JUDICIAL ADMISSIONS:

G.R. No. 182864 January 12, 2015

EASTERN SHIPPING LINES, INC., Petitioner,
vs.
BPI/MS INSURANCE CORP., & MITSUI SUMITOMO INSURANCE CO., LTD., Respondents.
DECISION
PEREZ, J.:

The facts gathered from the records follow:

On 29 December 2004, BPI/MS Insurance Corporation (BPI/MS) and Mitsui Sumitomo Insurance Company Limited (Mitsui) filed a Complaint 3 before the RTC of Makati City
against ESLI and ATI to recover actual damages amounting to US$17,560.48 with legal interest, attorney’s fees and costs of suit.

In their complaint, BPI/MS and Mitsui alleged that on 2 February 2004 at Yokohama, Japan, Sumitomo Corporation shipped on board ESLI’s vessel M/V "Eastern Venus 22" 22
coils of various Steel Sheet weighing 159,534 kilograms in good order and condition for transportation to and delivery at the port of Manila, Philippines in favor of consignee
Calamba Steel Center, Inc. (Calamba Steel) located in Saimsim, Calamba, Laguna as evidenced by a Bill of Lading with Nos. ESLIYMA001. The declared value of the shipment was
US$83,857.59 as shown by an Invoice with Nos. KJGE-03-1228-NT/KE3. The shipment was insured with the respondents BPI/MS and Mitsui against all risks under Marine Policy
No. 103-GG03448834.

On 11 February 2004, the complaint alleged that the shipment arrived at the port of Manila in an unknown condition and was turned over to ATI for safekeeping. Upon
withdrawal of the shipment by the Calamba Steel’s representative, it was found out that part of the shipment was damaged and was in bad order condition such that there was a
Request for Bad Order Survey. It was found out that the damage amounted to US$4,598.85 prompting Calamba Steel to reject the damaged shipment for being unfit for the
intended purpose.

On 12 May 2004 at Kashima, Japan, Sumitomo Corporation again shipped on board ESLI’s vessel M/V "Eastern Venus 25" 50 coils in various Steel Sheet weighing 383,532
kilograms in good order and condition for transportation to and delivery at the port of Manila, Philippines in favor of the same consignee Calamba Steel as evidenced by a Bill of
Lading with Nos. ESLIKSMA002. The declared value of the shipment was US$221,455.58 as evidenced by Invoice Nos. KJGE-04-1327-NT/KE2. The shipment was insured with the
respondents BPI/MS and Mitsui against all risks under Marine Policy No. 104-GG04457785.

On 21 May 2004, ESLI’s vessel withthe second shipment arrived at the port of Manila partly damaged and in bad order. The coils sustained further damage during the discharge
from vessel to shore until its turnover to ATI’s custody for safekeeping.

Upon withdrawal from ATI and delivery to Calamba Steel, it was found out that the damage amounted to US$12,961.63. As it did before, Calamba Steel rejected the damaged
shipment for being unfit for the intended purpose.

Calamba Steel attributed the damages on both shipments to ESLI as the carrier and ATI as the arrastre operator in charge of the handling and discharge of the coils and filed a
claim against them. When ESLI and ATI refused to pay, Calamba Steel filed an insurance claim for the total amount of the cargo against BPI/MS and Mitsuias cargo insurers. As a
result, BPI/MS and Mitsui became subrogated in place of and with all the rights and defenses accorded by law in favor of Calamba Steel.

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Opposing the complaint, ATI, in itsAnswer, denied the allegations and insisted that the coils in two shipments were already damaged upon receipt from ESLI’s vessels. It likewise
insisted that it exercised due diligence in the handling of the shipments and invoked that in case of adverse decision, its liability should not exceed ₱5,000.00 pursuant to Section
7.01, Article VII4 of the Contract for Cargo Handling Services between Philippine Ports Authority (PPA) and ATI. 5 A cross-claim was also filed against ESLI.

On its part, ESLI denied the allegations of the complainants and averred that the damage to both shipments was incurred while the same were in the possession and custody of
ATI and/or of the consignee or its representatives. It also filed a cross-claim against ATI for indemnification in case of liability. 6

To expedite settlement, the case was referred to mediation but it was returned to the trial court for further proceedings due tothe parties’ failure to resolve the legal issues as
noted inthe Mediator’s Report dated 28 June 2005.7

On 10 January 2006, the court issued a Pre-Trial Order wherein the following stipulations wereagreed upon by the parties:

1. Parties admitted the capacity of the parties to sue and be sued;

2. Parties likewise admitted the existence and due execution of the Bill of Lading covering various steel sheets in coil attached to the Complaint as Annex A;

3. Parties admitted the existence of the Invoiceissued by Sumitomo Corporation, a true and faithful copy of which was attached to the Complaint as Annex B;

4. Parties likewise admitted the existence of the Marine Cargo Policy issued by the Mitsui Sumitomo Insurance Company, Limited, copy of which was attached to the
Complaint as Annex C;

5. [ATI] admitted the existence and due execution of the Request for Bad Order Survey dated February 13, 2004, attached to the Complaint as Annex D;

6. Insofar as the second cause of action, [ESLI] admitted the existence and due execution of the document [Bill of Lading Nos. ESLIKSMA002, Invoice with Nos. KJGE-04-
1327-NT/KE2 and Marine Cargo Policy against all risks on the second shipment] attachedto the Complaint as Annexes E, F and G;

7. [ATI] admitted the existence of the Bill of Lading together with the Invoices and Marine Cargo Policy. [It] likewise admitted by [ATI] are the Turn Over Survey of Bad
Order Cargoes attached to the Complaint as Annexes H, H-1 and J. 8

The parties agreed that the procedural issue was whether there was a valid subrogation in favor of BPI/MS and Mitsui; and that the substantive issues were, whether the
shipments suffered damages, the cause of damage, and the entity liable for reparation of the damages caused. 9 Due to the limited factual mattersof the case, the parties were
required to present their evidence through affidavits and documents. Upon submission of these evidence, the case was submitted for resolution. 10

BPI/MS and Mitsui, to substantiate their claims, submitted the Affidavits of (1) Mario A. Manuel (Manuel), 11 the Cargo Surveyor of Philippine Japan Marine Surveyors and Sworn
Measurers Corporation who personally examined and conducted the surveys on the two shipments; (2) Richatto P. Almeda, 12 the General Manager of Calamba Steel who oversaw
and examined the condition, quantity, and quality of the shipped steel coils, and who thereafter filed formal notices and claims against ESLI and ATI; and (3) Virgilio G. Tiangco,
Jr.,13 the Marine Claims Supervisor of BPI/MS who processed the insurance claims of Calamba Steel. Along with the Affidavits were the Bills of Lading 14covering the two
shipments, Invoices,15 Notices of Loss of Calamba Steel,16 Subrogation Form,17 Insurance Claims,18 Survey Reports,19 Turn Over Survey of Bad Order Cargoes20 and Request for Bad
Order Survey.21

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ESLI, in turn, submitted the Affidavits of Captain Hermelo M. Eduarte, 22 Manager of the Operations Department of ESLI, who monitored in coordination with ATI the discharge of
the two shipments, and Rodrigo Victoria (Rodrigo), 23the Cargo Surveyor of R & R Industrial and Marine Services, Inc., who personally surveyed the subject cargoes on board the
vessel as well as the manner the ATI employees discharged the coils. The documents presented were the Bills of Lading, Secretary’s Certificate 24 of PPA, granting ATI the duty and
privilege to provide arrastre and stevedoring services at South Harbor, Port of Manila, Contract for Cargo Handling Services, 25 Damage Report26 and Turn Over Report made by
Rodrigo.27 ESLI also adopted the Survey Reports submitted by BPI/MS and Mitsui. 28

Lastly, ATI submitted the Affidavits of its Bad Order Inspector Ramon Garcia (Garcia) 29 and Claims Officer Ramiro De Vera.30 The documents attached to the submissions were the
Turn Over Surveys of Bad Cargo Order,31Requests for Bad Order Survey,32 Cargo Gatepasses issued by ATI,33 Notices of Loss/Claims of Calamba Steel34and Contract for Cargo
Handling Services.35

On 17 September 2006, RTC Makati City rendered a decision finding both the ESLI and ATI liable for the damages sustained by the two shipments. The dispositive portion reads:
WHEREFORE, judgment is hereby rendered in favor of [BPI/MS and Mitsui] and against [ESLI Inc.] and [ATI], jointly and severally ordering the latter to pay [BPI/MS and Mitsui] the
following: 1. Actual damages amounting to US$17,560.48 plus 6% legal interest per annum commencing from the filing of this complaint, until the same is fully paid;

2. Attorney’s fees in a sum equivalent to 20% of the amount claimed;

3. Costs of suit.36

Aggrieved, ESLI and ATI filed their respective appeals before the Court of Appeals on both questions of fact and law. 37

Before the appellate court, ESLI argued that the trial court erred when it found BPI/MS has the capacity to sue and when it assumed jurisdiction over the case. It also questioned
the ruling on its liability since the Survey Reports indicated that the cause ofloss and damage was due to the "rough handling of ATI’s stevedores during discharge from vessel to
shore and during loading operation onto the trucks."It invoked the limitation of liability of US$500.00 per package asprovided in Commonwealth Act No. 65 or the Carriage of
Goods by Sea Act (COGSA).38 On the other hand, ATI questioned the capacity to sue of BPI/MS and Mitsui and the award of attorney’s fees despite its lack of justification in the
body of the decision. ATI also imputed error on the part of the trial court when it ruled that ATI’s employees were negligent in the ruling of the shipments. It also insisted on the
applicability of the provision of COGSA on limitation of liability. 39

In its Decision,40 the Court of Appeals absolved ATI from liability thereby modifying the decision of the trial court. The dispositive portions reads:

WHEREFORE, the appeal of ESLI is DENIED, while that of ATI is GRANTED. The assailed Judgment dated September 17, 2006 of Branch 138, RTC of Makati City inCivil Case No. 05-
108 is hereby MODIFIED absolving ATI from liability and deleting the award of attorney’s fees. The rest of the decision is affirmed. 41

Before this Court, ESLI seeks the reversal of the ruling on its liability.

At the outset, and notably, ESLI included among its arguments the attribution of liability to ATI but it failed to implead the latter as a party to the present petition. This non-
inclusion was raised by BPI/MS and Mitsui as an issue 42 in its Comment/Opposition43 and Memorandum:44 For reasons known only to [ESLI],it did not implead ATI as a party
respondent in this case when it could have easily done so. Considering the nature of the arguments raised by petitioner pointing to ATI as solely responsible for the damages
sustained by the subject shipments, it is respectfully submitted that ATI is an indispensable party in this case. Without ATI being impleaded, the issue of whether ATI is solely
responsible for the damages could not be determined with finality by this Honorable Court. ATI certainly deserves to be heard on the issue but it could not defend itself because
it was not impleaded before this Court. Perhaps, this is the reason why [ESLI] left out ATI in this case so that it could not rebut while petitioner puts it at fault. 45

ESLI in its Reply46 put the blame for the non-exclusion of ATI to BPI/MS and Mitsui:
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[BPI/MS and Mitsui] claim that herein [ESLI] did not implead [ATI] as a party respondent in the Petition for Review on Certiorari it had filed. Herein Petitioner submits that it is not
the obligation of [ESLI] to implead ATI as the same isalready the look out of [BPI/MS and Mitsui]. If [BPI/MS and Mitsui] believe that ATI should be made liable, they should have
filed a Motion for Reconsideration with the Honorable Court of Appeals. The fact that [BPI/MS and Mitsui] did not even lift a finger to question the decision of the Honorable
Court of Appeals goes to show that [BPI/MS and Mitsui] are not interested as to whether or not ATI is indeed liable. 47

It is clear from the exchange that both [ESLI] and [BPI/MS and Mitsui] are aware of the non-inclusion of ATI, the arrastre operator, as a party to this review of the Decision of the
Court of Appeals. By blaming each other for the exclusion of ATI, [ESLI] and [BPI/MS and Mitsui] impliedly agree that the absolution of ATI from liability isfinal and beyond review.
Clearly, [ESLI] is the consequential loser. It alone must bear the proven liability for the loss of the shipment. It cannot shift the blame to ATI, the arrastreoperator, which has been
cleared by the Court of Appeals. Neither can it argue that the consignee should bear the loss.

Thus confined, we go to the merits of the arguments of ESLI.

First Issue: Liability of ESLI

ESLI bases of its non-liability onthe survey reports prepared by BPI/MS and Mitsui’s witness Manuel which found that the cause of damage was the rough handling on the
shipment by the stevedores of ATI during the discharging operations. 48 However, Manuel does not absolve ESLI of liability. The witness in fact includes ESLI in the findings of
negligence. Paragraphs 3 and 11 of the affidavit of witness Manuel attribute fault to both ESLI and ATI.

3. The vessel M.V. "EASTERN VENUS" V 22-S carrying the said shipment of 22 coils of various steel sheets arrived at the port of Manila and discharged the said shipment on or
about 11 February 2004 to the arrastre operator [ATI]. I personally noticed that the 22 coils were roughly handled during their discharging from the vessel to the pier of [ATI] and
even during the loading operations of these coils from the pier to the trucks that will transport the coils to the consignees’s warehouse. During the aforesaid operations, the
employees and forklift operators of [ESLI] and [ATI] were very negligent in the handling of the subject cargoes.

xxxx

11. The vessel M.V. "EASTERN VENUS" V 25-S carrying the said shipment of 50 coils of various steel sheets arrived at the port of Manila and discharged the said shipment on or
about 21 May 2004 to the arrastre operator [ATI]. I personally noticed that the 50 coils were roughly handled during their discharging from the vessel to the pier of [ATI] and even
during the loading operations of these coils from the pier to the trucks that will transport the coils to the consignees’s warehouse. During the aforesaid operations, the
employees and forklift operators of [ESLI] and [ATI] were very negligent in the handling of the subject cargoes. 49 (Emphasis supplied).

ESLI cannot rely only on parts it chooses. The entire body of evidence should determine the liability of the parties. From the statements of Manuel, [ESLI] was negligent, whether
solely or together with ATI.

To further press its cause, ESLI cites the affidavit of its witness Rodrigo who stated that the cause of the damage was the rough mishandling by ATI’s stevedores.

The affidavit of Rodrigo states that his functions as a cargo surveyor are, (1) getting hold of a copy of the bill of lading and cargo manifest; (2) inspection and monitoring of the
cargo on-board, during discharging and after unloading from the vessel; and (3) making a necessary report of his findings. Thus, upon arrival at the South Harbor of Manila of the
two vessels of ESLI on 11 February 2004 and on 21 May 2004, Rodrigo immediately boarded the vessels to inspect and monitor the unloading of the cargoes. In both instances, it
was his finding that there was mishandling on the part of ATI’s stevedores which he reported as the cause of the damage. 50 Easily seen, however, is the absence of a crucial point
in determining liability of either or both ESLI and ATI – lack of determination whether the cargo was in a good order condition as described in the bills of lading at the time of his
boarding. As Rodrigo admits, it was also his duty to inspect and monitor the cargo on-board upon arrival of the vessel. ESLI cannot invoke its non-liability solely on the manner

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the cargo was discharged and unloaded. The actual condition of the cargoes upon arrival prior to discharge is equally important and cannot be disregarded. Proof is needed that
the cargo arrived at the port of Manila in good order condition and remained as such prior to its handling by ATI.

Common carriers, from the nature of their business and on public policy considerations, are bound to observe extra ordinary diligence in the vigilance over the goods transported
by them. Subject to certain exceptions enumerated under Article 1734 51 of the Civil Code, common carriers are responsible for the loss, destruction, or deterioration of the
goods. The extraordinary responsibility of the common carrier lasts from the time the goods are unconditionally placed in the possession of, and received by the carrier for
transportation until the same are delivered, actually or constructively, by the carrier to the consignee, or to the person who has a right to receive them. 52

In maritime transportation, a bill of lading is issued by a common carrier as a contract, receipt and symbol of the goods covered by it.1âwphi1 If it has no notation of any defect
ordamage in the goods, it is considered as a "clean bill of lading." A clean bill of lading constitutes prima facie evidence of the receipt by the carrier of the goods as therein
described.53

Based on the bills of lading issued, it is undisputed that ESLI received the two shipments of coils from shipper Sumitomo Corporation in good condition at the ports of Yokohama
and Kashima, Japan. However, upon arrival at the port of Manila, some coils from the two shipments were partly dented and crumpled as evidenced by the Turn Over Survey of
Bad Order Cargoes No. 67982 dated 13 February 2004 54 and Turn Over Survey of Bad Order Cargoes Nos. 68363 55 and 6836556 both dated 24 May 2004 signed by ESLI’s
representatives, a certain Tabanao and Rodrigo together with ATI’s representative Garcia. According toTurn Over Survey of Bad Order Cargoes No. 67982, four coils and one skid
were partly dented and crumpled prior to turnover by ESLI to ATI’s possession while a total of eleven coils were partly dented and crumpled prior to turnover based on Turn Over
Survey Bad Order Cargoes Nos. 68363 and 68365.

Calamba Steel requested for a re-examination of the damages sustained by the two shipments. Based on the Requests for Bad Order Survey Nos. 58267 57 and 5825458 covering
the first shipment dated 13 and 17 February 2004, four coils were damaged prior to turnover. The second Request for Bad Order Survey No. 58658 59 dated 25 May 2004 also
affirmed the earlier findings that elevencoils on the second shipment were damaged prior to turnover.

In Asian Terminals, Inc., v. Philam Insurance Co., Inc., 60 the Court based its ruling on liability on the Bad Order Cargo and Turn Over of Bad Order. The Receipt bore a notation "B.O.
not yet over to ATI," while the Survey stated that the said steel case was not opened at the time of survey and was accepted by the arrastre in good order. Based on these
documents, packages in the Asian Terminals, Inc. case were found damaged while in the custody of the carrier Westwind Shipping Corporation.

Mere proof of delivery of the goods in good order to a common carrier and of their arrival in bad order at their destination constitutes a prima faciecase of fault or negligence
against the carrier. If no adequate explanation is given as to how the deterioration, loss, or destruction of the goods happened, the transporter shall be held responsible. 61 From
the foregoing, the fault is attributable to ESLI. While no longer an issue, it may be nonetheless state that ATI was correctly absolved of liability for the damage.

Second Issue: Limitation of Liability

ESLI assigns as error the appellate court’s finding and reasoning that the package limitation under the COGSA 62 is inapplicable even if the bills of lading covering the shipments
only made reference to the corresponding invoices. Noticeably, the invoices specified among others the weight, quantity, description and value of the cargoes, and bore the
notation "Freight Prepaid" and "As Arranged."63 ESLI argues that the value of the cargoes was not incorporated in the bills of lading 64 and that there was no evidence that the
shipper had presented to the carrier in writing prior to the loading of the actual value of the cargo, and, that there was a no payment of corresponding freight. 65 Finally, despite
the fact that ESLI admits the existence of the invoices, it denies any knowledge either of the value declared or of any information contained therein. 66

According to the New Civil Code, the law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or
deterioration.67 The Code takes precedence as the primary law over the rights and obligations of common carriers with the Code of Commerce and COGSA applying suppletorily. 68

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The New Civil Code provides that a stipulation limiting a common carrier’s liability to the value of the goods appearing in the bill of lading is binding, unless the shipper or owner
declares a greater value.69 In addition, a contract fixing the sum that may be recovered by the owner or shipper for the loss, destruction, or deterioration of the goods is valid, if it
is reasonable and just under the circumstances, and has been fairly and freely agreed upon. 70

COGSA, on the other hand, provides under Section 4, Subsection 5 that an amount recoverable in case ofloss or damage shall not exceed US$500.00 per package or per
customary freight unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.

In line with these maritime law provisions, paragraph 13 of bills of lading issued by ESLI to the shipper specifically provides a similar restriction:

The value of the goods, in calculating and adjusting any claims for which the Carrier may be liable shall, to avoid uncertainties and difficulties in fixing value, be deemed to the
invoice value of the goods plus ocean freight and insurance, if paid, Irrespective of whether any other value is greater or less, and any partial loss or damage shall be adjusted pro
rataon the basis of such value; provided, however, that neither the Carrier nor the ship shall in any event be or become liable for any loss, non-delivery or misdelivery of or
damage or delay to, or in connection with the custody or transportation of the goods in an amount exceeding $500.00 per package lawful money of the United States, or in case
of goods not shipped in packages, per customary freight unit, unless the nature of the goods and a valuation higher than $500.00 is declared in writing by the shipper on delivery
to the Carrier and inserted in the bill of lading and extra freight is paid therein as required by applicable tariffs to obtain the benefit of such higher valuation. In which case even if
the actual value of the goods per package orunit exceeds such declared value, the value shall nevertheless be deemed to be the declared value and any Carrier’s liability shall not
exceed such declared value and any partial loss or damage shall be adjusted pro-rata on the basis thereof. The Carrier shall not be liable for any loss or profit or any consequential
or special damage and shall have the option of replacing any lost goods and replacing o reconditioning any damage goods. No oral declaration or agreement shall be evidence of
a value different from that provided therein.71

xxxx

Accordingly, the issue whether or not ESLI has limited liability as a carrier is determined by either absence or presence of proof that the nature and value of the goods have been
declared by Sumitomo Corporation and inserted in the bills of lading.

ESLI contends that the invoices specifying the weight, quantity, description and value of the cargo in reference to the bills of lading do not prove the fact that the shipper
complied with the requirements mandated by the COGSA. It contends that there must be an insertion of this declaration in the bill of lading itself to fall outside the statutory
limitation of liability.

ESLI asserts that the appellate court erred when it ruled that there was compliance with the declaration requirement even if the value of the shipment and fact of payment were
indicated on the invoice and not on the bill of lading itself.

There is no question about the declaration of the nature, weight and description of the goods on the first bill of lading.

The bills of lading represent the formal expression of the parties’ rights, duties and obligations. It is the best evidence of the intention of the parties which is to be deciphered
from the language used in the contract, not from the unilateral post facto assertions of one of the parties, or of third parties who are strangers to the contract. 72 Thus, when the
terms of an agreement have been reduced to writing, it is deemed to contain all the terms agreed upon and there can be, between the parties and their successors in interest, no
evidence of such terms other than the contents of the written agreement. 73

As to the non-declaration of the value of the goods on the second bill of lading, we see no error on the part of the appellate court when it ruled that there was a compliance of
the requirement provided by COGSA. The declaration requirement does not require that all the details must be written down on the very bill of lading itself. It must be
emphasized that all the needed details are in the invoice, which "contains the itemized list of goods shipped to a buyer, stating quantities, prices, shipping charges," and other
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details which may contain numerous sheets.74Compliance can be attained by incorporating the invoice, by way of reference, to the bill of lading provided that the former
containing the description of the nature, value and/or payment of freight charges isas in this case duly admitted as evidence.

In Unsworth Transport International(Phils.), Inc. v. Court of Appeals, 75 the Court held that the insertion of an invoice number does not in itself sufficiently and convincingly show
that petitioner had knowledge of the value of the cargo. However, the same interpretation does not squarely apply if the carrier had been advised of the value of the goods as
evidenced by the invoice and payment of corresponding freight charges. It would be unfair for ESLI to invoke the limitation under COGSA when the shipper in fact paid the freight
charges based on the value of the goods. In Adams Express Company v. Croninger, 76 it was said: "Neither is it conformable to plain principles of justice that a shipper may
understate the value of his property for the purpose of reducing the rate, and then recover a larger value in case of loss. Nor does a limitation based upon an agreed value for the
purpose of adjusting the rate conflict with any sound principle of public policy." Conversely, but for the same reason, it is unjust for ESLI to invoke the limitation when it is
informed that the shipper paid the freight charges corresponding to the value of the goods.

Also, ESLI admitted the existence and due execution of the Bills of Lading and the Invoice containing the nature and value of the goods on the second shipment. As written in the
Pre-Trial Order,77 the parties, including ESLI, admitted the existence and due execution of the two Bills of Lading 78 together with the Invoice on the second shipment with Nos.
KJGE-04-1327-NT/KE279 dated 12 May 2004. On the first shipment, ESLI admitted the existence of the Invoice with Nos. KJGE-031228-NT/KE3 80 dated 2 February 2004.

The effect of admission of the genuineness and due execution of a document means that the party whose signature it bears admits that he voluntarily signed the document or
itwas signed by another for him and with his authority. 81

A review of the bill of ladings and invoice on the second shipment indicates that the shipper declared the nature and value of the goods with the corresponding payment of the
freight on the bills of lading. Further, under the caption "description of packages and goods," it states that the description of the goods to be transported as "various steel sheet
in coil" with a gross weight of 383,532 kilograms (89.510 M3).On the other hand, the amount of the goods is referred in the invoice, the due execution and genuineness of which
has already been admitted by ESLI, is US$186,906.35 as freight on board with payment of ocean freight of US$32,736.06 and insurance premium of US$1,813.17. From the
foregoing, we rule that the non-limitation of liability applies in the present case.

We likewise accord the same binding effect on the contents of the invoice on the first shipment.1âwphi1 ESLI contends that what was admitted and written on the pre-trial order
was only the existence of the first shipment’ invoice but not its contents and due execution. It invokes admission of existence but renounces any knowledge of the contents
written on it.82

Judicial admissions are legally binding on the party making the admissions. Pre-trial admission in civil cases is one of the instances of judicial admissions explicitly provided for
under Section 7,Rule 18 of the Rules of Court, which mandates that the contents of the pre-trial order shall control the subsequent course of the action, thereby, defining and
limiting the issues to be tried. In Bayas v. Sandiganbayan, 83 this Court emphasized that:

Once the stipulations are reduced into writing and signed by the parties and their counsels, they become binding on the parties who made them. They become judicial
admissions of the fact or facts stipulated. Even if placed at a disadvantageous position, a party may not be allowed to rescind them unilaterally, it must assume the consequences
of the disadvantage.84

Moreover, in Alfelor v. Halasan,85 this Court declared that:

A party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. A judicial admission
also removes an admitted fact from the field of controversy. Consequently, an admission made in the pleadings cannot be controverted by the party making such admission and
are conclusive as to such party, and all proofs to the contrary or inconsistent there with should be ignored, whether objection is interposed by the party or not. The allegations,

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statements or admissions contained in a pleading are conclusive as against the pleader. A party cannot subsequently take a position contrary of or inconsistent with what was
pleaded.86 (Citations omitted)

The admission having been made in a stipulation of facts at pre-trial by the parties, it must be treated as a judicial admission. Under Section 4, of Rule 129 of the Rules of Court, a
judicial admission requires no proof.87

It is inconceivable that a shipping company with maritime experience and resource like the ESLI will admit the existence of a maritime document like an invoice even if it has no
knowledge of its contents or without having any copy thereof.

ESLI also asserts that the notation "Freight Prepaid" and "As Arranged," does not prove that there was an actual declaration made in writing of the payment of freight as required
by COGSA. ESLI did not as it could not deny payment of freight in the amount indicated in the documents. Indeed, the earlier discussions on ESLI's admission of the existence and
due execution of the invoices, cover and disprove the argument regarding actual declaration of payment. The bills of lading bore a notation on the manner of payment which was
"Freight Prepaid" and "As Arranged" while the invoices indicated the amount exactly paid by the shipper to ESLI.

WHEREFORE, we DENY the Petition for Review on Certiorari. The Decision dated 31 January 2008 and Resolution dated 5 May 2008 of the Second Division of the Court of Appeals
in CA-G.R. CV. No. 88744 are hereby AFFIRMED.

SO ORDERED.

G.R. No. 191710, January 14, 2015

DEMETRIA DE GUZMAN, AS SUBSTITUTED BY HER HEIRS OLGA C. BARBASO AND NOLI G. CEMENTTNA; * LOLITA A. DE GUZMAN; ESTHER G.MILAN; BANAAG A. DE GUZMAN;
AMOR G. APOLO, AS SUBSTITUTED BY HIS HEIRS ALBERTO T. APOLO, MARK APOLO AND GEORGE APOLO; * HERMINIO A. DE GUZMAN; LEONOR G. VTVENCIO; NORMA A. DE
GUZMAN; AND JOSEFINA G. HERNANDEZ, Petitioners, v. FBLINVEST DEVELOPMENT CORPORATION, Respondent.

DECISION
DEL CASTILLO, J.:

In this Petition for Review on Certiorari,1 petitioners question the extent of the easement of right of way granted to them and the indemnity for the same as fixed by the Court of
Appeals (CA) in its September 25, 2009 Decision 2 and March 1, 2010 Resolution3 in CA-G.R. CV No. 87920.

Factual Antecedents

Petitioners Demetria de Guzman, Lolita A. de Guzman, Esther G. Milan, Banaag A. de Guzman, Amor G. Apolo, Herminio A. de Guzman, Leonor G. Vivencio, Norma A. de Guzman
and Josefina G. Hernandez (petitioners)4 were co-owners in fee simple of a parcel of land measuring 15,063 square meters and situated in Barrio Bulao, Cainta, Rizal, which was
later subdivided among them and for which individual titles were issued. The property is enclosed and surrounded by other real properties belonging to various owners. One of
its adjoining properties is Filinvest Home Subdivision Phase IV-A, a subdivision owned and developed by respondent Filinvest Development Corporation (respondent) which,
coming from petitioners' property, has a potential direct access to Marcos highway either by foot or vehicle. As such, petitioners filed on August 17, 1988 a Complaint for
Easement of Right of Way5 against respondent before the Regional Trial Court (RTC) of Antipolo.

Unwilling to grant petitioners a right of way within its subdivision, respondent alleged in its Answer that petitioners have an access to Sumulong Highway through another
property adjoining the latter's property. In fact, the distance from petitioners' property to Sumulong Highway using the said other property is only 1,500 meters or shorter as
Page 8 of 25
compared to the 2,500-meter distance between petitioners' property and Marcos Highway using respondent's subdivision. 6

On April 30, 1993, the RTC rendered a Decision 7 granting petitioners the right of way across respondent's subdivision, ratiocinating as follows:chanroblesvirtuallawlibrary

The Court holds that a right of way as prayed in the complaint can be granted.

The adverted route by [respondent] is unfeasible and unavailing. The route, aside from being hilly, has to traverse raw lands [denominated] 3043-A which belong to different
owners with no designated road lot thus the impossibility of free access thereon. Aside from that fact it is not passable by vehicular means.

Whereas if [petitioners] would pass through the [respondent's] road lot particularly Lot 15 access to the Marcos Highway is readily available to [petitioners'] property. Only a
fence [separates] the Filinvest Subdivision and the [petitioners'] property [which] could be removed x x x anytime.

While in the survey of the property of the [petitioners] it is shown that the distance from the subject lot to the Marcos Highway is approximately 2,350 meters and the distance
from Sumulong Highway to the subject lot is 1,400 meters, such short distance could not be used as absolute basis to deny the [petitioners] the relief prayed for.

As held in Bacolod-Murcia Milling Co. vs. Capitol Subd., Inc., L-25887, July 26, 1966 and by express provision of [A]rticles 649 and 650 of the Civil Code, a compulsory right of way
cannot be obtained unless four requisites are first shown to exist, namely: (1) that it is surrounded by other immovables and has no adequate outlet to a public highway; (2) that
there is payment of proper indemnity; (3) that the isolation is not due to the dominant estate's own acts; and (4) that the right of way claimed is at the point least prejudicial to
the servient estate and in so far as consistent with this rule where the distance from the dominant estate to a public highway may be the shortest.

The foregoing requirements are present in this case.

As already stated even if it appears that the distance from the subject property to Sumulong Highway is the shortest route, yet it is prejudicial to the [petitioners].

The road in said route is undeveloped, owned by several owners, a raw lot, hilly, while if it would be [respondent's] property which would be the [servient] estate it only takes the
removal of the fence in order that [petitioners] could have access to the public highway. 8cralawlawlibrary

As to the indemnity, the RTC said:chanroblesvirtuallawlibrary

Lastly, as a requirement for the granting of the easement indemnity is hereby placed at P400,000.00 considering x x x the benefits derived by the dominant estate and the type of
the road therein which is concrete.9cralawlawlibrary

Upon respondent's appeal, the CA, in its February 13, 1996 Decision, 10 affirmed petitioners' entitlement to legal easement of right of way. However, it set aside the P400,000.00
indemnity fixed by the RTC considering that the exact area of the right of way, as well as its value per square meter, had not yet been determined. The CA thus remanded the case
to the RTC for the determination thereof and the corresponding amount of indemnity.

As none of the parties appealed the said CA Decision, the same became final and executory.

Ruling of the Regional Trial Court

Established during the remand proceedings was the fair market value of respondent's property which was pegged by the Municipal Assessor's Office of Cainta at P1,620.00 per

Page 9 of 25
square meter. Anent the extent of the property affected by the right of way granted by virtue of the April 30, 1993 RTC Decision as affirmed by the CA, the parties were, however,
in disagreement, viz:chanroblesvirtuallawlibrary

[Counsel for Petitioners]

Atty. Barbaso: x x x But if we are going to [take it from] this affirmed decision of the trial court[,] it made [particular] mention of x x x Road Lot 15 access as
found in page 4 of the said decision and the said decision also mentioned about a statement and [I] quote x x x: "and it only takes the removal of the fence in
order [that] the [petitioners] could have access on the highway.["] So, this is [the] decision. I am quoting it from the decision. So if the decision says it [would]
only take the removal of the fence, [it is only] the fence that we are going to remove. It's found on page 4 of the decision of the lower court.

[Counsel for Respondent]

Atty. Tolentino: [Ma'am], may I?

Atty. Barbaso: There is no other decision. This is the only decision we are referring to. [It is] one and the same decision.

Court: Decision of the Court of Appeals.

Atty. Tolentino: Court of Appeals decision, page 12, states: ["]regrettably the lower court did not adequately explain the basis for fixing the indemnity at P400,000.00. There
was no finding as to the exact measurement of the right of way, its area in square meters, its value by square meters, the cost of the construction.["] So...

xxxx

Atty. Tolentino: Where the easement is established in such a manner that its use may be continuous by the dominant [e]state [by] establishing a permanent passage the
indemnity will consist [of] the value of the land occupied and the amount of damage.

Atty. Barbaso: We are not occupying the whole of the entrance up to this very point [Road Lot 15].

Atty. Tolentino: But you cannot reach this point [Road Lot 15] if you don't pass the entrance.

Atty. Barbaso: Only passing that's why the servitude was granted. That's why the easement was granted.

Atty. Tolentino: We will submit, your honor, whatever ruling you make.

Atty. Barbaso: Your honor...

Court: The claim of [respondent] is from the gate up to here [Road Lot 15].

Atty. Tolentino: Yes, your honor.

Court: [To Atty. Barbaso] And your claim is from that portion to here [from petitioners' property to Road Lot 15].

xxxx

Court: Do it in writing including the jurisprudence in support of your respective claim[s]. 11

As can be gleaned from the above, petitioners insisted that the right of way pertains only to Road Lot 15 where the fence separating their property from respondent's
subdivision, which was supposed to be removed to grant them access thereto, is located. On the other hand, it was respondent's contention that the right of way covers the

Page 10 of 25
whole stretch from petitioners' property all the way to its subdivision's gate leading to Marcos Highway.

In resolving the same in its Order12 of June 1, 2005, the RTC deduced, from the April 30, 1993 RTC Decision and the February 13, 1996 CA Decision, that the right of way granted
pertains only to Road Lot 15, viz:chanroblesvirtuallawlibrary

Based on the records of the case, the Decision of this Court and that of the Court of Appeals are pointing to Road Lot 15 as the subject lot of the right of way granted to the
[petitioners]. The said Decisions had long attained finality with respect to the subjectlot which should be the basis for the determination of just compensation. 13cralawlawlibrary

Hence, it ruled:chanroblesvirtuallawlibrary

In view of the foregoing, the Court so holds that the appropriate amount of indemnity due to the [respondents] from the [petitioners] for the right of way granted to the latter
shall be assessed at One Thousand Six Hundred Twenty Pesos (P1,620.00) per square meter of Road Lot 15 which consists of 264 square meters and the [petitioners] to
contribute proportionately to the costs of the construction of the right of way on Road Lot 15 to be determined by both parties.

SO ORDERED.14cralawlawlibrary

Ruling of the Court of Appeals

Aggrieved, respondent appealed the said Order to the CA. It contended that under Articles 649 15 and 65016 of the Civil Code, the measurement of the land comprising a right of
way should be the distance of the dominant estate to the public highway. Thus, respondent argued that the right of way should not pertain only to Road Lot 15 as held by the
RTC, but should also include Road Lots 3, 10, 6, 4, 2 and 1 which petitioners would likewise use or traverse before they could reach Marcos Highway. It thus contended that the
total area to be indemnified is 23,500 square meters and not the mere 264-square meter area of Road Lot 15. Respondent likewise insisted that petitioners should also share in
the costs of the construction and maintenance of these road lots.

The CA agreed with respondent and granted the appeal through its Decision 17 of September 25, 2009. It held that the RTC erred in concluding that the right of way pertains only
to Road Lot 15. It gathered from the April 30,1993 RTC Decision that what was actually granted to petitioners as a right of way from their property all the way to Marcos Highway
had an approximate distance of 2,350 meters. This fact was not disputed by petitioners when they appealed the said RTC Decision. And as per evidence, such distance of 2,350
meters covers not only Road Lot 15 but also Road Lots 3, 10, 6, 4, 2, and 1. Hence, the proper indemnity, per the case of Woodridge School, Inc. v. ARB Construction Co.,
Inc.,18 should consist of the value of the entire stretch of the right of way, which measures 2,350 meters in length and 10 meters in width or of a total area of 23,500 square
meters at a price of P1,620.00 a square meter, plus damages caused to the servient estate.

As regards the amount of damages, the appellate court held that petitioners cannot be held liable for the cost of the construction of the road lots as they are already existing
road lots in respondent's subdivision. Neither is there a need for the construction of new road lots. What it would take for petitioners to have access to Marcos Highway is merely
the removal of a fence that separates their property from respondent's subdivision. At the most, the only damage that petitioners may cause in the establishment of the right of
way is the wear and tear of the affected road lots.

Thus, the dispositive portion of the CA's Decision:chanroblesvirtuallawlibrary

WHEREFORE, premises considered, the Order dated 1 June 2005 issued by the Regional Trial Court of Antipolo City, Branch 72, is MODIFIED. Plaintiffs-appellees are ordered to
pay defendant-appellant the proper amount of indemnity for the legal easement of right of way consisting of (1) the value of the road lots affected, which has an area of 23,500
square meters assessed at PI,620.00 per square meter and (2) the contribution to be made by plaintiffs-appellees in the maintenance of said road lots, to be determined by both
parties.

Page 11 of 25
SO ORDERED.19cralawlawlibrary

Petitioners moved for reconsideration.20 The CA, however, denied the same in its March 1, 2010 Resolution 21 for having been filed out of time.

Hence, this Petition.chanRoblesvirtualLawlibrary

Issues

The essential questions to be answered in this Petition are the following: (1) What is the extent of the right of way granted to petitioners under the April 30, 1993 RTC Decision as
affirmed by the CA in its February 13, 1996 Decision? (2) Assuming that the subject right of way pertains to the road network in respondent's subdivision, is the CA correct in its
assessment of indemnity?

Our Ruling

There is partial merit in the Petition.

The liberality rule must be observed in this case.

The Court notes the attendance of some procedural issues in this case which it deems proper to first pass upon.

The Petition is denominated as a petition for certiorari. However, under the subheading "IV. BRIEF STATEMENT OF MATTERS INVOLVED" of the Petition, it was alleged
that:chanroblesvirtuallawlibrary

This is an action brought by the plaintiffs-petitioners pursuant to Rule 45 of the Rules of Court against the assailed decision and resolution of the Court of Appeals which are
both not in accord with law as will be shown in the discussion hereinafter.22 (Emphases supplied)

The main issue then assigned for resolution is whether the CA was correct in ruling that the property subject of the right of way pertains not only to Road Lot 15 but to the whole
stretch of road network commencing from Road Lot 15, then passing through Road Lots 3, 10, 6, 4, 2 and 1, all the way to Marcos Highway. The Court notes that this matter is a
proper allegation found in a petition for review on certiorariunder Rule 4523 of the Rules of Court.

Yet, in petitioners' Prefatory Statement, they anchor their Petition on the alleged grave abuse of discretion committed by the CA. Thus:chanroblesvirtuallawlibrary

Plaintiffs-petitioners are left with no appeal, nor is there any plain, speedy, and adequate remedy in the ordinary course of law after the respondent Court of Appeals
incorrectly den[ied] their motion for reconsideration 24 x x x

Respondent Court of Appeals gravely abused its discretion amounting to lack of jurisdiction not only in reversing a final ruling of the trial Court, but also on the award of
indemnity x x x.25cralawlawlibrary

Then in their Arguments/Discussion, petitioners alleged that:chanroblesvirtuallawlibrary

The Court of Appeals whimsically and capriciously reversed the final ruling of the Regional Trial Court, Branch 72, Antipolo City x x x. 26 (Emphasis supplied)

Page 12 of 25
Furthermore, petitioners impleaded the appellate court as public respondent. These, on the other hand, are salient features of a petition for certiorari under Rule 65.

In the case of Bicol Agro-Industrial Producers Cooperative, Inc. (BAPCI) v. Obias,27 citing Active Realty and Development Corporation v. Fernandez,28 the Court revisited the
difference between a petition for review on certiorari (under Rule 45) and a petition for certiorari (under Rule 65), to wit:chanroblesvirtuallawlibrary

A petition for certiorari under Rule 65 is proper to correct errors of jurisdiction committed by the lower court, or grave abuse of discretion which is tantamount to lack of
jurisdiction. This remedy can be availed of when "there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."

Appeal by certiorari under Rule 45 of the Rules of Court, on the other hand, is a mode of appeal available to a party desiring to raise only questions of law from a judgment or
final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law.

xxx The general rule is that the remedy to obtain reversal or modification of judgment on the merits is appeal. Thus, the proper remedy for the petitioner should have been a
petition for review on certiorari under Rule 45 of the Rules of Court since the decision sought to be reversed is that of the CA. The existence and availability of the right of appeal
proscribes a resort to certiorari, because one of the requisites for availment of the latter is precisely that there should be no appeal. The remedy of appeal under Rule 45 of the
Rules of Court was still available to the petitioner.29cralawlawlibrary

It likewise stated in Bicol Agro-Industrial Producers Cooperative, Inc. (BAPCI) that:chanroblesvirtuallawlibrary

Rule 45 is clear that decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceeding involved, may be appealed
to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case.

Moreover, it is basic that one cannot avail of the remedy provided for under Rule 65 when an appeal is still available. x x x 30cralawlawlibrary

Sifting through the issues and other matters raised in the present petition, it becomes apparent that the crucial question calling for this Court's Resolution pertains to the CA's
appreciation of the issue and evidence presented by the parties, and not the alleged grave abuse of discretion committed by the appellate court in rendering its Decision.
Therefore, the issue in the present controversy clearly falls under the classification of errors of fact and law - questions which may be passed upon by this Court only via a petition
for review on certiorari under Rule 45. Albeit it must be made clear that questions of fact may only be reviewed by this Court under exceptional circumstances like when the
findings of facts of the CA are at variance with those of the trial court, 31 as in this case.

While the Court agrees with respondent's observation that based on the allegations, issues and other matters contained in the Petition, there seems to be a general confusion on
the part of petitioners' counsel in ascertaining which remedy is more appropriate under the given circumstances, it shall nevertheless treat the petition as one filed under Rule
45, especially since it was filed well within the reglementary period provided under the said rule. 32 It was held in Sanchez v. Court of Appeals:33ChanRoblesVirtualawlibrary

The Rules of Court should be liberally construed in order to promote their object of securing a just, speedy and inexpensive disposition of every action or proceeding.

The rules of procedure should be viewed as mere tools designed to aid the courts in the speedy, just and inexpensive determination of the cases before them. Liberal
construction of the rules and the pleadings is the controlling principle to effect substantial justice. Litigations should, as much as possible, be decided on their merits and not on
mere technicalities.34cralawlawlibrary

Besides and as already mentioned, the conflicting findings of fact and conclusions arrived at by the RTC and CA, 35 as well as the fact that this case has been awaiting resolution for
close to three decades now, are ample reasons for this Court to rule on the issues raised herein without much resort to technicalities.

Page 13 of 25
Finally, we note that in its March 1, 2010 Resolution, the CA denied petitioners' motion for reconsideration for having been filed out of time. According to the CA, petitioners had
until October 21, 2009 within which to file their motion for reconsideration; yet, they filed the same on October 22, 2009.

We do not concur with the CA on this matter. We perused the records of the case and find that the petitioners timely filed their motion for reconsideration. In the envelop
attached to the dorsal portion of petitioners' transmittal letter, 36 it was shown that petitioners filed by registered mail their motion for reconsideration on October 21, 2009 at the
Broadway Centrum Post Office, Quezon City. It was thus timely filed.

Now the substantive issues.

The right of way granted to petitioners covers the network of roads within respondent's subdivision and not merely Road Lot 15.

Petitioners aver that the right of way granted them under the April 30, 1993 RTC Decision pertains only to Road Lot 15 based on the following portion
thereof:chanroblesvirtuallawlibrary

Whereas if [petitioners] would pass through the [respondent's] road lot particularly Lot 15 access to the Marcos Highway is readily available to [petitioners'] property. Only a
fence [separates] the Filinvest Subdivision and the [petitioners'] property [which] could be removed x x x anytime. 37cralawlawlibrary

They argue that the CA in effect improperly reversed and set aside the above final ruling of the RTC when it declared instead that the right of way is composed of the road
network within respondent's subdivision.

Petitioners' argument is untenable.

To the Court's mind, the cause of confusion as regards the extent of the right of way granted to petitioners is the absence in the said RTC Decision of any categorical statement
with respect thereto. Be that as it may, it is not difficult to conclude therefrom that what was intended to serve as petitioners' right of way consisted of the road network within
respondent's subdivision and not merely of Road Lot 15. As may be recalled, the RTC then in resolving the complaint for easement of right of way was confronted with the
contentious issue as to which between the two routes from petitioners' property, i.e., the one passing through respondent's subdivision leading to Marcos Highway or the one
passing through another property leading to Sumulong Highway, is the more adequate and less prejudicial route pursuant to the requirement of the law. Thus, when it made the
following comparison and eventually concluded that the route passing through respondent's subdivision is the more adequate and the less prejudicial way, what it obviously had
it mind was the road network in respondent's subdivision since the measurement thereof in meters corresponds with that mentioned by the RTC, viz:chanroblesvirtuallawlibrary

While in the survey of the property of the [petitioners] it is shown that the distance from the subject lot to the Marcos Highway is approximately 2350 metersand the distance
from Sumulong Highway to the subject lot is 1,400 meters, such short distance could not be used as absolute basis to deny the [petitioners] the relief prayed
for.38cralawlawlibrary

On the other hand, the portion of the RTC Decision relied upon by petitioners can in no way be taken to mean that Road Lot 15 alone comprises the right of way granted. By its
context, it was only intended to support the RTC's conclusion that the route within respondent's subdivision is the less prejudicial between the two considered routes because it
would only take the removal of the fence therein for petitioners to have access to respondent's network of roads which, in turn, would make Marcos Highway accessible to them.

Also, the fact that the CA in its February 13, 1996 Decision observed that the RTC failed to provide in its April 30, 1993 Decision the exact measurement of the right of way does
not negate the conclusion that the said right of way refers to respondent's network of roads. It must be remembered that the RTC Decision merely mentioned the distance
between Marcos Highway and petitioners' property passing through respondent's subdivision as 2,350 meters. There was no mention with respect to the width of the affected
roads which is needed in order to come up with the total area in square meters. This is why the CA also directed the determination of the exact measurement of the right of way
Page 14 of 25
when it remanded the case to the RTC. During trial, evidence was received that the roads have a width of 10 meters. Multiplying these factors, i.e., length of 2,350 meters x width
of 10 meters, the total area of the roads affected is 23,500 square meters.

Moreover, petitioners already admitted during the remand proceedings that that the right of way granted to them affects several road lots within respondent's subdivision. As
borne out by the records, respondent formally offered as part of its exhibits a scale map of its subdivision for the purpose of proving the identity of the road lots affected by the
right of way.39 In their Comment on the Formal Offer of Exhibits, 40petitioners did not proffer any objection to the said exhibit, but merely averred that they find irrelevant
respondent's submission of the fair market value of the said roads and that the same were also being used in common by the subdivision dwellers.

Section 4, Rule 129 of the Rules of Court provides:chanroblesvirtuallawlibrary

SEC. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable mistake or that no such admission was made.

"A party may make judicial admissions in (a) the pleadings; (b) during the trial, either by verbal or written manifestations or stipulations; or (c) in other stages of the judicial
proceeding. It is an established principle that judicial admissions cannot be contradicted by the admitter who is the party himself and binds the person who makes the same, and
absent any showing that this was made thru palpable mistake, no amount of rationalization can offset it." 41 Since petitioners already judicially admitted that the right of way
affects a number of road lots, they cannot not now claim that it only comprises Road Lot 15. Their admission is binding on them.

Besides and logically speaking, if petitioners would indemnify respondent only for Road Lot 15, it follows then that said particular road lot should be the only road lot for which
they shall be allowed access. They cannot be allowed access to the other road lots leading to and from the highway as they are not willing to pay indemnity for it. In such a case,
the purpose of the right of way, that is, for petitioners to have access to the highway, would thus be defeated.

The ruling in Woodridge is applicable to the present case.

The CA in assessing the indemnity in this case relied on the case of Woodridge. Petitioners, however, question the applicability of Woodridge to present case. According to
them, Woodridge is not in point since in the said case the right of way granted is for the exclusive occupation by the dominant estate. Unlike in this case, the road network is not
for the exclusive use by the dominant estate but for the common use together with the residents of respondent's subdivision.

For discussion purposes, a short background on Woodridge is needed. In the said case, the adjacent lots of co-petitioners Woodridge School, Inc. and Miguela Jimenez-Javier
were bounded in the west by a road in respondent ARB Construction Co., Inc's (ARB) Soldier Hills Subdivision IV, which leads to Marcos Alvarez Avenue, a public highway. There is
no existing adequate outlet to and from petitioners' properties except through the said road which was being used by the general public. Subsequently, ARB fenced the perimeter
of the road fronting the properties of petitioners, thus, effectively cutting off the latter's access to and from the public highway. Petitioners thus filed a complaint before the trial
court to enjoin ARB from depriving them of the use of the subject subdivision road. The trial court rendered judgment in favor of petitioners but this was reversed by the CA on
appeal. The appellate court held that the road is private property; hence, ARB can exclude petitioners from the use thereof. Nevertheless, it declared that a compulsory right of
way exists in favor of petitioners and awarded P500,000.00 indemnity to ARB for the use of the road lot. When the case reached this Court, it affirmed the grant of right of way.
With respect to the indemnity awarded, the Court said:chanroblesvirtuallawlibrary

In the case of a legal easement, Article 649 of the Civil Code prescribes the parameters by which the proper indemnity may be fixed. Since the intention of petitioners is to
establish a permanent passage, the second paragraph of Article 649 of the Civil Code particularly applies:

Art. 649 xxx

Page 15 of 25
Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity
shall consist of the value of the land occupied and the amount of the damage caused to the servient estate. xxx

On that basis, we further hold that the appellate court erred in arbitrarily awarding indemnity for the use of the road lot.

The Civil Code categorically provides for the measure by which the proper indemnity may be computed: value of the land occupied plus the amount of the damage caused to the
servient estate. Settled is the rule in statutory construction that 'when the law is clear, the function of the courts is simple application.' Thus, to award indemnity using factors
different from [those] given by the law is a complete disregard of these clear statutory provisions and is evidently arbitrary. This the Court cannot countenance. The Civil Code has
clearly laid down the parameters and we cannot depart from them. Verba legis non est recedendum.42 (Emphases and italics in the original)

But since the metes and bounds of the property covered by the easement were not yet defined, the Court in Woodridge remanded the case to the trial court for the
determination of the same and of the corresponding indemnity, hinting that the trial court may take into consideration the fact that the affected road lot is being used by the
general public in mitigating the amount of damage that the servient estate is entitled to.

The above summary of Woodridge shows that petitioners' understanding of the said case is misplaced. Contrary to their assertion, the right of way in the said case was not for
the exclusive use or occupation of the dominant estate. It was actually undisputed there that the road covered by the right of way was being used by the general public such that
the Court even advised the trial court that in fixing the amount of damages, it may take into consideration the said fact. Hence, the alleged difference between Woodridgeand
this case is merely perceived by petitioners.

On the other hand, the Court notes the following factual similarities between the two cases: (1) the servient estates are both subdivisions; (2) the easements of right of way
consist of existing and developed road/roads; (3) the right of way would be used in common by the dominant estates and the residents of the subdivisions; and (4) the intention
of petitioners in both cases is to establish a permanent passage. Indeed, Woodridge is on all fours with the present case. Hence, as held therein and pursuant to the second
paragraph of Article 649, the proper indemnity in this case shall consist of the value of the land plus the damages caused to the servient estate.

It is the needs of the dominant estate which ultimately determines the width of the passage.

The Court, however, deems it necessary to modify the width of the easement which would serve as basis in fixing the value of the land as part of the proper indemnity.

Article 651 of the Civil Code provides:chanroblesvirtuallawlibrary

Art. 651. The width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time.

According to Senator Arturo M. Tolentino, a noted civilist, it is the needs of the dominant tenement which determine the width of the passage. 43

As mentioned, the right of way constituting the easement in this case consists of existing and developed network of roads. This means that in their construction, the needs of the
dominant estate were not taken into consideration precisely because they were constructed prior to the grant of the right of way. During the remand proceedings, it was
established that the width of the affected roads is 10 meters. Multiplied by the distance of 2,350 meters, the total area to be indemnified is 23,500 square meters and at a price
of P1,620.00 per square meter, petitioners must pay respondent the whopping amount of P38,070,000.00 for the value of the land. Under the circumstances, the Court finds it
rather iniquitous to compute the proper indemnity based on the 10-meter width of the existing roads. To stress, it is the needs of the dominant estate which determines the
width of the passage. And per their complaint, petitioners were simply asking for adequate vehicular and other similar access to the highway. To the Court's mind, the 10-meter

Page 16 of 25
width of the affected road lots is unnecessary and inordinate for the intended use of the easement. At most, a 3-meter wide right of way can already sufficiently meet petitioners'
need for vehicular access. It would thus be unfair to assess indemnity based on the 10-meter road width when a three-meter width can already sufficiently answer the needs of
the dominant estate. Therefore bearing in mind Article 651, the Court finds proper a road width of 3 meters in computing the proper indemnity. Thus, multiplying the road length
of 2,350 meters by a road width of 3 meters, the total area to be indemnified is 7,050 square meters. At a value of P1,620.00 per square meter, the total value of the land to form
part of the indemnity amounts to P11,421,000.00. It must be made clear, however, that despite their payment of the value of the land on the basis of a three-meter road width
or basically for a one-way traffic road only, petitioners must be allowed to use the roads within respondent's subdivision based on the existing traffic patterns so as not to disrupt
the traffic flow therein.

In addition, petitioners must bear as part of damages the costs for the removal of the fence in Road Lot 15. Also, the Court takes judicial notice that subdivision residents are
paying monthly dues for purposes of road maintenance, security, garbage collection, use and maintenance of other subdivision facilities, etc. In view of the fact that the road lots
affected would be used by the dominant estate in common with the subdivision residents, the Court deems reasonable to require petitioners to pay the homeowner's association
in respondent's subdivision, by way of monthly dues, an amount equivalent to half of the rate of the monthly dues that the subdivision residents are being assessed. This shall
serve as petitioners' share in the maintenance of the affected road lots.

In easement of right of way, there is no alienation of the land occupied.

Petitioners argue that it is unfair to require them to pay the value of the affected road lots since the same is tantamount to buying the property without them being issued titles
and not having the right to exercise dominion over it. The argument is untenable. Payment of the value of the land for permanent use of the easement does not mean an
alienation of the land occupied.44 In fact under the law and unlike in purchase of a property, should the right of way no longer be necessary because the owner of the dominant
estate has joined it to another abutting on a public highway, and the servient estate demands that the easement be extinguished, the value of the property received by the
servient estate by way of indemnity shall be returned in full to the dominant estate. 45 This only reinforces the concept that the payment of indemnity is merely for the use of the
right of way and not for its alienation.cralawred

WHEREFORE, the Petition is hereby PARTLY GRANTED. The September 25, 2009 Decision and March 1, 2010 Resolution of the Court of Appeals in CA-G.R. CV No. 87920
are AFFIRMED with MODIFICATIONSwith respect to the proper indemnity in that petitioners shall: (1) pay respondent the amount of P11,421,000.00 representing the value of
the road lots constituting the right of way; (2) bear the cost of the removal of the fence located in respondent's Road Lot 15 as well as the cost for the maintenance of such
opening; and, (3) pay the homeowner's association in respondent's subdivision, by way of monthly dues, an amount equivalent to half of the rate of the monthly dues that the
subdivision residents are being assessed. However, the Court of Appeal's ruling that petitioners' motion for reconsideration was filed out of time is REVERSED and SET ASIDE.

SO ORDERED.

10) People vs Boquecosa 767 SCRA 610

PARAFFIN TEST:
G.R. No. 110098 February 26, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BUENAFE AZUGUE y AMADOR, accused-appellant.
PANGANIBAN, J.:

The accused alleges alibi and attacks the credibility of the prosecution's lone witness. As these defenses are addressed essentially to the trial court's discretion and because the
accused failed to discredit the court a quo'sfindings thereon, necessarily the appeal must fail.
Page 17 of 25
This is an appeal from the Decision1 dated January 8, 1993 of the Regional Trial Court, 6th Judicial Region, Branch 15, 2 stationed in Roxas City, convicting accused Buenafe Azugue
of murder and sentencing him to reclusion perpetua.

The Amended Information3 filed by Asst. City Prosecutor Salvador B. Dellota before the trial court on November 20, 1990 reads as follows:

The undersigned Asst. City Prosecutor accuses MORITO SALVADOR y ADONAY, BUENAFE AZUGUE, residents of Brgy. Cogon, Roxas City, and BERTITO BETURIN y
ALBALADEJO, a resident of Brgy. Cogon, Roxas City, but presently detained in the City Jail of Roxas City, of the crime of MURDER, defined and penalized under
Art. 248 of the Revised Penal Code, committed as follows:

That on or about the 27th day of October, 1990 in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating, and mutually helping one another, without justifiable cause and with treachery and evident premeditation, with intent to kill one
Joebe Arrobang, did then and there wilfully (sic), unlawfully and feloniously attack, assault, stab and wound with a knife the said Joebe Arrobang, thereby
inflicting upon him a mortal wound which caused his death.

That as a direct consequence of the unlawful act of all the accused, the heirs of the said Joebe Arrobang suffered actual, moral and other damages in the
amount of Thirty Thousand Pesos (P30,000.00), Philippine Currency.

Contrary to law, with the qualifying circumstance of treachery, the accused having employed means, methods or forms in the execution of the crime which
tended directly and specially to ensure its execution, without risk to themselves arising from the defense which the deceased might have made, for immediately
after the deceased had alighted from the jeep which got stuck on the mud, the accused Morito Salvador suddenly and without any warning, stabbed the
deceased with the said knife while being held on both arms by the accused Bertito Beturin and Buenafe Azugue, and the generic aggravating circumstance of
evident premeditation.

Accused Buenafe Azugue, assisted by counsel de parte Federico Billones, was arraigned on August 12, 1992, and pleaded not guilty to the crime charged. 4 The case against
Accused Bertito Beturin was dismissed by the trial court "without prejudice to its refiling if and when evidence is available to the prosecution." Morito Salvador was never
arrested and remains at large. So the case proceeded only in regard to accused-appellant.

The Facts

The facts of the case as summarized by the trial court 5 are as follows:

From the evidence adduced by both parties it was duly established that around 7:00 o'clock in the evening of October 27, 1990 at Brgy. Cogon, City of Roxas,
the victim, Joebe Arrobang, was stabbed by accused, Morito Salvador, causing his death. He was brought to St. Anthony Hospital for medical attendance.
Nevertheless, he died. Dr. Gervacio Diaz, attending physician, issued a certificate of his death.

Considering that a medico legal examination is a function of the City Health Office, the victim, Joebe Arrobang, was referred to Dr. Rafael Almalbis, Jr., then one
of the City Health Officer, (sic) City of Roxas, for Post Mortem Examination. The latter conducted a Post Mortem Examination on the cadaver of the victim at
Funeraria de Jesus and issued his findings as follows:

I. — Rigor Mortis:

Page 18 of 25
 II. — External Findings:

1 — Thru and thru stab wound:

Point of entrance — stab wound located at the right flunk of the abdomen at the level of the umbilicus about 6 cm. above the antero-superior iliac crest, measuring 3
cm. in length traversing toward the opposite side of the abdomen and exit at the lateral side, measuring 3/4 cm. in width.

Eveseration (sic) of small intestine

CAUSE OF DEATH:

SHOCK, 2nd to internal hemorrhage due to stab wound of the abdomen.

The sole prosecution witness to the incident against herein accused was Porferio Delmo, a fish vendor, who testified that around four o'clock in the afternoon of
October 27, 1990, while he was riding in a public utility jeep from Barangay Punta Cogon, it suddenly stopped because its rear tire got stuck in the mud. The victim,
Jolly (sic) Arrobang, being the conductor, alighted from the jeep to verify its cause. There upon, herein accused, Buenafe Azugue, held the victim on both forearms
while in face to face with the victim and immediately, his co-accused, Morito Salvador, from behind, stabbed the victim, hitting him on his right hips. The victim
shouted "I was stabbed" while herein accused and Morito Salvador ran away from the scene going towards the direction of Barangay Punta Cogon. He did not alight
from the jeep anymore after seeing two (2) men helped the victim. However, he rode in the same jeep which brought the victim to the hospital.

Porferio Delmo positively saw herein accused as the one who held the victim on both forearms after which his Co-accused, Morito Salvador, stabbed the victim
because he was two (2) armslength from them. Besides, he knew the two (2) accused even before the incident happened.

According to the Defense

The defense's version, as gleaned by the trial court from the testimony of witnesses, reads:

Accused, Buenafe Azugue, interposed a defense of alibi. He testified that in the morning of October 27, 1990, he went to Barangay llas Norte, Municipality of Dao,
Province of Capiz, together with Wilfredo Buenvenida, (sic) his father-in-law. He returned to his place of residence at Barangay Cogon only on October 28, 1990. Thus,
at the time of the incident he was not in Barangay Cogon, Roxas City, but in Barangay llas Norte, Dao.

His father-in-law, Wilfredo Buenvenida, (sic) partially corroborated the alibi of herein accused. He claims that he and the accused, Buenafe Azugue, left for llas Norte, Dao,
Capiz, on October 7, (1990) to harvest palay. They returned to Barangay Cogon, Roxas City, only on October 30, 1990.

To emphasize that it was not herein accused who stabbed the victim but Morito Salvador who acted alone, Mrs. Merlinda Fajartin, sister of accused, Morito Salvador,
offered a different version of the incident. She testified that around 6:30 in the evening of October 27,. 1990, he (sic) heard Joebe Arrobang shouting in the street facing
the house of Morito Salvador and challenging the latter to come out if he is brave. Upon hearing said voice, she went downstairs and she saw Joebe Arrobang carrying a
bench which was usually used in a passenger jeep to set (sic) extra passengers ready to hit his opponent. Suddenly, his (sic) brother, Morito appeared on the side of the
victim, stabbed him and run away. She was stunned on what she saw. Since then, they did not know the whereabouts of his brother up to the present. She further
testified that at the time of the incident, her brother, Morito, had no companion. Neither there was any passenger jeepney around as claimed by the prosecution. 6

Page 19 of 25
 The Trial Court's Ruling

On January 8, 1993, the trial court rendered its decision, the decretal portion of which is as follows:

WHEREFORE, the court finds the accused, Buenafe Azugue y Amador, guilty beyond reasonable doubt for the crime of murder penalized under Article 248 of
the Revised Penal Code. There being no mitigating nor aggravating circumstance, said accused is sentenced to suffer a penalty of Reclusion Perpetua and to pay
the heirs of Joebe Arrobang the sum of P50,000.00 as civil indemnity by reason of such death.

Said accused being detained, the whole period of his detention shall be deducted in full from the whole period of his imprisonment provided he had abided
with the rules imposed upon him as a detention prisoner otherwise he shall be deducted only four-fifths of the whole period of his detention in accordance
with Article 29 of the Revised Penal Code as amended.

With the conviction and penalty herein imposed, no bail is allowed on the accused herein pending finality of this judgment.

Costs against the accused.7

The Issues

In his brief, the appellant assigned the following "errors": 8

The trial court erred in giving weight and credence to the incredible testimony of the lone prosecution witness Porferio Delmo.

II

The trial court erred in disregarding the defense of alibi of accused-appellant which was corroborated by that of Buenavenida.

The Court's Ruling

First Issue: Credibility of Witness

and Sufficiency of Prosecution's Evidence

The accused-appellant Buenafe Azugue contends that the evidence presented by the prosecution was not enough to prove his guilt beyond reasonable doubt. This contention is
based largely on appellant Azugue's submission that the only eyewitness presented by the prosecution "never gave a statement to the police authorities nor presented himself
before the Office of the City prosecutor. In fact, he was not listed as one of the witnesses both in the Information and the Amended Information. The first time that he gave a
statement relative to the stabbing incident that resulted in the death of Joebe Arrobang was on October 19, 1992, when he testified before the court a quo, or almost two (2)
years from October 27, 1990, when the crime was committed. What made his testimony highly incredible was the fact that all those time he was the neighbor of the private
complainant."9 Appellant, therefore, impugns the credibility of the prosecution's only eyewitness.

Page 20 of 25
After a thorough scrutiny of the entire records of this case, the Court found that the trial court correctly gave credence to the eyewitness testimony of prosecution witness
Porferio Delmo. He gave a straightforward and unequivocal account of the stabbing incident worthy of belief, viz.:

Q Now, prior to the stabbing of Juvy Arrobang, where did he come from when you saw him?

xxx xxx xxx

A When the jeepney stopped, Juvy Arrobang jumped off from the jeep.

Q Why did Juvy Arrobang jumped (sic) off from the jeep?

A He jumped off from the jeep to find out what happened why the jeepney stopped because Juvy Arrobang was the conductor of the jeepney
that I was riding at that time.

Q After he was able to alight from the jeep what else had happened?

A Somebody approached him and held him.

Q Do you know the person who held Juvy Arrobang?

A Yes, sir.

Q If the person that held Juvy Arrobang is inside the courtroom kindly identify him if he is now in court?

A (Witness standing from the witness stand and pointed to a man wearing an orange t-shirt as the person whom he saw held Juvy Arrobang).

Q Do you know the name of this fellow you just pointed before the court this morning?

A Yes, sir.

Q And who (sic) is the name of this fellow that you have just pointed to the court?

A Buenafe Asugue (sic).

Q Why did (sic) you know him?

A I know (sic) him even before the incident and also that I used to pass at Barangay Cogon.

Q When you saw this Buenafe Asugue (sic) held (sic) the arms of the deceased Juvy Arrobang, how did he do it. Kindly demonstrate before the
court? I reform the question. Where did this Buenafe Asugue (sic) hold the victim?

Page 21 of 25
 xxx xxx xxx

A (Witness holding both arms of the interpreter demonstrating how the two was holding the arms of Juvy Arrobang at the time and the
accused and the victim were facing (each other), face to face.

Q While accused Buenafe Asugue (sic) was holding both arms of the victim, Juvy Arroabang, (sic) what else had happened?

A Somebody came near to the victim.

xxx xxx xxx

Q From what direction did this fellow you saw come from?

A That person who came nearer came from behind.

xxx xxx xxx

Q After this fellow whom you saw came nearer . . . what else did he do?

A I saw him stabbed Juvy Arrobang.

Court:

Q To whom do you refer to (by) him?

A Morito Salvador stabbed Juvy Arrobang.

xxx xxx xxx

Q And how far were you from that fellow, Morito Salvador when you saw him stabbed (sic) Juvy Arrobang?

A About two armslength. 10

The fact that prosecution witness Porferio Delmo did not make a statement regarding the stabbing before the police authorities or city prosecutor is of no moment. Delmo
sufficiently clarified this lapse during the trial. He explained that, since the other passengers of the jeepney during that fateful dusk had reported the incident already, there was
no need for him to make his own statement. 11 This does not diminish the veracity of his court testimony. Appellant's attack against prosecution witness Delmo's credibility for
being a neighbor of the deceased is misplaced. Delmo was not shown to have any ill motive in testifying against accused-appellant. In fact, even the stronger tie of family
relationship with the victim will not necessarily taint testimony. This Court teaches that " . . . the clear and positive testimony of witnesses is not devalued or impaired by the
mere fact of relationship to the victim, when there is no showing of improper motive on the part of said witness." 12 Moreover, the lapse of two years from the stabbing to
Porferio Delmo's testimony does not necessarily impugn its accuracy. One who witnesses a stabbing that occurred a mere two armslength away, involving two people he already
knew may be expected to remember the details of the extraordinary occurrence, including the identity of the principal actor therein.
Page 22 of 25
In deciding this appeal, the Court reiterates the well-settled principle that:

. . . when the question is raised as to whether to believe the version of the prosecution or that of the defense, the trial court's choice is generally viewed as
correct and entitled to the highest respect because it is more competent to conclude so, having had the opportunity to observe the witnesses' demeanor and
deportment on the witness stand, and the manner in which they gave their testimonies, and therefore could better discern if such witnesses were telling the
truth; the trial court is thus in the best position to weigh conflicting testimonies. Therefore, unless the trial judge plainly overlooked certain facts of substance
and value which, if considered,
might affect the result of the case, his assessment on credibility must be respected. 13

Thus, as aptly stated by the court a quo:

The court finds the testimony of Porferio Delmo, sole prosecution witness, as worthy of belief. The accused, Buenafe Azugue, was positively identified by said
eye-witness (sic) who was just two (2) armslength from the victim. No dubious or evil motive whatsoever has been proved which would cause or compel him to
falsely testify against said accused. It is much a matter of judicial acceptance that a witness would not falsely impute to an accused a serious criminal offense if
it is not the untarnished truth. The categorical identification made by this witness should be given full faith and credit especially in the total absence of any ill
motive, grudge or animosity on his part.

xxx xxx xxx

From the demeanor of prosecution (sic) sole witness as he testifies, the court finds his testimony credible and worthy of full faith and credit. There is no
showing that said witness had any motive to testify falsely against the accused. 14

Second Issue: Is Alibi Proper?

The appellant raises the defense of alibi propped up by his allegation that "in the morning of October 27, 1990, he went to Barangay Ilas Norte, Municipality of Dao, Province of
Capiz, together with Wilfredo Buenavenida, his father-in-law. He returned to his place of residence at Barangay Cogon only on October 28, 1990. Thus, at the time of the incident
he was not in barangay Cogon, Roxas City, but in Barangay Ilas Norte, Dao. (TSN, November 23, 1992, pp. 2-8)" 15 His version was corroborated by defense witness Wilfredo
Buenavenida. The latter testified that "he and the accused, Buenafe Azugue, left for Ilas Norte, Dao, Capiz on october (sic) 7, 1992 to harvest palay. They returned only on
October 30, 1990. (TSN, November 23, 1992, pp. 2-8)" 16

Appellant's defense of alibi is unworthy of credence. "It is an oft-repeated rule that alibi is one of the weakest defenses an accused can invoke, and courts have always looked
upon it with caution, if not suspicion, not only because it is inherently unreliable but likewise because it is rather easy to fabricate. It cannot prevail over the positive identification
of the accused by the prosecution's witness who has no motive to testify falsely against (him). For the defense of alibi to prosper, the accused must show that he was at such
other place for such a period of time that it was physically impossible for him to
have been at the place where the crime was committed at the time of its commission." 17 In the instant case, the appellant failed to satisfy this requirement of time and place.
The difference in the testimony of appellant Azugue and his witness Buenavenida regarding the time they allegedly went and stayed at Ilas Norte, Dao, Capiz plainly showed that
both of them made up a story. Furthermore, Buenavenida himself testified that the crime scene was approximately a mere one hour away traveling by jeep. 18 Hence, it was not
even physically impossible for appellant to have gone to Ilas Norte, Dao, Capiz and return to Barangay Cogon to commit his foul deed. The Solicitor General correctly observed
that:

As can be gleaned from the testimonies of appellant and his father-in-law, there are glaring inconsistencies which logically lead to the conclusion that their
testimonies were mere concoctions and fabrications.
Page 23 of 25
 On direct examination, appellant said:

Q On October 27, in the morning of October 27 up to October 28 on the following day, was there an occasion that you have gone home to
Roxas City?

A Yes, sir. (TSN, November 23, 1992, p. 16)

Clearly, appellant stated that he went back to Brgy. Punta Cogon, Roxas City on October 28, 1990, which contradicts his father-in-law's statement that they went
back on October 30, 1990.

While both appellant and Buenvenida (sic) gave their testimonies on the same date, in the morning of November 23, 1992, with Buenvenida testifying ahead of
appellant, and the latter heard in toto the testimony of the former, yet their testimonies were inconsistent, which indicates that both were not telling the
truth. 19

Based on the foregoing discussion, the testimony of Merlinda Fajartin, which seeks to place the crime scene in another location and to limit the perpetrator to her brother alone
who is at large, is discredited. It is not at all farfetched that Merlinda concocted her version of the crime so that accused-appellant Azugue, a friend and co-conspirator of her
brother, would thereby be acquitted. Thus, her testimony is simply unworthy of belief and serious consideration by the Court.

Conspiracy Attended the Commission of the Crime

The evidence on record reveals that the accused-appellant Buenafe Azugie's participation in the killing is limited to his having held both hands of the victim Joebe Arrobang.
Nonetheless, the mere fact that the accused-appellant "did not actually stab the victim . . . does not negate the appellant's being part of a conspiracy to kill the latter." 20 We
reiterate that "(i)n a conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that all participants performed specific
acts with such closeness and coordination as unmistakably to indicate a common purpose or design in bringing about the death of the victim." 21

In this case, accused-appellant Azugue's active cooperation in "face to face" holding and immobilizing the arms of the victim who while in this helpless position was then stabbed
fatally from the back with a knife by the other conspirator Morito Salvador clearly and unmistakably showed both appellant Azugue and Salvador acted together with one
purpose and design, to kill the victim. Hence, the appellant is liable, by legislative and judicial fiat, as if he himself dealt the fatal blow.

Treachery

Jurisprudence teaches us that to appreciate treachery "two (2) conditions must be present, to wit: (1) the employment of means of execution that give the person attacked no
opportunity to defend himself or to retaliate; and (2) the means of execution were deliberately or consciously adopted." 22 These conditions are amply present in the instant case.
Azugue and Salvador's previously discussed cooperative actions, where one immobilized the victim Arrobang while the other did the stabbing, coupled with their swift surprise
attack on the victim, left the latter with no opportunity to put up a defense against such an unexpected, vicious and fatal assault on his person. In fact, the victim Arrobang "was
defenseless during the attack as his hands were restrained by the accused-appellant to facilitate the stabbing . . . ." 23 Therefore, the trial court correctly appreciated treachery
which qualified the killing to murder.

WHEREFORE, appeal is hereby DISMISSED. The trial court's Decision convicting appellant Buenafe Azugue y Amador of murder and imposing on him the penalty of reclusion
perpetua and the payment to the victim's heirs of civil indemnity in the amount of P50,000.00 is hereby AFFIRMED in toto.

Page 24 of 25
SO ORDERED.

Page 25 of 25