased, x x x. As Spouses Simeon Doronio and Cornelia Gante died intestate, their property shall pass to their lawful heirs, namely: Fortunato and Marcelino Doronio. Donating the entire property to Marcelino Doronio and Veronica Pico and excluding another heir, Fortunato, tantamounts to divesting the latter of his rightful share in his parents inheritance. Besides, a persons prerogative to make donations is subject to certain limitations, one of which is that he cannot give by donation more than what he can give by will (Article 752, Civil Code). If he does, so much of what is donated as exceeds what he can give by will is deemed inofficious 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 ORIGINAL CERTIFICATE OF TITLE NO. 352 DESPITE OF LACK OF TRANSLATION THEREOF. (RULING THAT) ONLY HALF OF THE DISPUTED PROPERTY WAS DONATED TO THE PREDECESSORS-IN-INTEREST OF THE HEREIN APPELLANTS. (ITS) DECLARATION THAT THE DONATION PROPTER NUPTIAS IS INNOFICIOUS, IS PREMATURE, AND THUS IT IS ILLEGALAND UNPROCEDURAL.[29]

2.

3.

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 on the 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]

59

The argument is untenable. The requirement that documents written in an unofficial language must be accompanied with a translation in English or Filipino as a prerequisite for its admission in evidence must be insisted upon by the parties at the trial to enable the court, where a translation has been impugned as incorrect, to decide the issue.[31] Where such 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 is understood by all, and the document is admissible in evidence.[32] provides: Moreover, Section 36, Rule 132 of the Revised Rules of Evidence SECTION 36. Objection. Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for the objections must 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 its admissibility. The rule is that evidence not objected may be deemed admitted and may be validly considered by the court in arriving at its judgment.[33] This is true even if by its nature, the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time.[34]

As could be gleaned from the foregoing, there lies a marked distinction between an action and a special proceeding. An action is a formal demand of ones right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term special proceeding may be defined as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings, the remedy is granted generally upon an application or motion. Citing American Jurisprudence, a noted authority in Remedial Law expounds further: It may accordingly be stated generally that actions include those proceedings which are instituted and prosecuted according to the ordinary rules and provisions relating to actions at law or suits in equity, and that special proceedings include those proceedings which are not ordinary in this sense, but is instituted and prosecuted according to some special mode as in the case of proceedings commenced without summons and prosecuted without regular pleadings, which are characteristics of ordinary actions x x x. A special proceeding must therefore be in the nature of a distinct and independent proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon notice. Applying these principles, an action for reconveyance and annulment of title with damages is a civil 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 nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court. Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of the probate court in the exercise of its limited jurisdiction. Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings, and the final order of the court thereon shall be binding on the person raising the questions and on the heir. While it may be true that the Rules used the word may, it is nevertheless clear that the same provision contemplates a probate court when it speaks of the court having jurisdiction of the estate proceedings. Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and resolve the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question. Moreover, under the present circumstances, the RTCof Manila, Branch 55, was not properly constituted as a probate court so as to validly pass upon the question of advancement made by the decedent Graciano Del Rosario to his wife, herein petitioner 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 the decedent must be ascertained, by deducting all payable obligations and charges 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. With the partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only then can it be ascertained whether or not a donation had prejudiced the legitimes.[44]

As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit A, that is, OCT No. 352 in their comment [35] on respondents 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 exhibits being public and official documents are the best evidence of that they contain and not for what a party would like it to prove. [36] Said evidence was 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 property of the case, and all parties to the case are considered amenable to any favorable 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 issue regarding the impairment of legitime of Fortunato Doronio must be resolved in an action for the settlement of estates of spouses Simeon Doronio and Cornelia Gante. It may not be passed upon in an action for reconveyance and damages. A probate court, in the exercise of its limited jurisdiction, is the best 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 as advancement of property made by the decedent, partake of the nature of a special proceeding. Special proceedings require the application of specific rules 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 Civil Procedure defines civil action and special proceedings, in this wise: x x x a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to specific rules prescribed for a special civil action. xxxx c) A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact.

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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 validity of the deed of donation on the ground that (1) it has been impliedly admitted by respondents; (2) it has already been determined with finality by the RTC in 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 rules on quieting of title[57] expressly provide that any declaration 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 same Petition Case No. U-920 after the decision there had become final did not change the fact that said decision became final without their being impleaded in the case. Said subsequent pleading was dismissed on the ground of finality of the decision.[59] Thus, the RTC totally failed to give respondents their day in court. As a result, they cannot be bound by its orders. Generally accepted is the principle that no man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by judgment rendered by the court.[60] Moreover, for the principle of res judicata to apply, the following must 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 identical parties, subject matter and causes of action.[61] The fourth element is not present in this case. The parties are not identical because respondents were not impleaded in Petition Case No. U-920. While the subject matter may be the same property covered by OCT No. 352, the causes of action are different. Petition Case No. U-920 is an action for declaratory relief while the case 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 the validity and enforceability of the deed of donation that is the determining factor in resolving the issue of who has a better right over the property. Moreover, notwithstanding procedural lapses as to the appropriateness of the remedies prayed for in the petition filed before Us, this Court can brush aside the technicalities in the interest of justice. In some instances, this Court even suspended its own rules and excepted a case from their 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 the trial court, it was stipulated[64] by the parties during the pre-trial conference. In any event, this Court has authority to inquire into any question necessary in arriving at a just decision of a case before it. [65] Though not specifically questioned by the parties, additional issues may also be included, if deemed important for substantial justice to be rendered. [66] Furthermore, this Court has held that although a factual issue is not squarely raised below, still in the interest of substantial justice, this Court is not prevented from considering a pivotal factual matter. The Supreme Court is clothed with ample authority to review palpable errors not assigned as 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 is clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it finds that their consideration is necessary at arriving at a just decision of the case.[68] Also, an unassigned error closely related to an error properly assigned or upon which the determination of the question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as an error.[69]

The validity of the private deed of donation propter nuptias in favor 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 the issues 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 donation notwithstanding 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 APRIL 26, 1919 WAS NULL AND VOID.[47] The issue of the validity of donation is likewise brought to Us by petitioners as they stated in their Memorandum[48] that one of the issues to be resolved is regarding the alleged fact that THE HONORABLE COURT OF APPEALS ERRED IN FINDING THE DONATION INVALID. We are thus poised to inspect the deed of donation and to determine its validity. We cannot agree with petitioners contention that respondents may no longer question the validity of the deed of donation on the ground that they already impliedly admitted it. Under the provisions of the Civil Code, a void contract 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 or non-existent contract is not limited to the parties as in the case of annullable or voidable contracts; it is extended to third persons who are directly affected 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 the same.[51] The subject of the deed being the land they are occupying, its enforcement 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 one for quieting of title.[53] In other words, it is a case for declaratory relief under Rule 64 (now Rule 63) of the Rules of Court, which provides: SECTION 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, or ordinance, may, before breach or violation thereof, bring an action to determine any question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder. An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this rule. SECTION 2. Parties. All persons shall be made parties who have or claim any interest which would be affected by the declaration; and no declaration shall, except as otherwise provided in these rules, prejudice the rights of persons not parties to the action. (Emphasis ours) However, respondents were not made parties in the said Petition Case No. U-920. Worse, instead of issuing summons to interested parties, the RTC merely allowed the posting of notices on the bulletin boards of 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 boards of barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan, so that there was a notice to the whole world and during the initial hearing and/or hearings, 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 they were not made parties in the said case.

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 the execution of a contract are applicable to it and not the later statutes, unless the latter are specifically intended to have retroactive effect. [70] Accordingly, the Old Civil Code applies in this case as the donation propter nuptias was executed in 1919, while the New Civil Code took effect only on August 30, 1950.

Under the Old Civil Code, donations propter nuptias must be made in a public instrument in which the property donated must be specifically described.[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 same Code. 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 donation of real estate propter nuptias is void unless made by public instrument.[73] In the instant case, the donation propter nuptias did not become valid. Neither did it create any right because it was not made in a public instrument.[74] Hence, it conveyed no title to the land in question to petitioners predecessors. Logically, then, the cancellation of OCT No. 352 and the issuance of a new TCT No. 44481 in favor of petitioners predecessors have no legal basis. The title to the subject property should, therefore, be restored to its original 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 unproven whether or not the parties are the only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As earlier intimated, there are still things to be done before the legal share of all the heirs can be properly adjudicated.[75]

Titled Property Cannot Be Acquired By Another By Adverse Possession or Extinctive Prescription Likewise, the claim of respondents that they became owners of the property by acquisitive prescription has no merit. Truth to tell, respondents cannot successfully invoke the argument of extinctive prescription. They cannot be deemed the owners by acquisitive prescription of the portion of the property they have been possessing. The reason is that the property was covered by OCT No. 352. A title once registered under the torrens system cannot be defeated even by adverse, open and notorious possession; neither can it be defeated by prescription.[76] It is notice to the whole world and as such all persons are bound by it and no one can plead ignorance of the registration.[77] The torrens system is intended to guarantee the integrity and conclusiveness of the certificate of registration, but it cannot be used for the perpetration of fraud against the real owner of the registered land. [78] The system 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 modes allowed or recognized by law. It cannot be used to protect a usurper from the 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, the law presumes that no registration has been made and so retains title in the real 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 be fully settled. The issues as to who truly are the present owners of the property and what is the extent of their ownership remain unresolved. The same may be properly threshed out in the settlement of the estates of the registered owners of the property, namely: spouses Simeon Doronio and Cornelia Gante. WHEREFORE, the appealed ASIDE. A new one is entered: Decision is REVERSED AND SET

The second error assigned is based on the procedure adopted by the court when objections were interposed by counsel for appellant to questions designed to adduce evidence of the contents of written documents when the destruction or the loss of the documents had not been properly established. It appears from the record that appellee relied on certain written contracts entered into between the appellant and Marcela Emradura during her lifetime to prove the cause of action set out in the complaint. The documents themselves were not produced and when counsel for appellee sought to prove 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. Several of 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 into consideration." 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 trial terminated without a resolution of the questions presented. In spite of that the trial court in its final decision took into consideration the secondary evidence thus introduced and based its decision thereon. We are of the opinion that this procedure was prejudicial to the rights and interests of the appellant.itc-a1f Parties who offer objections to questions on whatever ground are entitled to a ruling at the time the objection is made unless they present a question with regard to which the court desires to inform itself before making its ruling. In that event it is perfectly proper for the court to take a reasonable time to study the question presented by the objection; but a ruling should always be made during the trial and at such time as will give the party against whom the ruling is made an opportunity to meet the situation presented by the ruling. The disadvantageous position in which a party may be put by the reservation of a ruling on an objection to a question 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 have taken his exception and offered evidence to rebut that adduced by the objectionable questions. If the ruling had been the other way, appellee would have been under the necessity of offering the documents themselves, at which time appellant would have been able to present any defense to them which the facts and circumstances might have required or permitted. There having been no decision during the course of the trial, appellant's counsel had no means of knowing what the ruling of the court would be on the objection and, consequently, he could not know whether or not he would be compelled 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 the benefit 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 and circumstances of this case and we believe that it prejudiced the substantial rights of appellant. We are also of the opinion that the error assigned on the merits is also well assigned. We do not believe that the plaintiff has proved that the estate which he represents is entitled to possession of the lands in question. For the reason 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 the opinion 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 the title to the property, the action being simply for possession. The judgment appealed from is reversed and the complaint dismissed on the merits, without costs in this instance. So ordered.

(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 Veronica Pico; and

(b) RESTORE Original Certificate of Title No. 352 in the names of its original owners, spouses Simeon Doronio 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 Marcela Emradura, deceased, against Tomas Valdez for the recovery of possession of the land described in the complaint on the payment by the plaintiff of the sum 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 the cancellation 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. There is no evidence in the record showing that Benito Lopez was ever appointed administrator of the estate of Marcela Emradura, deceased; nor is there any indication in the record that the parties to the action acted on the assumption that 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 this ground alone the judgment would have to be set aside. (Craig vs. Leuterio, 11 Phil. Rep., 44.) 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 AS DIRECTOR OF PATENT'S,respondents. FERNANDEZ, J.: This is a petition to review the decision of the Director of Patents in Inter Partes Case No. 304 entitled "Victorias Milling Company, Inc., petitioner, verus, Ong Su" dated August 15, 1967 denying the petition to cancel the certificate of registration issued by the philippines Patent Office on Jurie 20, 1961 in favor of Ong Su covering the trademark "VALENTINE" and design and used on 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 owner of the trademark "VICTORIAS" and d design registered in the Philippines Patent Office on November 9, 1961. The respondent Ong Su is engaged in the repacking and sale of refine sugar and is the owner of the trademark "VALENTINE" and design registered in the Philippines Patent Office on June 20, 1961. On October 4, 1963, Victorias Mining Company, Inc. filed with the Philippine Patent Office a petition to cancel the registration of the Ong Su trademark "Valentine." The petitioner allied that its tradermrk "Victorias" and diamond design has distinctive of its sugar long before the respondent used its trademark; that the registration of "Valentine" and design has caused and will cause great

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damage to petitioner by reason of mistake, confusion, or deception among the purchasers because it is similar to its "Victorias" trademark; that registration was fradulently obtained by Ong Su and that "Valentine" faisely suggests 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 doing business under the name and style "Valentine Packaging" and has registered the trademark "Valentine" with a design for sugar and was issued Certificate of Registration No. 8891 dated June 20, 1961; that the trademark "Victorias" with diamond design and the trademark "Valentine" with a design are two different 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 and stockholder, testified that Victorias Milling Company, Inc. has used since 1947 the trademark "Victorias" and diamond design with colors of red and black 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 sugar with local dealers such as Kim Kee, Chu Yu & Co., Limouan & Co., Luzon Merchandising Corp. and ARCA that the average sale from 1958 to 1962 was P30,000,000 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 in 1962 through the report of his company's field agents; and that except for the words "Valentine and Victorias", the design and wordings of the bags are practically 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 the Philippines, particularly on paper bags used as containers for starch, coffee and sugar; and that since January 1955 he continued using said trademark on repacked sugar. Arturo Chicane a witness for the respondent, testified that he was a distribution agent of Ong Su that he travelled a lot but he river own across an instance when the respondent Ong Su product was mistaken for the petitioner's product; that he found the diamond design to be quite common in combination with other words used as trademarks as a background or to enhance 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 by various sugar dealers; and that said designs and the color of the lines on which 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 the petition. There is no question that as to their respective literal designation the trademarks are different. One is VALENTINE while the other is VICTORIAS. Thus, as to sound and connotation there is no dispute as to their dissimilarity. However, from the evidence and pleadings, it appears that petitioner is relying heavily on its diamond design, the color scheme, and the printing sequence or arrangement of such legends as weight, contents and manufacturer 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 as vehicles for display on word marks, ordinarily are not retarded as indicia of origin for goods to which the marks are applied, unless of course they have acquired secondary meaning. I have scoured the records completely to ascertain if the petitioner has submitted satisfactory evidence in this regard, but I find absolutely nothing to base a ruling that the triangle (sic) design has acquired a secondary meaning with respect to its sugar business. It is the common practice for trademark owners to register designs forming outline of their distinguishing mark, but when the registrant of such design relies upon registration in proceeding based upon likelihood of confusion of purchasers, he assumes the burden of showing that the design portion of the mark has been so used that purchasers recognize the design, standing alone, as indicating goods emanating from the registrant. Bausch & Lomb Optical Co., v. Overseas Finance & Trading Co., Inc. (ComrPats) 112 USPQ 6. Considering herein that the petitioner failed to establish that diamond design component of its mark has acquired a secondary meaning and that the literal portion of the marks have no similarity, there is no reasonable likelihood of purchaser confusion resulting

from registrant's use of VALENTINE within a diamond and petitioner's use of VICTORIAS within a diamond. As regards the colors black and red used, it is fundamental in trademark jurisprudence that color alone, unless displayed in a distinct or arbitrary design, does not function as a trademark, inasmuch as here, or elsewhere, the colors black and red are not so displayed by the petitioner, and are primary colors commonly and freely used in the printing business. Finally, as regards the printing sequences or arrangement of such legends as weight, contents, and manufacturer or packer, I regard it as merely a matter pertaining to the address of the goods' a matter involving 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 Manufacturing Co., Inc. vs. Andres Co. v. Tan Tong, citing, Gillette Safety Razor Go. v. Triangle Mechanical Laboratories, 31 USPQ 24; 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 unfair competition. At most, the petitioner's recourse is for it to seek relief in civil courts. The allegations that the registration of VALENTINE was obtained fraudulently; that it falsely suggests a connection with St. Valentine; and that it is merely descriptive or deceptively misdescriptive of sugar have no basis in law and fact. 6 The petitioner submits that the Director of Patents committed the following errors: I THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT PETITIONER'S REGISTERED DIAMOND DESIGN IS NOT AN INDEX OF ORIGIN. II THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT PETITIONER IS REQUIRED TO ESTABLISH THAT ITS DIAMOND DESIGN HAS ACQUIRED A SECONDARY MEANING. III THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING PETITIONER'S DIAMOND DESIGN HAS NOT ACQUIRED A SECONDARY MEANING. IV THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT THE DETAILS OF PETITIONER'S DESIGN THAT HAVE BEEN IMITATED BY RESPONDENT ONG SU MERELY PERTAIN TO THE'DRESS OF THE GOODS.' V THE RESPONDENT DIRECTOR OF PATENTS ERRED IN CONFINING HIS COMPARISON OF PETITIONER'S AND RESPONDENT'S RESPECTIVE TRADEMARKS TO ONE SOLE ITEM OF THEIR DESIGN, IGNORING THE COMPLETE LABELS AS ACTUALLY USED IN TRADE AND SEEN BY CONSUMERS. VI THE RESPONDENT DIRECTOR OF PATENTS ERRED IN TAKING THE POSITION THAT IN CASES OF TRADEMARK CANCELLATION INVOLVING, AMONG OTHERS, OBVIOUS ACTS OF UNFAIR COMPETITION, HE NEED NOT TAKE ANY ACTION WHATSOEVER, SINCE HE SUPPOSEDLY HAS NO JURISDICTION IN THE PREMISES. VII THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT PETITIONER'S REGISTERED COLOR DESIGN DOES NOT FUNCTION AS A TRADEMARK. VIII THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT BECAUSE THE LITERAL PORTIONS OF THE RESPECTIVE TRADEMARKS IN QUESTION, NAMELY, THE RESPECTIVE NAMES 'VICTORIAS' AND 'VALENTINE', HAVE NO SIMILARITY, THERE IS NO REASONABLE LIKELIHOOD OF PURCHASER CONFUSION.

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IX THE RESPONDENT DIRECTOR OF PATENTS ERRED IN ASSUMING THAT PETITIONER, OR THE OWNER OF ANY IMITATED OR INFRINGED TRADEMARK FOR THAT MATTER, MUST ESTABLISH ACTUAL PURCHASER CONFUSION. X THE RESPONDENT DIRECTOR OF PATENTS ERRED IN PREVENTING THE TESTIMONIES OF RESPONDENT ONG SU AND WITNESS ERNESTO DURAN AS REBUTTAL WITNESSES FOR PETITIONER, SAID RULINGS OF RESPONDENT DIRECTOR CONSTITUTING REVERSIBLE ERROR AND THE DENIAL OF PROCEDURAL DUE PROCESS. XI THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT THE REGISTRATION OF THE VALENTINE TRADEMARK BY RESPONDENT ONG SU WAS NOT PRUDULENTLY OBTAINED. XII THE RESPONDENT DIRECTOR OF PATENTS, ACTING TfIROUGH HEARING OFFICER AMANDO MARQUEZ, ERRED IN ADMITTING RESPONDENT ONG SU'S EXHIBITS PERTAINING TO ONE 'MARIANO ANG SAID NAME NOT HAVING BEEN CLEARLY ESTABLISHED AS AN ALIAS, ALHTHOUGH ADMITTEDLY UNAUTHORIZED, OF RESPONDENT ONG SU. 7 The contention of petitioner that the diamond design in its trademark is an index of origin has no merit. The petitioner has not shown that the design portion of the mark has been so used that purchasers recognize the design, standing alone, as indicating goods coming from the registrant. As correctly stated by the Director of Patents, common geometric shapes such as diamonds ordinarily are not regarded as indicia of origin for goods to which the remarks are applied unless they have acquired a secondary meaning. And there is no evidence that the diamond design in the trademark of the petitioner has acquired a secondary meaning with respect to its sugar business. The word "Victorias" is what Identifies the sugar contained in the bag as the product of the petitioner. Indeed, the petitioner has advertised its sugar in bags marked "Victorias" with oval, hexagor. and other designs. The evidence is that Ong Su has been using his trademark since prior to the last World War and he obtained the registration thereof on June 20, 1961. Vijandre declared that the petitioner started to use its trademark only in 1947. Said trademark was registered on November 9, 1961. It cannot be said, therefore, that the respondent Ong Su imitated the trademark of the petitioner. The petitioner avers that purchasers of sugar are likely to confuse petitioner's "Victorias" trademark and respondent Ong Su's "Valentine" trademark because of the following similarities: 1. Both trademarks have the same diamond design with the 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 both trademarks consist of two lines, namely, the outer portion and the inner portion. 3. The outer portion of the diamond design of both trademarks has the color black as shown in the specimens (Exhibits "A" and "B"). The, inner line of the diamond 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 diamond design. 5. In both trade marks, the word "VICTORIAS" and the word VALENTINE' placed within the diamond design are conspicuously colored red. 6. The letter "V" in Victorias and the letter "V" in Valentine are Identically placed. 7. The word "VICTORIAS" and the word "VALENTINE" are Identically arranged, the same containing the same number of letters. 8. Immediately below the words "VICTORIAS" and "VALENTINE"appears the words "REFINED SUGAR". 9. underneath the diamond design in both trademarks are the words "FINE GRANULATED" and below said phrase are the words 'CANE SUGAR'with a small diamond design. 10. Both, trade marks are used on refines sugar.

11. The words "PURE," "VALENTINE," "VICTORIAS," "FINE GRANULATED" and "CANE SUGAR" in both trade marks are same has arranged and printed.9 The respondent Ong Su maintains that the alleged are minor for the following reason: Appellant attempts to show the possibility or likelihood of purchaser confusion by pointing out alleged similarities in the packages in question, e.g. "Pure Refined Sugar" appearing in both marks in question. It should be noted, however, that these words are merely descriptive commonly applied to the goods, namely, sugar, and cannot be exclusively appropriated by the petitioner. The other alleged similarities pointed to by appellant that the lines forming the diamond design in both trademarks consist of two lines, the outer portion and the inner portion; that the diamond design in both tradeniarks has the color black and the inner line of both designs has the red color; that the diamond design as used by the petitioner and by respondent are of the same size; that the letter 'V' in Victorias and the letter "V" in "Valentine" are the same size; and that the letter 'V' in VICTORIAS and the letter "V" in the Valentine package are Identically pIaced in the diamond; and that the word "Victorias" and the word "VALENTINE" are Identically arranged within the diamond are, we submit with respect, minor and insignificant for the purpose of this petition even if the observations of appellant are correct.10 It seems clear that the words "Valentine" and "Victorias" and the names and places of business of Victorias Milling Company, Inc. and Ong Su are the dominant features of the trademarks in question. The petitioner has not established such a substantial similarity between the two trademarks in question as to warrant the cancellation of the trademark 'Valentine'of the respondent Su. The Director of Patents correctly ruled that he has no jurisdiction over the issue of unfair competition. Under Section 27 of the Trade Mark Law, Republic Act No. 166, after actions for unfair competition shall be brought before the proper Court of First Instance. The refusal of the Director of Patents to allow respondent Ong Su and witness 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 on rebuttal 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 whether or not Ong Su has judicial authority to use Mariano Ang as an alias. There is evidence that even before the last World War, the trademark 'Valentine' and design had been used under the name of either Ong Su or Mariano Ang. The petitioner sought to present Emesto T. Duran as rebuttal witness to prove that there was a confusion among consumers or buyers of sugar caused by the alleged sorority of the "Victorias" and "Valentine" trademarks. The presentation of Emesto T. Duran as rebuttal witness was objected to by counsel of the respondent on the ground that the evidence sought to be elicited from Duran did not directly contradict the testimony of witness Chicane The objection was sustained by the hearing officer whose ruling was subsequently confer by the Director of Patents. Counsel for the petitioner made the following formal offer of proof: ATTY. GONZALEZ: Your Honor please, in view of the ruling of the Honorable Director your Honor please on the admissibility of certain items of evidence, which resolution dated February 21, 1966 was received by undersigned counsel for the petitioner on February 22, 1966, said resolution was setting the hearing of this case for this morning, I wish to state, I wish to register my exception, my respectful exception to said resolution. In view of the resolution not permitting me to present Mr. Ernesto Duran, my proposed witness whom I attempted to present at the last hearing, I wish to offer as proof the following items ol' the testimony of witness Duran. Now as he would go shopping with his parents and that sometime in the month of February 1963 he went to the Aranque market, and while he was buying groceries he saw a shelf with five (5) lbs. bag of sugar with the bag and package he thought was VICTORIAS. Witness Duran will further testify that he went to the shelf and pointed to the bag of sugar and hesaid Isang support ng Victorias Ang. That the sugar was taken by the shopkeeper and when he went home he found out that the sugar was marked VALENTINE. lie went on again on another time later and saw that the shelf was still filled with five (5) pounds (lbs,) bag VALENTINE sugar. The shelf also has bags of VICTORIAS sugar side by side with VALENTINE sugar, that the package of VALENTINE looked so much alike will VICTORIAS sugar that he was misled into pointing to VALENTINE and asked for VICTORIAS.

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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 the witness Duran would have testified. Since this office has ruled that I cannot present him an offer of proof is being made for purposes of putting on record what he would have testified to on record in accordance with the Rules of 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 he went 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 was marked "Valentine" is not sufficient evidence that the two trademarks are so similar that buyers of sugar are confused. The words "Victorias" and "Valentine" are not similar in spelling and do not have a similar sound when pronounced. Even the diamond designs are different. The diamond design of the trademark "Valentine" has protruding fines at the comers. Even an illiterate person can see the difference between the two diamond designs. There is no evidence that the respondent Ong Su had obtained the registration 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 the name Mariano Ang. Hence the licenses and permits in the name of Ong Su and/or Mariano Ang were correctly admitted as evidence. WHEREFORE the decision of the Director of Patents sought to be reviewed is hereby affirmed, without pronouncement as to costs. SO ORDERED.

Balzain, Tuguegarao, Cagayan because that was his post for the night. At about a little past 10:00 o'clock that evening, a tricycle driver went to Policeman Eclipse and reported to him a stabbing incident in said Barangay 12; Policeman Eclipse rushed to the reported crime scene. On his way, he met PO1 Dolores Lorenzo, a policewoman of his own Station who immediately surrendered to him a blood-stained bolo and a fan knife and told him, "I killed my husband". The two proceeded to where the victim was. In front of the store of Barangay Captain Isabelo Liban, Policeman Eclipse saw Agapito sprawled on the ground with blood all over his body. Policeman Eclipse called for Barangay Captain Liban to come out of his house. In the presence and within the hearing of said barangay official, Policewoman Lorenzo again said, "I'm surrendering because I killed my husband". Policeman Eclipse ordered somebody to get a tricycle to bring the lifeless body of Agapito Lorenzo to a funeral parlor while he and Policewoman Lorenzo went to the Tuguegarao PNP Station. Policeman Eclipse turned over Policewoman Lorenzo together with the bolo and knife to the Desk Officer, SPO3 Urbano Aquino. Eclipse then orally made his report to the Desk Officer which was noted down in the Police Blotter. The defense painted another picture of the incident. It's theory is that it was not Policewoman Lorenzo but a certain Robert Santos who killed Agapito. Here is the defense's version of the incident. In the afternoon of July 30, 1990, Agapito Lorenzo and his neighbor Robert Santos were in the former's house passing the time over a bottle of beer grande. When Policewoman Lorenzo arrived home from work, Agapito, in the presence of Robert Santos, met her with the following intemperate questions: "Your mother's cunt, why do you arrive only now? Where did you come from? To avoid further scandal, Policewoman Lorenzo just keep quiet, went to change her clothes and proceeded to the kitchen to prepare supper. Finding nothing to cook, she asked permission from her husband to go to market. Policewoman went to market and then immediately went back home to cook what she bought. While cooking in the kitchen, she heard a heated exchange of words between Robert Santos and her husband in the sala of their house pertaining to some bullets and a hand grenade which the latter gave Robert Santos. Policewoman Lorenzo went to the sala to pacify the quarelling men only to meet Robert Santos running out of the house with a bolo and being chased by Agapito Lorenzo who was holding a knife in his hand and whose clothes were splattered with blood. When Agapito overtook Robert, a

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 as Criminal Case No. 2060-92-TUG and raffled to Branch 5. The accusatory portion thereof reads as follows: That on or about July 30, 1990, in the Municipality of Tuguegarao, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, PO1 Dolores C. Lorenzo, armed with a bolo and a fan knife, with intent to kill, with evident premeditation and with treachery did then and there wilfully, unlawfully and feloniously attack, assault, stab, hack and chop one, Agapito Lorenzo, her own husband, inflicting upon him several injuries on the different parts of his body which caused his death. That in the commission of the offense, the aggravating circumstance of cruelty was present. After due trial, the trial court promulgated on 24 February 1993 2 its judgment finding the appellant guilty of the crime of parricide and sentencing her to suffer the penalty of reclusion perpetua and to pay the heirs of the victim P50,000.00. At the trial, the prosecution presented barangay captain Isabelo Liban and SPO1 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 accused Dolores Lorenzo were spouses residing in Looban, Barangay 12, Balzain, Tuguegarao, Cagayan. Among their neighbors are Barangay Captain Isabelo Liban, Romeo Racheta and Robert Santos. In the evening of July 30, 1990, SPO1 Jose Eclipse of the Tuguegarao PNP Station was in

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struggle for the possession of the bolo ensued between the two men. While wrestling, Agapito dropped his knife. Policewoman Lorenzo picked it up and tried to stab Robert with it but she was so overwhelmed by nervousness that she collapsed into unconsciousness. Seconds later on, she regained consciousness and found herself beside her dying husband. Policewoman Lorenzo stood and picked up the knife and bolo. It was at this precise time when Policeman Eclipse arrived at the scene of the incident. Policewoman Lorenzo gave the knife and bolo to Policeman Eclipse. The Policeman invited her to go with him to the Tuguegarao PNP Station. She obliged. When the two arrived at the police station, Policeman Eclipse, in the presence of Policewoman Lorenzo, reported to the Desk Officer that the latter killed her husband. Since the policewoman had not yet fully recovered her composure, she did not say anything. 3 The trial court gave full faith and credit to the testimonies of the prosecution witnesses. It found nothing on record which showed that their impartiality had been vitiated or compromised or that they had any motive to falsely impute upon the appellant the commission of the crime. It further declared that when the appellant surrendered the knife and bolo to SPO1 Eclipse and volunteered the information that she killed her husband, she made an extrajudicial confession and nothing more was needed to prove her culpability. 4 The trial court held that the confession was admissible for it was not made in violation of paragraph 1, Section 12, Article III of the Constitution. 5 The appellant was neither under police custody nor under investigation 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 is not true that she confessed to Policeman Eclipse in the presence of Barangay Captain Liban that she killed her husband. If her denial is true, why did she not correct or even protest when Policeman Eclipse reported to the Desk Officer that she confessed having killed her husband? Why did she not even try to correct the entry in the police blotter containing said inculpatory report? On the contrary, by some inexplicable quirk, she even let 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 the scene of the crime? Why did she withhold such a very vital information when she was brought to the Tuguegarao 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 criminal case against Robert Santos? The accused's explanation was: she was still uncomposed when she turned over the knife and bolo to Policeman Eclipse and even when she was in the police station. She did not also file a case against Robert Santos because she found herself the suspect and later on the accused. These reasons do not cut ice. They are for the birds. No one with an ordinary intelligence would buy such reasons. Third, the accused never filed a counter-affidavit during the preliminary investigation of this case. Not that a counter-affidavit is obligatory but that it afforded the accused the best opportunity to explain her innocence and to identify the "real killer" of her husband. Why did she not grab this chance as normal people in the same situation would have done? Fourth, accused version is simply implausible. According to Policewoman Lorenzo, when she saw her husband 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 and stabbed by Robert inside the former's house. It is therefore, difficult to believe that Agapito who already sustained several wounds could chase Robert and even harder to imagine that he wrestled with Robert 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 which he could have easily used against the latter during the alleged clinching between the two? Finally, it is very unnatural for "assailant" Robert to have left his bolo before running away from the scene of the crime. This is a concoction to provide an explanation for the possession of the accused of a knife and a bolo. Fifth, the version of accused and her witness Romeo Racheta are even at variance at a very vital point. Thus, Policewoman Lorenzo said that when Agapito was able to overtake Robert in front of the store of Barangay Captain 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 him when he was already cornered. When Robert could no longer run anywhere else, he turned around, faced Agapito and hacked and stabbed him many times. Such inconsistency in the version of the two defense witnesses cannot but heighten one's conviction that the defense theory is a conjured one. 7 The appellant appealed from the judgment to this Court and in her brief 8 contends that the trial court erred in: I. . . . GIVING CREDENCE TO THE TESTIMONIES OF PROSECUTION WITNESSES ISABELO LIBAN AND SPO1 JOSE ECLIPSE. II. . . . NOT HOLDING THAT THE GUILT OF THE ACCUSED WAS NOT PROVED BEYOND REASONABLE DOUBT." 9 She discusses these jointly and, in support thereof, she asseverates that the testimonies of Liban and Eclipse are inconsistent on material points, for while 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 his house. One of them, she continues, did not tell the truth and argues that a testimony on her alleged confession, which would be devoid of any evidentiary value without corroboration. She pleads that this Court discredit both Liban and Eclipse because the testimony of Liban was improbable while that of Eclipse "was not so firm and resolute as to what was actually allegedly told him by the accused." At one time, while testifying, he declared that the appellant told him that she "accidentally injured her husband," but on another, he testified that the appellant told him that she "killed her husband." 10 Also, as shown in the entry in the police blotter, 11 Eclipse was reported to have disclosed that the appellant "voluntarily surrendered and asked him to bring her to the police station because she allegedly killed her husband named Agapito Lorenzo, Jr. together with Robert Santos who first stabbed him"; yet, in his testimony in court 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 Eclipse said accompanied him to the scene of the crime and who used a vehicle which they rode in going to the police station. 12 Meeting squarely the ratiocinations of the trial court in describing the story of 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 the police blotter against her since there is nothing in the records which clearly shows 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 erred when 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. She avers that the trial court erred when it held against her the failure to file her counter-affidavit, since that was not obligatory and her non-filing was in accord with her constitutional right to remain silent. Finally, she contends that the conclusions drawn by the trial court in its evaluation of her testimony 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 is the issue of the witnesses' credibility. It is a well-entrenched rule that when such 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 the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless certain facts of value have been plainly overlooked which, if considered, might affect the result of the case. 13 The trial court has the singular opportunity to observe

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and consider certain potent aids in understanding and weighing the testimony of witnesses, such as the emphasis, gesture, and inflection of the voice 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 and must 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 or circumstances which, if considered, may affect the result of this case. We thus accept its assessment of the evidence as correct and consider it binding, there being no showing that it was reached arbitrarily. 15 Our own evaluation thereof 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 told the 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 the performance of his official duty at his assigned post in Barangay Balzain, Tuguegarao, Cagayan. Eclipse and the appellant both belonged to the same police unit, the PNP at the Tuguegarao station. There is nothing in the records, and more specifically in the cross-examination of Eclipse and the direct examination of the appellant, which suggests, even remotely, that Eclipse had any improper motive to implicate a fellow police officer in the commission 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 to compromise his official and public duty as a peace officer. It is settled that the absence of evidence as to an improper motive strongly tends to sustain the conclusion 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 be against the natural order of events and of human nature and against the presumption 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 as to 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 the precise 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 since without such corroboration Eclipse's testimony would have no probative value. This theory could only be a product of a misunderstanding of Section 3, Rule 133 of the Rules of Court which provides: Sec. 3. Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence ofcorpus 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 the corroborative evidence required is not the testimony of another person who heard the confession but the evidence of corpus delicti. Except when expressly required by law, 18 the testimony of a single person, if credible and positive and if it satisfies the court as to the guilt of the accused beyond reasonable doubt, is sufficient to convict. 19 In determining the value and credibility of evidence, witnesses are to be weighed, not numbered. 20 As to the corroborative evidence of corpus delicti, the appellant herself does not question its presence because she knows that it has been overwhelmingly established in this case. Corpus delicti is the body (material substance) 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 a derivative 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, for example a man has died or a building has been burned, and (b) that some person is criminally responsible for the act. Section 3, Rule 133 of the Rules of Court does not mean that every element of the crime charged must be clearly established by independent evidence apart from the confession. It means merely that there should be some evidence tending to show the commission of the crime apart from the confession. Otherwise, the utility of the confession as a species of proof would vanish if it were necessary, in addition to the confession, to adduce other evidence sufficient to justify conviction independently of such confession. Otherwise stated, the other evidence need not, independently of the confession, establish the corpus delicti beyond a reasonable doubt. 21 Since the corroboration of Isabelo Liban's testimony was unnecessary, we need 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 strengthen rather 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 the other policeman whom Eclipse requested to get a vehicle could only be corroborative in some respects but not of the fact of the surrender of the blood-stained bolo and fan knife and of the appellant's telling Eclipse that she killed her husband since it was explicitly shown that he was with Eclipse at the precise time of the surrender. The prosecutor and the defense counsel asked no further questions of Eclipse to elicit more on the presence of the other policeman. In any event, even if the latter were present, his testimony

would only be corroborative. Furthermore, it has never been shown that the said policeman was not available to the defense. The presumption laid down in Section 3(e), Rule 131 of the Rules of Court that "evidence willfully suppressed would be adverse if produced" does not apply when the testimony of the witness not produced would only be corroborative, or when the said witness is available to the defense because then the evidence would have the same weight against one party as against the other. 23 We do not, however, agree with the trial court's characterization of the appellant's declaration that she killed her husband as an extrajudicial confession. It is only an admission. It is clear from Sections 26 and 33, Rule 130 of the Rules of Court that there is a distinction between an admission and a confession. These sections reads as follows: Sec. 26. Admission of a party. The act, declaration or admission of a party as to a relevant fact may be given in evidence against him. xxx xxx xxx Sec. 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. In a confession. there is an acknowledgment of guilt. Admission is usually applied 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 criminal intent to commit the offense with which he is charged. 24 Wharton 25 defines confession as follows: A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt. Underhill 26 distinguishes a confession from an admission as follows: A confession is defined as an acknowledgment of guilt of the crime charged or of the facts which constitute the crime; but it is an admission and not a confession if the facts acknowledged raise an inference of guilt only when considered with other facts. While Wigmore 27 says: A confession is an acknowledgment in express words, by the accused in a criminal case, 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 admissible against the appellant and, having been duly proved, together with the other facts and circumstances, the burden of the evidence was shifted to the appellant 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 earlier shown, the trial court characterized her story as "palpably a put-up scenario . . . . [A] story which runs against the grain of ordinary reality, controverts logic and assails common sense." The five reasons enumerated by it to support this conclusion are founded on or are inferred from facts duly established by the prosecution or are otherwise solidly based on common experience, logic, and common sense. The trial court had stated that if indeed the appellant never confessed to Eclipse that she killed her husband, she should have protested when Eclipse reported to the desk officer that she had confessed to the killing of her husband or she should have attempted to correct the entry in the police blotter containing this inculpatory report. The appellant demonstrated her penchant for falsehood when, in order to refute this statement, she asserted in her brief that nothing in the record clearly shows that she heard Eclipse making the report and that she read the entry in the police blotter. She conveniently forgot that on cross-examination she admitted having heard Eclipse 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 to you? A No, sir. Q So it was only PFC Eclipse who talked to the desk officer? A Yes, Sir.

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Q Within your hearing and you heard PFC Eclipse talked to the desk officer? A Yes, Sir. Q And what did PFC Eclipse report to the desk officer? A The one that is appearing in the excerpt of the police blotter, sir. xxx xxx xxx Court: Q When you said that you heard Pat. Eclipse reported to the desk officer you meant to say that you heard him telling the police officer that you killed your husband Agapito Lorenzo, Jr. together with Robert Santos who first stabbed him, 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 I was not in my right senses because I was then shocked at that time. 29 The appellant's failure to assert, at any part of the entire event, from the time she went with Eclipse to the police station up to the time she was committed to jail and even thereafter until she took the witness stand, that it was not she who killed her husband only serves to reinforce and strengthen this Court's respect 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 a peace officer and a wife of the victim would not forthwith denounce or reveal the identity of the assailant if it were true that it was not she who killed her husband. This Court has held that the testimony of the accused is not credible where 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 fiscal during the investigation that it was not he but somebody else who committed the murder. 30 Even granting for the sake of argument that the appellant only surrendered a blood-stained bolo and a fan knife but did not admit that she killed her husband, we find in this case several circumstances whose concordant combination and cumulative effect 31 point to the appellant, to the exclusion of all others, as the guilty party. These circumstances are the following: 1. A tricycle driver reported to Eclipse a stabbing incident and the latter immediately proceeded to where it took place; 2. Eclipse met the appellant who had with her a bloodstained bolo and a fan knife; 3. The appellant surrendered to Eclipse the bloodstained bolo and the fan knife; 4. The appellant's husband lay dead nearby with nine chop wounds, thirteen stab wounds, and nine incised wounds on different parts of his body, with abrasions and multiple contusions as well; 32 5. Eclipse accompanied the appellant to the police station and, in her presence, the former reported to the desk officer that she surrendered to him and told him that she had killed her husband; the desk officer then entered 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 to investigate Robert Santos for his complicity in the killing of her husband; despite the unhampered opportunities for her to denounce Santos as the alleged killer of her husband, she implicated Santos only when she 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 fair and reasonable conclusion that points to the appellant, to the exclusion of all others, as the guilty person. The requirements then of Section 4, Rule 13334 of the Rules of Court on the sufficiency of circumstantial evidence to convict the appellant are present. 35 To be appreciated in the appellant's favor, however, is the mitigating circumstance of voluntary surrender. The penalty for parricide under Article

246 of the Revised Penal Code is reclusion perpetua to death, which are both indivisible penalties. In the light of the mitigating circumstance, the proper penalty 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 the applicable 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. DECISION CARPIO, J.: The Case Before the Court is a petition for review 1 assailing the 23 June 2000 Decision2 and the 7 November 2001 Resolution3 of the Court of Appeals in CA-G.R. CR No. 21450. The Court of Appeals affirmed the 30 September 1997 Decision4 of the Regional Trial Court of Manila, Branch 50 ("trial court") in Criminal Cases Nos. 94-135055-56. The trial court found Coverdale Abarquez y Evangelista ("Abarquez") guilty beyond reasonable doubt as an accomplice in the crime of homicide in Criminal Case No. 94-135055. The Charge The prosecution charged Abarquez with the crimes of homicide and attempted homicide in two Informations,5 as follows: Criminal Case No. 94-135055 The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of the crime of HOMICIDE, committed as follows: That on or about November 21, 1993, in the City of Manila, Philippines, the said accused conspiring and confederating with one ALBERTO ALMOJUELA Y VILLANUEVA, who has already been charged for the same offense before the Regional Trial Court of Manila, under Crim. Case No. 93-129891 and mutually helping each other, did then and there willfully, unlawfully and feloniously with intent to kill, attack, assault and use personal violence upon one RICARDO QUEJONG Y BELLO, by then and there stabbing him twice with a bladed weapon and hitting him with a gun at the back, thereby inflicting upon 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 the crime of ATTEMPTED HOMICIDE, committed as follows: That on or about November 21, 1993, in the City of Manila, Philippines, the said accused conspiring and confederating with one ALBERTO ALMOJUELA Y VILLANUEVA, who has already been charged for the same offense before the Regional Trial Court of Manila under Crim. Case No. 93-129892 and mutually helping each other, with intent to kill, did then and there wilfully, unlawfully and feloniously commence the commission of the crime of homicide directly by overt acts, to wit: by then and there holding one JOSE BUENJIJO PAZ Y UMALI 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 should have produced the crime of homicide as a consequence, by reason of causes other than his own spontaneous desistance, that is, the injury inflicted upon said 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 tried jointly. The Version of the Prosecution On 21 November 1993 at 2:00 p.m., Jose Buenjijo Paz8 ("Paz"), Ricardo Quejong ("Quejong") and their friends were in the house of one Boyet at 3342 San Jose St., Sta. Mesa, Manila. They were drinking liquor in celebration of the birthday of Boyets son. About 7:45 p.m., Paz and Quejong decided to go home. Boyet Tong, Abarquezs 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 Boyets house, Alberto Almojuela also known as Bitoy ("Almojuela"), a certain Ising and Abarquez also known as Dale, were likewise drinking liquor in front of Almojuelas house. As the group of Paz was passing towards the main road, Almojuela and 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 arm but sustained an injury. Abarquez held Paz on both shoulders while Bardie

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pacified Almojuela. Paz asked Abarquez, "What is our atraso, we were going home, why did you block our way?" Abarquez answered, "Masyado kang matapang. Tumigil ka na, tumigil ka na." Almojuela then confronted Quejong and they had an altercation, followed by a scuffle. Paz tried to get away from Abarquez who continued restraining him. Upon seeing Almojuela and Quejong fall on the ground, Paz struggled to free himself from Abarquez. Paz approached Quejong and found him already bloodied. It turned out the Almojuela stabbed Quejong with a knife. Paz tried to pull up Quejong but failed. Paz left Quejong and ran instead towards the exit of San Jose St. to ask for help. While Paz was running away, he heard Abarquez shout, "You left your companion already wounded!" When Paz and his companions returned, they found Quejong still on the ground. Almojuela and Abarquez were still in the area. Paz and his companions brought Quejong to the UST Hospital. They next proceeded to Police Precinct No. 4 to report the incident. However, there was nobody in the precinct. With Kagawad Villanio Usorio, Paz went to the WPD General Headquarters to report the incident. At the WPD General Headquarters, they learned that Quejong died at the UST Hospital. Paz then had his injury treated by Dr. Vic Managuelod at Jose Reyes Memorial Hospital. The medico-legal certificate 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 WPD Homicide Division, his station received a call from the UST Hospital informing them of the death of Quejong. SPO1 Vidad and PO3 Ed Co went to the 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 referral letter to the inquest prosecutor. Abarquez voluntarily appeared at the police station. Almojuela voluntarily surrendered to one SPO4 Soriano at Police Station No. 10 and was turned over to the WPD Homicide Division. Dr. Antonio ("Dr. Rebosa"), a medico-legal consultant at UST Hospital, conducted the post-mortem examination and autopsy on Quejong. Dr. Rebosa reported that Quejong sustained two stab wounds and suffered from massive hemorrhage due to penetrating stab wounds to the heart and left lung. According to Dr. Rebosa, a sharp instrument probably caused the wound. Dr. Rebosa also reported that Quejong sustained abrasions and contusions on the right upper body, the wrist and on the lower extremities. 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., Almojuelas wife informed him that the group of Paz was challenging Almojuela to a fistfight. Abarquez, being a barangay kagawad, proceeded to Almojuelas house. Almojuelas house was about twenty meters away from Abarquezs house. When he arrived at Almojuelas house, Abarquez saw Almojuela on the ground being strangled by Quejong. Paz was holding Almojuelas waist and boxing him at the stomach. Masula was near Almojuelas head holding a piece of stone as if waiting for a chance to hit him. Abarquez shouted at the group to 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 second warning shot. Paz, Quejong, and Masula scampered away. Almojuela told Abarquez that he was merely trying to stop the group of Paz from smoking marijuana. Almojuela then went inside his house while Abarquez went home. On his way home, Abarquez met the Chief Tanod of the barangay and two kagawads. Kagawad Rudy Lego ("Lego") advised him to report the incident to the police. They all proceeded to Precinct No. 4 where Lego reported the incident to the desk officer. The desk officer told them that a person had been stabbed. When Abarquez reached their house, he saw policemen and media men with their barangay chairman. He informed them that 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 informed him 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 Masula smoking marijuana. Almojuela asked the group to move away as there were children inside the house. He was on his way back to the house when Quejong tried to strangle him. Later, Almojuela heard a gunshot. He also heard Abarquez shouting, "Tumigil na kayo." Quejong, Masula, and Paz ran away. Winfred Evangelista10 ("Evangelista") testified that he was resting in front of his house when he heard a commotion. He noticed that Paz and Quejong were quarreling. Evangelista saw Paz kicking Almojuela. Abarquez arrived to break up the fight but he was told not to interfere. Abarquez was forced to fire 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 Abarquez guilty as an accomplice in the crime of homicide. The trial court held that the prosecution failed to prove that Abarquez was a co-conspirator of Almojuela in the killing of Quejong. Hence, Abarquez could not be convicted as a principal in the crime of homicide. However, the trial court ruled that Abarquez, in holding and restraining Paz, prevented the latter from helping Quejong and allowed Almojuela to pursue his criminal act without resistance. Rebosa9

The dispositive portion of the trial courts 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 an indeterminate penalty ranging from six (6) years of prision correccional to ten (10) years of prision mayor. In Criminal Case No. 94-135056, the accused is hereby acquitted. With costs de oficio. SO ORDERED.12 Abarquez appealed the trial courts Decision before the Court of Appeals. In its Decision13 of 23 June 2000, the Court of Appeals affirmed the trial courts Decision. The Court of Appeals sustained the trial court in giving more credence to the testimony of Paz. The Court of Appeals held that the prosecution was able to establish that Abarquez aided Almojuela in fatally stabbing Quejong. The Court of Appeals rejected Abarquezs 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 Abarquezs motion for reconsideration. Hence, the petition before this Court. The Issues The issues15 Abarquez raises before the Court may be summarized as follows: 1. Whether the prosecution was able to establish the guilt of the accused beyond reasonable doubt; 2. Whether the trial court and the Court of Appeals erred in giving more credence to the testimony of the prosecution witnesses. Abarquez alleges that the prosecutions evidence does not satisfy the test of moral certainty and is not sufficient to support his conviction as an accomplice. He further alleges that there was a misapprehension of facts and that the trial court and the Court of Appeals reached their conclusion based entirely on speculation, surmises and conjectures. Abarquez also assails the credibility 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 value and 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 persons who, not being included in Article 17, cooperate in the execution of the offense 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, and concurs 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 an accomplice, that the accused must unite with the criminal design of the principal 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 crime charged.21 Here, in convicting Abarquez, the trial court and the Court of Appeals relied mainly on the testimony of Paz. Paz testified that he was held by Abarquez on the shoulders, thus preventing him from helping Quejong who was grappling with Almojuela. Paz testified: q. And what happened in the exchange of words or altercations between Bitoy 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 accused holding both shoulders, your Honor. q. Now, when this Dale Abarquez held both on your shoulders, what happened next, if any?

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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 course of grappling, if any? You testified that Ricky and Bitoy were grappling each other, what happened in 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 or Ricardo? (sic) a. It was a knife, sir. (Witness indicating a length about 6 inches including the handle). q. Now, you said also that while the two were grappling while you were trying to free yourself from the hold Dale Abarquez, "Pinagalitan kayo", in what 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 the accused [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 further quarrelling 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 by Abarquez? ATTY. GASCON: Make I make it of record your Honor that the interpreter act as the witness while the witness act as the accused demonstrating holding both hands of interpreter preventing the witness and saying Joey tumigil ka na, joey tumigil ka 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 were trying 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 Joey tumigal 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 the accused tried to hold you and prevent you? a. Yes, sir. q. That is why the reason you concluded that the accused is not pacifying you but 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 ka na.24

Pazs testimony does not show that Abarquez concurred with Almojuelas criminal design. "Tumigil" literally means "stop." Clearly, Abarquez was trying to stop Paz from joining the fray, not from helping Quejong. Paz claims that he was only trying to talk to Almojuela. However, Paz could not have been merely talking to Almojuela, as he tried to portray, because Almojuela was already grappling with Quejong at that time. Paz interpreted Abarquezs action as an attempt to prevent him from helping Quejong. His interpretation was adopted by the trial court and sustained by the Court of Appeals. Yet, in his testimony, Paz admitted that while restraining him, Abarquez was scolding 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. Abarquezs 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 and participation in the criminal act. In other words, the principal and the accomplice must have acted in conjunction and directed their efforts to the same 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 (principals) criminal design did not automatically make him an accomplice. This circumstance, by itself, did not show his concurrence in the principals criminal intent. Paz stated that Abarquez did not do anything to stop Almojuela. However, Paz testified that Abarquezs son Bardie, who was one of Pazs companions, was the one trying to pacify Almojuela. The trial court in its factual findings confirmed this when it stated that while Abarquez was holding Paz, his son Bardie was pacifying Almojuela.26 The prosecution argues that Abarquez was remiss in his duties as a barangay kagawad in not extending assistance to the then wounded Quejong. This, however, does not necessarily show concurrence in Almojuelas criminal act. When Paz ran away, Abarquez shouted at him that he left his wounded companion. Apparently, Abarquez was not aware of the extent of Quejongs 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 resolved in his favor. Thus: Every person accused has the right to be presumed innocent until the contrary is proven beyond reasonable doubt. The presumption of innocence stands 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 be removed. 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 inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent 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 is found 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 the Regional Trial Court of Manila, Branch 50 in Criminal Cases Nos. 94-13505556. We ACQUIT Coverdale Abarquez y Evangelista as an accomplice in the crime of homicide in Criminal Case No. 94-135055. No pronouncement as to costs. SO ORDERED.

G.R. No. 157959

March 28, 2007

HEIRS OF VICENTE REYES, represented by DOMINADOR REYES; HEIRS OF APOLONIA REYES SAMSON, represented by MILAGROS FRANCISCO; MONICO REYES PALMARIO; FELICISIMA REYES CHING-CUANCO; JULIA REYES; LEONORA REYES; EDILBERTA REYES; MAXIMA REYES; BIENVENIDO REYES; HEIRS OF MANUEL REYES SAMSON, represented by ZENADIA FRILLES; MARIO SAMSON; GLISERIO SAMSON; CRISPIN SAMSON; NUMERIANO SAMSON; FERMENIA SAMSON, HEIRS OF MARTIN SAMSON, represented by MA. CLARA SAMSON; ELPIDIO SAMSON; RICARDO SAMSON; VICTORINO SAMSON; EMILIANO SAMSON, JR.; CARMELITA SAMSON VERGARA; SHEILA ANN SAMSON; FRANCISCO SAMSON 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 GLORIA REYES-PAULINO, Respondents. DECISION AZCUNA, J.:

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This is a petition for review on certiorari1 assailing the Decision2 and Resolution3 of the Court of Appeals (CA) dated February 10, 2003 and April 28, 2003, respectively, in CA-G.R. CV No. 71807. The case stemmed from the action for partition and accounting filed by the children of the siblings of the late Eustaquia Reyes 4 against Magno Sarreal, Anatalia Reyes and Gloria Reyes-Paulino, Eustaquias husband and nieces, respectively, in relation to a parcel of land situated in Balintawak, Quezon City, 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 under Transfer Certificate of Title (TCT) No. 26031 issued by the Registry of Deeds of Quezon City and was inherited by her prior to her marriage to Magno Sarreal. On June 5, 1963, Eustaquia leased a portion of the property to ACME Abrasive 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 and place additional improvements within the property during the term of the lease subject to the condition, among others, that upon the expiration of such term, the ownership of all the improvements found within the leased property would automatically be transferred to the lessor without need for reimbursement.6 The contract was thumbmarked by Eustaquia as the lessor, with Magno Sarreal likewise affixing his signature to the instrument to indicate his marital consent to the transaction.7 On January 24, 1979, Eustaquia purportedly sold the property to private respondents Anatalia Reyes and Gloria Reyes-Paulino in a notarized document entitled "Patuluyang Pagbibili ng Lupa" (Deed of Absolute Sale).8 In the second paragraph of the deed, Eustaquia expressly stated that the property was paraphernal or exclusive in character and did not belong to the conjugal partnership because it formed part of her inheritance. Accordingly, it was only her signature and thumbmark which appeared on the deed. Anatalia and Gloria subsequently divided the property between themselves 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 predeceased her filed a complaint with the Regional Trial Court (RTC) of Quezon City for partition and accounting with receivership against Magno Sarreal and private respondents herein, Anatalia Reyes and Gloria Reyes-Paulino. They allegedly just discovered that the property was clandestinely, fraudulently and unlawfully divided between private respondents who caused its registration 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 the property, they are co-owners of the resulting subdivision lots with private respondents, 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 to private respondents but also to them and private respondents should be made to account for all rents received from the date of Eustaq uias death. They further prayed that the property be placed under receivership pending the resolution of the case.11 Private respondents filed a joint answer12 to the complaint claiming, among others, that 1) the complaint does not state any cause of action; 2) they are the owners in fee simple of the property under TCT Nos. 272977 and 272976; 3) complainants are not compulsory heirs of Eustaquia; and 4) the title to the property has been transferred in the names of private respondents pursuant to a valid sale long before the death of Eustaquia. A separate answer13 was filed on behalf of Magno Sarreal by his purported guardian ad litem and natural daughter, Aida Sarreal, which admitted virtually all the allegations of the complaint except the portion which stated that the property belonged exclusively to Eustaquia. It alleged that the property, while originally paraphernal, became conjugal in character because of "the improvements introduced therein from the income of the spouses and/or from the income or fruits of their separate properties." However, at that time, it appeared that the status of Aida Sarreal as guardian ad litem was still in issue in two pending consolidated civil cases, namely, Civil Case No. Q-5148214 and Special Proceeding No. 50893.15 The appointed guardian ad litem of Magno in those cases, the University of the Philippines 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 answer 17 dated September 5, 1994 which now denied for lack of knowledge the personal circumstances of the complainants, their relationship to their respective progenitors and to Eustaquia, and the relationship of complainants and private respondents to each other and of private respondents to Eustaquia. The paraphernal character of the property was likewise denied, with Magno now claiming that the property was part of the conjugal partnership from the very beginning. On December 12, 1994, Magno died and was substituted as defendant by Celerina 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 whether the 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 witnesses Celerina 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 the appointment of a receiver was filed by the children of Eustaquias 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 petitioners which 1) declared the Deed of Absolute Sale executed between Eustaquia and private respondents null and void; 2) ordered the Register of Deeds of Quezon City to cancel TCT Nos. 272976 and 272977; 3) allowed the partition of the property among the legal heirs of Eustaquia and the legal heirs of her deceased husband, Magno; 4) appointed the Branch Clerk of Court as commissioner for the purpose of partitioning the property and rendering an account of all income received from the date of Eustaquias death; 5) pending partition, appointed the Clerk of Court as receiver of the property; and 6) ordered the defendants to pay attorneys fees, litigation expenses and costs of suit. Not satisfied, private respondents appealed the decision to the CA. On February 10, 2003, the CA reversed the decision of the RTC and rendered the assailed Decision,21 the dispositive portion of which reads: WHEREFORE, the appealed decision is REVERSED and SET ASIDE, and another is entered: a) Dismissing the complaint; b) Revoking the appointment of a receiver over the property in suit; 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 the possession of the subject property to the appellants Anatalia Reyes and Gloria Reyes-Paulino and render a full accounting and settlement of her receivership to the latter. The CA pointed out that during pre-trial, the parties agreed that the sole issue that would limit or control the course of the trial was whether the conveyance of the property to private respondents was simulated or fictitious. The CA ruled that the burden of proof, which rested upon complainants in this instance, was not met, after finding that the testimonies of the complainants two witnesses22 to the effect that private respondents had no means or source of income that would enable them to buy the property and that they merely lived with the spouses Eustaquia and Magno Sarreal during their lifetime were mere generalities and fell short of the "clear, convincing and more than merely preponderant evidence necessary to overcome the notarized deed of sale."23 The CA, moreover, found the testimony of private respondent Gloria Reyes-Paulino more convincing in that she was able to establish she was earning an income and that she lived with her husband independently of the spouses Eustaquia and Magno. The CA held that the RTC showed undue bias in favor of complainants by resolving the case on issues not agreed upon during the pre-trial, particularly with regard to the true nature of the property and whether the same was paraphernal or conjugal. It should be kept in mind that because the property was deemed conjugal, the RTC held that the Deed of Absolute Sale which did not bear Magnos signature was void. Thereafter, separate motions for reconsideration24 were filed by the children of Eustaquias siblings and the heirs of Magno Sarreal. Collaborating counsel for 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 the receiver over the property; 2) the discharge of the appointed receiver; and 3) an order for the discharged receiver to restore possession of the property to private respondents. After petitioners interposed their comment/opposition to the omnibus motion, another collaborating counsel for private respondents filed a notice of entry of appearance with application for damages against receivers bond26on March 25, 2003 praying that the receivers bond in the amount of P1,000,000.00 be declared liable for damages sustained by private respondents. On April 2, 2003, private respondents also filed, with leave of court, a consolidated comment to the motions for reconsideration filed by petitioners. In the assailed Resolution dated April 28, 2003, private respondents omnibus motion for the immediate execution of the directives regarding the receivership and accounting aspects of the CA decision was granted. Private respondents application for damages against the receivers bond was, on the other 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 status quo order on May 15, 2003, to stop the immediate execution of the CA decision and resolution. Petitioners anchor their petition on the following grounds: 1. Respondent Court of Appeals committed serious deviations from the law and settled jurisprudence in holding that the land in dispute did not become conjugal property of the late spouses Magno Sarreal and Eustaquia Reyes and in reversing the trial court on the issue of nullity of the deed of sale.

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2. Respondent Court likewise erred most grievously in overturning the trial courts factual findings on the basis of a uniquely one-sided or lopsided treatment of the facts and in total disregard 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 close range. 3. Respondent Court acted in grave abuse of discretion tantamount to excess of jurisdiction when it ordered the trial court to issue forthwith a writ of execution of the directives in its decision despite their lack of finality. 4. The Resolution turns a blind eye upon the ruling of the Honorable Supreme Court in Heirs of the Late Justice Jose B.L. Reyes vs. Court of Appeals (338 SCRA 282), and has the deleterious effect of opening the door to a dissipation of the fruits of the property in dispute to the grave detriment of the petitioners should the assailed Decision be reversed by the Honorable Court. The crux of the present controversy involves the resolution of validity or invalidity of the conveyance of the property to private respondents. The trial court concluded on the basis of the evidence presented that the Deed of Absolute Sale was void for not embodying the consent of Eustaquias husband. The conclusion was drawn upon the finding of the RTC that the property subject of the deed was conjugal in character due to the improvements constructed thereon at the expense of the conjugal partnership. 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 the parties during pre-trial, that is, whether the sale of the property to private respondents was simulated or fictitious. The Court is mindful of the rule that the determination of issues at a pre-trial conference bars the consideration of other questions on appeal. A pre-trial is meant to serve as a device to clarify and narrow down the basic issues between the parties, to ascertain the facts relative to those issues and to enable the parties to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent trials from being carried on in the dark. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters.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. The issue on the nature of the property was embodied in the pleadings filed by the parties subsequent to the complaint and was actively litigated by them without any objection on the part of private respondents. In view thereof, the latter are deemed to have given their implied consent for the RTC to try this issue. It is worthy to note that a careful perusal of the RTC decision would reveal that the trial court found it unnecessary to make a categorical finding as to whether the deed was simulated or fictitious, the focal point being the character 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 to establish that the sale was simulated or fictitious, it did not make a clear and definitive ruling on this matter, and instead stated as follows: While these circumstances may be considered in the determination of the alleged fraud in the transfer of property by way of Deed of Sale allegedly executed by Eustaquia Reyes in favor of defendants Gloria Reyes-Paulino and Anatalia Reyes, the Court is nevertheless confronted with a significant factual element which, by and in itself alone and independent of circumstances indicative of fraud, nullifies the said Deed of Sale. There is a clear absence of Magno Sarreals signature in the Deed of Sale of the subject property in favor of 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 was that the absence of Magnos conformity rendered the deed of absolute sale fatally defective. In this regard, the evidence relied upon by the RTC to support its conclusion that the property had become conjugal and therefore required Magnos consent was principally the testimony of Monico Reyes Palmario as well as the lease agreement executed with ACME, to wit: After a careful examination of the testimonial and documentary evidence adduced by both parties, it appears to the Court that: xxx 6. The subject property was acquired by Eustaquia Reyes prior to her marriage 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 the said parcel of land as of June 5, 1983, at the expiration of the lease, shall belong to the lessors. Witness plaintiff Monico Reyes Palmario likewise testified that he had been engaged by the spouses as a carpenter and mason to make improvements on the property. He made repairs on the buildings constructed on the property. He further testified that there were at least ten (10) houses on the said property and a building housing a knitting company. (TSN of October 2, 1997, p. 10) xxx

As in the Embrado Case, the sale of the subject property to defendants Gloria Reyes-Paulino and Anatalia Reyes was void because Magno Sarreal did not consent to the sale, which consent was necessary because the property is conjugal, 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 by Eustaquia Reyes prior to her marriage to defendant Sarreal, it was established that improvements were made consisting of houses, buildings for rent.Likewise, all improvements introduced thereon by AcmeAbrasive Manufacturing Corporation upon the expiration of the lease on June 5, 1983 became conjugal properties of Spouses Eustaquia Reyes Sarreal and Magno 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 were made during the subsistence of the marriage hence the presumption that the funds used were conjugal stands. "Under Article 158 of the Civil Code, the land becomes conjugal upon the construction of the building without awaiting reimbursement before or at the liquidation of the partnership upon the concurrence of two conditions, to wit: (a) the construction of the building at 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 became conjugal upon the construction of improvements thereon.30 In the present case, the CA considered only the improvements introduced by ACME during the subsistence of the latters lease to determine whether the property became conjugal. It ruled in the negative after concluding that these improvements were not at the partnerships expense, but rather at the expense of the lessee. It is argued by private respondents that the improvements made by ACME did not transform the character of the property from being paraphernal into being conjugal. The statutory requirement set forth under Article 158 of the Civil Code31 is that the improvements have to be made or undertaken at the expense of the conjugal partnership. Under the terms of the lease agreement, the lessee was allowed to build on the property at its own expense, 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 on Eustaquias property cannot be construed as being converted into an expense 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 on June 1, 1983. At that time, however, Eustaquia had already sold the land, on January 24, 1979, to private respondents. Hence, the transfer of the ownership of the building from the lessee to the lessor could not convert the land 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 improvements introduced by ACME in ruling that the property became conjugal. As mentioned above, it likewise gave full faith and credence to the testimony of Monico Reyes Palmario who testified that there were houses and buildings that were constructed on the property prior to the purported sale to private respondents. The CA, however, held otherwise, stating that the testimony of private respondent Gloria Reyes-Paulino was more credible, thus: The complaint, however, never mentioned any "house" or a "building occupied by a knitting company"; it confined itself only to a "parcel of land" and "market stalls." Hence, Palmario must be referring to another land and his 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 knowledgeable of the place and hence, more reliable, declared that they are outside the land in controversy.32 Applying the well-known test of credibility called the actors rule, it is the witness 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 credence to the testimony of petitioner Monico Reyes Palmario, who claimed he worked as carpenter on the property in question, and there were houses and buildings constructed on the property including a knitting factory. The CA, however, sustained the testimony of private respondent Gloria ReyesPaulino, who rented from the spouses Eustaquia and Magno one of the "houses" or apartments, and lived therein, and who testified that these houses and buildings were on a different property. As between these two witnesses, the latter is more reliable since her act of renting and living in one of the "houses" or apartments makes her the actor more closely related to the point at issue, i.e., whether or not the houses were on the property in question. For while a carpenter would not concern himself with the title of the property, a lessee would normally look into the title covering the property leased, including its precise location or boundaries, and in fact Gloria Reyes-Paulino testified that the lot on which the house she rented was found had a separate title. Accordingly, the CA aptly held as follows: For his part, plaintiff-appellee Monico Reyes Palmario testified on "more or less" ten (10) houses constructed on the land in dispute by EUSTAQUIA and Magno, on which he even had the occasion to work on them as a carpenter, aside from a building occupied by a knitting company, viz.:

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"Q And will you also inform this Honorable Court if the spouses Magno Sarreal 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. xxxxxxxxx "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 matter of this case? "A Yes, sir. "Q Mr. witness, do you have any occasion to work on the Seven Thousand square 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 this property? "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 or other 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 "building occupied by a knitting company;" it confined itself only to a "parcel of land" and "market stalls." Hence, Palmario must be referring to another land and his 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" or apartments from EUSTAQUIA and Magno, and who is thus more knowledgeable of the place and, hence, more reliable declared that they are outside the land in controversy. "Q Now, let us talk about the parcel of land. How far is this parcel of land from 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 situated is 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 a separate 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 which purportedly made the property conjugal consisted of "houses, buildings for rent" and "improvements introduced thereon by lessee Acme-Abrasive Manufacturing Corporation upon the expiration of the lease on June [1], 1983." It said: "As in the Embrado Case, the sale of the subject property to defendants Gloria Reyes Paulino and Anatalia Reyes was void because Magno Sarreal did not consent to the sale, which consent was necessary because the property is conjugal 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 by Eustaquia Reyes prior to her marriage to defendant Sarreal, it was established that improvements were made consisting of houses, buildings for rent. Likewise, all improvements introduced thereon by lessee AcmeAbrasive Manufacturing Corporation upon the expiration of the lease on June [1], 1983 became the conjugal properties of Spouses Eustaquia Reyes Sarreal and Magno 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 were made during the subsistence of the marriage hence the presumption that the funds used were conjugal stands. "Under Article 158 of the Civil Code, the land becomes conjugal upon the construction of the building without awaiting reimbursement before or at the liquidation of the

partnership upon the concurrence of two conditions, to wit: (a) the construction of the building at 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 became conjugal upon the construction of improvements thereon." The "houses or apartments being outside the land in suit, the only improvements that should be looked into in the case at bench are the "improvements introduced thereon by the lessee Acme-Abrasive Manufacturing 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 from June 1st, 1963 and expiring on June 1st 1983; and that upon termination of the period of this contract, the ownership of all the improvements found within the leased property, (except machineries of any kind, stocks, furniture and other personal property found in the building) shall be automatically transferred to the LESSOR without reimbursement and without paying the cost and value thereof to the LESSEE; and that if it is necessary for the LESSEE to execute and deliver papers, documents and other writings, whatsoever to effect the transfer of the ownership of all the said improvements to the LESSOR, the LESSEE shall execute and deliver the same to the LESSOR." Two (2) decisive facts are clearly discernible therefrom: first, no conjugal fund ever went into the construction of the improvements as they were all done at the expense of the lessee; and second, the improvements shall devolve 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 longer EUSTAQUIA but the appellants ANATALIA and GLORIA. This is for the simple reason that in the interim, or on January 24, 1979, the lessor EUSTAQUIA sold the land to ANATALIA and GLORIA who thereupon succeeded EUSTAQUIA as lessor. Necessarily, ANATALIA and GLORIA became the owners of the land, together with all the improvements thereon, upon the expiration 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 aking minana o isang inheritance property." Resultantly, when EUSTAQUIA died on May 7, 1987, the plaintiffs, including the surviving husband, Magno Sarreal, 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 on January 24, 1979 was paraphernal, the consent of Magno was not required and the sale cannot be held invalid on the basis of its absence. WHEREFORE, the petition is DENIED and the assailed Decision and Resolution dated February 10, 2003 and April 28, 2003, respectively, rendered by the Court of Appeals in CA-G.R. CV No. 71807 are hereby 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.

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