SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 181633

Plaintiff-Appellee,
- versus - TINGA,

feloniously have carnal knowledge with x x x

[AAA], who is only seven (7) years of age.[1]
On arraignment, accused-appellant entered a not guilty plea.
The prosecution presented the following facts:

ROGER UGOS,
Accused-Appellant. September 12, 2008
x----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
Before us is an appeal from the October 25, 2007
Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
00310-MIN entitled People of the Philippines v. Roger Ugos y
Lanzo alias Dodong. The CA affirmed the February 8, 2000
Decision of the Regional Trial Court (RTC), Branch 15 in
Davao City in Criminal Case No. 39413-97, finding accusedappellant Roger Ugos guilty of raping his stepdaughter and
sentencing him to reclusion perpetua.
The Facts
On August 11, 1997, accused-appellant was charged with rape
under an Information which reads:

That on or about August 7, 1997, in the City of

Davao, Philippines, and within the jurisdiction of
this Honorable Court, the above-mentioned
accused, by means of force and intimidation,
did then and there willfully, unlawfully and

On the evening of August 7, 1997, accused-appellant, while

drunk and looking for a bolo,[2] asked his stepdaughter, AAA,
then seven years old, to look for her mother at her
grandmothers place. But as her mother was not at her
grandmothers residence, AAA went to look for her at a
neighbors house accompanied by accused-appellant. Her
mother was not there, either. Accused-appellant thereupon
held AAA and brought her to a nearby creek. Once there, he
undressed her and then proceeded to insert his finger into her
vagina four times.[3] Thereafter, accused-appellant bit AAAs
face and inserted his penis into her vagina. Not content, he
held her by the neck and boxed her in the face and stomach.
[4]
He then threatened to kill her if she told her mother about
the incident.[5]
When asked upon reaching home about the lumps on her
face, AAA told her mother that she fell at the waiting shed.
[6]
The next morning, however, AAA revealed the truth about
her injuries, relating how accused-appellant, while holding her
neck, bit and punched her on the cheek causing a swelling
and black right eye and bruises on the neck. [7]Mother and
daughter then reported the incident to, only to be ignored by,
the barangay captain. They then repaired to the police station
in Toril to file a rape complaint before Police Station Child and
Youth Officer Leonilo Jickain,[8] after which they proceeded
to Barrio Catigan, the scene of the crime. Mother and daughter
pointed to accused-appellant as the rapist.[9] After a short
chase, he was apprehended and charged.[10]

Dr. Danilo Ledesma testified having examined AAA

on August 11, 1997.[11] His findings: AAA had sustained
contusions on her left eye and on her cheek. She also had a
hemorrhage on both eyeballs. He also found that there was a
complete hymenal laceration at the 5 and 9 oclock positions,
showing recent genital trauma.[12]
Accused-appellant, the lone witness for the defense, on the
other hand, presented the following story, as summarized in
the RTC decision:
x x x [O]n August 7, 1997 from 7 A.M. to
7 P.M. he was in his employers house because
it was their barrios fiesta, that on reaching
home at about 7 P.M. only [his] step[children]
AAA, 7 years old, Reggie 3 years old and [his]
10 year [old] niece were around. x x x his wife
was not there so he went to their grandmothers
house alone to get her, that his wife was not
there, that he returned home at about 8 P.M.
but she was not there in their house so he went
to his ninang [godmother] and his neighbors
looking for his wife, that he told the victim to go
with him to the barrio which was about one
kilometer from their house to look for his wife,
that he told the victim to look for her mother
while he waited in a shed, that the victim fell
because the road was dark and slippery, that
his wife was already home when they returned,
that his wife smelled of liquor that night, that he
and his wife quarreled and he hit his wife, that
he did not rape and hit the victim, that he does
not know why he is charged with rape.[13]

The RTC found accused-appellant guilty as charged.

The dispositive portion of the RTC decision reads:
WHEREFORE, the prosecution having
proven the guilt of the accused beyond
reasonable doubt, ROGER UGOS is hereby
sentenced to Reclusion perpetua and to
indemnify [AAA] the sum of Fifty Thousand
Pesos (P50,000.00).
The preventive imprisonment shall be
credited to the sentence of the accused if he
voluntarily abides in writing to follow the rules
under Article 29 of the Revised Penal Code.
SO ORDERED.[14]
Accused-appellant thus appealed the RTC Decision
with this Court.
On December 13, 2004, this Court, in accordance
with People v. Mateo,[15] ordered the transfer of the case to the
CA for intermediate review.
By a Decision dated October 25, 2007, the CA affirmed
that of the RTC with a modification on the award of damages,
disposing as follows:
WHEREFORE, the lower courts Decision dated
8 February 2000 finding appellant guilty beyond
reasonable doubt of the crime of Rape and
sentencing him to suffer the penalty of reclusion
perpetua is
AFFIRMED,
WITH
THE
MODIFICATION that appellant is ordered to pay

P50,000.00, representing moral damages, in

addition to the civil indemnity of P50,000.00 he
had been adjudged to pay by the trial court.
SO ORDERED.[16]
On November 22, 2007, accused-appellant filed his
Notice of Appeal of the CA Decision.
Accused-appellant presents a lone issue before the
Court:
WHETHER THE TRIAL COURT ERRED IN
FINDING HIM GUILTY OF THE CRIME OF
RAPE
INSTEAD
OF
ACTS
OF
LASCIVIOUSNESS
Accused-appellant claims that the testimonies of AAA
and her mother reveal only the commission of acts of
lasciviousness. There was no sexual intercourse, according to
him, as he only inserted his finger into her sex organ, adding
that this was what AAA originally told her mother. He surmises
that AAA, being underage, might have been confused with
what the word rape meant. Accused-appellant further states
that AAA only testified that he inserted his penis into her
vagina when probed by the prosecutor through leading
questions.
Our Ruling
We affirm the appellate courts decision.
AAA, as found by both the trial and appellate courts,
was unequivocal in her testimony that she was raped by
accused-appellant. While her mother may have contradicted
AAAs testimony by stating that AAA reportedly told her she
was merely fingered by accused-appellant, it is AAAs clear

and credible testimony that should determine accusedappellants guilt. She detailed both in direct and crossexaminations how accused-appellant violated her; she minced
no words about what accused-appellant did to her on August
7, 1997.
Accused-appellant does not dispute AAAs testimony,
arguing that she might have been coached in her answers. He
likewise states that what AAA and her mother reported to the
police was an attempt to rape AAA. It was only when the
prosecutor asked her leading questions that she testified that
accused-appellant inserted his penis into her vagina.
The Court is not persuaded by his contentions for the
following reasons: First, the testimony of Police Officer Jickain,
who related that AAAs mother approached him onAugust 7,
1997 while he was on duty as Police Station Child and Youth
Officer, has documentary support. He stated that AAAs mother
reported that accused-appellant raped her daughter.
[17]
Second, accused-appellants contention is at odds with what
are contained in the records, which show that during crossexamination the trial court asked AAA what accused-appellant
did to her, as follows:
COURT:
Q You said it is painful, is it because the finger
was inserted or the penis?
A Because he inserted his finger into my
vagina.
Q He did not insert his penis?
A He inserted.[18]

The prosecutor, on the other hand, examined AAA in

this wise:

Q What else did he do, did you see his penis?

A He inserted inside my vagina.

Q Who mounted you?

A Ondongan.

Q What did you feel when he inserted his penis in your

vagina?

Q This Ondongan is in court could you point him?

A I was angry, because he mounted me and it was very

painful.

A (Witness pointing to a person seated on a chair with

white t-shirt printed navy when asked he said
he is Roger Ugos).
Q What did Ondongan or your stepfather do?
A He placed his hand on my vagina.
Q Were you still dressed?
A Yes, Sir.

[20]

The line of leading questions objected to by accusedappellant was warranted given the circumstances. A child of
tender years may be asked leading questions under Section
10(c), Rule 132 of the Rules of Court. Sec. 20 of the 2000
Rule on Examination of a Child Witness also provides, The
court may allow leading questions in all stages of examination
of a child if the same will further the interests of justice.
The afore-cited rule was formulated to allow children to
give reliable and complete evidence, minimize trauma to
children, encourage them to testify in legal proceedings, and
facilitate the ascertainment of truth.[21]

Q What did he do to your dress?

A He inserted his finger [in] my vagina 4 times.
Q When he did that to you were you still dressed or
were you already naked?[19]
xxxx
Q What else?
A After that the accused stood up on a coco
trunk [and] inserted his finger in my
vagina four times.

We find that the alleged coaching used in the course of

examining AAA merely aided her in testifying with more detail
and did not suggest to her the answers integral to the actual
commission of rape.
What is more, AAAs charge of rape finds support in the
medical report on her physical injuries. The medico-legal
witness, Dr. Ledesma, testified that he examined AAA four
days after the rape incident and found fresh bruises on her
face and lacerations in her vagina.[22]
Accused-appellants denial of the crime cannot prevail
over the positive testimony of the victim. As held in People v.

Suarez, a rape victims straightforward and candid

account, corroborated by the medical findings of the examining
physician, is sufficient to convict the accused.[23] This
conclusion becomes all the more firm where, as in this case,
the child-victim takes the witness stand. Previous decisions
involving rape cases have shown us the high improbability that
a girl of tender years would impute to any man a crime so
serious as rape if what she claims is not true. [24] Also, as
correctly pointed out by the CA, corroboration of a childs
testimony is not even required under Sec. 22 of theRule on
Examination of a Child Witness, thus:
Corroboration shall not be required of a
testimony of a child. [The childs] testimony, if
credible by itself, shall be sufficient to support a
finding of fact, conclusion, or judgment subject
to the standard of proof required in criminal and
non-criminal cases.
Accused-appellants suggestion that the charge against
him could have been fabricated, an offshoot of the argument
he had with AAAs mother, has nothing to support itself. There
is likewise nothing in the records indicating that the
prosecution witnesses testified against accused-appellant out
of malice.
A rape victims testimony as to who abused her is
credible where she has absolutely no motive to incriminate
and testify against the accused.[25] Categorical and positive
identification of an accused, without any showing of ill motive
on the part of the eyewitnesses testifying on the matter,
prevails over denial and alibi, which are negative and selfserving.[26] We thus affirm the trial courts appreciation of the
testimonial evidence adduced. It is basic that the trial courts
evaluation of the testimonies of witnesses should be accorded
the highest respect as it has the best opportunity to observe

directly the demeanor of witnesses on the stand and to

establish whether they are telling the truth.[27]
As to the award of damages, the RTC was correct in awarding
civil indemnity in the amount of PhP 50,000. Civil indemnity
needs no proof other than the fact of the commission of the
offense.[28] The award is proper even if the minority of AAA was
alleged. There was no allegation in the Information that
accused-appellant was the victims stepfather, precluding a
charge for qualified rape which would have increased the
award to PhP 75,000.
The CA was also correct in additionally awarding moral
damages of PhP 50,000. This is separate and distinct from
civil indemnity. It does not require proof of mental and physical
suffering.[29]
As a final note, we reject accused-appellants argument that
had he been found to have merely fingered AAAs sexual
organ, he would only be convicted of acts of lasciviousness.
As held in De Castro v. Fernandez, Jr., the new law on rape
now includes sexual assault.[30] Although the amendment to
the law on rape was made after accused-appellant was
charged, it is well to point out that with its expanded definition,
rape can now be committed through sexual assault by
inserting any instrument or object, into the genital or anal
orifice of another person.[31]
WHEREFORE,
the
appeal
of
accused-appellant
is DISMISSED. The Decision dated October 25, 2007 of the
CA in CA-G.R. CR-H.C. No. 00310-MIN finding him guilty of
the crime of rape is AFFIRMED IN TOTO.
No costs.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, G.R. No. 172322

- versus
RENE SANTOS, Appellant. Promulgated: September 8, 2006
x
--------------------------------------------------------------------------------------- x

WHEREFORE, on the basis of all the foregoing,

the Court finds the accused guilty beyond
reasonable doubt of the crime of Rape
penalized under Article 335 of the Revised
Penal Code, and as a consequence of which,
this Court hereby sentences him to suffer the
mandatory penalty of death and to indemnify
the offended party in the amount of P75,000.00
and to pay the costs of the proceedings.

DECISION
SO ORDERED.[4]
YNARES-SANTIAGO, J.:
For allegedly sexually assaulting 5-year-old AAA, Rene Santos
was charged with Rape in an Information[1] alleging
That on or about in the afternoon of between
17th and 23rd of July 1999 in the [B]arangay of
xxx, [M]unicipality of xxx, [P]rovince of
Pampanga, Philippines and within the
jurisdiction of this Honorable Court, the abovenamed accused, RENE SANTOS, with lewd
designs and by means of deceit, force and
intimidation, did then and there willfully,
unlawfully and feloniously succeeded in having
carnal knowledge with AAA, 5 years of age,
against her will.
Contrary to law.
Upon arraignment, appellant pleaded not guilty to the charge.
[2]
Trial thereafter ensued, after which the Regional Trial Court
of
Macabebe,
Pampanga,
Branch
55,
rendered
[3]
judgment imposing the death penalty thus:

Owing to the imposition of the death penalty, the case was

elevated to the Court for automatic review. Pursuant, however,
to the ruling in People v. Mateo,[5] the case was referred to the
Court of Appeals for evaluation in a Resolution dated
September 7, 2004.[6]
In his appeal, appellant alleged that
1. THE

TRIAL COURT ERRED IN NOT

CONSIDERING THE DEFENSE OF
THE
ACCUSED
THAT
WOULD
EXCULPATE HIM FROM THE CRIME
OF RAPE.

2. THE TRIAL COURT ERRED WHEN IT

IMPOSED UPON THE ACCUSED THE
MAXIMUM PENALTY OF DEATH.
In its Decision[7] dated October 19, 2005, the appellate court
affirmed the judgment of conviction and, in addition to the
P75,000.00 civil indemnity imposed, ordered appellant to pay
P50,000.00 as moral damages and P25,000.00 as exemplary
damages.

The prosecutions version of the incident narrates that

sometime between July 17 and 23, 1999, AAA was playing at
the northern portion of xxx Bridge, xxx, Pampanga, when she
was taken by appellant and brought to his house, which is
about one kilometer away from AAAs residence. While inside
the house, appellant took off the clothes of AAA and had
sexual intercourse with her.[8] The victim felt pain and her
vagina bled.[9]
After a complaint was lodged with the barangay and the police
authorities,
AAA
was
brought
to
the Jose B. Lingad Memorial Regional Hospital in San
Fernando, Pampanga, where she was examined.[10] The
Medico Legal O.B. Gyne Report indicated multiple superficial
healed lacerations.[11] The victim, who was already six years
old when she testified in court,[12] positively identified the
appellant during the trial and testified on the affidavit she
executed before the police officers of xxx, Pampanga.[13]
Appellants version of the incident is one of denial and alibi. He
testified that he was the driver of BBB who lived in Barangay
xxx, xxx, Pampanga which is a kilometer away from his place
in Sulipan.[14] Appellant usually leaves his house at 7:00
a.m. and stays at his workplace up to 7:30 p.m. or sometimes
even up to 10:00 p.m. when necessary.[15]
His job was to drive his employer whenever the latter
had appointments in Manila.[16] When BBB had no
appointments, he drove a passenger jeepney plying San
Fernando, Pampanga and Malolos, Bulacan, a route which
passed Sulipan.[17] On July 17, 1999, appellant drove his
employer to the Wheels Motor Shop at E. Rodriguez
Avenue, Quezon City leaving Apalit at 9:00 a.m. and returning
at 8:30 p.m. On July 18, 1999, appellant left his house at 6:00
a.m. arriving at his workplace at 7:30 a.m. and from there he
delivered surplus bumpers to Malinta, Manila.[18] On July 19,

20, 21 and 22, 1999, appellant plied the San FernandoMalolos route on board his passenger jeepney.[19]On July 23,
1999, appellant went to Makati leaving xxx at 10:00 a.m.,
returning only at 10:00 p.m.[20]
On July 30, 1999, between 6:30 to 7:30 a.m.,[21] he was
sweeping the ground in front of his house when a white car
pulled over.[22] The vehicles occupants introduced themselves
as police officers and asked him if he was Rene Santos.
[23]
Thereafter, he was taken to the police headquarters for
questioning. Once they arrived at the headquarters, he was
detained and remained in detention up to the time of his trial.[24]
We have examined the evidence on record and find no
cogent reason to disturb the findings of the trial court and the
Court of Appeals. We accord great respect on the findings of
the trial court on the credibility of witnesses and their
testimonies, for the trial judge observes the behavior and
demeanor of the witnesses in court. His evaluation or
assessment of the credibility of witnesses and of testimony
acquires greater significance in rape cases because from the
nature of the offense, the only evidence that can oftentimes be
offered to establish the guilt of the accused is the victims
testimony.[25]
This credibility given by the trial court to the rape victim
is an important aspect of evidence which appellate courts can
rely on because of its unique opportunity to observe the
witnesses, particularly their demeanor, conduct and attitude
during the direct and cross-examination by counsel. [26] It is
likewise well established that the testimony of a rape victim is
generally given full weight and credit, more so, if she is a 5year-old child as in this case. The revelation of an innocent
child whose chastity has been abused deserves full credit, as
her willingness to undergo the trouble and the humiliation of a
public trial is an eloquent testament to the truth of her

complaint. In so testifying, she could only have been impelled

to tell the truth, especially in the absence of proof of ill motive.
[27]

The trial court and the Court of Appeals gave credence

to the testimony of AAA who was only six years old when she
narrated the sordid details of her ravishment, viz:

Q You said you know this Rene Santos, why do

you know him?
A Because he raped me, sir.
Q Can you remember when was that?
A Yes, sir.
Q When?

FISCAL PINEDA
Questioning
If Rene Santos is inside this courtroom, can you
point at him?
WITNESS
Answering

WITNESS
Answering
I do not know when, sir.
FISCAL PINEDA
Questioning

Yes, sir.

Do you recall where?

A In their house, sir.

Q Please point at him?

A There he is, sir.

Q And where is that house?

A In Sulipan, sir.

INTERPRETER

Q In Apalit, Pampanga?
A Yes, sir.

Witness pointed to a person inside the

courtroom who [when] asked gave his
name as Rene Santos.
Q Between the period of July 17 to 23, 1999, do
you remember where were you?
A Yes, sir.
Q Where were you then?
A...

Q You said that this Rene Santos raped you,

what particular actuations did he do?
A He inserted his penis, sir.
Q Where?
A Here, sir, in my vagina.
INTERPRETER
Witness pointing to her private organ.

Q Where did that happen?

A In their house, sir.
Q In what portion of his house?
A Inside their house, sir.

COURT
Questioning
Is this Rene Santos inside this courtroom?

Q You said that Rene Santos inserted his

penis into your vagina, what did you
feel?
A I felt pain, sir.

WITNESS
Answering

Q When he inserted his penis into your vagina

did he have any clothings (sic)?
A...

Q Point to him?
A There he is, sir.

Yes, sir.

INTERPRETER
ATTY. VIOLA
Leading, Your Honor.
COURT
Reform the question.
FISCAL PINEDA
Questioning
When he inserted his penis into your vagina,
what was his appearance?
WITNESS
Answering
It was hard, sir.
Q What was hard?
A His penis, sir.

Witness pointed to a person inside the

courtroom who when asked gave his
name as Rene Santos.[28] (Emphasis
and italics supplied)
Counsel for the defense attempted, albeit futilely, to impeach
the credibility of the victim. [29] We have held time and again
that testimonies of rape victims who are young and immature,
as in this case, deserve full credence considering that no
young woman, especially one of tender age, would concoct a
story of defloration, allow an examination of her private parts,
and thereafter pervert herself by being subject to a public trial
if she was not motivated solely by the desire to obtain justice
for the wrong committed against her. It is highly improbable for
an innocent girl of tender years like the victim, who is very
naive to the things of this world, to fabricate a charge so
humiliating not only to herself but also to her family. Stated
succinctly, it is beyond the mind-set of a six-year old child, like
the offended party herein, to fabricate a malicious accusation
against appellant if the crime did not truly transpire. [30] Verily,
when a guileless girl of six credibly declares that she has been

raped, she has said all that is necessary to prove the

ravishment of her honor.[31]
Appellants reliance on the corroboration by his wife of his alibi
cannot overturn the clear and categorical declarations of the
victim identifying him as the perpetrator of the crime.The
corroboration should, furthermore, be received with caution
coming as it does from appellants spouse whose emotional
ties and interest in his acquittal cannot be gainsaid.Indeed, it
has even been held that some wives are overwhelmed by
emotional attachment to their husbands such that they
knowingly or otherwise suppress the truth and act as a
medium for injustice to preponderate.[32]
In addition to his defense of alibi, appellant further faults
trial court with acting as the prosecutor and the judge at
same time[33] for allegedly initiating and propounding
questions, short of supplying the desired answer from
witness.[34]

the
the
the
the

The argument is tenuous. As has been pointed out in People

v. Guambor:[35]
The trial judge is accorded a reasonable leeway
in putting such questions to witnesses as may
be essential to elicit relevant facts to make the
record speak the truth. Trial judges in this
jurisdiction are judges of both law and the facts,
and they would be negligent in the performance
of their duties if they permitted a miscarriage of
justice as a result of a failure to propound a
proper question to a witness which might
develop some material bearing upon the
outcome. In the exercise of sound discretion, he
may put such question to the witness as will
enable him to formulate a sound opinion as to

the ability and willingness of the witness to tell

the truth. A judge may examine or crossexamine a witness. He may propound
clarificatory questions to test the credibility
of the witness and to extract the truth. He
may seek to draw out relevant and material
testimony though that testimony may tend
to support or rebut the position taken by
one or the other party. It cannot be taken
against him if the clarificatory questions he
propounds happen to reveal certain truths
which tend to destroy the theory of one
party. (Emphasis supplied)
The trend in procedural law is to give a wide latitude to the
courts in exercising control over the questioning of a child
witness.[36] Under Sections 19 to 21 of the Rules on
Examination of a Child Witness,[37] child witnesses may testify
in a narrative form and leading questions may be allowed by
the trial court in all stages of the examination if the same will
further the interest of justice.[38] It must be borne in mind that
the offended party in this case is a 6-year old minor who was
barely five when she was sexually assaulted. As a child of
such tender years not yet exposed to the ways of the world,
she could not have fully understood the enormity of the bestial
act committed on her person.Indeed
Studies show that children, particularly very
young children, make the perfect victims. They
naturally follow the authority of adults as the
socialization process teaches children that
adults are to be respected. The childs age and
developmental level will govern how much she
comprehends about the abuse and therefore
how much it affects her. If the child is too young
to understand what has happened to her, the

effects will be minimized because she has no

comprehension
of
the
consequences. Certainly, children have more
problems in providing accounts of events
because they do not understand everything
they experience. They do not have enough life
experiences from which to draw upon in making
sense of what they see, hear, taste, smell and
feel.Moreover,
they
have
a
limited
vocabulary. With
her
limited
comprehension, the child could not have a
perfect way of relating that she had been
sexually abused.[39] (Emphasis and italics
supplied)
The record discloses that the questions propounded by the
judge were intended to elicit the truth from the child
witness. This perceived undue inquisitiveness of the judge did
not unduly harm the substantial rights of the appellant. In fact,
it is only to be expected from the judge who, with full
consciousness of his responsibilities could not, and should not,
easily be satisfied with incompleteness and obscurities in the
testimonies of the witness.[40]
While judges should as much as possible refrain from
showing partiality to one party and hostility to another, it does
not mean that a trial judge should keep mum throughout the
trial and allow parties to ask questions that they desire, on
issues which they think are important, when the former are
improper and the latter immaterial. If trials are to be expedited,
judges must take a leading part therein, by directing counsel to
submit evidence on the facts in dispute by asking clarifying
questions, and by showing an interest in a fast and fair
trial. Judges are not mere referees like those of a boxing bout,
only to watch and decide the results of a game; they should
have as much interest as counsel in the orderly and

expeditious presentation of evidence, calling attention of

counsel to points at issue that are overlooked, directing them
to ask the question that would elicit the facts on the issues
involved, and clarifying ambiguous remarks by witnesses.
Unless they take an active part in trials in the above form and
manner, and allow counsel to ask questions whether pertinent
or impertinent, material or immaterial, the speedy
administration of justice which is the aim of the Government
and of the people cannot be attained.[41]
Appellant also invites the Courts attention to what he
perceives as uncharacteristic behavior of the victim who,
according to him, should be traumatized after undergoing the
onslaught of sexual molestation.[42] He insists that it is
unnatural for the 6-year old victim to go to school the day
following her supposedly shocking experience. He also points
out that she was answering not as seriously as one who has
been sexually molested.[43]
The contention is neither novel nor persuasive. There is no
standard form of behavior that can be expected of rape victims
after they have been defiled because people react differently
to emotional stress.[44] Nobody can tell how a victim of sexual
aggression is supposed to act or behave after her ordeal.
[45]
Certainly, it is difficult to predict in every instance how a
person especially a 6-year old child, as in this case would
react to a traumatic experience. [46] It is not proper to judge the
actions of rape victims, especially children, who have
undergone the harrowing experience of being ravished against
their will by the norms of behavior expected under such
circumstances from mature persons.[47] Indeed, the range of
emotions shown by rape victims is yet to be captured even by
calculus.[48] It is thus unrealistic to expect uniform reactions
from them.[49] In fact, the Court has not laid down any rule on
how a rape victim should behave immediately after her
ravishment.[50]

In his attempt to extricate himself from criminal liability,

appellant further insinuates that his sons may be the possible
perpetrators of the felony saying that it could have been Rene
Santos, Jr. or Michael Santos who could have raped the victim
considering that AAA and her sister CCC allegedly complained
earlier that they were raped by the two brothers.[51]
If at all, the foregoing suggestion that his sons may have been
the malefactors who sexually assaulted the victim and her
sister only succeeds in underscoring his moral depravity and
his capacity to commit the crime. Only one whose degree of
wickedness plumbs the deepest depths of criminal perversity
would have no qualms of laying the onus of his guilt even on
his own offspring and, worse, blacken the memory of one of
them who is already dead in his endeavor to exculpate himself
from the consequences of his felonious acts.
Much less convincing is appellants proposition that ill feelings
and ill motives of the victims mother impelled the filing of the
charges against him. Ill-motives become inconsequential
where there are affirmative or categorical declarations
establishing appellants accountability for the felony.[52] We
have, furthermore, observed not a few persons convicted of
rape have attributed the charges against them to family feuds,
resentment or revenge.[53] However, as borne out by a plethora
of cases, family resentment, revenge or feuds have never
swayed us from giving full credence to the testimony of a
complainant for rape, especially a minor who remained
steadfast and unyielding throughout the direct and crossexamination that she was sexually abused. [54] It would take a
certain degree of perversity on the part of a parent, especially
a mother, to concoct a false charge of rape and then use her
daughter as an instrument to settle her grudge.[55]

Given the foregoing factual, legal and jurisprudential scenario,

we agree with both the trial and appellate courts that the
appellant is guilty as charged. He was, likewise, correctly
meted the penalty of death because rape committed against
a child below seven (7) years old is a dastardly and repulsive
crime which merits no less than the imposition of capital
punishment under Article 266-B of the Revised Penal Code.
[56]
That AAA was only five years old when she was ravished is
clear from her birth certificate.[57]
However, with the passage of Republic Act No. 9346
entitled An Act Prohibiting The Imposition Of The Death
Penalty In The Philippines, the penalty that should be meted
isreclusion perpetua, thus:
SEC. 2. In lieu of the death penalty, the
following shall be imposed:
(a) the penalty of reclusion perpetua, when the
law violated makes use of the nomenclature of
the penalties of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the
law violated does not make use of the
nomenclature of the penalties of the Revised
Penal Code.
Pursuant to the same law, appellant shall not be
eligible for parole under Act No. 4103, otherwise known as the
Indeterminate Sentence Law.
In line with prevailing jurisprudence, the Court affirms
the award of P75,000.00 as civil indemnity and P25,000.00 as
exemplary damages; and increases the Court of Appeals
award of moral damages from P50,000.00 to P75,000.00.[58]

WHEREFORE, the Decision of the Court of Appeals in CAG.R. H.C. No. 01424 finding appellant Rene Santos guilty
beyond reasonable doubt of the crime of rape and odering him
to indemnify the victim the amounts of P75,000.00 as civil
indemnity and P25,000.00 as exemplary damages,
is AFFIRMED with the MODIFICATION that the award of
moral damages is increased to P75,000.00 and that in lieu of
the death penalty, appellant Rene Santos is hereby sentenced
to suffer the penalty of reclusion perpetuawithout possibility of
parole.
SO ORDERED.
SECOND DIVISION
[A.M. No. RTJ-03-1753. February 5, 2004]
CAPISTRANO OBEDENCIO, JR., complainant, vs. JUDGE
JOAQUIN M. MURILLO, PRESIDING JUDGE, RTC,
BRANCH
26,
MEDINA,
MISAMIS
ORIENTAL, respondent.

Complainant averred that on May 3, 2000, he and his wife

assisted their 14-year-old daughter, Licel Acenas Obedencio,
in filing with the Office of the Provincial Prosecutor, Hall of
Justice in Cagayan de Oro City, a criminal complaint for rape
allegedly committed upon her when she was 11 years old by
her uncle, Dexter Z. Acenas. After the preliminary
investigation, which the accused did not attend, the case was
filed in respondent judges sala.[2]

On May 25, 2001, following Licels abduction from their

house,[3] complainant sought to secure from the court a copy of
the warrant of arrest issued against the accused. To his great
surprise, respondent judge told him that the case had been
dismissed three days earlier on May 22, 2001. [4] According to
respondent judge, Licel Obedencio had come to court,
accompanied by her maternal grandparents and Asst.
Provincial Prosecutor Emmanuel Hallazgo. There she was
presented to affirm her affidavit of desistance.[5]

RESOLUTION
QUISUMBING, J.:
[1]

In
a
letter-complaint, complainant
Capistrano
Obedencio, Jr., charged respondent Judge Joaquin M. Murillo,
Presiding Judge of the Regional Trial Court of Medina,
Misamis Oriental, Branch 26, of unjustly dismissing Criminal
Case No. 1401-M (2000) for rape, entitled People v. Dexter Z.
Acenas.

Complainant claims that the dismissal was marred by

serious irregularities. He specifically lamented the absence of
any subpoena or notice of hearing from the court to him, his
wife, or their counsel. He believes that since Prosecutor
Hallazgo, Licels maternal grandparents, and the accused are
relatives, this fact contributed to the unjust dismissal of the
case.[6]

In his comment,[7] respondent judge stated that he heard

Criminal Case No. 1401-M (2000) on May 22, 2001, upon the
request of Prosecutor Hallazgo who was prosecuting the
case.During the hearing, Prosecutor Hallazgo presented an
affidavit of desistance executed by Licel. Then, Licel took the
witness stand and was asked on matters contained in her
affidavit. She recanted the allegations in her affidavit-complaint
and denied having been molested by her uncle, Dexter. She
explained that her mother forced her to file the rape charge
because of family inheritance problems. Respondent judge
asserts that, with the filing of the affidavit of desistance, the
court had no other recourse but to dismiss the case.[8]

The Office of the Court Administrator (OCA), through

Deputy Court Administrator Christopher O. Lock, found
respondent judge liable for ignorance of the law for unjustly
dismissing Criminal Case No. 1401-M (2000). OCA
recommended that respondent judge be reprimanded with
warning that a repetition of the same or similar offense would
be dealt with more severely.[9]

This Court agrees with the findings of the OCA, but not
with the recommended penalty.

Article 220(6)[10] of the Family Code gives to complainant

and his wife the right and duty to represent Licel in all matters
affecting her interest. Thus, they were entitled to be notified
and to attend every hearing on the case. As a judge,

respondent is duty-bound to acquaint himself with the cases

pending before him.[11] He should have known that Licel filed
the criminal complaint with the assistance of her parents, who
are her natural guardians.[12] It was incumbent upon
respondent judge to inquire into the reason behind their
nonappearance before the court instead of simply relying on
the bare explanation of the defense counsel that he and his
client could not find Licels parents.[13] Respondent judge ought
to remember that the accused, Dexter Acenas, is the maternal
uncle of the victim. That Licel came to court with her maternal
grandparents, and not her parents, on the day she was
examined to affirm her affidavit of desistance, should have
alerted respondent judge to be more circumspect. Being still a
minor, Licel cannot fully comprehend for herself the impact and
legal consequence of the affidavit of desistance. Given her
tender age, the probability is that Licel succumbed to illicit
influence and undue pressure on her to desist from pursuing
her complaint.

Licel was only 14 years old, definitely a minor, on May 22,

2001, when she was presented before respondents sala to
affirm the execution of her affidavit of desistance. This being
the case, said affidavit should have been executed with the
concurrence of her parents. Licel could not validly give
consent to an affidavit of desistance, for a minor is
incompetent
to
execute
such
an
instrument. Yet,
notwithstanding the absence of her parents conformity to the
affidavit of desistance and lack of notice to them or their
lawyer of the scheduled hearing, respondent judge dismissed
the criminal case. Truly, he should have exercised more
prudence and caution instead of perfunctorily dismissing the

case, considering the nature and gravity of the offense

charged.

At the very least, herein respondent should have

appointed a guardian ad litem for Licel, to protect her welfare
and interest, instead of hastily dismissing the rape case. The
Rule on Examination of a Child Witness,[14] which took effect
on December 15, 2000, governs the examination of child
witnesses who are victims of, accused of, or witnesses to a
crime. In the absence or incapacity of the parents to be the
guardian, Section 5 (a)[15] of said rule provides that the court
may appoint a guardian ad litem to promote the best interests
of the child. This rule was already in effect when respondent
judge dismissed the rape case on May 22, 2001.

Respondent is reminded that a judge is the visible

representation of the law and, more important, of justice. [16] A
judge owes it to the public to be knowledgeable, for ignorance
of the law is the mainspring of injustice. [17] A judge must know
the laws and apply them properly in all good faith. [18] Rule 3.01,
Canon 3 of the Code of Judicial Conduct requires a judge to
be faithful to the law and to maintain professional
competence. He should conduct the functions and perform the
duties of his office with due regard to the integrity of the
system of the law itself, remembering that he is not a
depository of arbitrary power, but a judge under the sanction of
law.[19] Where the law transgressed is simple and elementary,
the failure to know it constitutes gross ignorance of the law.[20]

For respondent judges infraction, the penalty of

reprimand, recommended by the OCA, is inapplicable. It is too
light and incommensurate to the gravity of the administrative
offense charged and proved. Instead, the penalty of fine is
proper in this case, following Sandoval v. Garin,[21] in the
amount of P10,000.00.

WHEREFORE, the respondent Judge Joaquin M. Murillo,

Presiding Judge of the Regional Trial Court of Medina,
Misamis Oriental, Branch 26, is found LIABLE for gross
ignorance of the law in connection with the unjust dismissal of
Criminal Case No. 1401-M (2000). He is ORDERED to pay the
fine of Ten Thousand Pesos (P10,000) and ADMONISHED to
be more circumspect in the performance of his judicial duties
and functions. He is further warned sternly that a repetition of
the same or similar offense would be dealt with more severely.
SO ORDERED.

EN BANC
[G.R. No. 140895. July 17, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. ALMA BISDA
y GAUPO and GENEROSA JENNY ROSE BASILAN
y PAYAN, appellants.
DECISION
PER CURIAM:
Before this Court on automatic review is the Decision [1] of
the Regional Trial Court (RTC) of Marikina City, Branch 272,
convicting appellants Alma Bisda and Generosa Jenny Rose
Basilan, of kidnapping for ransom; sentencing each of them to
the extreme penalty of death by lethal injection, and ordering
them to indemnify the parents of the victim Angela Michelle
Soriano the amount of P100,000 as moral damages, and to
pay the costs of the suit.
The Case
In an Amended Information docketed as Criminal Case
No. 98-2647-MK, the appellants were charged with the felony
of kidnapping for ransom committed as follows:
That on or about the 3rd of September 1998, in the City of
Marikina, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and helping one another, did there and then
willfully, unlawfully, feloniously and knowingly kidnap, detain
and deprive ANGELA MICHELLE SORIANO y SAN JUAN of
her liberty for six (6) days for the purpose of extorting ransom
from her/or her family.
Contrary to law.[2]
When arraigned, the appellants, assisted by counsel,
entered separate pleas of not guilty.[3]
The Evidence for the Prosecution[4]
William Soriano, a training consultant by profession, and
his wife Marymae Soriano, had two children: Kathleen Denise
and Angela Michelle. They rented a house at No. 5 Col. Divino
St., Concepcion, Marikina. Their landlady who lived nearby

had a telephone with number 942-49-18. [5] During the school

year 1997-1998, then five-year-old Angela was in Prep at the
Mother of Divine Providence School in Marikina Heights,
Marikina City. The couple employed Lea and Wendy
Salingatog as the yayas of their children. Angela met appellant
Jenny Rose Basilan when the latter visited her niece Wendy in
the Soriano residence. Jenny Rose was, thus, no stranger to
Angela.
About 11:00 a.m. on September 3, 1998, Angelas classes
had just ended and she was on her way to her school bus
which was parked outside the school campus near the exit
gate. She was in her school uniform and wore black
shoes. Unknown to Angela, appellants Alma and Jenny Rose
were outside of the school gate waiting for her. When they saw
Angela, Alma and Jenny Rose proceeded to the gate and
showed a visitors gate pass to the security guard. They
approached the young girl, and told her that her parents were
waiting for her at the Jollibee Restaurant. Angela initially
refused to go with the two women, but because Alma held on
to her hand so tightly and poked a knife at her, Angela had no
choice but to go with them. They rode a tricycle and went to
the Jollibee Restaurant where Jenny Rose ordered spaghetti
for Angela. When Angela did not see her parents, she
wondered why she went with Jenny Rose and Alma in the first
place. With Angela in tow, Alma and Jenny Rose boarded a
white taxi and went to a dirty house where they changed
Angelas clothes. The girl was made to wear blouse and shorts,
yellow t-shirt and a pair of panties.[6] Alma and Jenny Rose
took her earrings. They fed her with the spaghetti they earlier
bought at the restaurant. Alma then left, leaving Angela and
Jenny Rose in the house.
Jenny Rose sent Angela to sleep, and after a while, Alma
returned. When Angela woke up, Alma and Jenny Rose served
her merienda and allowed her to watch television. Henceforth,
Angela was kept in the house. At one time, Alma and Jenny
Rose tied up Angelas hands and feet, and placed scotch tape

on her mouth. Angela was sometimes left alone in the house

but the door was kept locked. To pass the time, Angela
watched television and made drawings. Jenny Rose and Alma
did not fail to feed and bathe Angela. Angela did not call her
parents through the telephone number of their landlady.
In the meantime, when William arrived home shortly
before noon on that day, Lea and Wendy told him that Angela
had not yet arrived home from school. He rushed to the school
to fetch Angela, but was informed by the school security guard
that his daughter had already been picked up by two women,
one of whom was registered in the visitors slip as Aileen
Corpuz. Because he did not know anyone by that name,
William immediately proceeded to the registrars office to verify
the information, only to find out that Aileen Corpuz had earlier
inquired at the said office about the possibility of transferring
Angela to another school. The school staff panicked when
William demanded to know how unknown persons were able
to get his daughter.He then started calling his friends and
relatives to help him locate Angela. He also sought the help of
Rizza Hontiveros, a TV personality who promised to relay his
plea to the Presidential Anti-Organized Crime Task Force
(PAOCTF). The school staff also reported the incident to the
Marikina Police Force which dispatched a team of
investigators to the Soriano residence.[7]
When apprised of the incident, the PAOCTF organized a
team headed by then Chief Inspector Ricardo Dandan with
SPO4 Tito Tuanggang, SPO1 Charles Larroza and civilian
agent George Torrente, as members, to conduct surveillance
operations and to recover the victim and arrest the culprits.
The team proceeded to the Soriano residence and to Angelas
school to conduct an initial investigation.
At about 6:00 a.m. on September 4, 1998, Williams
landlady went to his apartment to tell him that a lady had
called up earlier and left a message for him: Pakisabi na lang
kay Mr. Soriano na kakausapin ko siya bukas ng
umaga. When the landlady asked who the caller was, the

voice replied, Hindi na importante iyon.[8] William thereafter

convinced his landlady to have her telephone set transferred
to his residence to facilitate communication with his daughters
abductors.[9]
Shortly before midnight that same day, George arrived at
the Soriano residence and asked William if the kidnapper had
already made contact. William responded that a woman had
earlier called, through his landlady. George then instructed
William to prolong the conversation should the kidnapper call
again, to enable the agents to establish the possible location
of the caller.[10]
On September 5, 1998 at around 9:25 p.m., William
received a call from an unidentified woman who told
him, Kung gusto mo pang makita yong anak mo, maghanda
ka ng five million pesos. He replied, Saan naman ako kukuha
ng five million? Alam mo naman na nakatira lang ako
sa apartment. The caller said, Hindi ko masasagotyan.
Tatanungin ko na lang sa aking mga boss. William informed
George of his conversation with the caller. George relayed the
information by means of a hand-held radio to the other
PAOCTF operatives standing by.[11]
On September 7, 1998, at about 11:25 a.m., Marymae
received a telephone call from a woman demanding for
ransom money. The caller called two more times, at 7:00 p.m.
and at 9:26 p.m. Marymae pleaded with the caller to reduce
the ransom money to P25,000, or if that was not possible, to
an amount not exceeding P50,000. The caller said, Hindi ko
masasagot iyan. Dadaihin na lang namin ang bata sa boss
namin. Marymae relayed the conversation to William, their
other daughter Kathleen and to George.[12]
At about noon that day, PAOCTF Chief of Operations
Superintendent Michael Ray Aquino received a call from an
anonymous source informing him that a woman who had
talked about a ransom and had acted in a suspicious manner
was spotted at the MSC Freight Service office located at No.
1303 Paz Street, Paco, Manila. Acting on the information,

Ricardo, Charles, Tito and other PAOCTF operatives swooped

down on the place and saw a woman, who turned out to be
Alma Bisda, emerging from a small house at No. 1258 Paz
Street, some fifty meters or so away from the said office. She
had just bought food from an adjacent store at No. 1246 Paz
Street, Paco, Manila. Surveillance operations were thereafter
conducted.
At about 3:40 p.m. on September 8, 1998, George and
Charles were at the Soriano residence. Ricardo and Tito were
in the periphery of Almas house, monitoring her whereabouts
and movements. Alma again left her house and after locking
the door, went to the small store nearby. She lifted the
telephone and called someone. The telephone in the Soriano
residence rang. When William lifted the receiver, he heard a
voice similar to that of the woman who had called him the first
time. The caller was asking where the money was. William told
her that the P25,000 was ready, to which she replied, Hindi ko
masasagot iyan, dadalhin na lang namin ang bata sa aking
boss. William told the caller that he was willing to give P50,000
but pleaded that he be given ample time to produce the
money. The woman reiterated: Hindi ko masasagot iyan.[13]
Ricardo and Tito heard the sound of a car horn blowing
while Alma was using the telephone. Tito called up Charles
and inquired whether he (Charles) heard the same sound
while William was talking to the caller. After William hung up
the telephone, he told George that he could hear the horn off a
car blowing in the background. George then called up Ricardo
by phone and relayed the information. When George inquired
if Ricardo heard the sound of the horn of a car while Alma was
talking over the telephone, Ricardo replied in the affirmative.
The PAOCTF operatives concluded that Alma was the
kidnapper.
After making the call, Alma hung up the telephone and
returned to her house. The PAOCTF operatives followed.
When Alma unlocked the door to the house, the operatives
accosted her. She tried to escape, to no avail. Tito heard the

cry of a child coming from inside the house, pleading for

help: Tita ilabas mo ako![14] He rushed to the house and saw
the victim Angela. He then carried her outside to safety. The
agents searched the house for evidence and found a pair of
black shoes, a pair of panties, a yellow shirt, a set of blouse
and shorts with red, yellow and white stripes. The evidence
was placed in a plastic bag. [15] The victim and the suspects
were thereafter brought to the PAOCTF office for proper
documentation.
When informed that his daughter had already been
rescued, William rushed to the PAOCTF headquarters where
he and Angela were reunited. Angela identified Alma as her
kidnapper. When William asked Alma why she kidnapped
Angela and what she would do with the one-million-peso
ransom she was demanding, she replied: Kuya, wag kang
maghusga, pareho lang tayong biktima. When William asked
Alma: Biktima, saan? Alma replied: Ang anak ko, kinidnap din
nila.[16]
Chief Inspector Dandan turned over to Evidence
Custodian P02 Joseph Bagsao, the pieces of evidence
contained in a blue Shoe Mart (SM), plastic bag which the
operatives found in Almas house: a pair of black shoes, a pair
of panties, a yellow shirt, a set of white blouse and shorts with
red, yellow and white stripes, all of which were sized to fit a
child of 4 to 7 years of age.[17]
On October 19, 1998, an Information for kidnapping for
ransom was filed against Alma and Jane Doe.
On October 26, 1998, at around 11:00 a.m., Jenny Rose
arrived at the PAOCTF Headquarters in Camp Crame, and
proceeded to P02 Joseph Bagsaos office where she
announcedthat she was one of Almas cohorts. P02 Bagsao
took Jenny Roses fingerprints and entered the data in a
fingerprint index card.[18] Jenny Rose was thereafter placed in
a police line-up. Angela, who arrived at the PAOCTF office with
her father, identified Jenny Rose as one of her kidnappers.
Police Chief Inspector Atty. Aurelio C. Trampe, Jr., the Legal

and Investigation Division Chief of the PAOCTF, later referred

Jenny Rose to the Office of the City Prosecutor of Marikina
City, for preliminary investigation.[19]
The prosecutor later amended the Information by deleting
the name Jane Doe and substituting the name Jenny Rose
Basilan y Payan as the second accused.
Almas Evidence
Alma denied having kidnapped Angela for ransom. She
testified that she was married, and a resident of Block 38, Lot
38, G. Maliputo Street, Phase II, Area 4, Kaunlaran Village,
Navotas, Metro Manila. She was a businesswoman who ran a
local employment agency for household help. She was also
engaged
in
the
business
of
buying
and
selling palay grains. Her local employment agency was located
in Navotas. She had another office at No. 1258 Paz Street,
Paco, Manila, which served as a bodega for items she sent to
the province, as well as items she purchased. She had an
adopted daughter named Mary Rose, who, in September
1998, studied at Harris School in Antipolo. She had employed
Wendy Salingatog for a time as the yaya of her adopted
daughter. Alma was then residing in V. Luna Street, Quezon
City.
Alma employed Jenny Rose as secretary in her
employment agency. In payment for services rendered, Jenny
Rose was sent to school at the Lyceum of the Philippines to
study B.S. Business Administration. She was also given an
allowance.
In September 1998, Alma was looking for a school run by
nuns that would be willing to accept her adopted daughter in
the middle of the school year. Jenny Rose suggested the
Divine Providence School in Marikina City. In the morning of
September 3, 1998, Jenny Rose brought her to the said
school. They proceeded to the administration office where
Alma inquired if the school would allow her adopted daughter
to enroll. When Jenny Rose and Alma were about to leave, a
little girl, who turned out to be Angela, approached them and

asked what Jenny Rose was doing in her school. Jenny Rose
introduced Angela to Alma as her niece, and informed Alma
that she would be bringing Angela with her to her boarding
house in Espaa Street.
At that point, Alma asked Jenny Rose and Angela if they
wanted to eat. When they agreed, the three of them
proceeded to the Jollibee Restaurant near the Meralco office
in Marikina City. After eating, Alma bade them goodbye and
was about to leave for her office when Jenny Rose asked if
she and Angela could come along with her to Cubao. She
acceded to the request, and they rode a Tamaraw FX taxi.
Because Angela was getting sleepy, Alma offered to bring
them to Jennys boarding house in Espaa, and dropped them
off there. Alma thereafter proceeded to her office at 1258 Paz
St., Paco, Manila, where she had been holding office since
January 1997, and arrived thereat at about 2:00 p.m.
At or about 8:00 p.m. of the same day, Alma passed by
Jenny Roses boarding house to give her instructions on what
to do the following day. She saw Angela crying profusely. She
told Jenny Rose to bring Angela home, but Jenny Rose told
her that Angelas parents would be coming to fetch
her. Thinking that Angela was probably bored, Alma suggested
that they stay in her office in Paco so that they could watch
television while waiting for Angelas parents. Jenny Rose
agreed. They arrived at the said office at around 8:40 p.m.
Alma left at around 10:00 p.m. and went home to her rented
house in Palmera Homes, Antipolo, where she stayed until
September 6, 1998.
On September 7, 1998, at around 12:00 noon, Alma
arrived at her office in Paco, Manila, and found that Jenny
Rose and Angela were still there. Jenny Rose assured Alma
that Angela would be fetched by her parents. At around 4:00
p.m., Alma instructed Jenny Rose to go to the province to
collect some debts, Jenny Rose left for the province on the
same day. Alma stayed in the office because she was having

her menstrual period at the time and was not feeling well. She
took care of Angela while Jenny Rose was away.
The next day, September 8, 1998, Alma was still in her
office with Angela. At about 3:00 p.m., while she was watching
television with Angela, someone knocked at the door. When
she opened it, two male persons entered. One of them was
Inspector Ricardo Dandan who showed her a photograph of
Angela and asked if she knew the child. Alma answered in the
affirmative. Ricardo then asked her, Dont you know that this is
kidnapping? to which Alma replied, I do not know. She also
told Dandan that she did not know what was happening to her.
Suddenly, Alma was handcuffed. Angela cried and asked
Alma: What are they doing to you, Tita? She was brought to
Camp Crame where she was interrogated and detained. Alma
did not make any telephone calls that day. William, Marymae
and Angela arrived at Almas detention cell. When Angela saw
her, the girl tried to run to Alma but William held on to his
daughter. William asked Alma why she took Angela, Alma
replied that it was Jenny Rose who brought the girl along with
them. She told William that they were both victims.
Sometime on October 26, 1998, Jenny Rose visited Alma
to ask for forgiveness and to assume full responsibility for the
incident. Jenny Rose also informed her that she wanted to ask
forgiveness from the Sorianos so that she could finish her
schooling. It was only then that she realized what Jenny Rose
had done to her. Nevertheless, she still believed that Jenny
Rose was a good person. She advised her to go home and
continue with her studies.
When Angelas sworn statement was shown to her, Alma
noticed that Angela did not mention Jenny Rose as one of the
two persons who had kidnapped her. Alma executed a
handwritten statement denying the truth of the contents of
Angelas affidavit.[20]
Jenny Roses Evidence
Jenny Rose did not testify in her defense. She presented
Atty. Aurelio Trampe, Jr. as her witness who testified [21] that he

was the Legal and Investigation Division Chief of the PAOCTF.

On October 26, 1998, he interviewed Jenny Rose when the
latter surrendered to the task force. Jenny Rose insisted that
she wanted to help Alma and get all the blame for the
kidnapping. She wanted to admit her participation in the crime,
and volunteered the information that she and Alma kidnapped
Angela. Atty. Trampe, Jr. wrote a letter[22] to the Department of
Justice requesting for her inclusion in the ongoing preliminary
investigation. He believed that it would be more appropriate for
the prosecutor handling the case to investigate and determine
whether Jenny Rose was the Jane Doe referred to in the
complaint. Atty. Trampe, Jr. admitted, however, that aside from
the voluntary surrender of Jenny Rose, he did not have any
other evidence to include her as one of the suspects in the
case. Further, he did not provide a lawyer for Jenny Rose
because he did not intend to conduct an exhaustive
interrogation, and he knew that even if she admitted her
participation, the statement would not be admitted as
evidence.[23]
Jenny Rose adduced in evidence the letter of Atty.
Trampe, Jr. to prove that she voluntarily surrendered and that
there was lack of evidence against her.
On September 16, 1999, the trial court rendered
judgment, the decretal portion of which reads:
WHEREFORE, foregoing premises considered, the accused
ALMA BISDA y GAUPO and GENEROSA BASILAN y PAYAN
are hereby found GUILTY beyond reasonable doubt of the
crime of Kidnapping for Ransom penalized under Article 267 of
the Revised Penal Code, as amended by RA 7659 and is
sentenced to suffer the extreme penalty of DOUBLE DEATH
by lethal injection, the two accused having conspired in the
commission thereof. They are further ordered to pay solidarily
the parents of the victim the amount of P100,000.00 as moral
damages, and costs of the suit.
SO ORDERED.[24]

The assigned errors ascribed by the appellants to the trial

court may be synthesized, thus: (a) the trial court erred in
convicting the appellants of kidnapping; (b) the trial court erred
in sentencing the appellants to double death.[25] The Court will
delve into and resolve the issues simultaneously.
The prosecution adduced
proof beyond reasonable
doubt that the appellants
kidnapped the victim.
The appellants aver that the prosecution failed to muster
proof, beyond reasonable doubt that, they kidnapped and
illegally detained Angela. Angela in fact voluntarily went with
them, and she was free to roam around the house, and to call
her parents through the telephone of their landlady which
Angela knew by heart.
There is no proof beyond reasonable doubt that the
appellants conspired to kidnap Angela. Appellant Bisda avers
that she is guilty only of slight illegal detention under Article
268 of the Revised Penal Code because (a) Angela stayed in
her office for only three days; and (b) the circumstance of a
female offender and a female offended party is not one of
those included in the definition of kidnapping or serious illegal
detention under Article 267 of the RPC.
The trial courts reliance on Angelas testimony is
misplaced because the records do not show that Angela had
the capacity to distinguish right from wrong when she testified
in open court. The appellants point out that she was merely six
years old at the time. Although Angela took an oath before she
testified, the trial judge failed to ask any questions to
determine whether or not she could distinguish right from
wrong, and comprehend the obligation of telling the truth
before the court. Hence, one of the standards in determining
the credibility of a child witness was not followed. There is,
thus, a veritable doubt that Angela told the truth when she
testified.

Moreover, Angelas testimony is, besides being

inconsistent on material points, contrary to ordinary human
experience. Angela did not shout or cry when she was forced
to leave the school premises and brought to the Jollibee
Restaurant. Angela could have easily sought help from the
security guard at the exit gate of the school and from the
customers in the restaurant, or even from the tricycle and taxi
drivers; but Angela did not. Angela even admitted that she
voluntarily went with the appellants. She did not cry while
detained in the office of appellant Bisda, and even admitted
that it was only that time when she was rescued that she cried.
The conduct of Angela, the appellants insist, is contrary to
ordinary human experience, knowledge and observation. By
her own admission in her sworn statement[26] to the PAOCTF
agents, Angela was assisted by her parents while she was
giving the said statement. This raised doubts as to the veracity
of her testimony.
The contentions of the appellants are bereft of merit.
Article 267 of the Revised Penal Code as amended by
Republic Act No. 7659 reads:
ART. 267. Kidnapping and serious illegal detention. Any
private individual who shall kidnap or detain another, or in any
other manner deprive him of his liberty, shall suffer the penalty
of reclusion perpetuato death.
I. If the kidnapping or detention shall have lasted more than
three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been
inflicted upon the person kidnapped or
detained, or if threats to kill him shall have been
made.
4. If the person kidnapped or detained shall be a
minor, except when the accused is any of the
parents, female or a public officer.
The penalty shall be death where the kidnapping or detention
was committed for the purpose of extorting ransom from the

victim or any other person, even if none of the circumstances

above-mentioned were present in the commission of the
offense.
When the victim is killed or dies as a consequence of the
detention or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be imposed.
(As amended by RA No. 7659).[27]
For the accused to be convicted of kidnapping or serious
illegal detention, the prosecution is burdened to prove beyond
reasonable doubt all the elements of the crime, namely, (1) the
offender is a private individual; (2) he kidnaps or detains
another, or in any manner deprives the latter of his liberty; (3)
the act of detention or kidnapping must be illegal; and (4) in
the commission of the offense any of the following
circumstances is present: (a) the kidnapping or detention lasts
for more than three days; (b) it is committed by simulating
public authority; (c) any serious physical injuries are inflicted
upon the person kidnapped or detained or threats to kill him
are made; or (d) the person kidnapped or detained is a minor,
female, or a public officer.[28] If the victim of kidnapping and
serious illegal detention is a minor, the duration of his
detention is immaterial. Likewise, if the victim is kidnapped and
illegally detained for the purpose of extorting ransom, the
duration of his detention is immaterial.[29] The word female in
paragraph 1(4) of Article 267 of the Revised Penal Code refers
to the gender of the victim and not of the offender.
The essence of the crime of kidnapping is the actual
deprivation of the victims liberty under any of the abovementioned circumstances, coupled with indubitable proof of
intent of the accused to effect the same. [30] There must be a
purposeful or knowing action by the accused to forcibly
restrain the victim because taking coupled with intent
completes the offense.[31]Kidnapping which involves the
detention of another is by its nature a continuing crime.[32]
The victims lack of consent is also a fundamental element
of kidnapping. The involuntariness of the seizure and detention

is the very essence of the crime.[33] The general rule is that the
prosecution is burdened to prove lack of consent on the part of
the victim. However, where the victim is a minor especially if
she is only five years old, lack of consent is presumed. She is
incompetent to assent to seizure and illegal detention.[34] In this
case, Angela was merely five years old when she was
kidnapped; thus incapable of giving consent. The consent of
such child could place the appellants in no better position than
if the act had been done against her will. The appellants
cannot rely on Angelas initial willingness to go along with them
to the restaurant. As Judge Shepherd stated in State v.
Chisenhall:[35]
It is clear that the consent of the child, obtained by means of
persuasion, is no defense, since the result of such persuasion
is just as great an evil as if it had been accomplished by other
means.
A kidnapper should not be rewarded with an acquittal
simply because she is ingenious enough to conceal her true
motive from her victim until she is able to transport the latter to
another place.
Although Angela was free to roam around in the dirty
house, to draw and to watch television during the entire period
of her detention, and was regularly fed and bathed, the
appellants are nevertheless guilty of kidnapping and illegally
detaining the five-year-old child. As Judge McGill of the United
States Court of Appeals said in United States v. McCabe[36],to
accept a childs desire for food, comfort as the type of will or
consent contemplated in the context of kidnapping would
render the concept meaningless.
In People v. Baldogo,[37] this Court held that illegal serious
detention under Article 267 of the Revised Penal Code as
amended, includes not only the imprisonment of a person but
also the deprivation of her liberty in whatever form and for
whatever length of time. It includes a situation where the victim
cannot go out of the place of confinement or detention or is
restricted or impeded in his liberty to move. [38] In this case, the

door to the office of appellant Bisda was locked while Angela

was detained therein. Even if she wanted to escape and go
home, Angela, at her age, could not do so all by herself.
During the period of her confinement, Angela was under the
control of the appellants. The helpless child was waiting and
hoping that she would be brought home, or that her parents
would come and fetch her.
The prosecution adduced proof beyond reasonable doubt
that the appellants conspired to kidnap and illegally detain
Angela. The appellants testimonies even buttressed the
testimonies of both the victim and the other witnesses for the
prosecution.
Article 8 of the Revised Penal Code provides that there is
conspiracy when two or more persons agree to commit a
felony and decide to commit it. [39] In People v. Pagalasan,
[40]
this Court held that conspiracy need not be proven by direct
evidence. It may be inferred from the conduct of the accused
before, during and after the commission of the crime, showing
that they had acted with a common purpose and design.
[41]
Conspiracy may be implied if it is proved that two or more
persons aimed by their acts towards the accomplishment of
the same unlawful object, each doing a part so that their
combined acts, though apparently independent of each other
were, in fact, connected and cooperative, indicating a
closeness of personal association and a concurrence of
sentiment. Conspiracy once found, continues until the object of
it has been accomplished unless abandoned or broken up.
[42]
To hold an accused guilty as a co-principal by reason of
conspiracy, he must be shown to have performed an overt act
in pursuance or furtherance of the complicity.[43] There must be
intentional participation in the transaction with a view to the
furtherance of the common design and purpose.[44]
Each conspirator is responsible for everything done by his
confederates which follows incidentally in the execution of a
common design as one of its probable and natural
consequences even though it was not intended as part of the

original design.[45] Responsibility of a conspirator is not

confined to the accomplishment of a particular purpose of
conspiracy but extends to collateral acts and offenses incident
to and growing out of the purpose intended.[46] Conspirators
are held to have intended the consequences of their acts and
by purposely engaging in conspiracy which necessarily and
directly produces a prohibited result, they are, in contemplation
of law, chargeable with intending that result. [47] Conspirators
are necessarily liable for the acts of another conspirator unless
such act differs radically and substantively from that which
they intended to commit.[48] As Judge Learned Hand put it
in United States v. Andolscheck,[49]when a conspirator embarks
upon a criminal venture of indefinite outline, he takes his
chances as to its content and membership, so be it that they
fall within the common purposes as he understands them.
The appellants enveigled Angela into going with them by
telling her that her parents were waiting for her at the Jollibee
Restaurant. Appellant Bisda poked a knife at Angela and held
her hands so tightly that the helpless child had no recourse but
to come along. The appellants transported Angela on board a
taxi and brought her to Cubao, and then to appellant Bisdas
office at No. 1258 Paz St., Paco, Manila. The appellants tied
her hands, covered her mouth with scotch tape, and detained
her from September 3, 1998 until September 8, 1998, when
she was providentially rescued by the operatives of the
PAOCTF.
The collective, concerted and synchronized acts of the
appellants before, during and after the kidnapping and the
illegal detention of Angela constitute indubitable proof that the
appellants conspired with each other to attain a common
objective, i.e., to kidnap Angela and detain her illegally. The
appellants are thus principals by direct participation in the
kidnapping of Angela and illegally detaining her.
Appellant Basilan cannot escape conviction for the crime
charged on her barefaced claim that she merely accompanied
appellant Bisda to the latters office with the victim in tow. The

records show that the appellant presented as her sole witness

Atty. Aurelio Trampe, Jr., then PAOCTF Legal and
Investigation Division Chief, who testified that when she
surrendered to him, the appellant admitted that she and
appellant Bisda had kidnapped Angela:
ATTY. SALAMERA:
This court would like to be cleared (sic). Did she
admit to you the condition of the alleged
kidnapping on September 3, 1998?
WITNESS:
She volunteered that statement that she was together
with Ms. Alma Besda (sic) kidnap (sic) Angela
Michelle Soriano.[50]
The appellants contention that the prosecution failed to
establish that Angela understood the nature of an oath and the
need for her to tell the truth must fail.
Section 1, Rule 132 of the Revised Rules of evidence
provides that the examination of witnesses shall be under oath
or affirmation:[51]
SECTION 1. Examination to be done in open court. The
examination of witnesses presented in a trial or hearing shall
be done in open court, and under oath or affirmation. Unless
the witness is incapacitated to speak, or the question calls for
a different mode of answer, the answers of the witness shall
be given orally. (1a).[52]
An oath is defined as an outward pledge, given by the
person taking it that his attestation or promise is made under
an immediate sense of his responsibility to God. [53] The object
of the rule is to affect the conscience of the witness and thus
compel him to speak the truth, and also to lay him open to
punishment for perjury in case he willfully falsifies. [54] A witness
must be sensible to the obligation of an oath before he can be
permitted to testify.[55] It is not, however, essential that he
knows how he will be punished if he testify falsely.[56] Under
modem statutes, a person is not disqualified as a witness
simply because he is unable to tell the nature of the oath

administered to a witness.[57] In order that one may be

competent as a witness, it is not necessary that he has a
definite knowledge of the difference between his duty to tell
the truth after being sworn and before, or that he be able to
state it, but it is necessary that he be conscious that there is a
difference.[58] It cannot be argued that simply because a child
witness is not examined on the nature of the oath and the
need for her to tell the whole truth, the competency of the
witness and the truth of her testimony are impaired. If a party
against whom a witness is presented believes that the witness
is incompetent or is not aware of his obligation and
responsibility to tell the truth and the consequence of him
testifying falsely, such party may pray for leave to conduct
a voire dire examination on such witness to test his
competency.[59] The court may motu proprio conduct the voir
dire examination. In United States v. Buncad,[60] this Court held
that when a child of tender age is presented as a witness, it is
the duty of the judge to examine the child to determine his
competency. In Republic v. Court of Appeals,[61] this Court held
that:
[W]hen a witness is produced, it is a right and privilege
accorded to the adverse party to object to his examination on
the ground of incompetency to testify. If a party knows before
trial that a witness is incompetent, objection must be made
before trial that a witness is incompetent, objection must be
made before he has given any testimony; if the incompetency
appears on the trial, it must be interposed as soon as it
becomes apparent.[62]
The competency of a person to take the prescribed oath is
a question for the trial court to decide.[63]
If a party admits proof to be taken in a case without an
oath, after the testimony has been acted upon by the court,
and made the basis of a judgment, such party can no longer
object to the admissibility of the said testimony.[64] He is
estopped from raising the issue in the appellate court. This

was the ruling of this Court in Republic v. Court of Appeals,

[65]
thus:
Simply put, any objection to the admissibility of evidence
should be made at the time such evidence is offered or as
soon thereafter as the objection to its admissibility becomes
apparent, otherwise the objection will be considered waived
and such evidence will form part of the records of the case as
competent and admissible evidence. The failure of petitioner to
interpose a timely objection to the presentation of Divinaflors
testimony results in the waiver of any objection to the
admissibility thereof and he is therefore barred from raising
said issue on appeal.
In this case, Angela was six years old when she testified.
[66]
She took an oath to tell the truth, the whole truth and
nothing but the truth before she testified on direct examination.
There wasnary a whimper of protest or objection on the part of
the appellants to Angelas competence as a witness and the
prosecutions failure to propound questions to determine
whether Angela understood her obligation and responsibility of
telling the truth respecting the matter of her testimony before
the court. The appellants did not even bother requesting the
trial court for leave to conduct a voir dire examination of
Angela. After the prosecution terminated its direct examination,
the appellants thereafter cross-examined Angela extensively
and intensively on the matter of her testimony on direct
examination. It was only in this Court that the appellants raised
the matter for the first time, that there was failure on the part of
the prosecution to examine Angela on the nature of her oath,
and to ascertain whether she had the capacity to distinguish
right from wrong. It is too late in the day for the appellants to
raise the issue.
The determination of the competence and capability of a
child as a witness rests primarily with the trial judge. [67] The trial
court correctly found Angela a competent witness and her
testimony entitled to full probative weight. Any child regardless
of age, can be a competent witness if she can perceive and

perceiving, can make known to others, and that she is capable

of relating truthfully facts for which she is examined.
[68]
In People v. Mendiola,[69] this Court found the six-year-old
victim competent and her testimony credible. Also in Dulla v.
Court of Appeals,[70] this Court gave credence to the testimony
of a three-year-old victim. It has been the consistent ruling of
the Court that the findings of facts of the trial court, its
calibration of the testimonies of witnesses and its assessment
of the probative weight thereof, as well as its conclusions
anchored on said findings are accorded by the appellate
courts high respect if not conclusive effect absent clear and
convincing evidence that the trial court ignored, misconstrued,
or misinterpreted cogent facts and circumstances which if
considered warrants a reversal or modification of the outcome
of the case.[71] In this case, the Court finds no basis to deviate
from the findings and conclusions of the trial court on the
competency of Angela, and the probative weight of her
testimony.
Appellants must come to grips with case law that
testimonies of child victims are given full weight and credit.
The testimony of children of sound mind is likewise to be more
correct and truthful than that of older persons. [72] In People vs.
Alba,[73] this Court ruled that children of sound mind are likely
to be more observant of incidents which take place within their
view than older persons, and their testimonies are likely more
correct in detail than that of older persons. Angela was barely
six years old when she testified. Considering her tender years,
innocent and guileless, it is incredible that Angela would testify
falsely that the appellants took her from the school through
threats and detained her in the dirty house for five days.
In People v. Dela Cruz,[74] this Court also ruled that ample
margin of error and understanding should be accorded to
young witnesses who, much more than adults, would be
gripped with tension due to the novelty and the experience in
testifying before the trial court.

The credibility of Angela and the verisimilitude of her

testimony is not impaired by her failure to shout for help when
the appellants took her, or to make any attempt to call her
parents or to escape from her captors and to use the
telephone to call her parents. At five years old, she could not
be expected to act and react to her kidnapping and detention
like an adult should. She did not shout and seek help from the
school security guards because the appellants told Angela that
her parents were waiting for her. Appellant Basilan was the
niece of Angelas yaya.She then believed that nothing was
amiss. It was only when she failed to see her parents that
Angela blamed herself for going with the appellants in the first
place.
Atty. Laracas:
Now, they told you that your parents were at
Jollibee. When you did not see your parents,
what did you do?
Witness:
I told myself, why did I go with them.
Atty. Laracas:
So you just told that to yourself?
Witness:
Yes, maam.
Atty. Laracas:
So initially, Angela, you are not blaming yourself
when you went with Jenny Rose?
Witness:
Yes, maam.[75]
The evidence on record shows that appellant Bisda poked
a knife at Angela and her hands were held tightly by the
appellants as they proceeded to the restaurant from the
school. Although the Soriano spouses were by Angelas side
when the latter gave her sworn statement[76] in the PAOCTF
office, there is no showing on record that the spouses ever
influenced their daughter to prevaricate. Significantly, the

appellants counsel did not even cross-examine Angela on her

sworn statement.
In this case, appellant Bisda asserts that Angelas
testimony contains four inconsistencies on material points;
hence, is incredible. First, Angela testified on crossexamination that the appellants approached her but she did
not talk to them.[77] In contrast, Angela testified on crossexamination that she saw appellant Basilan, and talked to her.
[78]
Second, Angela testified on direct examination that she first
came to know the identities of the kidnappers when she was
brought to the dirty house.[79] Angela contradicted herself when
she testified on cross-examination that when she was brought
to the said house, she already knew appellant Basilan.
[80]
Third, Angela testified on direct examination that she went
with the appellants to the Jollibee Restaurant when they held
her hands firmly.[81] On cross-examination, Angela testified that
the appellants threatened her when they kidnapped her by
pointing a knife at her which made her cry.[82] Angela further
contradicted herself when she testified on direct examination
that the appellants pointed a knife at her one night.[83] Fourth,
Angela said that when she was in the office of appellant Bisda
in Paco, Manila, her feet were tied and her mouth was covered
with scotch tape.[84] However, on cross-examination, Angela
revealed that she was free to roam around and even watched
television and made drawings.[85]
Anent the first and second set of inconsistencies adverted
to by the appellants, the same pertain only to minor and
peripheral matters and not to the principal occurrence or the
elements of the crime charged, and the positive identification
of the appellants. Hence, the credibility of Angela, and that of
her testimony were not impaired by the said inconsistencies.
[86]
The inscrutable fact is that the appellants took the victim
from the school and detained her at the office of appellant
Bisda at No. 1258 Paz St., Paco, Manila, until she was
rescued. Whether or not Angela talked with the appellants as
she was being brought to the restaurant or that she came to

know of the identities of the kidnappers before or when she

was brought to the dirty house, are inconsequential. The
overwhelming evidence on record is that no other than the
appellants kidnapped her from her school and illegally
detained her from September 3 to 8, 1998. Indeed, when
asked to point and identify her kidnappers, Angela did so
spontaneously and positively.[87]
Pros. Junio:
If you see... this Alma Besda (sic), if you will be
able to see her again, if you see her again, will
you be able to recognize her?
Witness:
Yes, maam.
Pros. Junio:
Will you point to her.
(The witness is pointing to a lady, seated at the
second from the left at the corner at the last
seat.)
Court:
Identify yourself.
(The person pointed to, stood up and identified
herself as Alma Besda [sic]).
Pros. Junio:
What about Jenny Rose, will you be able to
recognize her?
Witness:
Yes, maam.
Pros. Junio:
You point to her Angel.
(The witness is pointing to the first lady seated on the
left side)
Court:
Stand up and identify yourself.
The lady stood up and identified herself as Jenny
Rose Basilan.[88]

Appellant Basilan did not controvert the evidence of the

prosecution that she was the niece of the yaya of the victim,
and that the said appellant, at one time, went to the Soriano
residence where Angela saw and met her. The victim was,
thus, acquainted with appellant Basilan even before the
kidnapping.
Angela testified on direct examination, thus:
Atty. Junio:
So when Alma and Jenny Rose told you that
Mommy and Daddy were at Jollibee, what did
you do?
Witness:
I did not want to go with them but they held me
firm.
Pros. Junio:
What part of the body did they hold firmly?
Witness:
My hands.
Pros. Junio:
After Alma and Jenny Rose held your hand firmly,
what did, where did you go?
Witness:
To Jollibee.[89]
Angela was not asked by the public prosecutor whether or
not the appellants threatened her with any weapon before
proceeding to the Jollibee Restaurant. The additional fact was
revealed by Angela, ironically, on cross-examination:
Atty. Salamera:
Now, were you threatened on September 3 at
around eleven in the morning when both accused
allegedly abducted you?
Witness:
Yes, sir.
Atty. Salamera:
There are two accused, who threatened you?
Witness:

They pointed knife against me.

Atty. Salamera:
Who pointed the knife upon your person?
Witness:
Alma, sir.
Atty. Salamera:
Did you cry?
Witness:
Yes, sir.
Atty. Salamera:
Did you also cry inside the Jollibee?
Witness:
No, sir.
Atty. Salamera:
Was Alma still holding a knife at the Jollibee?
Witness:
No, sir.[90]
The prosecutor tried on re-direct to take advantage of
Angelas revelation but the appellants counsel, realizing that he
had just committed a faux pas, objected to the questions of the
public prosecutor. It turned out that the latter was himself
confused because instead of adverting to a knife, as testified
to by Angela, he blurted that appellant Bisda used a gun in
intimidating the victim. Even Angela must have been
bewildered by the repartees of the prosecution and the
appellants counsel such that, instead of answering one time,
to the questions of the prosecutor, she said one night.
Redirect:
Pros. Junio:
Angel, how many times did Alma and Jenny
Rose point a knife at you?
Atty. Salamera:
Objection. Improper at this point in time. First it
was not covered.
Pros. Junio:
How many times did Alma point a gun?

Atty. Salamera:
Knife, your Honor.
Pros. Junio:
It was covered on cross.
Court:
Objection denied. Overruled. Witness may answer.
Witness:
One night.[91]
There was, thus, no inconsistency in Angelas testimony
on this point.
Angelas hands were tied, and her mouth was covered
with scotch tape the day after she was brought to the dirty
house. Angela testified on direct examination, thus:
Pros. Junio:
Okay, where did you go?
Witness:
To the dirty house.
Pros. Junio:
Who was with you or who were with you at that
time?
Witness:
Alma Besda (sic) and Jenny Rose, maam.
Pros. Junio:
Where is this dirty house located?
Witness:
I do not know, maam.
Pros. Junio:
Upon arriving at that dirty house, what did you do?
Witness:
They changed my clothes once.
Pros. Junio:
Do you remember the color of the dress?
Witness:
No, maam.
Pros. Junio:

After they changed your dress or your clothes,

what happened next? What did they do to you?
Witness:
They fed me, maam.
Pros. Junio:
After they fed you, what did you do?
Witness:
They send (sic) me to sleep.
Pros. Junio:
When you woke up, what did they do to you?
Witness:
They fed me (pinamiryenda) (sic)
Pros. Junio:
After you ate your miryenda (sic) what else did
they do to you?
Witness:
They allowed me to watch tv, maam.
Pros. Junio:
What about your hands, your mouth, what did they
do?
Witness:
They tied my hands.
Pros. Junio;
And your mouth?
Witness:
It was sealed with scotch tape.
Pros. Junio;
And your feet?
Witness:
They were also tied, maam.
Pros. Junio:
Who tied your hands?
Witness:
The two of them, maam.
Pros. Junio:
Will you mention their names again?

Witness:
Alma Besda (sic) and Jenny Rose.[92]
On cross-examination, Angela testified that on the day she
was rescued, she could watch the television, make drawings
and roam around the room:
Atty. Larracas:
You did . . . At that time you were allegedly
rescued, Jenny Rose was not at the place where
you were rescued?
Witness:
She was not there, maam.
Atty. Larracas:
All along you were watching tv (sic) at the place
where you were taken?
Witness:
Only once, maam.
Atty. Larracas:
And when you were not watching tv (sic), what
were you doing Angela in that dirty house?
Witness:
I was drawing, maam.
Atty. Larracas:
So you watched tv once and the rest of the time
you were drawing?
Witness:
Yes, maam.
Atty. Larracas:
Of course, you cannot draw if your hands were
tied, Angela?
Witness:
Yes, mam.
Atty. Larracas:
So your hands were not tied?
Witness:
No, maam.
Atty. Larracas:

You can move along freely at that time?

Witness:
Yes, maam.
Atty. Larracas:
You can walk?
Witness:
Yes, maam.
Atty. Larracas:
You can drink?
Witness:
Yes, maam.
Atty. Larracas:
Of course, you cannot walk if your feet were
tied and cannot drink if your mouth was sealed?
Witness:
Yes, maam.
Atty. Larracas:
When the police arrived, what were you doing?
Witness:
I cried, maam.[93]
It is not quite clear whether the counsel for the appellants were
asking about Angelas activities during her detention, or during
her rescue. Taking into account Angelas answers, it is evident
that her hands were tied and her mouth covered with scotch
tape the day after she was kidnapped, but that she was free to
roam around the room, practice on her drawings and watch
television during the rest of the period of her detention.
PROPER PENALTIES
The appellants aver that the prosecution failed to prove
that in kidnapping and illegally detaining the victim, they
intended to demand ransom from her parents. William
Soriano, the victims father, failed to prove that the appellants
or any of them called through the telephone demanding
ransom. The collective testimonies of police operatives Tito
Tuanggang, Ricardo Dandan and George Torrente were
hearsay evidence; hence, barren of probative weight. The trial

court likewise failed to take into account the voluntary

surrender of appellant Basilan.
The Office of the Solicitor General, for its part, posits the
view that the prosecution mustered the requisite quantum of
evidence to prove that the appellants and no other demanded
ransom from the parents of the victim.
The appellants contention does not hold water. Admittedly,
the prosecution failed to adduce direct evidence that the
appellants demanded ransom for the release of the victim.
However, the prosecution adduced circumstantial evidence to
prove beyond reasonable doubt that the appellants, or at least
one of them, demanded ransom from the Soriano spouses for
the release of their daughter.
To warrant the imposition of the death penalty for the
crime of kidnapping and serious illegal detention for ransom,
the prosecution must prove beyond reasonable doubt: (a)
intent on the part of the accused to deprive the victim of his
liberty; (b) actual deprivation of the victim of his liberty; and (c)
motive of the accused, which is ransom for the victim or other
person for the release of the victim. The purpose of the
offender in extorting ransom is a qualifying circumstance which
may be proved by his words and overt acts before, during and
after the kidnapping and detention of the victim.[94] Neither
actual demand for nor actual payment of ransom is necessary
for the crime to be committed.[95] Ransom as employed in the
law is so used in its common or ordinary sense; meaning,
a sum of money or other thing of value, price, or consideration
paid or demanded for redemption of a kidnapped or detained
person, a payment that releases from captivity.[96] It may
include benefits not necessarily pecuniary which may accrue
to the kidnapper as a condition for the release of the victim.[97]
Circumstantial evidence is sufficient to prove the
qualifying circumstance if (a) there is more than one
circumstance; (b) the facts from which the inferences are
proven; (c) the combination of all the circumstances is such as
to produce a conviction beyond a reasonable doubt. The

circumstances proved should constitute an unbroken chain

which leads to one fair and reasonable conclusion pointing to
the accused to the exclusion of others as the one who
demanded ransom. The circumstances proved must be
consistent with each other, consistent with the hypothesis that
the accused is guilty, and that at the same time inconsistent
with any other hypothesis except that of guilty.[98] The
prosecution must rely on the strength of its evidence and not
on the weakness of that of the appellants.[99]
In this case, the chain of circumstantial evidence adduced
by the prosecution proves that no one other than the
appellants or one of them called up the spouses Soriano
through the telephone and demanded ransom of P5,000,000:
1. Appellant Basilan is the niece of Wendy Salingatog,
who was for a time the housemaid of appellant Bisda;
2. The appellants kidnapped Angela shortly before noon
on September 3, 1998, and detained her at No. 1258 Paz
Street, Paco, Manila, where appellant Bisda held office;
3. The following morning, William was informed by his
landlady that a woman had earlier called up over the
telephone requesting her to inform William that she (the
caller), would call again the next day, September 5, 1998;
4. On September 5, 1998, William received a telephone
call from a woman demanding a ransom of P5,000,000 for
Angelas freedom. When William complained that he did not
have the amount, she told William that she cannot be
responsible for it and that she would inquire from
her bosses. Williams testimony reads:
Pros. Junio:
And what did she tell you?
Witness:
She told me KUNG GUSTO MO PANG MAKITA
IYONG ANAK MO, MAGHANDA KA NG FIVE
MILLION PESOS.
Pros. Junio:
What did you told (sic) her if any?

Witness:
SAAN AKO KUKUHA NG FIVE MILLION PESOS?
ALAM MO NAMAN NA NAKATIRA LANG AKO
SA APARTMENT.
Pros. Junio:
What did she say?
Witness:
She answered, HINDI KO MASASAGOT YAN.
Pros. Junio:
Did she tell you why she could not respond to you?
Witness:
She continued to say TATANUNGIN KO
NA LANG SA AKING MGA BOSS.[100]
5. In the morning of September 7, 1998, Inspector Ricardo
Dandan and SPO4 Tito Tuanggang, acting on an anonymous
tip, rushed to the vicinity of No. 1303 Paz Street, Paco, Manila,
the office of the MSC Freight Service, to conduct surveillance
operations. Later in the afternoon, they saw appellant Bisda
emerging from a small house about fifty meters from the office
of the MSC Freight Service;
6. At about 3:40 p.m. on September 8, 1998, appellant
Bisda emerged from the house at No. 1258 Paz Street, and
went to the small store near the house. Chief Inspector
Dandan and Tito Tuanggang were about two meters from the
store and saw appellant Bisda enter the same, lift the
telephone and talk to someone over the telephone;
7. At about the same time, William received a telephone
call from a woman demanding where the money was and
when William replied that he was ready with P25,000, the
woman replied: Hindi ko masasagot iyan, dadalhin na lang
namin ang bata sa aking boss. When William intimated that he
could raise P50,000 but pleaded for more time to produce the
amount, the woman retorted: Hindi ko masasagot
iyan. Williams testimony reads:
Pros. Junio:

On September 8, 1998, at about 3:40 in the

afternoon, what happened if any?
Witness:
At around 3:40 in the afternoon of September 8, a
lady caller called again. I answered the
telephone.
Pros. Junio:
Who was this lady caller?
Witness:
I would say, my perception is it was the same lady
caller who called the first time I answered the
telephone.
Pros. Junio:
And what did she tell you?
Witness:
And she told me where is the money.
Pros. Junio:
And what did you tell her?
Witness:
And I also told her if its okey with you, my twentyfive is ready.
Pros. Junio:
Then what did she say?
Witness:
She said HINDI KO MASASAGOT IYAN,
DADALIN NA LANG NAMIN ANG BATA SA
AKING BOSS.
Pros. Junio:
What happened next after that?
Witness:
I would like to plead that I will make it fifty
thousand, just give me ample time.
Pros. Junio:
How did she react to your suggestion?
Witness:

HINDI KO MASASAGOT IYAN. Then she hanged

(sic) the phone.[101]
8. After making the telephone call, appellant Bisda left the
store and returned to the house at No. 1258 Paz Street, Paco,
Manila;
9. The operatives from the PAOCTF followed appellant
Bisda and confronted her before she could enter the house.
The operatives then barged into the premises of No. 1258 Paz
Street where they saw Angela in the room;
10. When William arrived at the PAOCTF office, with
Angela that day, he inquired from appellant Bisda why she
kidnapped Angela and what she would do with the P5,000,000
ransom she was demanding, and the appellant replied: Kuya,
wag (sic) kang nang maghusga, pareho lang tayong
biktima. When William asked Alma: Biktima, saan? The
appellant replied: Ang anak ko, kinidnap din nila.
In light of the foregoing facts, there can be no other
conclusion than that appellant Bisda demanded a ransom of
P5,000,000 from William Soriano; hence, she is GUILTY of
kidnapping for ransom. Being a conspirator, appellant Basilan
is also guilty of the said crime. The penalty for kidnapping for
ransom is death, a single and indivisible penalty. The
aggravating circumstance of use of a motor vehicle under
Article 14, paragraph 20 of the Revised Penal Code was
attendant in the commission of the crime. [102] However, said
circumstance, as well as the voluntary surrender of appellant
Basilan, are inconsequential in the penalties to be imposed on
the said appellants, conformably to Article 63 of the Revised
Penal Code.[103]
CIVIL LIABILITIES OF THE APPELLANTS
The trial court awarded P100,000 moral damages to the
spouses William and Marymae Soriano, the parents of the
victim. The trial court did not award any moral and exemplary
damages to the victim. The decision of the trial court has to be
modified. Under Article 2219, paragraph 7, of the New Civil
Code, moral damages may be awarded to a victim of illegal

arrest and detention. In this case, the appellants poked a knife

on the victim as they took her from the school. The appellants
also tied her hands, and placed scotch tape on her mouth. The
hapless victim was so shocked when operatives of the
PAOCTF barged into the office of appellant Bisda, and took
custody of the victim that she cried profusely. The victim
suffered trauma,mental, physical and psychological ordeal.
There is, thus, sufficient basis for an award of moral damages
in the amount of P300,000.[104] Since there were demands for
ransom, not to mention the use by the appellants of a vehicle
to transport the victim from the school to the Jollibee
Restaurant and to the office of appellant Bisda, the victim is
entitled to exemplary damages in the amount of P100,000.
[105]
Although the victim claims that the appellants took her
earrings, the prosecution failed to prove the value of the same.
IN LIGHT OF ALL THE FOREGOING, the Decision of the
Regional
Trial
Court
of
Marikina
City,
Branch
272, is AFFIRMED WITH MODIFICATION. The appellants,
Alma Bisda and Generosa Jenny Rose Basilan, are found
guilty beyond reasonable doubt of kidnapping for ransom
under paragraph 4 and the last paragraph of Article 267, of the
Revised Penal Code, and are sentenced to suffer the penalty
of death by lethal injection. The appellants are hereby directed
to pay jointly and severally to the victim Angela Michelle
Soriano the amount of P300,000 by way of moral
damages and P 100,000 by way of exemplary damages. Costs
against the appellants.
Three Justices of the Court maintain their position that
Rep. Act No. 7659 is unconstitutional insofar as it prescribes
the death penalty; nevertheless, they submit to the ruling of
the majority that the law is constitutional, and that the death
penalty can be lawfully imposed in the case at bar.
In
accordance
with
Section 25 of
Rep.
Act
No. 7659 amending Section 83 of the Revised Penal Code, let
the records of this case be forthwith forwarded, upon finality of

this Decision, to the Office of the President for possible

exercise of the pardoning power. Costs against the appellants.
SO ORDERED.

EN BANC
[G.R. No. 142930. March 28, 2003]
THE

PEOPLE OF THE
PHILIPPINES,
vs. KAKINGCIO CAETE, appellant.

appellee,

DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision [1] of
the Regional Trial Court of Leyte, Branch 36, in Criminal Case
No. 2523, convicting appellant of rape, imposing on him the
death penalty and ordering him to pay damages to the victim
in the amount of P50,000.

Evidence of the Prosecution

The spouses Paquito Caete and Sedaria Caete had three
children, one of whom was Alma, who was born on March 24,
1983. In 1986, the spouses decided to live separately. Sedaria
resided in Pook West, Cubala, Biliran, with some of her
children by Paquito. The latter decided to live in Basey, Samar,
and brought Alma with him. Thereafter, Paquito decided to live
with his older brother, Kakingcio Caete, and the latters
common-law wife, Alejandra Caete, whom Alma called Yaya
Alejandra, and their two children, five and four years old,
respectively, in Barangay Gayad, Capoocan, Leyte. After
some years, Paquito and Alma decided to return to and live in
Basey, Samar. In the meantime, Paquito became blind and a

paralytic. In January 1996, Kakingcio had Paquito and Alma

fetched from Basey, Samar, and brought to Barangay Gayad,
Capoocan, Leyte, to live with him and his family. By then, Alma
was already twelve years old. She noticed that her uncle
Kakingcio was nice and amiable to her.
On February 1, 1996, Alejandra visited her daughter in
Montebello, Kananga, Leyte, leaving behind Kakingcio and
their two young children and Paquito and Alma. At about 8:00
p.m., Alma was already asleep. Paquito was sleeping near her
feet. The house was dark. Momentarily, Alma was awakened
when she felt someone caressing her. When she opened her
eyes, she saw her uncle Kakingcio who was wearing a pair of
short pants but naked from waist up. He was beside her with
his left palm touching her forehead, down to her face, hand
and feet.She could smell liquor from his breath. He poked an
8-inch long knife on her neck and whispered to her: Ma, dont
tell your yaya because I will do something to you. Kakingcio
then removed his short pants, lifted her skirt and pulled down
her panties. He threatened to kill her if she made a
sound. Alma was terrified. Kakingcio then inserted his private
organ into Almas vagina and made a push and pull movement
of his body. Alma felt pain in her private part and could do
nothing but cry as Kakingcio ravished her. In the process,
Alma lost consciousness. When she regained consciousness,
it was already 6:00 in the morning of February 2, 1996. She
was weak and could hardly stand up. She noticed blood in her
vagina. By then, Kakingcio had already left the house. Alma
could do nothing but cry.
Kakingcio arrived back home after lunch time. Alma hid
from her uncle.

On February 3, 1996, at 8:00 in the evening, Alma was

asleep in the sala of their house. She was awakened when
she felt her pants being pulled down. She was aghast when
she saw Kakingcio beside her pulling down her pants. She
resisted and ran out of the house to escape from
Kakingcio. She rushed to the house of a neighbor Ka Caring to
whom Alma revealed that her uncle raped her and that he was
about to rape her again. Caring adviced Alma not to return to
their house. Alma slept in the house of Caring. Alma returned
to their house the next day, February 4, 1996. By then,
Kakingcio was no longer in the house.

Abdomen: normal

On February 5, 1996, Alejandra went up the hill to gather

camote tops. She was then armed with a bolo. Alma followed
Alejandra to the hills and revealed to her that Kakingcio raped
her on February 1, 1996. Alejandra was livid with rage. She
rushed back to the house and confronted Kakingcio with the
charge of Alma. Alejandra and Kakingcio quarreled. She
berated him for having taken advantage of his own flesh and
blood. She told him to leave the house. Kakingcio agreed on
the condition that he would bring his personal belongings with
him. After Kakingcio left, Alejandra accompanied Alma to the
barangay captain and complained against Kakingcio. The
Barangay Captain wrote a letter to the local police authorities
requesting assistance to Alejandra and Alma. On February 9,
1996, Dra. Bibiana A. Cardente, the Municipal Health Officer of
Capoocan, Leyte, examined Alma. The doctor prepared and
signed a medico-legal certificate on her examination of Alma
which contains her findings:

Cervix: pinkish, soft hymenal healed old lacerations at 6 oclock

and 9 oclock

Physical Examination Findings:

Breast: normal, no abrasions, no lacerations, no hematoma

Extremities: normal
Pelvic Examination: scanty pubic hair noted
External Genitalia: grossly normal
Internal & Speculum Examination Findings:
Introitus: non-parous, admits 2 fingers with slight difficulty

Discharges: scanty brownish discharges

Uterus: small
Adnexa: negative for masses and tenderness[2]
Alma was entrusted to the Lingap Center in Pawing Palo,
Leyte.
On April 26, 1996, an Information was filed with the
Regional Trial Court of Leyte, Branch 36, charging Kakingcio
with rape, thus:
That on or about the 1st day of February, 1996, in the
municipality of Capoocan, Province of Leyte, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, with deliberate intent and with lewd designs
and by use of force and intimidation then armed with the short
bladed weapon, did then and there wilfully, unlawfully and

feloniously have carnal knowledge with ALMA CAETE, a minor

(12 years old) against her will to her damage and prejudice.

and without any mitigating circumstance in the commission of

the crime.

CONTRARY TO LAW.[3]

In his appellants brief, appellant Kakingcio assails the

decision of the trial court contending that:

When arraigned on September 18, 1996, Kakingcio,

assisted by counsel, pleaded not guilty to the crime charged.
When he testified, Kakingcio denied having sexually
assaulted Alma. He interposed the defense of alibi. He claimed
that he was a farmer. He planted root crops such as
banana. On February 1, 1996, he went to the house of Romulo
Lukaba located at Barangay Gayad, Capoocan, Leyte, about
three kilometers from his house, for the purpose of
accompanying and helping Rolly Lukaba, the son of Romulo,
gather coconuts in the coconut plantation of Romulo in the
mountains. It took Kakingcio thirty minutes to reach the
place. At about 9:00 in the evening, Kakingcio, Rolly and
Romulo drank tuba. By 10:00 in the evening, Rolly and
Kakingcio went to sleep. Romulo, however, left the two. The
next day, Rolly and Kakingcio went back to the mountains and
gathered coconuts.
Kakingcio returned to their house on February 7, 1996.
Kakingcio testified that he was not aware of any reason
why his wife and Alma would charge him with rape.

I
THE TRIAL COURT ERRED IN PARTICIPATING DIRECTLY
AND ACTIVELY IN THE PRESENTATION AND RECEPTION
OF THE PROSECUTIONS EVIDENCE THEREBY FAILING
TO UPHOLD THE COLD NEUTRALITY OF AN IMPARTIAL
JUDGE.
II
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF RAPE DESPITE WANT OF
CLEAR, POSITIVE AND CONVINCTING IDENTIFICATION.
III
THE TRIAL COURT ERRED IN GIVING UNDUE WEIGHT
AND CREDENCE TO THE INCREDIBLE TESTIMONY OF
THE PRIVATE COMPLAINANT AND IN DISREGARDING THE
EVIDENCE ADDUCED BY THE DEFENSE.
IV

On February 4, 2000, the trial court rendered a decision

finding Kakingcio guilty beyond reasonable doubt of rape and
imposing on him the penalty of death in view of the presence
of the special qualifying circumstance of the minority of private
complainant Alma and her relationship to Kakingcio and the
special aggravating circumstance of use of a deadly weapon

ON THE ASSUMPTION HOWEVER THAT THE ACCUSEDAPPELLANT IS GUILTY OF RAPE, THE TRIAL COURT
ERRED IN IMPOSING UPON HIM THE PENALTY OF
CAPITAL PUNISHMENT DESPITE THE FACT THAT THE
QUALIFYING CIRCUMSTANCE OF RELATIONSHIP WAS

NOT ALLEGED IN THE INFORMATION, HENCE, THE

APPROPRIATE PENALTY SHOULD ONLY BE RECLUSION
PERPETUA.[4]
On the first three assignments of errors, the appellant
avers that the prosecution had a difficulty proving that the
appellant raped the private complainant in light of her
testimony that when the appellant mounted her, he still had his
short pants on. When the prosecution tried to elicit from the
offended party how appellants penis could have been inserted
into her vagina with his pants still on and the appellants
counsel objected to the question, the presiding judge himself
took the cudgels for the prosecution and propounded
questions on the private complainant. Worse, the presiding
judge posed leading questions to the private complainant. The
presiding judge was biased and partial to the prosecution. To
buttress his contention, the appellants counsel cited a portion
of the transcript of the stenographic notes taken during the trial
on September 17, 1997:

COURT:
Q How did he manage to have his penis inserted to
your vagina?
A No, sir, because when he placed himself on top of
me he pulled down his shorts and thereafter he
inserted his penis into my vagina.
Q At that time what was your apparel going up from
your vagina?
A I was wearing then a t-shirt and skirt, sir.
Q About your skirt?
A He pulled up my skirt, sir.
Q What about your t-shirt?

PROS. PERIDA:

A He did not do anything about my t-shirt.

Q So, after he laid himself over you with his trouser

what else happened?

Q After placing his penis on your vagina, what else

transpired?

A His penis was inserted into my vagina, sir.

A He keeps on kissing me sir.

Q Where did he let his penis exit considering that he

is then wearing a short pants?

Q At that time he keeps on kissing you, where was

his penis in relation to your vagina?

ATTY. DILOY:

A It was inside my vagina sir.[5]

Objection your Honor! It is leading.

The appellant further stresses that when Alma was raped

it was nighttime and the place where she was molested was

dark. She could not have recognized and identified the

appellant as her rapist. Furthermore, Alma failed to report the
rape immediately to the police authorities.
The Court does not agree with the appellants
submission. In People v. Ancheta,[6] this Court emphasized that
a presiding judge enjoys a great deal of latitude in examining
witnesses within the course of evidentiary rules. The presiding
judge should see to it that a testimony should not be
incomplete or obscure. After all, the judge is the arbiter and he
must be in a position to satisfy himself as to the respective
claims of the parties in the criminal proceedings. In People v.
Zheng Bai Hui,[7] this Court reiterated that:
In any case, a severe examination by a trial judge of some of
the witness for the defense in an effort to develop the truth and
to get at the real facts affords no justification for a charge that
he has assisted the prosecution with an evident desire to
secure a conviction, or that he had intimidated the witnesses
for the defense. The trial judge must be accorded a
reasonable leeway in putting such questions to witnesses as
may be essential to elicit relevant facts to make the record
speak the truth. Trial judges in this jurisdiction are judges of
both the law and the facts, and they would be negligent in the
performance of their duties if they permitted a miscarriage of
justice as a result of a failure to propound a proper question to
a witness which might develop some material bearing upon
the outcome. In the exercise of sound discretion, he may put
such question to the witness as will enable him to formulate a
sound opinion as to the ability or the willingness of the witness
to tell the truth. A judge may examine or cross-examine a
witness. He may propound clarificatory questions to test the
credibility of the witness and to extract the truth. He may seek
to draw out relevant and material testimony though that

testimony may tend to support or rebut the position taken by

one or the other party. It cannot be taken against him if the
clarificatory questions he propounds happen to reveal certain
truths which tend to destroy the theory of one party.
In this case, the relevant direct-examination questions
posed by the public prosecutor of the private complainant and
her corresponding answers, the objections thereto by the
appellants counsel and the questions propounded by the trial
court were as follows:
Q After taking off your panty or underware (sic) what
else transpired?
A He placed himself on top of me sir.
Q Please describe to us your uncle at that moment
when he placed himself over your body!
A He placed himself on top of me in a prone position.
Q What was he wearing at that time when he was
carressing (sic) your face down to your arm?
A He was just wearing a short pants sir.
Q What about the upper portion of his body?
A None sir.
Q At the time he put himself over you on a prone
position, what about his short pants, was it still
there?

ATTY. DILOY:
We request Your Honor that the question not be made
in a leading manner!

That is agreed Your Honor. Now my question is, at

the time Kakingcio Caete was already on top of
Alma where was this short pants!
ATTY. DILOY:

COURT:
It was being worn by the accused!
Place of record the comment!
PROS. PERIDA:
PROS. PERIDA:
Let the witness answer that Your Honor!
I withdraw that Your Honor!
ATTY. DILOY:
Q Where was the short pants which your uncle
originally wearing that time?

We submit Your Honor!

ATTY. DILOY:

COURT:

He was wearing it Your Honor as described by the

witness!

Q What were your uncle, when your uncle placed

himself on top of your body as you said, in a
prone position, was he wearing clothes or none?

PROS. PERIDA:
A He was still wearing Your Honor.
At this moment now, when he was already on top of
the victim!

Q What clothes?

ATTY. DILOY:

A Short pants Your Honor.

It was answered by the witness! According to the

witness, accused was wearing short pants but
the upper part of his body the accused had
nothing worn!

Proceed Fiscal!

PROS. PERIDA:

PROS. PERIDA:
Q So, after he laid himself over you with his trouser,
what else happened?

A His penis was inserted into my vagina sir.

A He keeps on kissing me sir.

Q Where did he let his penis exit considering that he

is then wearing a short pants?

Q At that time he keeps on kissing you, where was

his penis in relation to your vagina?

ATTY. DILOY:

A It was inside my vagina sir.

Objection Your Honor! It is leading!

COURT:

Q While his penis was inside your vagina and the

accused keeps on kissing you what else
transpired?

Q How did he manage to have his penis inserted to

your vagina?

A (witness weeping in tears as been

examined by the Public Prosecutor).

A No sir, because when he placed himself on top of

me he pulled down his shorts and thereafter he
inserted his penis into my vagina.

COURT:

Q At that time what was your apparel going up from

your vagina?
A I was wearing then a T-shirt and skirt sir.

directly

Place it of record that the child witness is crying in the

witness stand!
PROS. PERIDA:

Q About your skirt?

May we ask for suspension Your Honor! I move for

suspension considering the condition of the
victim witness Your Honor! Hes already crying!

A He pulled up my skirt sir.

COURT:

Q What about your t-shirt?

We can come back tomorrow.[8]

A He did not do anything about my t-shirt.

Q After placing his penis on your vagina, what else
transpired?

The Court finds nothing improper in the questions posed

by the trial court. Neither are the questions prejudicial to the
appellant or suggestive of any partiality of the trial court. It
bears stressing that from the testimony of the private
complainant, the appellant was wearing his short pants before

he mounted her and even when he was already on top of her

and managed to penetrate her sexual organ with his
penis. The public prosecutor wanted the private complainant to
explain to the court how the appellant could have inserted his
penis into her vagina considering that he was still wearing his
short pants. Although crudely and ungrammatically phrased,
the question of the public prosecutor where did he let his penis
exit considering that he is then wearing a short pants was not
leading. The trial court should have overruled the objection
and allowed the private complainant to answer the
question. However, the trial court was not precluded from
asking questions to avoid further wrangling between the public
prosecutor and the appellants counsel which may frightened or
unnerved the private complainant, a minor and who was
unused to judicial proceedings. After all, the trial court was
mandated to discover the truth. As it turned out, the private
complainant cried profusely as she testified impelling the trial
court to order a continuance. Even the counsel of the appellant
agreed to a continuance.
Parenthetically, under Sections 19 to 21 of the Rule on
Examination of a Child Witness which took effect on
December 15, 2000, child witnesses may testify in a narrative
form and leading questions may be allowed by the trial court in
all stages of the examination if the same will further the
interest of justice. Objections to questions should be couched
in a manner so as not to mislead, confuse, frighten and
intimidate the child:
Sec. 19. Mode of questioning. The court shall exercise control
over the questioning of children so as to (1) facilitate the
ascertainment of the truth, (2) ensure that questions are stated
in a form appropriate to the developmental level of the child,

(3) protect children from harassment or undue

embarrassment, and (4) avoid waste of time.
The court may allow the child witness to testify in a narrative
form.[9]
While it may be true that it was dark when the appellant
ravished the private complainant in his house, it cannot,
however, be gainsaid that the private complainant could have
sufficiently identified the appellant as the culprit. The appellant
was the uncle of the private complainant. She and her father
Paquito had been living with the appellant and his family off
and on for years before she and her father were brought back
with appellant in January 1996 to Capoocan, Leyte, to live
anew with the appellant and his family. The private
complainant was thus familiar not only with the physical build
of the appellant but also with his voice and peculiar smell. A
person may be identified by these factors. Once a person has
gained familiarity with another, identification is quite an easy
task.[10] In this case, the appellant poked a knife on her neck
and whispered to the private complainant before she raped
her: Ma, ayaw pagsumat kan imo yaya kay may-ada ako ha
imo bubuhaton (Ma, dont tell to your yaya because I will do
something to you. Ma was the nickname of Alma, the private
complainant. Yaya was Alejandra Caete, the common-law wife
of the appellant.[11] Moreover, as testified to by the private
complainant, the only persons left in the house in the evening
of February 1, 1997 were the appellant and his two young
children, Paquito, who was blind and an invalid, and the
private complainant:
PROS. PERIDA:

Q You stated that on February 1, there was no light at

the place where you were raped. How did you
recognize with certainty that it was Kakingcio
Caete who raped you?
ATTY. DILOY:
I object to that Your Honor. It should have been taken
during the direct examination.
PROS. PERIDA:
No, Your Honor. We are already talking about lights
Your Honor.
COURT:
Well, at least for purposes or in the interest of the
trial, let the witness answer!

When Alejandra Caete confronted the appellant on

February 5, 1997, with the claim of the private complainant
that he raped the latter and demanded that the appellant leave
the house, the appellant did not deny the charge and even
agreed to leave the house on condition that he be allowed to
take his personal belongings with him:
PROS. PERIDA:
Q On the following day, that was Monday, February 5,
1996, what did you do if any?
WITNESS:
A That morning Monday, my auntie Yaya Alejandra
went up the hill and I followed them and I told
them about my ordeal that I was raped by my
Yayo Kaking.
PROS. PERIDA:

WITNESS:
A Because we were the only one staying in the
house, and besides I can detect his smell.

Q Who was the companion of your Yaya Alejandra

who went up the hill?
WITNESS:

PROS. PERIDA:
A Her daughter Ate Belen.
Q Why? What was his smell?
PROS. PERIDA:
WITNESS:
Q What is her real name?
A Smells like a smoker.[12]
WITNESS:

A Belen Pepito.

PROS. PERIDA:

PROS. PERIDA:

Q After they quarrel, what transpired?

Q Was he already married?

WITNESS:

WITNESS:

A My auntie, Yaya Alejandra told my uncle Yayo

Kaking to leave the house because he ate his
own blood, and Yayo Kaking answered in the
affirmative, saying Yes, I will leave the house so
long I will bring with me all my belongings.[13]

A That her family name is the surname of her mother.

PROS. PERIDA:
Q When you told your Yaya Alejandra, how did she
react to your information?
WITNESS:
A Upon learning about the rape incident she was very
angry and she reacted angrily and carried with
her the camote tops and went down proceeding
towards their house bringing with her a long bolo,
in our dialect it is used for farming and cutting
grass and a long pointed bolo, a sharp
instrument, and upon reaching their house they
have a quarrel with my uncle.
PROS. PERIDA:
Q How about you, did you follow your Yaya in going
home?
WITNESS:
A Yes, sir.

The credibility of the private complainant was not

degraded by her and Alejandra Caetes reporting the sexual
assault to the police authorities only on February 5, 1996. The
evidence shows that the private complainant was only twelve
years old when she was raped by the appellant. She and her
father, who was completely blind and a paralytic, were living in
the house of the appellant. The latter threatened to kill her if
she revealed what he did to her. It was thus easy for the
appellant to fulfill the threat if she divulged the violation of her
honor.[14] The private complainant could do nothing but
cry. When the appellant tried in the evening of February 3,
1996 to violate her again, she ran to a neighbor, Ka Caring,
divulged to her that the appellant tried to rape her anew and
sought her help. In fact, the private complainant slept in the
house of Ka Caring that evening and went back home only the
next morning on February 4, 1996. On February 5, 1996, the
private complainant revealed to her Yaya Alejandra, the wife of
the appellant, that the latter had raped her. In People v. Bea,
[15]
this Court held that it is not uncommon for a young girl at
the tender age of sixteen years to be intimidated into silence
and conceal the sexual assault on her by the appellant.[16]

When cross-examined by the public prosecutor, the

appellant unabashedly admitted that he did not know any
improper or ill-motive on the part of the private complainant for
charging him with rape, and on the part of his wife Alejandra
Caete for reporting the sexual assault on the private
complainant by the appellant to the police authorities:
Q The complainant here testified in Court that she
was raped by you at 9:00 oclock in the evening of
February 1, 1996. Are you aware of that?
A No, sir.
Q In fact the victim here testified that it was your very
own wife who accompanied her to report this
matter to the barangay (sic) Chairman of
Barangay Gayad, and likewise reported this
matter to the PNP of Capoocan. Are you aware
of that?

The records show that the private complainant lived in a

rural area, unaffected by the worldly ways of urban life. It is
thus incredible that the private complainant would weave a
story of defloration and undergo a medical examination of her
private parts and charge the appellant with rape for which, if
convicted, he could be meted the penalty of either reclusion
perpetua or death. As this Court held:
Accused failed to attribute any ill motive on the part of the
victim to testify falsely and impute against him the commission
of a grave offense such as rape. To the contrary, the trial court
observed that the victim lived in place more rural than most
rural villages in the country, and was still unaffected by the
wordly ways of urban life. It is highly inconceivable for a young
barrio lass, inexperienced with the ways of the world, to
fabricate a charge of defloration, undergo a medical
examination of her private parts, subject herself to public trial,
and tarnish her familys honor and reputation unless she was
motivated by a potent desire to seek justice for the wrong
committed against her.[18]

A No, sir.
Q Do you know of any reason or reasons why your
own wife would report this rape incident against
your person?
A I dont know sir what is her reason.
Q And you dont know likewise of any reason or
reasons why your own niece, a twelve (12) year
old child would accuse you of rape, right?
A I dont know also, sir.[17]

In contrast to the positive and straightforward testimony of

the private complainant, the appellants denial of the charge,
which is merely a negative self-serving evidence, cannot
prevail.Equally undeserving of merit is his defense of
alibi. Appellant failed to prove with clear and convincing
evidence that it was physically impossible for him to have been
in his house at the time when the private complainant was
raped.[19] The only evidence adduced by the appellant to prove
alibi was his own testimony. By his own admission, the
appellants house was barely a thirty-minute walk to the house
of Romulo Lukaba. It was thus not physically impossible for
the appellant to have been in his house at 8:00 in the evening
of February 1, 1996, when the private complainant was raped.

Proper Penalty on Appellant

The trial court imposed the death penalty on the appellant
on its finding that the appellant used a knife when committing
the crime and that the private complainant was under eighteen
years of age and the niece of the appellant and, hence, a
relative of the private complainant within the third civil degree.
This Court agrees with the trial court that the appellant
used a knife in committing the crime charged and that he is the
uncle of the private complainant and, hence, her relative within
the third civil degree. However, as to the latter, there is no
allegation in the Information that the appellant is the uncle of
the private complainant as required by Section 8 of Rule 110
of the Revised Rules of Criminal Procedure. [20] In People v.
Bernaldez,[21] this Court held that the minority of the private
complainant and her relationship to the appellant must be
alleged in the Information because these circumstances are
special qualifying circumstances for rape to warrant the
imposition of the death penalty. Although this rule took effect
on December 1, 2000, or before the crime charged in the
Information was committed, the Court has consistently applied
the rule retroactively. Thus, since the relationship of the private
complainant and the appellant was not alleged in the
Information, the appellant cannot be convicted of qualified
rape, otherwise he would be deprived of his right to be
informed of the nature of the charge against him. The
appellant may only be convicted of simple rape with the
special aggravating circumstance of use of a deadly weapon in
the commission of the crime. Rape with use of a deadly
weapon is punishable by reclusion perpetua to death under
the third paragraph of Article 335 of the Revised Penal Code,
as amended. Since the prosecution failed to prove any
aggravating circumstance in the commission of the crime, the

appellant may be meted only the penalty of reclusion

perpetua conformably with Article 63 of the Revised Penal
Code.
Civil Liability of Appellant
The trial court ordered the appellant to pay P50,000 as
civil indemnity but failed to award moral damages and
exemplary damages considering the tender age of the private
complainant and of the uncle-niece relationship of the
appellant and the private complainant.[22] In light of recent case
law, the Court must order the appellant to pay the private
complainant
the
amounts
of P50,000
as
moral
damages[23] and P25,000 as exemplary damages.
IN LIGHT OF ALL THE FOREGOING, the Decision of the
Regional Trial Court of Leyte, Branch 36, in Criminal Case No.
2523, is hereby AFFIRMED WITH MODIFICATION. The
appellant KAKINGCIO CAETE is found guilty beyond
reasonable doubt, as principal, of simple rape under Article
335 of the Revised Penal Code, as amended, and is meted
the penalty ofreclusion perpetua, and ordered to pay to private
complainant Alma Caete the amounts of P50,000 as civil
indemnity, P50,000 as moral damages and P25,000 as
exemplary damages.
Costs de oficio.
SO ORDERED.

THIRD DIVISION

In Criminal Case No. 6060-98-C

[G.R. Nos. 143844-46. November 19, 2002]

This Court finds accused Atanacio Mendoza GUILTY beyond

reasonable doubt of the crime of Rape as defined and
penalized under Articles 266-a and 266-b of the Revised Penal
Code, as amended, and hereby sentences him to suffer the
penalty of RECLUSION PERPETUA with all its attendant
accessory penalties.

PEOPLE OF THE PHILIPPINES, appellee, vs. ATANACIO

MENDOZA, appellant.
DECISION
PANGANIBAN, J.:
A rape victim, especially one who is of tender age, would
not normally concoct a story of defloration, allow an
examination of her private parts and undergo a public trial, if
she is not motivated solely by the desire to have her ravisher
apprehended and punished. As long as her testimony meets
the test of credibility, the accused may be convicted on that
sole basis.
Statement of the Case
Atanacio Mendoza appeals the March 23, 2000 Joint
Judgment[1] of the Regional Trial Court (RTC) of Calamba,
Laguna (Branch 34) in Criminal Case Nos. 6059-98-C, 606098-C and 6061-98-C, convicting him of three (3) counts of
rape. The dispositive portion of the assailed Decision reads as
follows:
In Criminal Case No. 6059-98-C
This Court finds accused Atanacio Mendoza GUILTY beyond
reasonable doubt of the crime of Rape as defined and
penalized under Article 335 of the Revised Penal Code, as
amended, and hereby sentences him to suffer the penalty of
RECLUSION PERPETUA with all its attendant accessory
penalties.
Accused is further directed to indemnify complaining witness
Marilyn Bernardo the sum of Fifty Thousand (Php50,000.00)
Pesos as and for moral damages.

Accused is further directed to indemnify complaining witness

Marilyn Bernardo the sum of Fifty Thousand (Php50,000.00)
Pesos as and for moral damages.
In Criminal Case No. 6061-98-C
This Court finds accused Atanacio Mendoza GUILTY beyond
reasonable doubt of the crime of Rape as defined and
penalized under Articles 266-a and 266-b of the Revised Penal
Code, as amended, and hereby sentences him to suffer the
penalty of RECLUSION PERPETUA with all its attendant
accessory penalties.
Accused is further directed to indemnify complaining witness
Jennifer Fernandez the sum of Fifty Thousand (Php50,000.00)
Pesos as and for moral damages.[2]
Three separate Informations,[3] all
1998, charged appellant as follows:

dated

July

31,

Criminal Case No. 6059-98-C

That sometime in March 1997, at Brgy. Parian, Municipality of
Calamba, Province of Laguna and within the jurisdiction of this
Honorable Court, the above-named accused, through force,
violence and intimidation and with lewd design did then and
there wilfully, unlawfully and feloniously have carnal relation
with one MARILYN BERNARDO y BUNO fifteen (15) years old
minor, against her will and consent, to her damage and
prejudice."[4]

Criminal Case No. 6060-98-C

That sometime in February 1996, at Brgy. Parian, Municipality
of Calamba, Province of Laguna and within the jurisdiction of
this Honorable Court, the above-named accused, while
conveniently armed with a handgun, through force, violence
and intimidation and with lewd design did then and there
wilfully, unlawfully and feloniously have carnal relation with one
MARILYN BERNARDO y BUNO fifteen (15) years old minor,
against her will and consent, to her damage and prejudice."[5]
Criminal Case No. 6061-98-C
That on or about March 25, 1998, at Brgy. Parian, Municipality
of Calamba, Province of Laguna and within the jurisdiction of
this Honorable Court, the above-named accused, through
force, violence and intimidation and with lewd design did then
and there wilfully, unlawfully and feloniously have carnal
relation with one JENNIFER FERNANDEZ y MATA sixteen
(16) years old minor, against her will and consent, to her
damage and prejudice."[6]
During his arraignment on September 16, 1998, appellant,
assisted by his counsel,[7] pled not guilty to the charges. [8] After
a joint trial of the cases, the lower court rendered the assailed
Judgment.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG),
presents the prosecutions version of the facts as follows:[9]
Criminal Cases No. 5059-98-C and 6060-98-C
Sometime in February 1996, Marilyn Bernardo, who was then
fifteen (15) years old, and her eleven-year brother Jose
Bernardo were entrusted by their mother to the care of
appellant, their mothers godson.Their mother left their house

in Centerville, Calamba, Laguna to visit her relatives in

Batangas. Their father was not living with them, having
separated from their mother.
Around 1:00 oclock in the morning, Marilyn, who was then
sleeping in her mothers room together with her younger
brother Jose, was roused from her sleep when she felt
somebody, who turned out to be appellant, touching her
body. Appellant threatened Marilyn not to move or shout or tell
anyone what was happening or else he would shoot
her. Marilyn felt a gun pointed at her.
Appellant inserted his finger into Marilyns private part and
ordered her to remove her clothes. Out of fear, Marilyn
removed her clothing. When appellant went on top of her,
Marilyn tried to resist by boxing appellant but she was
eventually overpowered by the former who succeeded in
inserting his penis into her organ. The frightened victim felt
pain and could only cry as she was being defiled by appellant.
Jose was awakened by the resistance put up by Marilyn and
saw appellant on top of [his] sister. He was however too afraid
to do anything because appellant threatened to kill him.
Before leaving, appellant warned Marilyn and Jose not to tell
anyone otherwise he would kill them.
When her mother arrived in the afternoon of the following day,
Marilyn did not report the incident because she was frightened
of appellants threat.
This sexual outrage was repeated sometime in March 1997
when at around 2:00 oclock in the morning, appellant entered
Marilyns room, poked something at her back, and warned her
that if she shouted, he would shoot her. Appellant then
inserted his finger into her private part. Marilyn boxed
appellant and pleaded with him. Appellant ignored her plea
and went on top of her saying, Umayos ka, umayos
ka.Notwithstanding the resistance put up by Marilyn, appellant

succeeded in consummating his lust. Before leaving, appellant

warned Marilyn not to tell anyone, otherwise he would kill her
and her family.
Again, Jose was awakened by the resistance put up by [his]
sister and tried to leave the room. Appellant pulled his arms
and told him to stay. Frightened and intimidated, he went back
to sleep.
The siblings mother was not in their house when appellant
repeated his sexual assault on Marilyn.
Sometime in the early part of 1998, Marilyn revealed to her
mother that she was sexually assaulted by appellant. Ruben
Cabatbat, a barriomate and a fellow member of the victims
mother in a religious organization, learned about the incident
from the victim and assisted her and her mother in prosecuting
appellant.
On June 15, 1998, Marilyn was examined by Dr. Lorna P. Sta.
Maria. The medical examination revealed that Marilyns hymen
had old-healed lacerations at 3 oclock and 6 oclock position.
On June 18, 1998, Marilyn was emboldened to report to the
authorities the sexual assaults committed against her by
appellant after learning that Jennifer Fernandez had already
filed a similar case against appellant.
Criminal Case No. 6060-98-C
Around 2:00 oclock in the afternoon of March 25, 1998,
Jennifer Fernandez was on her way to school at Pulo National
High School when she saw appellant waiting for her at the
corner of Centerville which was near her house in Barangay
Paciano Rizal, Calamba, Laguna. Appellant told Jennifer to go
with him. When Jennifer refused, appellant threatened her by
saying that something would happen to her.Frightened,
Jennifer went with appellant who held her arms. Jennifer tried
to resist by boxing appellant to no avail.

Appellant forced Jennifer to board a passenger jeep where

they were the only passengers. They alighted at Parian,
Calamba, Laguna, where a tricycle was already waiting for
them. Jennifer was made to board the tricycle which brought
them to Riverview Hotel. At the hotel premises, appellant left
her inside the tricycle. Jennifer did not run nor shout as she
was very frightened of appellant. She also heard appellant
telling the tricycle driver to guard her otherwise he would hold
the driver accountable.
Appellant subsequently returned and dragged Jennifer inside
one of the rooms of the hotel. Once inside the room, appellant
ordered Jennifer to undress. When she refused, appellant
slapped her three times and threatened her, Kung hindi ka
papayag, papatayin kita. Frightened Jennifer undressed and
appellant kissed her private parts. Jennifer tried to resist by
boxing appellant. She also cried and pleaded with appellant to
desist from what he was doing. Appellant responded by boxing
Jennifer on the stomach, causing the latter to twist in
pain. Appellant then mounted her and inserted his manhood
into her private part. After appellant had ejaculated inside
Jennifer, he took a towel and wiped the semen on his
organ. He told Jennifer to dress-up.
After appellant and Jennifer had left the room and were
outside of the hotel, Jennifer ran away and boarded a
jeep. She proceeded to her school where her crying drew
queries from her classmates but she did not reveal to them the
reason for her tears as she was afraid of the threat made by
appellant. Jennifer went home at around 5:00 oclock in the
afternoon and just stayed in her room where she continued
crying.
Sometime in the early part of 1998, Jennifer revealed to her
parents that she was sexually assaulted by appellant.

On June 2, 1998, Dr. Charisa Juangco examined Jennifer. The

medical examination revealed that Jennifer had an old healed
laceration at 5:00 oclock and 7:00 oclock position.
On June 3, 1998, Jennifer reported her ordeal to the
authorities. She was afraid to report it earlier because
appellant threatened to kill her and her family.[10] (Citations
omitted)
Version of the Defense
Appellant denied the charges. Before the RTC, he testified
that Marilyn Bernardo had filed the cases against him as an
offshoot of a quarrel. That quarrel was supposedly between
his wife, Fely; and Marilyns mother, Prescilla Bernardo [11] -- a
preacher herself, who belonged to the same religious group as
he. He said that when Prescilla advised him to leave Fely, he
ignored said advice and thereafter absented himself from the
preaching activities of the group. His acts allegedly enraged
Prescilla, who then concocted the charges against him.[12] He
averred further that he hardly left his house during the months
of February 1996 and March 1997.[13]
As regards the rape charge of Jennifer Fernandez,
appellant alleged that on March 25, 1998, he attended the
birthday party of his neighbor and friend, Mario Manaig. He
was in Marios house from ten oclock in the morning of that day
until two oclock the next morning, March 26, 1998.[14]
The defense of appellant was corroborated by his wife,
Fely Mendoza; as well as by Mario Manaig and Cecille
Manaig. Cecille and Fely further testified that Jennifer
Fernandez confided to them that she had been raped by her
own brother, Ricardo Salazar. Allegedly, she did not file a
complaint against him for fear that he might eject her from his
house.[15]
Another witness, Maria Lydia Borlongan, resident
manager of the Riverview Resort and Hotel, testified that

during her 24-hour duty on March 25, 1998, she could not
recall any rape that had taken place in one of the hotel rooms.
[16]

The Trial Courts Ruling

The RTC gave credence to the clear and positive
testimonies of private complainants. It said: Complaining
witnesses in the cases at bar are both minors x x x [a]nd this
circumstance, standing alone, overwhelms the constitutional
presumption of innocence in favor of the accused. And ranged
against the positive clear testimonies of the complaining
witnesses, the defense of alibi and fabrication invoked by the
accused cannot hope to succeed.[17]
Hence, this appeal.[18]
The Issues
In his Brief, appellant submits the following assignment of
errors for our consideration:
I.
The trial court gravely erred in holding that the fact of minority
of both complaining witnesses in Criminal Cases Nos. 605998-C, 6060-98-C and 6061-98-C standing alone, overwhelms
the constitutional presumption of the innocence of the
accused.
II.
The trial court gravely erred in holding that the delay of the
disclosure of the complaining witnesses to disclose the fact of
rape cannot reverse the wheels of guilt of the accused.
III.
The trial court gravely erred when it failed to consider and
appreciate evidence for the appellant that the incident of rape
against Jennifer Fernandez was allegedly committed inside a

hotel, or that the alleged assault against Marilyn Bernardo was

committed inside a room in the company of the victims brother.
IV.
The trial court gravely erred in holding that the inconsistency in
the sworn statement of Marilyn Buno Bernardo against her
declaration in Court do[es] not unnecessarily discredit her.
V.
The trial court gravely erred in holding that appellant is guilty of
the crime punished under Article 335 in Criminal Case No.
6061-98-C in the judgment received on March 31, 2001.
VI.
The trial court gravely erred in holding [that] the appellant is
guilty of the crime of rape as defined and penalized under
Articles 266-A and 266-B of the Revised Penal Code, as
amended, in Criminal Case No. 6060-98-C in the judgment
received on April 6, 2000.[19]
In the main, this Court is being asked to reverse the lower
court on two grounds: (1) the incredible testimony of
complainants and (2) the prosecutions failure to rebut the
constitutional presumption of innocence in favor of appellant.
The Courts Ruling
The appeal is partly meritorious.
First Issue:
Credibility of Private Complainants
Appellant faults private complainants for their long delay in
reporting the alleged crimes. He asserts that it was unnatural
for Marilyn Bernardo to wait for two years after the supposed
first rape before filing the charges. He also casts doubts on her
credibility by citing material inconsistencies between her

Sworn Statement and her testimony. Finally, he contends that

it was improbable for him to have raped Marilyn inside a
bedroom she shared with her brother.
We disagree. When it comes to the issue of credibility of
witnesses, we generally defer to the assessment of the trial
court, because it had the singular opportunity to observe their
demeanor.[20] Thus, its findings are conclusive, unless it is
shown that certain facts of substance and value have been
plainly overlooked.[21] In the present case, a review of the
records and the transcripts shows that the RTC had ample
opportunity to examine the testimony of the complaining
witnesses. Appellant has not given us sufficient reason to
overturn the lower courts factual findings.
Moreover, in the prosecution of rape cases, it is wellsettled that long silence and delay in reporting the crime
cannot detract from the victim's credibility,[22] especially where
the delay is satisfactorily explained.[23]
In Jennifers case, reporting the crime four months after it
occurred is hardly unreasonable. Meanwhile, in the case of
Marilyn, the fact that she waited two years before she reported
the dastardly deeds was justified by her fear. She explained as
follows:
FISCAL:
Q I noticed that you were only investigated on June
18, 1998 in the incidence that you have narrated
happened on February 1996 and March
1997. Can you tell us why it was only on June 18,
1998 when you gave your statement to the
investigator?
WITNESS:
A Because I was very afraid of him, sir, and the
reason why I gave my statement on June 18,

1998 I learned that somebody [h]as filed a case

against him.

especially true in the case at bar, in which the malefactor was

a trusted friend and neighbor.

Q Do you know who[s] this somebody whom you said

filed a case against the same accused Atanacio
Mendoza?

Relying on People v. Wilson,[27] appellant wants us to

disregard the testimony of Marilyn because of the alleged
substantial inconsistency between her Sworn Statement and
her open court testimony. In the former, she alleged that during
the February 1996 rape incident, x x x hindi po natuloy na
ipasok niya ang kanyang ari sa akin x x x;[28] but in the latter,
she said that he was able to insert his penis fully into her
vagina.[29]

A Yes, sir.
Q Who?
A Jennifer Fernandez, sir.
Q You said the reason why you did not immediate[ly]
give your statement because you were afraid of
the accused. Why were you afraid of the
accused?
WITNESS:
A Because he threatened me that he will kill me and
my mother and brother, sir.
FISCAL:
Q This Atanacio Mendoza the accused in these two
case[s], do you know where he was residing?
A Yes sir.
Q Where?
A He is our neighbor at Centerville, sir.[24]
It must be noted that a young girl, unlike a mature woman,
cannot be expected to have the courage and the intelligence
to report immediately a sexual assault committed against her,
especially when a death threat hangs over her head. [25] It is not
proper to judge the action of children who have undergone
traumatic experiences by the norms of behavior expected of
mature individuals under similar circumstances. [26] This is

Appellants reliance on Wilson[30] is misplaced. That case

pertains to two different Sworn Statements executed a day
apart. The first affidavit charged the accused with attempted
rape; the second, with consummated rape. The latter
Statement resulted in the filing of an amended Complaint
changing the charge from attempted to consummated
rape. No plausible explanation was offered by the victim for
the sudden change. Moreover, the physical evidence did not
corroborate the allegation. Hence, the accusation was deemed
unworthy of credence.
In the present case, we find nothing suspicious that would
lead us to believe that the charges were fabricated. The
inconsistency cited does not by itself destroy the credibility of
Marilyn as to what transpired in February 1996 and March
1997. She ably clarified this seeming inconsistency during her
testimony when she explained that in February 1996, appellant
had not been able to insert his penis fully into her vagina after
placing his finger inside, but succeeded later in March 1997.
[31]
Verily, declarations made in court are given more weight
than statements taken ex parte, because the latter are almost
always incomplete and inaccurate.[32]
As to the improbability of committing rape in a public place
as pointed out by appellant, we have consistently held that
rape is no respecter of time and place. [33] It can be committed

even in places where people congregate, in parks, along the

roadside, within school premises, inside a house or where
there are other occupants, and even in the same room where
there are other members of the family who are sleeping.[34]

Q Why were you afraid?

It must be noted that in the case of Marilyn, her younger

brother who was sleeping beside her was awakened by the
sound of his sister apparently fighting someone else. He then
saw appellant on top of her. The boy clearly narrated what he
saw in this wise:[35]

A By Atanacio Mendoza.

FISCAL:
Q Now sometime in February 1996, do you recall
having seen or witnessed any unusual incident
that happened to your sister Marilyn Bernardo?
A Yes, sir.
Q Please tell the Court what that unusual incident that
happened to your sister that you witnessed all
about?
A I saw Atanacio Mendoza on top of my sister sir.
Q And in what place did you see the accused on top
of your sister on that date of February 1996?
A In our house.
Q And how did you happen to see that?
A I was awakened because I felt that my sister was
fighting.
Q When you said you were awakened because your
sister was fighting with the accused, what did you
do when you woke up?
A Nothing sir because I was afraid.

A Because I was told that we will be killed.

Q By whom?

FISCAL:
Q You said this incident happened in your house,
what part of your house did you see the accused
on top of your sister when your sister was fighting
him?
A In the bedroom of my mother sir.
Q Who were inside the room where you said you saw
the accused on top of your sister?
A Only the two of us, my sister and I.
Q When you said your sister, you are referring to
Marilyn Bernardo.
A Yes, sir.
Q And after you were threatened that you would be
killed and you said you were scared, what
happened next, if any?
A Thats it, sir. I was not able to do anything because I
was afraid.
Q How about the accused, what did he do next after
you said you were threatened?
A Nothing more.
xxxxxxxxx

Q How about on March 1997, do you recall also of

any unusual incident that happened to your sister
which you witnessed?
A The same sir.
Q When you said the same, what do you mean?

Q Did you notice anything at the time the accused

told you not to leave the room?
A Yes, sir.
Q What was he holding?

A [Katulad] din noon.

A I cannot recall because his hands were at the back

of my sister.

Q The man you saw or you saw again was Atanacio

Mendoza on top of your sister?

Q And when you were told not to leave the room,

what did you do?

A Yes, sir.

A I just slept and was frightened.[36]

Q When did this incident took place?

A Inside the room of my mother.

Second Issue:
Sufficiency of the Prosecution Evidence

Q In the same bedroom of your mother where you

saw the accused on top of your sister?

Appellant contends that the prosecution failed to present

evidence sufficient to convict him of the offenses charged.

A Yes, sir.

We are partly convinced. In order for rape to be

consummated, there must be proof of the entry or the sliding
of the male organ into the labia of the pudendum of the female
organ.[37]Full penetration is not necessary. As held in People v.
Campuhan,[38] touching when applied to rape cases does not
simply mean mere epidermal contact, stroking or grazing of
organs, a slight brush or a scrape of the penis on the external
layer of the victims vagina, or the mons pubis. x x x There
must be sufficient and convincing proof that the penis
indeed touched thelabia or slid into the female organ, and not
merely stroked the external surface thereof, for an accused to
be convicted of consummated rape.[39]

Q What was your sister doing at the time you saw him
for the second time that the accused was on top
of your sister?
A She was fighting sir.
Q Who were inside the bedroom?
A The two of us sir.
Q And then what did you do when you again saw the
accused on top of your sister and your sister was
fighting?
A I was then to go out of the room when he pulled my
arms and told me not to leave the room.

As to the charge that the first rape incident happened in

February 1996, Marilyn testified during her direct examination
that appellant had been able to insert his penis fully into her
vagina.[40] On cross-examination, when asked to clarify her

Sworn Statement, in which she said hindi po niya natuloy

maipasok ang kanyang ari sa akin, she explained as follows:

Hindi po natuloy na maipasok niya ang ari niya

sa akin?

ATTY. SAMUELA:

FISCAL:

Q. Madam witness, just a while ago you just testified

that in February 1996, the accused in this case
was able to insert his penis in your private
part. In fact, you did not come to know if and
when he stopped his penis. Now, you are telling
in this Sinumpaang Salaysay that hindi po
natuloy ipasok niya ang kanyang ari sa akin. Will
you please tell the Honorable Court which is true
in your statement a while ago and the statement
appearing in this Sinumpaang Salaysay?

Q What do you mean by that?

xxxxxxxxx
WITNESS:
A Because on February 1996 he first inserted his
finger into my private part, sir, and then he went
on top of me. But he was not able to insert his
private part into my private part, sir. But on March
1997, that was the time when he was able to do
what he wanted to do with me, sir.[41]
On re-direct examination, she declared:
FISCAL
Q Now, when asked by the defense counsel
regarding that incident of February 1996 you said
that the accused was able to insert his penis into
your private part and your answer was yes, now
you were referring to your statement regarding
the same incident wherein you stated the
following:

A Hindi po nakabaon, nakapatong lang.

Q When you said that hindi nakabaon at nakapatong
lang, can you elaborate that?
A Because when he is trying to insert his private part
into mine I was resisting and fighting so he was
not able to insert his private part.[42]
The words of Marilyn -- nakapatong lang -- show that
there was no entry into her private part. There is nothing in her
testimony that would prove that appellants penis reached the
labia of her pudendum.
Although the testimony of a child must be received with
due consideration on account of her tender age, the Court
endeavors at the same time to harness only what in her story
appears to be true, acutely aware of the equally guaranteed
rights of the accused.[43] Hence, based on the testimony of
Marilyn, we cannot conclude with moral certainty that appellant
should be held liable for consummated rape.
In contrast, her testimony regarding the March 1997
incident indicated certainty that the penis of appellant
penetrated
her
vagina. Her
consistent
and
firm
declaration Nakuha na niya ang pagkababae ko meant that he
was able to insert his penis fully into her vagina. Recounting
her ordeal, she testified thus:
FISCAL:
Q Tell us, why the accused was in your house in the
morning of March 1997?

A Because he was trusted by my mother to look

[after] us, sir.
Q How was he entered into your room?

A I was boxing him and pleading him not to do what

he was doing but he forced me and went on top
of me, sir.

A Sinusubaybayan po niya kami, sir.

Q What did you feel when he inserted his finger to

your private part?

Q x x x. What did he do to you after he entered the

room?

A It was very painful, sir.

A He again touched my body, sir.

Q You said he went on top of you, what did he do

when he was on top of you?

Q What did you do when he was touching your body?

A I was again surprised, sir.
Q What did you tell him when you were surprised that
he was touching your body?

A I was boxing him so that I could keep away from

him, but he was forcing me and told me umayos
ka, umayos ka but I continue[d] boxing and
kicking him, sir.

A I told him not to do it, sir.

Q What happened after you said you were pleading

him, boxing him and he was forcing you?

Q And when you told him not to do it what did he do?

A He went on top of me, sir.

A He again poked something at my back and again

told me that if I made a noise or shout, he will
shoot me, sir.

Q While on top of you, what did he do?

Q What did you feel when you were threatened by the

accused?

Q When you said, when he was able to get what he

wanted to get, what do you mean by that?

A I was very afraid, sir, because I felt pain when he

pointed something at my back, sir.

A He abused me, sir, nakuha ang pagkababae ko.

Q After he touched you and threatened you, what did

he do next?

A Nakuha na niya ang gusto niya, sir.

Q After you said that he was able to do his purpose,

what did he do next?
A He threatened me, sir.

A He inserted his finger into my private part, sir.

Q How did he threaten you?

Q What did you do when he inserted his finger to your

private part?

A Not to tell anybody what happened to me, sir, or

else he will kill us.

Q What did you feel when you were threatened by the

accused?
A I was very afraid and whenever I see him I get
m[a]d at him and always afraid of him, sir.
Q You said that whenever you see him, you got afraid
with him. Why?
A Napakahayop niya.[44]
As to Jennifers accusation of rape, the evidence on record
convincingly proves the consummation of rape.
Time and time again, we have said that a rape victim,
especially one of tender age, would not normally concoct a
story of defloration, allow an examination of her private parts
and thereafter permit herself to be subjected to a public trial, if
she is not motivated solely by the desire to have the culprit
apprehended and punished.[45] Thus, when a woman -- more
so if she is a minor -- says that she has been raped, she says
in effect all that is necessary to show that rape was
committed. And as long as the testimony meets the test of
credibility, the accused may be convicted on that sole basis.[46]
Jennifer readily recounted her traumatic experience as
follows:
FISCAL:
Q At around 2:00 oclock in the afternoon of March 25,
1998, tell us where you were if you could still
recall?
A I was then going to school sir.
xxxxxxxxx
Q And while you were walking in that afternoon of
March 25, 1998 going to your school, do you
recall of any incident that happened to you?

A Yes, sir.
Q Could you tell the Court what was that unusual
incident that happened to you?
A I was then going to the school when Atanacio
Mendoza waited for me in the corner of
Centerville.
Q Where was this Centerville where Atanacio was
waiting for you or inaabangan ka?
A It is near our house, sir.
Q And where is [your] house located? What barangay
and municipality?
A Brgy. Paciano Rizal, Calamba, Laguna.
Q When you said the accused Atanacio Mendoza
was at the corner of Centerville, Paciano Rizal,
Calamba, Laguna and you were then walking,
what did he do to you?
A He told me to go with him and I answered him I do
not want but he told me that If I will not go with
him something will happen to me.
Q Did he tell you why he wanted you to go with him?
A Yes, sir.
Q What did he tell you?
A He just told me to go with him and if I will not,
something will happen to me.
Q When he said if you will not go something will
happen to you, what did you feel?
A I was afraid sir.

Q And what did you do after you were threatened by

the accused that if you will not go with him
something will happen to you?
A Because I was very afraid I just went with him but I
was fighting him.
Q How were you fighting him?

Q When you were left inside the tricycle why did you
not run and shout?
A Because he is known to the tricycle driver and he
told the tricycle driver to guard me and I was very
afr[a]id.

A While he was holding my arm, I was boxing him.

Q Before the accused left and g[o]t a number, was

there any conversation between the tricycle
driver and the accused?

Q And where were you brought by the accused?

A None sir.

A He boarded me in a passenger jeep and brought

me to Riverview Hotel.

Q How were you able to say that the driver of the

tricycle is known to the accused?

Q That passenger jeep where you said you were

made to ride, was there any passenger at that
time?

A Because the accused told the tricycle driver to

guard me at kung may mangyari diyan,
mananagot ka sa akin.

A None, sir.

Q You said you were brought and dragged inside the

room by the accused, can you demonstrate how
you were dragged by the accused?

Q Do you know the driver of the jeep?

A No, sir.
Q Do you know if the driver is known to the accused?
A No, sir.
Q You said you were brought by the accused to
Riverview, where is that Riverview where you
said you were brought by the accused?
A In Parian when we alighted from the passenger
jeep there was already a tricycle waiting for us
and he made [m]e board the tricycle and the
driver of the tricycle brought us inside the
Riverview and he left me inside the tricycle and
took a number and brought me inside the room.

A He was holding my arms telling me to enter the

room but I answered him I do not want to enter
the room but he pulled and dragged me until I
was able to enter the room.
Q Inside the room, what did the accused do to you?
A Inside the room he ordered me to undress myself
and I answered I do not want, he was forcing me,
I was fighting him so finally I removed my clothes
against my will.
Q You said the accused was forcing you to remove
your clothes, how was he forcing you?

A He was pushing me sir while I was moving

backwards and then he slapped me and he also
told me Kung hindi ka papayag, papatayin kita.
Q How many times were you slapped by the
accused?
A Three times sir.
Q When the accused told you if you will not agree he
will kill you, what did you feel?

A I was boxing him.

(The witness is demonstrating by swaying her
hand closed fist)
Q What did you do after the accused was kissing your
private part and on your part you were trying to
box him?

A I was afraid sir, kaya wala na akong nagawa.

A He boxed me on my stomach. Namimilipit ako sa

sakit. I said Aray ko, and I told him to stop but he
continued inserting his private part into my
private part.

Q You said finally you undressed yourself, after you

have undressed yourself out of fear what did the
accused do to you?

Q What was his position in relation to you at the time

you said he was inserting his private part into
your private part?

A He kissed my body.

A He was on my top. Nakadagan siya.

Q And what portion of your body were you kissed by

the accused?

Q While the accused was inserting his private part

into your organ, what were you doing?

A My private part sir.

A I was moving backwards and told him to stop

because it was very painful but he did not stop.

Q What did you do when the accused was kissing

your private part?
A Nandidiri ako.

A Noong nilabasan na siya itinigil na niya ang

pagganon sa akin.

Q Aside from that what did you do?

AI

was fighting him and

stop. (Witness is crying)

requested

Q And he did not stop despite your pleas?

him

to

I was requesting him to stop but it seems that he

did not hear me. He just told me to stop crying. I
was just crying then.
Q You said you were fighting him also when he was
kissing your private part, how were you fighting?

Q Now after he stopped what did he do next?

A He took the towel and wiped yong lumabas sa
kanya and told me to dress myself.
Q After you were told to dress yourself, what did you
do?
A So I dressed up.

Q After you dressed up after you were told by the

accused, what did you do next?

A My classmates were asking me why, I was crying

and answered them nothing. Thats my problem.

A I told him that I will be going out and he told me not

to go out and wait for him because I do not know
how to open the door which was locked. I was
not able to go out.

Q Why did you not tell your classmates?

Q But finally, were you able to go out of the room?

A From Tasyo.

A No, sir.

Q Why were you afraid of Tasyo?

Q What happened after you were asked by the

accused to wait for him so you can go out?

A Because of his threat.[47]

A So I waited inside the room and was crying.

Q After you waited for him, what happened next?
A So he opened the door and we went outside. I ran
away from him inside and boarded the jeep and
proceeded to the school. In the school I
continued crying.
Q How about the accused where did he go?
A I do not know sir because I left him inside the
motel, I did not mind him.
Q Tell us why you proceeded to the school?
A Because I was afraid to go home sir because he
might go to our house because his house is near
our house.
Q In the school what did you do there?
A I only cried.
Q What happened after you said you continued to cry
in the school?

A I was afraid.
Q Afraid of him?

Furthermore, Jennifers testimony is strongly supported by

the medical findings conducted by the medicolegal
expert[48] three months after the incident. The Medical Report
showed that the victim had old healed lacerations at the five
oclock and the seven oclock positions. This finding is
consistent with penile invasion.[49] Where the victims claim of
rape is corroborated by the physical findings of penetration,
there exists sufficient basis for concluding that sexual
intercourse did take place.[50]
Defense of Denial and Alibi
As consistently held by this Court, alibi and denial cannot
prevail over the positive identification of the accused as the
perpetrator of the crime.[51] For the defense of alibi to prosper,
the accused must establish clearly and convincingly that it was
physically impossible for him to have been at the crime scene
when it happened. In the present case, appellant failed to
show, by clear and convincing proof, that it was physically
impossible for him to have been at the loci criminis.
Neither can we accept the theory of appellant that it was
Prescilla Bernardo, his godmother and Marilyns mother, who
instigated her daughter to file the charges. We reiterate that it
is unnatural for a mother to use her daughter as an engine of

malice, especially if it will subject her offspring to

embarrassment and lifelong stigma. A mother would not
sacrifice the honor of her daughter to give vent to a grudge
that would tarnish the latters reputation forever.[52]
Finally, the trial court erred in ruling that the acts
committed by appellant in Criminal Case No. 6060-98-C were
covered by Articles 266-a and 266-b of the Revised Penal
Code. Republic Act No. 8353 or The Anti-Rape Law of 1997
reclassified the crime of rape as a crime against person and
renumbered it from Article 335 to Articles 226-A to 226-B of the
Revised Penal Code. The amendment took effect on October
22, 1997.[53] On the other hand, the crime charged herein was
committed in February 1996. Hence, appellant can only be
held liable under the old Article 335[54] of the Revised Penal
Code.
Under Article 6 in relation to Article 335 of the Revised
Penal Code, rape is merely attempted when the offender
commences the commission of the crime directly by overt acts,
but does not perform all the acts of execution by reason of
some cause or accident other than his own spontaneous
desistance. The penalty is two (2) degrees lower than the
imposable penalty of reclusion perpetua. Two (2) degrees
lower is prision mayor, the range of which is six (6) years and
one (1) day to twelve (12) years. Applying the Indeterminate
Sentence Law, and in the absence of any mitigating or
aggravating circumstance, the maximum of the penalty to be
imposed upon the accused shall be taken from the medium
period of prision mayor, the range of which is eight (8) years
and one (1) day to ten (10) years; while the minimum shall be
taken from the penalty next lower in degree, which is prision
correccional, the range of which is from six months and one
(1) day to six (6) years.
Likewise, pursuant to prevailing jurisprudence, P50,000 is
awarded to the victim as indemnity ex delicto for each count of
consummated rape,[55] and P30,000 for the attempted rape.

[56]

In addition, moral damages in the amount of P50,000[57] is

awarded to her for the consummated rape and P15,000[58] for
the attempted rape.
WHEREFORE,
the
assailed
Joint
Judgment
is AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. 6060-98-C, appellant is
found GUILTY of attempted rape and is sentenced to an
indeterminate penalty of two (2) years of prision
correccional, as minimum, to ten (10) years of prision mayor,
as maximum. He is also ordered to pay Marilyn
Bernardo P30,000 as civil indemnity and P15,000 as moral
damages.
2. In Criminal Case No. 6059-98-C, appellant is
found GUILTY of simple rape and sentenced to suffer the
penalty of reclusion perpetua. He is likewise ordered to pay
Marilyn BernardoP50,000 as civil indemnity in addition to
the P50,000 already imposed as moral damages.
3. In Criminal Case No. 6061-98-C, appellant is
found GUILTY of simple rape and sentenced to suffer the
penalty of reclusion perpetua. He is also ordered to pay
Jennifer MendozaP50,000 as civil indemnity in addition to
the P50,000 already imposed as moral damages.
SO ORDERED.

EN BANC

Upon arraignment, both accused pled not guilty to the

offense charged.[2] Trial ensued.

[G.R. No. 131805. September 7, 2001]

PEOPLE
OF
THE
PHILIPPINES, plaintiffappellee, vs. GREGORIO HERMOSA and GABRIEL
ABELINDE, accused-appellants.

The prosecution presented the testimonies of Macuibelle

Malipot, her siblings Marither and Elizalde, and Municipal
Health Officer Allen Ching. For its part, the defense presented
Bienvenido Habanez, policeman Raymundo Meliton and the
accused, Gregorio Hermosa and Gabriel Abelinde.

DECISION
PUNO, J.:
Accused GREGORIO HERMOSA and GABRIEL
ABELINDE were meted the death penalty for the crime of
murder. The crime was allegedly committed as follows:[1]
That sometime on January 11, 1995, at about 1:00 oclock in
(the) morning more or less, at Barangay Gahit, Municipality of
Caitingan, Province of Masbate, Philippines, within the
jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, conspiring and confederating and
mutually helping one another, with evident premeditation,
use of superior strength and noctornity (sic) as cover,
treachery, did then and there willfully, unlawfully and
feloniously, with the use of sharp and pointed bolo, assault,
attack, hack and stab a woman named ELEONOR (sic)
CONDE MALIPOTthereby hitting the latter at the different
parts of her body which was the direct and logical (cause) of
her instantaneous death.
CONTRARY TO LAW.

The records show that in the early morning of January 11,

1995, the residents of Sitio Mayabas found the lifeless body of
Eleanor Conde Malipot[3] near a creek, a few meters behind
her house in Sitio Mayabas, Cataingan, Masbate. She was 43
years old. A widow, the deceased was survived by four (4)
children, namely: Elizalde, 15 years old, Marither, 12 years old,
Macuibelle, 8 years old, and Dexter (Nonoy), 4 years old.
The Medico-Legal Report[4] of Municipal Health Officer
Allen Ching revealed that the victim sustained the following
wounds:
1. Hacking wound, neck up to the cervical vertebra
multiple.
2. Hacking wound, mouth.
3. Hacking wound, forehead, left superficial.
4. Hacking wound, maxilla left.
5. 5 cm. Lacerated wound, anterior arm right.

6. 6 cm. Lacerated wound, anterior hand around the

base of the first finger left.
The victim died due to cardio-respiratory arrest,
hypovolemia and multiple hack wounds on the neck. The
doctor explained that the multiple hack wounds on the neck
had cut the bone and one of the major arteries of the
victim. With the said injuries, the victim had no chance of
survival and had probably lived for about five (5) minutes.[5]
The victims 8-year old daughter, Macuibelle, partially
witnessed the tragic incident. She testified that at about 1
oclock in the morning of January 11, 1995, she was roused by
the victims scream. She peeped through a hole in the wall of
their room and saw the victim at the main door of their house,
near the stairs.[6] The victim had a lamp in one hand, and a
bolo in the other. The victim was shouting, Zaldy, help!,
referring to her eldest son, Elizalde. At that time, however,
Elizalde and Marither had slept in the house of their respective
friends.[7]
Macuibelle also saw the two accused: Gregorio Hermosa
was standing in front of the victim while Gabriel Abelinde was
at the front yard, clubbing the victims carabao that was tied
some four (4) meters away from the house.[8] Suddenly,
Hermosa stabbed the victim. Thereafter, Hermosa and
Abelinde forcibly took the victim from the house and dragged
her towards the nearby creek. Macuibelle shouted for help. No
one responded. Her only companion then was her 4-year old
brother, Dexter. Afraid, she went back to sleep.[9]
The night before, there was a celebration in the house of
the victims neighbor, Bienvenido Habanez.[10] It was his sons
birthday and a dance was being held in his place. The victim

and her 12-year old daughter, Marither, set up a makeshift

store in front of Habanezs house selling assorted merchandise
such as cigarettes and liquor.[11]
Hermosa and Abelinde attended the party. They
drank tuba near the makeshift store of the victim. Abelinde
approached the victim and asked, on behalf of Hermosa, if the
latter could buy liquor on credit.The victim refused as Hermosa
still owed her money. Abelinde went back to Hermosa and
they continued drinking the tuba. Slighted, Hermosa gave a
dagger look at the victim.[12]
At around midnight, the victim and Marither packed up
their things. The victim kept the unsold goods and the
proceeds of the sale and headed for home. Marither was left
behind to fetch Dexter as he had fallen asleep in the house of
Habanez. Marither carried her brother on her way home. Her
friend, Glenda, walked with her. As they approached the place
where the two accused were seated, Hermosa tapped
Abelinde and commented that the victim was on her way
home. Hermosa stared at the victim until she disappeared
behind the mango tree.[13]
When Marither reached their house, she put her brother in
their room. At that time, Macuibelle was still awake. With the
victims permission, Marither walked her friend home and spent
the night in her uncles house. The victim and Macuibelle were
praying when Marither left.[14]
Marither woke up at 5:00 a.m. on June 11, 1995. Moments
later, she saw her aunt Elsie and uncle Payo running towards
their house. A certain Rowena Lonido told her that the victim
was killed and that their carabao had been stolen. Marither
rushed to the crime scene and found the lifeless body of the

victim beside the creek, about seven (7) meters from their
house. She embraced the victim and cried.[15]
Elizalde corroborated the testimony of Marither that the
accused tried to get liquor from the victim on credit, but the
victim refused.
The two accused were arrested on the day the body of the
victim was discovered. Policeman Raymundo Meliton
investigated the incident. He proceeded to the house of the
victim and talked to Macuibelle and Dexter. They did not
immediately reveal the names of the accused as suspects. He
then interviewed the people in the neighborhood and those in
the house of Habanez. When policeman Meliton returned to
the house of the victim a few hours later, Macuibelle revealed
to him that the accused were the assailants. He learned that
the accused got mad at the victim when she refused to sell
liquor to them on credit. Policeman Meliton picked up the
accused for investigation. They denied any participation in the
killing.[16] Nonetheless, he prepared the affidavits of the
prosecution witnesses and charged the accused.[17]
The defense proffered was denial and alibi.
Gabriel Abelinde testified that he attended the birthday
party of Habanezs son. His companions were his son, his
father, and spouses Eulalio and Clementina Pagunsan. At 9:30
p.m., Hermosa joined his group. They engaged in a drinking
spree. They consumed four (4) jars of tuba until 10:30 p.m.
Abelinde claimed that the victim participated in the
dancing and in the drinking spree. Allegedly, the victim
approached him and told him to look out for one Ludy
Gonzales because the latter owed her money. Strangely,

however, Abelinde insisted that the dance took place on the

11th, not on the 10th, day of January. The next day, January 12,
he learned through his wife that the victim had been killed.
Abelinde averred that he went home at about 1:00 a.m.
after the party. He slept in his house which is approximately
300 meters away from the victims house. He was with his son,
his wife and his father.Hermosa spent the night with him
because Hermosas house was more distant.
Abelinde denied any participation in the killing of the
victim. He said he had no quarrel with her prior to the tragic
incident. She was also a relative of his father.
Gregorio Hermosa also denied any participation in the
crime. He claimed that after they left the house of Habanez, he
passed the night in Abelindes house. He woke up the next day
at 7:00 a.m. and learned of the death of the victim. He went
home to inform his mother of the incident. At 9:00 a.m., the
policemen arrested him.
After the trial, the court a quo found the accused guilty of
murder. The dispositive portion of the trial courts decision
provides:[18]
ACCORDINGLY, the court finds the accused Gregorio
Hermosa and Gabriel Abelinde guilty beyond reasonable doubt
of the crime of MURDER and hereby imposes upon them the
supreme penalty of DEATH, and shall indemnify the legal heirs
(of the victim) the amount of P50,000.00 in solidum for the
death of Eleonor Malipot and P20,000.00 as moral damages.
With costs de oficio.

The records of the case were forwarded to this Court for

automatic review.

We modify the judgment and hold that the appellants are

liable for homicide, not murder.

It appears that the appellants were not imprisoned in the

New Bilibid Prisons.[19] Appellants escaped from Matipuron
Provincial Jail, Milagros, Masbate, on June 14, 1998.[20] They
remain at large.

The oft-repeated rule is that the trial courts evaluation of

the testimony of a witness is accorded the highest respect
because of its direct opportunity to observe the witnesses on
the stand and to determine if they are telling the truth or not.
[22]
This opportunity enables the trial judge to detect better that
thin line between fact and prevarication that will determine the
guilt or innocence of the accused. That line may not be
discernible from a mere reading of the impersonal record by
the reviewing court.[23] Thus, the trial judges evaluation of the
competence and credibility of a witness will not be disturbed
on review, unless it is clear from the records that his judgment
is erroneous.[24]

Pursuant to this Courts directive, the Public Attorneys

Office and the Office of the Solicitor General filed their Briefs
for the appellants and the appellee, respectively.
Appellants counsel de oficio contends that:
I. THE TRIAL COURT ERRED IN GIVING FULL FAITH
AND CREDIT TO THE TESTIMONY OF PROSECUTION
WITNESS MACUIBELLE MALIPOT.
II. THE TRIAL COURT ERRED IN HOLDING THAT
ACCUSED-APPELLANTS HAD MOTIVE TO KILL THE
VICTIM, ELEONOR C. (sic) MALIPOT, AFTER SHE
REFUSED TO ALLOW THEM TO PURCHASE LIQUOR
ON CREDIT.
III. THE TRIAL COURT ERRED IN CONVICTING
ACCUSED-APPELLANTS OF MURDER AND IN
IMPOSING UPON THEM THE DEATH PENALTY.
We restate the rule that this Court is not precluded from
reviewing the death sentence of an accused who is at large.
[21]
In line with the rule, we now determine the criminal and civil
liabilities of the appellants.

We have scrutinized the testimony of the lone eyewitness,

Macuibelle Malipot. She candidly recounted the events
surrounding the killing of the victim as follows:[25]
ATTY. NICOMEDES ROMAGOS ON CROSSEXAMINATION:
Q: Macuibelle Malipot, you have testified that you were only
awaken(ed) by the shout of your mother, Eleonor
Malipot, asking assistance from your brother Zaldy, am
I correct?
A: Yes, sir.
Q: At what precise moment that you were awaken(ed)
A: Nearing 1:00 oclock.

Q: Why were you awaken(ed)?

xxxxxxxxx

A: Because my mother was shouting.

(ATTY. ROMAGOS):

Q: And because of that you stated that you also stood up

and peeped at the hole of your house, am I correct,
Macuibelle Malipot?

Q: You said that your mother was carrying a lamp, may we

know from you how big is its wick?
INTERPRETER:

A: Yes, sir.
Q: And you have also testified at the time you saw your
mother, she was already in (sic) the main door. Why is
it Macuibelle Malipot that you peeped when your
mother is on (sic) the main door?

Witness demonstrating a small lamp with a height of 6

inches.
COURT:
Q: How did your mother handle the lamp?

PROSECUTOR:
The witness testified that she was at (sic) the room.
xxxxxxxxx
WITNESS:

A: She was carrying it with her left hand and she was
holding a bolo.
Q: Do you know why your mother was holding a bolo?
A: I do not know.

A: The door is located at (sic) a stair.

xxxxxxxxx

ATTY. ROMAGOS:

ATTY. ROMAGOS:

Q: You mean to tell this Honorable Court Macuibelle, your

door could not be seen when you are in the room?

Q: You did not know why your mother was carrying a bolo
on that particular night. But how long was that bolo she
was carrying on (sic) that moment?

WITNESS:
INTERPRETER:
A: It could be seen.

Witness demonstrates the length of the bolo which is about

twenty (20) inches.
xxxxxxxxx

A: Because she was dragged by Gregorio Hermosa and

Gabriel Abelinde.
COURT:

ATTY. ROMAGOS:

Proceed.

Q: When your mother got that bolo Macuibelle, you said

you were not still (sic) awaken(ed) but only when your
mother shouted for help, do I get you right?

ATTY. ROMAGOS:
Q: You stated she was dragged but it was a very dark night,
Macuibelle?

A: Yes, sir.
A: But my mother has a lamp.
COURT:
Q: How far is the creek from your house?

Q: You mean to tell this Honorable Court that at the time

she was dragged she was still holding the lamp?

INTERPRETER:

A: Yes, sir.

Witness pointing from her seat to the door with a distance

of about twenty (20) meters.

Q: And you remained on that place where you were

peeping inspite (sic) the fact that your mother was
dragged?

COURT:
A: Yes, sir.
Q: Now from the creek you mentioned, where did you
see accused Gregorio Hermosa stab your mother?

Q: Did you not scream for help Macuibelle when your

mother was dragged?

A: Gregorio Hermosa stabbed my mother near the door

of our house.

A: I shouted but no one came up.

Q: Do you know why the body of your mother was there at

the creek near your house?

Q: But on that particular moment, were you not frightened,

Macuibelle?
A: I was afraid.

Q: Do you have a very close neighbor?

A: We have neighbors but far. (emphases ours)
We give full faith and credit to her testimony. She was
young and unschooled, but her narration of the incident was
honest and sincere. It cannot be suspected as a concocted
story, impressed upon her by other people.
We should not take Macuibelles testimony lightly simply
because she was a mere child when she witnessed the
incident and when she gave her testimony in court. There is no
showing that her mental maturity rendered her incapable of
testifying and of relating the incident truthfully. Indeed, the time
when we degrade a child witness testimony is now pass. In the
new Child Witness Rule,[26] every child is presumed qualified to
be a witness. To rebut this presumption, the burden of proof
lies on the party challenging the childs competence. Only
when substantial doubt exists regarding the ability of the child
to perceive, remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the truth in court will
the court, motu proprio or on motion of a party, conduct a
competency examination of a child.[27]

records that the appellants were identified by Macuibelle as

the persons responsible for the death of the victim. She failed
to mention their names when the police first arrived at the
scene, but a few hours later, she told the police that the
appellants were the assailants. In fact, the appellants were
immediately arrested shortly after the discovery of the crime.[28]
Failure to immediately reveal the identity of the perpetrator
of a felony will not necessarily impair the credibility of a
witness.[29] Even adult witnesses sometimes would not reveal
at once the killers of their loved ones for one reason or
another.[30] Fear of the criminal is one such reason.[31]
We stress that the identity of the appellants was well
established. Macuibelle positively identified them. The victim
was then at the main door of their house when the appellants
forcibly dragged her. She saw them from a distance of about
six (6) meters. The lamp held by the victim provided the light
that gave Macuibelle the chance to recognize the appellants.
[32]
She was also familiar with them because they were
neighbors. The possibility that she was mistaken as to their
identity is nil.

Nonetheless, the appellants impugn the testimony of

Macuibelle on the ground that she did not immediately tag
them as the culprits when the investigating officer arrived at
the scene. They also contend that it was improbable for the
eyewitness to see the assailants of the victim because they
would have put off the lamp she was carrying to avoid
recognition.

We note, too, that appellant Abelinde claimed that his

father and the victim were relatives. If that were true, then it is
more unlikely for Macuibelle and her siblings to impute a
grievous offense against him unless they are certain as to his
involvement in the crime. Even appellant Hermosa could not
think of any reason why Macuibelle pointed to him as one of
the perpetrators of the crime.[33] Her lack of ill motive bolsters
her credibility.

We are not convinced. The alleged delay in identifying the

appellants is more apparent than real. It is clear from the

The appellants also discredit Macuibelle because she

went back to sleep after witnessing the stabbing of her

mother. For the appellants, such behavior meant she did not
witness the incident.
Again, we disagree. Macuibelle was only eight (8) years
old when she witnessed the shocking incident. Despite her
plea, no one came to help them when the appellants attacked
the victim and dragged her from their house. She was helpless
and afraid. She knew her brother Zaldy and sister Marither
were not around to protect her. After the traumatic incident, it
is difficult to fault her when she chose to go back to sleep and
wait for her siblings to arrive the next day. Her behavior is not
irrational.[34]
The appellants further insist that Macuibelle is not a
credible witness because, contrary to her claim that the victim
was stabbed on the chest, the medical report of Dr. Ching
showed that the wounds of the victim were mostly located on
the neck. Moreover, appellants suggest that the stabbing
incident must have transpired first before the victim shouted
for help, thus, when Macuibelle woke up later, she did not
really see what happened to the victim.
The argument does not impress. The exact location of the
victims wounds does not destroy Macuibelles testimony that
appellant Hermosa was the one who stabbed the victim and,
with Abelindes help, dragged her to the nearby creek where
they finally finished her off. The misdescription of where
appellant Hermosa stabbed the victim does not mean the
witness perjured herself. The violent incident happened fast.
Macuibelle just woke up and witnessed the bloody assault. It
was a traumatic experience for the eight-year old girl. She
cannot be expected to have a perfect memory of an event she
may even want to forget.

The appellants defense of denial and alibi cannot prevail

over their positive identification. Alibi is the weakest defense
as it is easy to concoct. For alibi to prosper, an accused must
not only prove that he was absent at the crime scene at the
time of its commission, but also, that it was physically
impossible for him to be so situated at said distance.[35]
In the case at bar, it was established that, at the time of
the incident, appellant Abelinde was residing in San Pedro,
a barangay adjacent
to barangay Gahit
(the locus
criminis). The distance of his house from the victims house
was about three hundred (300) meters. [36] Appellant Hermosa
himself admitted that, from the said distance, it would only take
him five (5) minutes to reach the victims place on foot. [37]Thus,
even assuming that the appellants went to Abelindes house
after the dance, it was not impossible for them to go to the
house of the victim and commit the crime.
Appellants reliance on the alleged absence of bloodstains
on the clothes they allegedly wore the night before the killing
will not exculpate them. There is no proof that the clothes they
wore at the dance were the same clothes they wore when they
went to the victims house to kill her.
Appellants cannot also capitalize on the testimony of
policeman Meliton that he had another suspect. Meliton
himself admitted that he had insufficient evidence against the
third suspect.
Moreover, the conduct of appellant Abelinde on the day
the slaying of the victim was discovered is inconsistent with his
alleged innocence. Appellant Abelinde claimed that the victim
was a relative, yet he was nonchalant when he learned of her

violent death. He went to plow the field and plant his crops as
if nothing unusual had happened.
We
sustain
the
trial
courts
finding
of
conspiracy. Conspiracy does not require an agreement for an
appreciable period prior to the commission of the crime. It
exists when, at the time of the commission of the offense, the
malefactors had the same purpose and were united in its
execution.[38] Macuibelle testified that appellant Abelinde
clubbed the victims carabao. Thereafter, he joined appellant
Hermosa who was then at the main door of the victims
house. They acted in unison in dragging the victim from her
house to the creek where they finally finished her off. Their
conduct clearly showed their mutual intent to kill the victim.
We now determine whether or not the qualifying and
aggravating circumstances alleged in the information, to wit:
evident premeditation, treachery, taking advantage of superior
strength and nighttime, were established.

of them thrust her with a knife and dragged (her) to the dark
(sic) creek to finish her (off); 3) with abuse of superior strength
because the victim (a woman) was attacked with a deadly
weapon; and 4) by nocturnity because the accused took
advantage of the darkness.
We hold that the trial court erred in appreciating the
qualifying circumstance of evident premeditation. There is
evident premeditation when the following requirements are
proved: (a) the time when the appellant decided to commit the
crime; (b) an overt act showing that the appellant clung to his
determination to commit the crime; and (c) the lapse of
sufficient period of time between the decision and the
execution of the crime, to allow the appellant to reflect upon
the consequences of the act. Evident premeditation must, like
the crime itself, be proved beyond reasonable doubt.[40]

The killing was qualified and characterized:

In the case at bar, the evidence shows that appellant

Hermosa was slighted by the refusal of the victim to extend
credit in his favor. He gave her a dagger look. However, such
behavior by itself is insufficient to prove that the appellants had
determined, at that time, to kill the victim. [41] At most, it only
proved the motive for the killing.

1) with evident premeditation because the killing was preplanned (upon the victims refusal to give liquor on credit at
about ten oclock in the evening, the accused roused with
anger or showed signs of wrath followed by cool utterance or
intention to follow the victim home, and finally after the lapse of
about three hours or at one oclock early dawn, they killed
herthe accused had sufficient time to reflect dispassionately
upon the consequences of their contemplated act); 2) with
treachery because the malefactors took the defenseless victim
at the main door of the house while on her way down and one

We also rule that treachery was not established. The

essence
of
treachery
is
that
the
attack
is deliberate and without warningdone in a swift and
unexpected manner, affording the hapless and unsuspecting
victim no chance to resist or escape.[42] The prosecution did
not prove the deliberateness of the attack. The evidence
shows that Macuibelle peeped through the hole on the wall
only after she heard the victim made an outcry. Appellant
Hermosa was already at the main door and was then in the act
of assaulting the victim. Macuibelle could not give the

The trial court ruled as follows:[39]

particulars on how the killing of the victim began and

developed. Absent any particulars on how the aggression
commenced or how the act which resulted in the victims death
unfolded, treachery cannot be appreciated.[43] We note, further,
that the victim was aware of the danger on her life. She was
holding a bolo when she was attacked. She was also able to
shout for help. In light of these circumstances, treachery
cannot be appreciated.
We also hold that the circumstance of nighttime did not
aggravate the crime. There is no proof that the appellants
purposely sought nighttime to facilitate the commission of the
crime. The mere fact that the crime was committed at
nighttime does not automatically make nocturnity an
aggravating circumstance.[44]
Nor can we agree that the crime was committed with
abuse of superior strength. This circumstance should be
appreciated whenever there is a notorious inequality of forces
between the victim and the aggressor, assuming a situation of
superiority of strength notoriously advantageous for the
aggressor, selected or taken advantage of by him in the
commission of the crime.[45] Mere superiority in number is not
enough to constitute superior strength. There must be clear
proof of deliberate intent to take advantage of the same. The
prosecution did not adduce evidence on these factual issues.
[46]
It is unclear whether the appellants deliberately took
advantage of their combined strength to facilitate the
commission of the crime. What Macuibelle saw was just the
onset of the attack.
In the absence of any circumstance that would qualify the
killing to murder, the appellants should only be held liable for
homicide. Article 249 of the Revised Penal Code provides:

Article 249. Homicide.Any person who, not falling within the

provisions of Article 246 shall kill another without the
attendance of any of the circumstances enumerated in the
next preceding article, shall be deemed guilty of homicide and
punished by reclusion temporal.
Reclusion temporal has a range of 12 years and 1 day to
20 years of imprisonment. Applying the Indeterminate
Sentence Law, there being no mitigating or aggravating
circumstance, the maximum term of the penalty shall be
imposed in the medium period[47] of reclusion temporal,
ranging from 14 years, 8 months and 1 day to 17 years and 4
months. The minimum term of the penalty shall be taken from
the penalty next lower in degree or prision mayor, in any of its
periods, ranging from six (6) years and one (1) day to twelve
(12) years.
As regards the civil indemnity, each of the appellants
should be held liable to indemnify the heirs of the victim in the
amount of P50,000.00.
IN VIEW WHEREOF, the decision appealed from is
MODIFIED. Appellants GREGORIO HERMOSA and GABRIEL
ABELINDE are declared guilty beyond reasonable doubt of
Homicide for the death of ELEANOR CONDE MALIPOT and
sentenced to suffer an indeterminate sentence of twelve (12)
years of prision mayor as minimum, and seventeen (17) years
and four (4) months of reclusion temporal medium as
maximum, and to pay P50,000 each for civil indemnity. No
special pronouncement as to costs.
SO ORDERED.

THIRD DIVISION
G HOLDINGS, INC.,
Petitioner,
- versus NATIONAL MINES AND
ALLIED WORKERS UNION
Local 103 (NAMAWU); SHERIFFS
RICHARD H. APROSTA and
ALBERTO MUNOZ, all acting
Sheriffs; DEPARTMENT OF
LABOR AND EMPLOYMENT,
Region VI, Bacolod District
Office,Bacolod City,
Respondents.

The petitioner, G Holdings, Inc. (GHI), is a domestic

corporation primarily engaged in the business of owning and
holding shares of stock of different companies. [2] It was
registered with the Securities and Exchange Commission on
G.R. No. 160236 August 3, 1992. Private respondent, National Mines and Allied
Workers Union Local 103 (NAMAWU), was the exclusive
bargaining agent of the rank and file employees of Maricalum
Promulgated:
Mining Corporation (MMC),[3] an entity operating a copper
mine and mill complex at Sipalay, Negros Occidental.[4]
October 16, 2009
MMC was incorporated by the Development Bank of the
Philippines (DBP) and the Philippine National Bank (PNB) on
October 19, 1984, on account of their foreclosure of
Marinduque Mining and Industrial Corporations assets. MMC
started its commercial operations in August 1985. Later, DBP
and PNB transferred it to the National Government for
disposition or privatization because it had become a nonperforming asset.[5]

x------------------------------------------------------------------------------------x
DECISION

On October 2, 1992, pursuant to a Purchase and Sale

Agreement[6] executed between GHI and Asset Privatization
Trust (APT), the former bought ninety percent (90%) of MMCs
shares and financial claims.[7] These financial claims were
converted into three Promissory Notes[8] issued by MMC in
favor of GHI totaling P500M and secured by mortgages over
MMCs properties. The notes, which were similarly worded
except for their amounts, read as follows:

NACHURA, J.:
PROMISSORY NOTE
Before this Court is a petition for review on certiorari under
Rule 45 of the Rules of Court assailing the October 14, 2003
Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No.
75322.

AMOUNT Php114,715,360.00 [Php186,550,560.00 in the second

note, and Php248,734,080.00 in the
third note.]

The Facts
MAKATI, METRO MANILA, PHILIPPINES, October 2, 1992

For Value Received, MARICALUM MINING

CORPORATION (MMC) with postal address at
4th Floor, Manila Memorial Park Bldg., 2283
Pasong Tamo Extension, Makati, Metro Manila,
Philippines, hereby promises to pay G
HOLDINGS, INC., at its office at Phimco
Compound, F. Manalo Street, Punta, Sta. Ana,
Manila, the amount of PESOS ONE HUNDRED
FOURTEEN MILLION, SEVEN HUNDRED
FIFTEEN
THOUSAND
AND
THREE
HUNDRED
SIXTY
(Php114,715,360.00)
[PESOS ONE HUNDRED EIGHTY SIX
MILLION FIVE HUNDRED FIFTY THOUSAND
FIFE
HUNDRED
AND
SIXTY
(Php186,550,560.00) in the second note, and
PESOS TWO HUNDRED FORTY EIGHT
MILLION, SEVEN HUNDRED THIRTY FOUR
THOUSAND
AND
EIGHTY
(Php248,734,080.00) in the third note],
PHILIPPINE CURRENCY, on or before October
2, 2002. Interest shall accrue on the amount of
this Note at a rate per annum equal to the
interest of 90-day Treasury Bills prevailing on
the Friday preceding the maturity date of every
calendar quarter.
As collateral security, MMC hereby establishes and
constitutes in favor of G HOLDINGS, INC., its
successors and/or assigns:
1.

A mortgage over certain parcels of

land, more particularly listed and
described in the Sheriffs Certificate of
Sale dated September 7, 1984 issued
by the Ex-Officio Provincial Sheriff of

Negros Occidental, Rolando V. Ramirez,

with office at Bacolod City following the
auction sale conducted pursuant to the
provisions of Act 3135, a copy of which
certificate of sale is hereto attached as
Annex A and made an integral part
hereof;
2.

A chattel mortgage over assets

and
personal
properties
more
particularly listed and described in the
Sheriffs Certificate of Sale dated
September 7, 1984 issued by the ExOfficio Provincial Sheriff of Negros
Occidental, Rolando V. Ramirez, with
office at Bacolod City following the
auction conducted pursuant to the
provisions of Act 1508, a copy of which
Certificate of Sale is hereto attached as
Annex B and made an integral part
hereof.

3.

Mortgages over assets listed in

APT Specific Catalogue GC-031 for
MMC, a copy of which Catalogue is
hereby made an integral part hereof by
way of reference, as well as assets
presently in use by MMC but which are
not listed or included in paragraphs 1
and 2 above and shall include all assets
that may hereinafter be acquired by
MMC.
MARICALUM
MINING CORPORATION

(Maker)
x x x x[9]
Upon the signing of the Purchase and Sale Agreement
and upon the full satisfaction of the stipulated down payment,
GHI immediately took physical possession of the mine site and
its facilities, and took full control of the management and
operation of MMC.[10]
Almost four years thereafter, or on August 23, 1996, a
labor dispute (refusal to bargain collectively and unfair labor
practice) arose between MMC and NAMAWU, with the latter
eventually filing with the National Conciliation and Mediation
Board of Bacolod City a notice of strike.[11] Then Labor
Secretary, now Associate Justice of this Court, Leonardo A.
Quisumbing, later assumed jurisdiction over the dispute and
ruled in favor of NAMAWU. In his July 30, 1997 Order in OSAJ-10-96-014 (Quisumbing Order), Secretary Quisumbing
declared that the lay-off (of workers) implemented on May 7,
1996 and October 7, 1996 was illegal and that MMC
committed unfair labor practice. He then ordered the
reinstatement of the laid-off workers, with payment of full
backwages and benefits, and directed the execution of a new
collective bargaining agreement (CBA) incorporating the terms
and conditions of the previous CBA providing for an annual
increase in the workers daily wage. [12] In two separate
casesG.R. Nos. 133519 and 138996filed with this Court,
we sustained the validity of the Quisumbing Order, which
became final and executory on January 26, 2000.[13]
On May 11, 2001, then Acting Department of Labor and
Employment (DOLE) Secretary, now also an Associate Justice
of this Court, Arturo D. Brion, on motion of NAMAWU, directed
the issuance of a partial writ of execution (Brion Writ), and

ordered the DOLE sheriffs to proceed to the MMC premises

for the execution of the same.[14]Much later, in 2006, this Court,
in G.R. Nos. 157696-97, entitled Maricalum Mining
Corporation v. Brion and NAMAWU,[15] affirmed the propriety of
the issuance of the Brion Writ.
The Brion Writ was not fully satisfied because MMCs
resident manager resisted its enforcement.[16] On motion of
NAMAWU, then DOLE Secretary Patricia A. Sto. Tomas
ordered the issuance of the July 18, 2002 Alias Writ of
Execution and Break-Open Order (Sto. Tomas Writ).[17] On
October 11, 2002, the respondent acting sheriffs, the members
of the union, and several armed men implemented the Sto.
Tomas Writ, and levied on the properties of MMC located at its
compound in Sipalay, Negros Occidental.[18]
On October 14, 2002, GHI filed with the Regional Trial
Court (RTC) of Kabankalan City, Negros Occidental, Special
Civil Action (SCA) No. 1127 for Contempt with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and Writ of
Preliminary Injunction and to Nullify the Sheriffs Levy on
Properties.[19] GHI contended that the levied properties were
the subject of a Deed of Real Estate and Chattel Mortgage,
dated September 5, 1996[20] executed by MMC in favor of GHI
to secure the aforesaid P550M promissory notes; that this
deed was registered on February 24, 2000; [21] and that the
mortgaged properties were already extrajudicially foreclosed in
July 2001 and sold to GHI as the highest bidder on December
3, 2001, as evidenced by the Certificate of Sale dated
December 4, 2001.[22]
The trial court issued ex parte a TRO effective for 72
hours, and set the hearing on the application for a writ of
injunction.[23] On October 17, 2002, the trial court ordered the
issuance of a Writ of Injunction (issued on October 18, 2002)
[24]
enjoining the DOLE sheriffs from further enforcing the Sto.

Tomas Writ and from conducting any public sale of the leviedon properties, subject to GHIs posting of a P5M bond.[25]
Resolving, among others, NAMAWUs separate
motions for the reconsideration of the injunction order and for
the dismissal of the case, the RTC issued its December 4,
2002 Omnibus Order,[26] the dispositive portion of which reads:
WHEREFORE, premises considered,
respondent NAMAWU Local 103s Motion for
Reconsideration dated October 23, 2002 for the
reconsideration of the Order of this Court
directing the issuance of Writ of Injunction
prayed for by petitioner and the Order dated
October 18, 2002 approving petitioners
Injunction Bond in the amount of P5,000,000.00
is hereby DENIED.
Respondents Motion to Dismiss as
embodied in its Opposition to Extension of
Temporary Restraining Order and Issuance of
Writ of Preliminary Injunction with Motion to
Dismiss and Suspend Period to File Answer
dated October 15, 2002 is likewise DENIED.
Petitioners Urgent Motion for the return
of the levied firearms is GRANTED. Pursuant
thereto, respondent sheriffs are ordered to
return the levied firearms and handguns to the
petitioner provided the latter puts [up] a bond in
the amount of P332,200.00.

Respondents lawyer, Atty. Jose Lapak, is strictly

warned not to resort again to disrespectful and
contemptuous language in his pleadings,
otherwise, the same shall be dealt with
accordingly.
SO ORDERED.[27]
Aggrieved, NAMAWU filed with the CA a petition
for certiorari under Rule 65, assailing the October 17, 18 and
December 4, 2002 orders of the RTC.[28]
After due proceedings, on October 14, 2003, the
appellate court rendered a Decision setting aside the RTC
issuances and directing the immediate execution of the Sto.
Tomas Writ. The CA ruled, among others, that the
circumstances surrounding the execution of the September 5,
1996 Deed of Real Estate and Chattel Mortgage yielded the
conclusion that the deed was sham, fictitious and fraudulent;
that it was executed two weeks after the labor dispute arose in
1996, but surprisingly, it was registered only on February 24,
2000, immediately after the Court affirmed with finality the
Quisumbing Order. The CA also found that the certificates of
title to MMCs real properties did not contain any annotation of
a mortgage lien, and, suspiciously, GHI did not intervene in the
long drawn-out labor proceedings to protect its right as a
mortgagee of virtually all the properties of MMC.[29]
The CA further ruled that the subsequent foreclosure of
the mortgage was irregular, effected precisely to prevent the
satisfaction of the judgment against MMC. It noted that the
foreclosure proceedings were initiated in July 2001, shortly
after the issuance of the Brion Writ; and, more importantly, the
basis for the extrajudicial foreclosure was not the failure of
MMC to pay the mortgage debt, but its failure to satisfy any
money judgment against it rendered by a court or tribunal of

competent jurisdiction, in favor of any person, firm or entity,

without any legal ground or reason. [30] Further, the CA pierced
the veil of corporate fiction of the two corporations. [31] The
dispositive portion of the appellate courts decision reads:
WHEREFORE, in view of the foregoing
considerations, the petition is GRANTED. The
October 17, 2002 and the December 4, 2002
Order of the RTC, Branch 61 of Kabankalan
City, Negros Occidental are hereby ANNULLED
and SET ASIDE for having been issued in
excess or without authority. The Writ of
Preliminary Injunction issued by the said court
is lifted, and the DOLE Sheriff is directed to
immediately enforce the Writ of Execution
issued by the Department of Labor and
Employment in the case In re: Labor Dispute in
Maricalum Mining Corporation docketed as OSAJ-10-96-01 (NCMB-RB6-08-96).[32]
The Issues
Dissatisfied, GHI elevated the case to this Court via the
instant petition for review on certiorari, raising the following
issues:
I
WHETHER OR NOT GHI IS A PARTY TO THE
LABOR DISPUTE BETWEEN NAMAWU AND
MMC.
II

WHETHER
OR
NOT,
ASSUMING ARGUENDO THAT
THE
PERTINENT DECISION OR ORDER IN THE
SAID LABOR DISPUTE BETWEEN MMC AND
NAMAWU MAY BE ENFORCED AGAINST
GHI, THERE IS ALREADY A FINAL
DEETERMINATION BY THE SUPREME
COURT OF THE RIGHTS OF THE PARTIES IN
SAID LABOR DISPUTE CONSIDERING THE
PENDENCY OF G.R. NOS. 157696-97.

BETWEEN MMC AND GHI

COLLATERALLY ATTACKED.

MAY

BE

VI
WHETHER
OR
NOT,
ASSUMING ARGUENDO THAT THE VALIDITY
OF THE SAID REAL AND CHATTEL
MORTGAGE MAY BE COLLATERALLY
ATTACKED, THE SAID MORTGAGE IS SHAM,
FICTITIOUS AND FRAUDULENT.

III
VII
WHETHER OR NOT GHI IS THE ABSOLUTE
OWNER
OF
THE
PROPERTIES
UNLAWFULLY
GARNISHED
BY
RESPONDENTS SHERIFFS.

WHETHER OR NOT GHI IS A DISTINCT AND

SEPARATE CORPORATE ENTITY FROM
MMC.
VIII

IV
WHETHER OR NOT THE HONORABLE
HENRY D. ARLES CORRECTLY ISSUED A
WRIT OF INJUNCTION AGAINST THE
UNLAWFUL EXECUTIOIN ON GHIS
PROPERTIES.
V
WHETHER OR NOT THE VALIDITY OF THE
DEED OF REAL AND CHATTEL MORTGAGE
OVER
THE
SUBJECT
PROPERTIES

WHETHER OR NOT GHI CAN BE

PREVENTED THROUGH THE ISSUANCE OF
A RESTRAINING ORDER OR INJUNCTION
FROM TAKING POSSESSION OR BE
DISPOSSESSED OF ASSETS PURCHASED
BY IT FROM APT.[33]
Stripped of non-essentials, the core issue is whether, given the
factual circumstances obtaining, the RTC properly issued the
writ of injunction to prevent the enforcement of the Sto. Tomas
Writ. The resolution of this principal issue, however, will

necessitate a ruling on the following key and interrelated

questions:
1.

Whether the mortgage of the MMCs properties to

GHI was a sham;

2.

Whether there was an effective levy by the DOLE

upon the MMCs real and personal properties; and

3.

Whether it was proper for the CA to pierce the veil

of corporate fiction between MMC and GHI.
Our Ruling

Before we delve into an extended discussion of the foregoing

issues, it is essential to take judicial cognizance of cases
intimately linked to the present controversy which had earlier
been elevated to and decided by this Court.
Judicial Notice.
Judicial notice must be taken by this Court of its Decision
in Maricalum Mining Corporation v. Hon. Arturo D. Brion and
NAMAWU,[34] in which we upheld the right of herein private
respondent, NAMAWU, to its labor claims. Upon the same
principle of judicial notice, we acknowledge our Decision
in Republic of the Philippines, through its trustee, the Asset
Privatization Trust v. G Holdings, Inc., [35] in which GHI was
recognized as the rightful purchaser of the shares of stocks of
MMC, and thus, entitled to the delivery of the company notes
accompanying the said purchase. These company notes,
consisting of three (3) Promissory Notes, were part of the
documents executed in 1992 in the privatization sale of MMC
by the Asset Privatization Trust (APT) to GHI. Each of these

notes
uniformly
contains
stipulations establishing
and constituting in favor of GHImortgages over MMCs real and
personal properties. The stipulations were subsequently
formalized in a separate document denominated Deed of Real
Estate
and
Chattel
Mortgage
on September
5,
1996. Thereafter, the Deed was registered on February 4,
2000.[36]
We find both decisions critically relevant to the instant
dispute. In fact, they should have guided the courts below in
the disposition of the controversy at their respective levels.To
repeat, these decisions respectively confirm the right of
NAMAWU to its labor claims[37] and affirm the right of GHI to its
financial and mortgage claims over the real and personal
properties of MMC, as will be explained below. The assailed
CA decision apparently failed to consider the impact of these
two decisions on the case at bar. Thus, we find it timely to
reiterate that: courts have also taken judicial notice of previous
cases to determine whether or not the case pending is a moot
one or whether or not a previous ruling is applicable to the
case under consideration.[38]
However, the CA correctly assessed that the authority of the
lower court to issue the challenged writ of injunction depends
on the validity of the third partys (GHIs) claim of ownership
over the property subject of the writ of execution issued by the
labor department. Accordingly, the main inquiry addressed by
the CA decision was whether GHI could be treated as a third
party or a stranger to the labor dispute, whose properties were
beyond the reach of the Writ of Execution dated December 18,
2001.[39]
In this light, all the more does it become imperative to take
judicial notice of the two cases aforesaid, as they provide the
necessary perspective to determine whether GHI is such a
party with a valid ownership claim over the properties subject
of the writ of execution. In Juaban v. Espina,[40] we held that in

some instances, courts have also taken judicial notice of

proceedings in other cases that are closely connected to the
matter in controversy. These cases may be so closely
interwoven, or so clearly interdependent, as to invoke a rule of
judicial notice. The two cases that we have taken judicial
notice of are of such character, and our review of the instant
case cannot stray from the findings and conclusions therein.
Having recognized these crucial Court rulings, situating the
facts in proper perspective, we now proceed to resolve the
questions identified above.
The mortgage
was not a sham.
Republic etc., v. G Holdings, Inc. acknowledged the
existence of the Purchase and Sale Agreement between the
APT and the GHI, and recounts the facts attendant to that
transaction, as follows:
The series of negotiations between
the petitioner Republic of
the Philippines,
through the APT as its trustee, and G Holdings
culminated in the execution of a purchase and
sale agreement on October 2, 1992. Under the
agreement, the Republic undertook to sell and
deliver 90% of the entire issued and
outstanding shares of MMC, as well as
its company
notes,
to GHoldings
in
consideration
of
the
purchase
price
of P673,161,280. It also provided for a down
payment of P98,704,000 with the balance
divided into four tranches payable in installment
over a period of ten years.[41]

The company notes mentioned therein were actually the very

same three (3) Promissory Notes amounting to P550M, issued
by MMC in favor of GHI. As already adverted to above, these
notes uniformly contained stipulations establishing and
constituting mortgages over MMCs real and personal
properties.
It may be remembered that APT acquired the MMC
from the PNB and the DBP. Then, in compliance with its
mandate to privatize government assets, APT sold the
aforesaid MMC shares and notes to GHI. To repeat, this Court
has recognized this Purchase and Sale Agreement
in Republic, etc., v. G Holdings, Inc.
The participation of the Government, through APT, in
this transaction is significant. Because the Government had
actively negotiated and, eventually, executed the agreement,
then the transaction is imbued with an aura of official authority,
giving rise to the presumption of regularity in its
execution. This presumption would cover all related
transactional acts and documents needed to consummate the
privatization sale, inclusive of the Promissory Notes. It is
obvious, then, that the Government, through APT, consented
to the establishment and constitution of the mortgages on the
assets of MMC in favor of GHI, as provided in the
notes. Accordingly, the notes (and the stipulations therein)
enjoy the benefit of the same presumption of regularity
accorded to government actions. Given the Government
consent thereto, and clothed with the presumption of
regularity, the mortgages cannot be characterized as sham,
fictitious or fraudulent.
Indeed, as mentioned above, the three (3) Promissory
Notes, executed on October 2, 1992, established and
constituted in favor of GHI the following mortgages:

1. A mortgage over certain parcels of land,

more particularly listed and described in
the Sheriffs Certificate of Sale dated
September 7, 1984 issued by the ExOfficio Provincial Sheriff of Negros
Occidental, Rolando V. Ramirez, with
office at Bacolod City following the
auction sale conducted pursuant to the
provisions of Act 3135, a copy of which
certificate of sale is hereto attached as
Annex A and made an integral part
hereof;
2.

A chattel mortgage over assets

and
personal
properties
more
particularly listed and described in the
Sheriffs Certificate of Sale dated
September 7, 1984 issued by the ExOfficio Provincial Sheriff of Negros
Occidental, Rolando V. Ramirez, with
office at Bacolod City following the
auction conducted pursuant to the
provision of Act 1508, a copy of which
Certificate of Sale is hereto attached as
Annex B and made an integral part
hereof.

3. Mortgages over assets listed in APT Specific

catalogue GC-031 for MMC, a copy of
which Catalogue is hereby made an
integral part hereof by way of reference,
as well as assets presently in use by
MMC but which are not listed or
included in paragraphs 1 and 2 above
and shall include all assets that may
hereinafter be acquired by MMC.[42]

It is difficult to conceive that these mortgages, already existing

in 1992, almost four (4) years before NAMAWU filed its notice
of strike, were a fictitious arrangement intended to defraud
NAMAWU. After all, they were agreed upon long before the
seeds of the labor dispute germinated.
While it is true that the Deed of Real Estate and Chattel
Mortgage was executed only on September 5, 1996, it is
beyond cavil that this formal document of mortgage was
merely a derivative of the original mortgage stipulations
contained in the Promissory Notes of October 2, 1992. The
execution of this Deed in 1996 does not detract from, but
instead reinforces, the manifest intention of the parties to
establish and constitute the mortgages on MMCs real and
personal properties.
Apparently, the move to execute a formal document
denominated as the Deed of Real Estate and Chattel
Mortgage came about after the decision of the RTC of Manila
in Civil Case No. 95-76132 became final in mid-1996. This
conclusion surfaces when we consider the genesis of Civil
Case No. 95-76132 and subsequent incidents thereto, as
narrated in Republic, etc. v. G Holdings, Inc., viz:
Subsequently, a disagreement on the matter of
when installment payments should commence
arose between the parties. The Republic
claimed that it should be on the seventh month
from the signing of the agreement while G
Holdings insisted that it should begin seven
months after the fulfillment of the closing
conditions.
Unable to settle the issue, G Holdings
filed a complaint for specific performance and

damages with the Regional Trial Court of

Manila, Branch 49, against the Republic to
compel it to close the sale in accordance with
the purchase and sale agreement. The
complaint was docketed as Civil Case No. 9576132.
During the pre-trial, the respective counsels of
the parties manifested that the issue involved in
the case was one of law and submitted the
case for decision. On June 11, 1996, the trial
court rendered its decision. It ruled in favor of G
Holdings and held:
In line with the foregoing,
this
Court
having
been
convinced that the Purchase and
Sale Agreement is indeed
subject to the final closing
conditions
prescribed
by
Stipulation
No.
5.02
and
conformably to Rule 39, Section
10
of
the
Rules
of
Court, accordingly orders that
the Asset Privatization Trust
execute the corresponding
Document of Transfer of the
subject shares and financial
notes and cause the actual
delivery of subject shares and
notes to G Holdings, Inc.,
within a period of thirty (30)
days from receipt of this
Decision, and after G Holdings
Inc., shall have paid in full the
entire balance, at its present

value
of P241,702,122.86,
computed pursuant to the
prepayment provisions of the
Agreement. Plaintiff shall pay the
balance simultaneously with the
delivery of the Deed of Transfer
and actual delivery of the shares
and notes.
SO ORDERED.
The Solicitor General filed a notice of appeal on behalf
of the Republic on June 28, 1996. Contrary to
the rules of procedure, however, the notice of
appeal was filed with the Court of Appeals (CA),
not with the trial court which rendered the
judgment appealed from.
No other judicial remedy was resorted to until July 2,
1999 when the Republic, through the APT, filed
a petition for annulment of judgment with the
CA. It claimed that the decision should be
annulled on the ground of abuse of discretion
amounting to lack of jurisdiction on the part of
the trial court. x x x
Finding that the grounds necessary for the
annulment of judgment were inexistent, the
appellate court dismissed the petition. x x x x[43]
With the RTC decision having become final owing to the failure
of the Republic to perfect an appeal, it may have become
necessary to execute the Deed of Real Estate and Chattel
Mortgage on September 5, 1996, in order to enforce the trial

courts decision of June 11, 1996. This appears to be the most

plausible explanation for the execution of the Deed of Real
Estate and Chattel Mortgage only in September 1996. Even as
the parties had already validly constituted the mortgages in
1992, as explicitly provided in the Promissory Notes, a specific
deed of mortgage in a separate document may have been
deemed necessary for registration purposes. Obviously, this
explanation is more logical and more sensible than the
strained conjecture that the mortgage was executed on
September 5, 1996 only for the purpose of defrauding
NAMAWU.
It is undeniable that the Deed of Real Estate and Chattel
Mortgage was formally documented two weeks after
NAMAWU filed its notice of strike against MMC on August 23,
1996. However, this fact alone cannot give rise to an adverse
inference for two reasons. First, as discussed above, the
mortgages had already been established and constituted as
early as October 2, 1992 in the Promissory Notes, showing the
clear intent of the parties to impose a lien upon MMCs
properties. Second, the mere filing of a notice of strike by
NAMAWU did not, as yet, vest in NAMAWU any definitive right
that could be prejudiced by the execution of the mortgage
deed.
The fact that MMCs obligation to GHI is not reflected in the
formers financial statementsa circumstance made capital of
by NAMAWU in order to cast doubt on the validity of the
mortgage deedis of no moment. By itself, it does not provide
a sufficient basis to invalidate this public document. To say
otherwise, and to invalidate the mortgage deed on this pretext,
would furnish MMC a convenient excuse to absolve itself of its
mortgage obligations by adopting the simple strategy of not
including the obligations in its financial statements. It would
ignore our ruling in Republic, etc. v. G Holdings, Inc., which
obliged APT to deliver the MMC shares and financial notes to

GHI. Besides, the failure of the mortgagor to record in its

financial statements its loan obligations is surely not an
essential element for the validity of mortgage agreements, nor
will it independently affect the right of the mortgagee to
foreclose.
Contrary to the CA decision, Tanongon v. Samson[44] is not on
all fours with the instant case. There are material differences
between the two cases. At issue in Tanongon was a third-party
claim arising from a Deed of Absolute Sale executed between
Olizon and Tanongon on July 29, 1997, after the NLRC
decision became final and executory on April 29, 1997. In the
case at bar, what is involved is a loan with mortgage
agreement executed on October 2, 1992, well ahead of the
unions notice of strike on August 23, 1996. No presumption of
regularity inheres in the deed of sale in Tanongon, while the
participation of APT in this case clothes the transaction in 1992
with such a presumption that has not been successfully
rebutted. In Tanongon, the conduct of a full-blown trial led to
the findingduly supported by evidencethat the voluntary
sale of the assets of the judgment debtor was made in bad
faith. Here, no trial was held, owing to the motion to dismiss
filed by NAMAWU, and the CA failed to consider the factual
findings made by this Court in Republic, etc. v. G Holdings,
Inc. Furthermore, in Tanongon, the claimant did not exercise
his option to file a separate action in court, thus allowing the
NLRC Sheriff to levy on execution and to determine the rights
of third-party claimants.[45] In this case, a separate action was
filed in the regular courts by GHI, the third-party
claimant. Finally, the questioned transaction in Tanongon was
a plain, voluntary transfer in the form of a sale executed by the
judgment debtor in favor of a dubious third-party, resulting in
the inability of the judgment creditor to satisfy the
judgment. On the other hand, this case involves an involuntary
transfer (foreclosure of mortgage) arising from a loan

obligation that well-existed long before the commencement of

the labor claims of the private respondent.
Three other circumstances have been put forward by the CA to
support its conclusion that the mortgage contract is a
sham. First, the CA considered it highly suspect that the Deed
of Real Estate and Chattel Mortgage was registered only on
February 4, 2000, three years after its execution, and almost
one month after the Supreme Court rendered its decision in
the labor dispute.[46] Equally suspicious, as far as the CA is
concerned, is the fact that the mortgages were foreclosed on
July 31, 2001, after the DOLE had already issued a Partial
Writ of Execution on May 9, 2001. [47] To the appellate court, the
timing of the registration of the mortgage deed was too
coincidental, while the date of the foreclosure signified that it
was effected precisely to prevent the satisfaction of the
judgment awards.[48] Furthermore, the CA found that the
mortgage deed itself was executed without any consideration,
because at the time of its execution, all the assets of MMC had
already been transferred to GHI.[49]
These circumstances provided the CA with sufficient
justification to apply Article 1387 of the Civil Code on
presumed fraudulent transactions, and to declare that the
mortgage deed was void for being simulated and fictitious.[50]
We do not agree. We find this Courts ruling in MR Holdings,
Ltd. v. Sheriff Bajar[51] pertinent and instructive:
Article 1387 of the
the Philippines provides:

Civil

Code

Art. 1387. All contracts by

virtue of which the debtor
alienates property by gratuitous
title are presumed to have been

of

entered into in fraud of creditors,

when the donor did not reserve
sufficient property to pay all
debts contracted before the
donation.
Alienations by onerous
title
are
also
presumed
fraudulent when made by
persons against whom some
judgment has been rendered in
any instance or some writ of
attachment has been issued.
The decision or attachment need
not refer to the property
alienated, and need not have
been obtained by the party
seeking rescission.
In addition to these
presumptions, the design to
defraud creditors may be proved
in any other manner recognized
by law and of evidence.
This article presumes the
existence of fraud made by a
debtor. Thus, in the absence of
satisfactory evidence to the
contrary, an alienation of a
property will be held fraudulent if
it is made after a judgment has
been rendered against the
debtor
making
the
alienation. This presumption of
fraud is not conclusive and
may
be
rebutted
by

satisfactory and convincing

evidence. All that is necessary
is to establish affirmatively
that the conveyance is made
in good faith and for a
sufficient
and
valuable
consideration.
The Assignment Agreement and the Deed of
Assignment were executed for valuable
considerations. Patent from the Assignment
Agreement is the fact that petitioner assumed
the payment of US$18,453,450.12 to ADB in
satisfaction of Marcoppers remaining debt as of
March 20, 1997. Solidbank cannot deny this
fact considering that a substantial portion of the
said payment, in the sum of US$13,886,791.06,
was remitted in favor of the Bank of Nova
Scotia, its major stockholder.
The facts of the case so far show that
the assignment contracts were executed in
good faith. The execution of the Assignment
Agreement on March 20, 1997 and the Deed of
Assignment on December 8,1997 is not
the alpha of this case. While the execution of
these
assignment
contracts
almost
coincided with the rendition on May 7, 1997
of the Partial Judgment in Civil Case No. 9680083 by the Manila RTC, however, there was
no intention on the part of petitioner to defeat
Solidbanks claim. It bears reiterating that as
early as November 4, 1992, Placer Dome had
already bound itself under a Support and
Standby Credit Agreement
to provide
Marcopper with cash flow support for the
payment to ADB of its obligations. When

Marcopper ceased operations on account of

disastrous mine tailings spill into the Boac River
and ADB pressed for payment of the loan,
Placer Dome agreed to have its subsidiary,
herein petitioner, pay ADB the amount of
US$18,453,450.12.
Thereupon, ADB and Marcopper
executed, respectively, in favor of petitioner an
Assignment Agreement and a Deed of
Assignment. Obviously,
the
assignment
contracts were connected with transactions
that happened long before the rendition in
1997 of the Partial Judgment in Civil Case
No. 96-80083 by the Manila RTC. Those
contracts cannot be viewed in isolation. If
we may add, it is highly inconceivable that ADB,
a reputable international financial organization,
will connive with Marcopper to feign or simulate
a contract in 1992 just to defraud Solidbank for
its claim four years thereafter. And it is equally
incredible for petitioner to be paying the huge
sum of US$18,453,450.12 to ADB only for the
purpose of defrauding Solidbank of the sum
of P52,970,756.89.
It is said that the test as to whether or not a
conveyance is fraudulent is does it prejudice
the rights of creditors? We cannot see how
Solidbanks right was prejudiced by the
assignment contracts considering that
substantially all of Marcoppers properties
were already covered by the registered Deed
of Real Estate and Chattel Mortgage
executed by Marcopper in favor of ADB as
early as November 11, 1992. As such,
Solidbank cannot assert a better right than
ADB, the latter being a preferred creditor. It

is basic that mortgaged properties answer

primarily for the mortgaged credit, not for
the judgment credit of the mortgagors
unsecured creditor. Considering that petitioner
assumed Marcoppers debt to ADB, it follows
that Solidbanks right as judgment creditor over
the subject properties must give way to that of
the former.[52]
From this ruling in MR Holdings, we can draw parallel
conclusions. The execution of the subsequent Deed of Real
Estate and Chattel Mortgage on September 5, 1996 was
simply the formal documentation of what had already been
agreed in the seminal transaction (the Purchase and Sale
Agreement) between APT and GHI. It should not be viewed in
isolation, apart from the original agreement of October 2,
1992. And it cannot be denied that this original agreement was
supported by an adequate consideration. The APT was even
ordered by the court to deliver the shares and financial notes
of MMC in exchange for the payments that GHI had made.
It was also about this time, in 1996, that NAMAWU filed a
notice of strike to protest non-payment of its rightful labor
claims.[53] But, as already mentioned, the outcome of that labor
dispute was yet unascertainable at that time, and NAMAWU
could only have hoped for, or speculated about, a favorable
ruling. To paraphrase MR Holdings, we cannot see how
NAMAWUs right was prejudiced by the Deed of Real Estate
and Chattel Mortgage, or by its delayed registration, when
substantially all of the properties of MMC were already
mortgaged to GHI as early as October 2, 1992. Given this
reality, the Court of Appeals had no basis to conclude that this
Deed of Real Estate and Chattel Mortgage, by reason of its
late registration, was a simulated or fictitious contract.

The importance of registration and its binding effect is

stated in Section 51 of the Property Registration Decree or
Presidential Decree (P.D.) No. 1529,[54] which reads:
SECTION 51. Conveyance and other dealings
by registered owner.An owner of registered land
may convey, mortgage, lease, charge or
otherwise deal with the same in accordance
with existing laws. He may use such forms,
deeds, mortgages, leases or other voluntary
instrument as are sufficient in law. But no deed,
mortgage, lease or other voluntary instrument,
except a will purporting to convey or effect
registered land, shall take effect as a
conveyance or bind the land, but shall operate
only as a contract between the parties and as
evidence of authority to the Registry of Deeds
to make registration.
The act of registration shall be the operative act
to convey or affect the land insofar as third
persons are concerned, and in all cases under
this Decree, the registration shall be made in
the Office of the Register of Deeds for the
province or the city where the land lies.[55]
Under the Torrens system, registration is the operative act
which gives validity to the transfer or creates a lien upon the
land. Further, entrenched in our jurisdiction is the doctrine that
registration in a public registry creates constructive notice to
the whole world.[56] Thus, Section 51 of Act No. 496, as
amended by Section 52 of P.D. No. 1529, provides:
SECTION
52. Constructive
notice
upon
registration.Every
conveyance,
mortgage,
lease, lien, attachment, order, judgment,
instrument or entry affecting registered land

shall, if registered, filed or entered in the Office

of the Register of Deeds for the province or city
where the land to which it relates lies, be
constructive notice to all persons from the time
of such registering, filing or entering.

have had the effect to prevent satisfaction of the judgment

award against the specific mortgaged property that first
answers for a mortgage obligation ahead of any subsequent
creditors, that same foreclosure does not necessarily translate
to having been effected to prevent satisfaction of the judgment
award against MMC.

But, there is nothing in Act No. 496, as amended by

P.D. No. 1529, that imposes a period within which to register
annotations of conveyance, mortgage, lease, lien, attachment,
order, judgment, instrument or entry affecting registered
land. If liens were not so registered, then it shall operate only
as a contract between the parties and as evidence of authority
to the Registry of Deeds to make registration. If registered, it
shall be the operative act to convey or affect the land insofar
as third persons are concerned. The mere lapse of time from
the execution of the mortgage document to the moment of its
registration does not affect the rights of a mortgagee.

Likewise, we note the narration of subsequent facts

contained in the Comment of the Office of the Solicitor
General. Therein, it is alleged that after the Partial Writ of
Execution was issued on May 9, 2001, a motion for
reconsideration was filed by MMC; that the denial of the
motion was appealed to the CA; that when the appeal was
dismissed by the CA on January 24, 2002, it eventually
became the subject of a review petition before this Court,
docketed as G.R. No. 157696; and that G.R. No. 157696 was
decided by this Court only on February 9, 2006.

Neither will the circumstance of GHIs foreclosure of MMCs

properties on July 31, 2001, or after the DOLE had already
issued a Partial Writ of Execution on May 9, 2001 against
MMC, support the conclusion of the CA that GHIs act of
foreclosing on MMCs properties was effected to prevent
satisfaction of the judgment award. GHIs mortgage rights,
constituted in 1992, antedated the Partial Writ of Execution by
nearly ten (10) years. GHIs resort to foreclosure was a
legitimate enforcement of a right to liquidate a bona
fide debt. It was a reasonable option open to a mortgagee
which, not being a party to the labor dispute between
NAMAWU and MMC, stood to suffer a loss if it did not avail
itself of the remedy of foreclosure.

This chronology of subsequent events shows that

February 9, 2006 would have been the earliest date for the
unimpeded enforcement of the Partial Writ of Execution, as it
was only then that this Court resolved the issue. This
happened four and a half years after July 31, 2001, the date
when GHI foreclosed on the mortgaged properties. Thus, it is
not accurate to say that the foreclosure made on July 31, 2001
was effected [only] to prevent satisfaction of the judgment
award.

The well-settled rule is that a mortgage lien is

inseparable from the property mortgaged.[57] While it is true
that GHIs foreclosure of MMCs mortgaged properties may

We also observe the error in the CAs finding that the 1996
Deed of Real Estate and Chattel Mortgage was not supported
by any consideration since at the time the deed was
executed, all the real and personal property of MMC had
already been transferred in the hands of G Holdings.[58] It
should be remembered that the Purchase and Sale Agreement
between GHI and APT involved large amounts (P550M) and

even spawned a subsequent court action (Civil Case No. 9576132, RTC of Manila). Yet, nowhere in the Agreement or in
the RTC decision is there any mention of real and personal
properties of MMC being included in the sale to GHI in
1992. These properties simply served as mortgaged collateral
for the 1992 Promissory Notes.[59] The Purchase and Sale
Agreement and the Promissory Notes themselves are the best
evidence that there was ample consideration for the mortgage.
Thus, we must reject the conclusion of the CA that the Deed of
Real Estate and Chattel Mortgage executed in 1996 was a
simulated transaction.
On the issue of whether there
had been an effective levy upon
the properties of GHI.
The well-settled principle is that the rights of a
mortgage creditor over the mortgaged properties are superior
to those of a subsequent attaching creditor. In Cabral v.
Evangelista,[60] this Court declared that:
Defendants-appellants purchase of the
mortgaged chattels at the public sheriff's sale
and the delivery of the chattels to them with a
certificate of sale did not give them a superior
right to the chattels as against plaintiffsmortgagees. Rule 39, Section 22 of the old
Rules of Court (now Rule 39, Section 25 of the
Revised Rules), cited by appellants precisely
provides that the sale conveys to the purchaser
all the right which the debtor had in such
property on the day the execution or attachment
was levied. It has long been settled by this

Court that The right of those who so acquire

said properties should not and can not be
superior to that of the creditor who has in his
favor an instrument of mortgage executed with
the formalities of the law, in good faith, and
without the least indication of fraud. This is all
the more true in the present case, because,
when the plaintiff purchased the automobile in
question on August 22, 1933, he knew, or at
least, it is presumed that he knew, by the mere
fact that the instrument of mortgage, Exhibit 2,
was registered in the office of the register of
deeds of Manila, that said automobile was
subject to a mortgage lien. In purchasing it, with
full knowledge that such circumstances existed,
it should be presumed that he did so, very
much willing to respect the lien existing thereon,
since he should not have expected that with the
purchase, he would acquire a better right than
that which the vendor then had. In another case
between two mortgagees, we held that As
between the first and second mortgagees,
therefore, the second mortgagee has at most
only the right to redeem, and even when the
second mortgagee goes through the formality of
an extrajudicial foreclosure, the purchaser
acquires no more than the right of redemption
from the first mortgagee. The superiority of the
mortgagee's lien over that of a subsequent
judgment creditor is now expressly provided in
Rule 39, Section 16 of the Revised Rules of
Court, which states with regard to the effect of
levy on execution as to third persons that The
levy on execution shall create a lien in favor of
the judgment creditor over the right, title and
interest of the judgment debtor in such property

at the time of the levy, subject to liens or

encumbrances then existing.
Even in the matter of possession, mortgagees over chattel
have superior, preferential and paramount rights thereto, and
the mortgagor has mere rights of redemption.[61]
Similar rules apply to cases of mortgaged real properties that
are registered. Since the properties were already mortgaged to
GHI, the only interest remaining in the mortgagor was its right
to redeem said properties from the mortgage. The right of
redemption was the only leviable or attachable property right
of the mortgagor in the mortgaged real properties. We have
held that
The main issue in this case is the nature
of the lien of a judgment creditor, like the
petitioner, who has levied an attachment on the
judgment debtor's (CMI) real properties which
had been mortgaged to a consortium of banks
and were subsequently sold to a third party, Top
Rate.
xxxx
The sheriff's levy on CMI's properties,
under the writ of attachment obtained by the
petitioner, was actually a levy on the interest
only of the judgment debtor CMI on those
properties. Since the properties were already
mortgaged to the consortium of banks, the only
interest remaining in the mortgagor CMI was its
right to redeem said properties from the
mortgage. The right of redemption was the only
leviable or attachable property right of CMI in
the mortgaged real properties. The sheriff could
not have attached the properties themselves,

for they had already been conveyed to the

consortium of banks by mortgage (defined as a
conditional sale), so his levy must be
understood to have attached only the
mortgagor's remaining interest in the mortgaged
property the right to redeem it from the
mortgage.[62]
xxxx
There appears in the record a factual contradiction
relating to whether the foreclosure by GHI on July 13,
2001[63] over some of the contested properties came ahead of
the levy thereon, or the reverse. NAMAWU claims that the levy
on two trucks was effected on June 22, 2001, [64] which GHI
disputes as a misstatement because the levy was attempted
on July 18, 2002, and not 2001[65] What is undisputed though is
that the mortgage of GHI was registered on February 4, 2000,
[66]
well ahead of any levy by NAMAWU. Prior registration of a
lien creates a preference, as the act of registration is the
operative act that conveys and affects the land, [67] even against
subsequent judgment creditors, such as respondent herein. Its
registration of the mortgage was not intended to defraud
NAMAWU of its judgment claims, since even the courts were
already judicially aware of its existence since 1992. Thus, at
that moment in time, with the registration of the mortgage,
either NAMAWU had no properties of MMC to attach because
the same had been previously foreclosed by GHI as
mortgagee thereof; or by virtue of the DOLEs levy to enforce
NAMAWUs claims, the latters rights are subject to the notice of
the foreclosure on the subject properties by a prior
mortgagees right. GHIs mortgage right had already been
registered by then, and it is basic that mortgaged properties
answer primarily for the mortgaged credit, not for the judgment
credit of the mortgagors unsecured creditor.[68]

On the issue of piercing the

veil of corporate fiction.
The CA found that:
Ordinarily, the interlocking of directors
and officers in two different corporations is not a
conclusive indication that the corporations are
one and the same for purposes of applying the
doctrine of piercing the veil of corporate
fiction. However, when the legal fiction of the
separate corporate personality is abused, such
as when the same is used for fraudulent or
wrongful ends, the courts have not hesitated to
pierce the corporate veil (Francisco vs. Mejia,
362 SCRA 738). In the case at bar, the Deed of
Real Estate and Chattel Mortgage was entered
into between MMC and G Holdings for the
purpose of evading the satisfaction of the
legitimate claims of the petitioner against
MMC. The notion of separate personality is
clearly being utilized by the two corporations to
perpetuate the violation of a positive legal duty
arising from a final judgment to the prejudice of
the petitioners right.[69]

made to answer for acts or liabilities of the said

corporation, and vice versa. This separate and
distinct personality is, however, merely a fiction
created by law for convenience and to promote
the ends of justice. For this reason, it may not
be used or invoked for ends subversive to the
policy and purpose behind its creation or which
could not have been intended by law to which it
owes its being. This is particularly true when
the fiction is used to defeat public
convenience, justify wrong, protect fraud,
defend crime, confuse legitimate legal or
judicial issues, perpetrate deception or
otherwise circumvent the law. This is likewise
true where the corporate entity is being used
as an alter ego, adjunct, or business conduit
for the sole benefit of the stockholders or of
another corporate entity. In all these cases,
the notion of corporate entity will be pierced or
disregarded with reference to the particular
transaction involved.
Given this jurisprudential principle and the factual
circumstances obtaining in this case, we now ask: Was the CA
correct in piercing the veil of corporate identity of GHI and
MMC?

Settled jurisprudence[70] has it that

(A) corporation, upon coming into
existence, is invested by law with a personality
separate and distinct from those persons
composing it as well as from any other legal
entity to which it may be related. By this
attribute, a stockholder may not, generally, be

In our disquisition above, we have shown that the CAs finding

that there was a simulated mortgage between GHI and MMC
to justify a wrong or protect a fraud has struggled vainly to find
a foothold when confronted with the ruling of this Court
in Republic v. G Holdings, Inc.
The negotiations between the GHI and the Government-through APT, dating back to 1992--culminating in the Purchase

and Sale Agreement, cannot be depicted as a contrived

transaction. In fact, in the said Republic, etc., v. G Holdings,
Inc., this Court adjudged that GHI was entitled to its rightful
claims not just to the shares of MMC itself, or just to the
financial notes that already contained the mortgage clauses
over MMCs disputed assets, but also to the delivery of those
instruments. Certainly, we cannot impute to this Courts
findings on the case any badge of fraud. Thus, we reject the
CAs conclusion that it was right to pierce the veil of corporate
fiction, because the foregoing circumstances belie such an
inference. Furthermore, we cannot ascribe to the Government,
or the APT in particular, any undue motive to participate in a
transaction designed to perpetrate fraud.Accordingly, we
consider the CA interpretation unwarranted.
We also cannot agree that the presumption of fraud in
Article 1387 of the Civil Code relative to property
conveyances, when there was already a judgment rendered or
a writ of attachment issued, authorizes piercing the veil of
corporate identity in this case. We find that Article 1387 finds
less application to an involuntary alienation such as the
foreclosure of mortgage made before any final judgment of a
court. We thus hold that when the alienation is involuntary, and
the foreclosure is not fraudulent because the mortgage deed
has been previously executed in accordance with formalities of
law, and the foreclosure is resorted to in order to liquidate
a bona fide debt, it is not the alienation by onerous title
contemplated in Article 1387 of the Civil Code wherein fraud is
presumed.
Since the factual antecedents of this case do not
warrant a finding that the mortgage and loan agreements
between MMC and GHI were simulated, then their separate
personalities must be recognized. To pierce the veil of
corporate fiction would require that their personalities as

creditor and debtor be conjoined, resulting in a merger of the

personalities of the creditor (GHI) and the debtor (MMC) in one
person, such that the debt of one to the other is thereby
extinguished. But the debt embodied in the 1992 Financial
Notes has been established, and even made subject of court
litigation (Civil Case No. 95-76132, RTC Manila). This can only
mean that GHI and MMC have separate corporate
personalities.
Neither was MMC used merely as an alter ego,
adjunct, or business conduit for the sole benefit of GHI, to
justify piercing the formers veil of corporate fiction so that the
latter could be held liable to claims of third-party judgment
creditors, like NAMAWU. In this regard, we find American
jurisprudence persuasive. In a decision by the Supreme Court
of New York[71] bearing upon similar facts, the Court denied
piercing the veil of corporate fiction to favor a judgment
creditor who sued the parent corporation of the debtor, alleging
fraudulent corporate asset-shifting effected after a prior final
judgment. Under a factual background largely resembling this
case at bar, viz:
In this action, plaintiffs seek to recover
the balance due under judgments they obtained
against Lake George Ventures Inc. (hereinafter
LGV), a subsidiary of defendant that was
formed to develop the Top O the World resort
community
overlooking
Lake
George,
by piercing the corporate veil or upon the theory
that LGV's transfer of certain assets constituted
fraudulent transfers under the Debtor and
Creditor Law. We previously upheld Supreme
Court's denial of defendant's motion for
summary
judgment
dismissing
the
complaint (252 A.D.2d 609, 675 N.Y.S.2d
234) and the matter proceeded to a nonjury

trial. Supreme Court thereafter rendered

judgment in favor of defendant upon its findings
that, although defendant dominated LGV, it did
not use that domination to commit a fraud or
wrong on plaintiffs. Plaintiffs appealed.

The trial evidence showed that LGV was

incorporated in November 1985. Defendant's
principal, Francesco Galesi, initially held 90% of
the stock and all of the stock was ultimately
transferred to defendant. Initial project funding
was provided through a $2.5 million loan from
Chemical Bank, secured by defendant's
guarantee of repayment of the loan and
completion of the project. The loan proceeds
were utilized to purchase the real property upon
which the project was to be established.
Chemical Bank thereafter loaned an additional
$3.5 million to LGV, again guaranteed by
defendant, and the two loans were consolidated
into a first mortgage loan of $6 million. In 1989,
the loan was modified by splitting the loan into a
$1.9 term note on which defendant was primary
obligor and a $4.1 million project note on which
LGV was the obligor and defendant was a
guarantor.
Due to LGV's lack of success in
marketing the project's townhouses and in
order to protect itself from the exercise of
Chemical
Bank's
enforcement
remedies, defendant was forced to make

monthly installments of principal and interest on

LGV's behalf. Ultimately, defendant purchased
the project note from Chemical Bank for $3.1
million, paid the $1.5 million balance on the
term note and took an assignment of the
first mortgage on the project's realty. After LGV
failed to make payments on the indebtedness
over the course of the succeeding two years,
defendant
brought
an
action
to foreclose its mortgage. Ultimately, defendant
obtained a judgment of foreclosure and sale in
the amount of $6,070,246.50. Defendant bid in
the property at the foreclosure sale and
thereafter obtained a deficiency judgment in the
amount of $3,070,246.50.
Following
the
foreclosure
sale,
LGV transferred to defendant all of the
shares of Top of the World Water Company, a
separate entity that had been organized to
construct and operate the water supply and
delivery system for the project, in exchange for
a $950,000 reduction in the deficiency
judgment.
the U.S. Supreme Court of New York held
Based on the foregoing, and accepting
that defendant exercised complete domination
and control over LGV, we are at a loss as to
how plaintiffs perceive themselves to have been
inequitably affected by defendant's foreclosure
action against LGV, by LGV's divestiture of the
water company stock or the sports complex

property, or by defendant's transfer to LGV of a

third party's uncollectible note, accomplished
solely for tax purposes. It is undisputed that
LGV was, and for some period of time had
been, unable to meet its obligations and, at
the time of the foreclosure sale, liens
against its property exceeded the value of
its assets by several million dollars, even
including the water company and sports
complex at the values plaintiffs would
assign to them. In fact, even if plaintiffs'
analysis were utilized to eliminate the entire $3
million deficiency judgment, the fact remains
that subordinate mortgages totaling nearly
an additional $2 million have priority over
plaintiffs' judgments.
As
properly
concluded
by
Supreme
Court, absent a finding of any inequitable
consequence to plaintiffs, both causes of
action pleaded in the amended complaint
must fail. Fundamentally, a party seeking to
pierce the corporate veil must show
complete domination and control of the
subsidiary by the parent and also that such
domination was used to commit a fraud or
wrong against the plaintiff that resulted in
the plaintiff's injury ( 252 A.D.2d 609, 610,
675 N.Y.S.2d 234, supra; see, Matter of Morris
v. New York State Dept. of Taxation & Fin., 82
N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d
1157). Notably, [e]vidence of domination
alone does not suffice without an additional
showing that it led to inequity, fraud or
malfeasance (TNS Holdings v. MKI Sec.

Corp., 92 N.Y.2d 335, 339, 680 N.Y.S.2d 891,

703 N.E.2d 749).
xxxx
In reaching that conclusion, we
specifically reject a number of plaintiffs'
assertions, including the entirely erroneous
claims that our determination on the prior
appeal (252 A.D.2d 609, 675 N.Y.S.2d
234, supra) set forth a roadmap for the proof
required at trial and mandated a verdict in favor
of plaintiffs upon their production of evidence
that supported the decision's listed facts. To the
contrary, our decision was predicated upon the
existence of such evidence, absent which we
would have granted summary judgment in favor
of defendant. We are equally unpersuaded by
plaintiffs' continued reliance upon defendant's
December 1991 unilateral conversion of its
intercompany loans with LGV from debt to
equity, which constituted nothing more than a
bookkeeping transaction and had no apparent
effect on LGV's obligations to defendant or
defendant's right to foreclose on its mortgage.[72]
This doctrine is good law under Philippine jurisdiction.
In Concept Builders, Inc. v. National Labor Relations
Commission,[73] we laid down the test in determining the
applicability of the doctrine of piercing the veil of corporate
fiction, to wit:
1. Control, not mere majority or complete
control, but complete domination, not
only of finances but of policy and

business practice in respect to the

transaction attacked so that the
corporate entity as to this transaction
had at the time no separate mind, will or
existence of its own.
2. Such control must have been used by the
defendant to commit fraud or wrong, to
perpetuate the violation of a statutory or
other positive legal duty, or dishonest
and, unjust act in contravention of
plaintiffs legal rights; and,
3. The aforesaid control and breach of duty
must proximately cause the injury or
unjust loss complained of.
xxxx
Time and again, we have reiterated that mere
ownership by a single stockholder or by another corporation of
all or nearly all of the capital stock of a corporation is not, by
itself, a sufficient ground for disregarding a separate corporate
personality.[74] It is basic that a corporation has a personality
separate and distinct from that composing it as well as from
that of any other legal entity to which it may be related. Clear
and convincing evidence is needed to pierce the veil of
corporate fiction.[75]
In this case, the mere interlocking of directors and
officers does not warrant piercing the separate corporate
personalities of MMC and GHI. Not only must there be a
showing that there was majority or complete control, but
complete domination, not only of finances but of policy and
business practice in respect to the transaction attacked, so

that the corporate entity as to this transaction had at the time

no separate mind, will or existence of its own. The mortgage
deed transaction attacked as a basis for piercing the corporate
veil was a transaction that was an offshoot, a derivative, of the
mortgages earlier constituted in the Promissory Notes dated
October 2, 1992. But these Promissory Notes with mortgage
were executed by GHI with APT in the name of MMC, in a full
privatization process. It appears that if there was any control or
domination exercised over MMC, it was APT, not GHI, that
wielded it. Neither can we conclude that the constitution of the
loan nearly four (4) years prior to NAMAWUs notice of strike
could have been the proximate cause of the injury of
NAMAWU for having been deprived of MMCs corporate
assets.
On the propriety of injunction
to prevent execution by the
NLRC on the properties
of third-party claimants
It is settled that a Regional Trial Court can validly issue
a Temporary Restraining Order (TRO) and, later, a writ of
preliminary injunction to prevent enforcement of a writ of
execution issued by a labor tribunal on the basis of a thirdpartys claim of ownership over the properties levied upon.
[76]
While, as a rule, no temporary or permanent injunction or
restraining order in any case involving or growing out of a
labor dispute shall be issued by any court--where the writ of
execution issued by a labor tribunal is sought to be enforced
upon the property of a stranger to the labor dispute, even upon
a mere prima facie showing of ownership of such claimant--a
separate action for injunctive relief against such levy may be
maintained in court, since said action neither involves nor
grows out of a labor dispute insofar as the third party is

concerned.[77] Instructively, National

Workers Union v. Vera[78]

Mines

and

Petitioners' reliance on the provision of

Art. 254 of the New Labor Code (herein earlier
quoted) which prohibits injunctions or
restraining orders in any case involving or
growing out of a 'labor dispute' is not well-taken.
This has no application to the case at bar. Civil
Case No. 2749 is one which neither "involves"
nor "grows out" of a labor dispute. What
'involves' or 'grows out' of a labor dispute is the
NLRC case between petitioners and the
judgment debtor, Philippine Iron Mines. The
private respondents are not parties to the said
NLRC case. Civil Case No. 2749 does not put
in issue either the fact or validity of the
proceeding in theNLRC case nor the decision
therein rendered, much less the writ of
execution issued thereunder. It does not seek to
enjoin the execution of the decision against the
properties of the judgment debtor. What is
sought to be tried in Civil Case No. 2749 is
whether the NLRC's decision and writ of
execution, above mentioned, shall be permitted
to be satisfied against properties of private
respondents, and not of the judgment debtor
named in the NLRC decision and writ of
execution. Such a recourse is allowed under
the provisions of Section 17, Rule 39 of the
Rules of Court.

Allied

To sustain petitioners' theory will inevitably lead

to disastrous consequences and lend judicial
imprimatur to deprivation of property without
due process of law. Simply because a writ of
execution was issued by the NLRC does not
authorize the sheriff implementing the same to
levy on anybody's property. To deny the victim
of the wrongful levy, the recourse such as that
availed of by the herein private respondents,
under the pretext that no court of general
jurisdiction can interfere with the writ of
execution issued in a labor dispute, will be
sanctioning a greater evil than that sought to be
avoided by the Labor Code provision in
question. Certainly, that could not have been
the intendment of the law creating the NLRC.
For well-settled is the rule that the power of a
court to execute its judgment extends only over
properties unquestionably belonging to the
judgment debtor.
Likewise, since the third-party claimant is not one of the
parties to the action, he cannot, strictly speaking, appeal from
the order denying his claim, but he should file a separate
reivindicatory action against the execution creditor or the
purchaser of the property after the sale at public auction, or a
complaint for damages against the bond filed by the judgment
creditor in favor of the sheriff.[79]
A separate civil action for recovery of ownership of the
property would not constitute interference with the powers or
processes of the labor tribunal which rendered the judgment to
execute upon the levied properties. The property levied upon
being that of a stranger is not subject to levy. Thus, a separate
action for recovery, upon a claim andprima facie showing of

ownership by the petitioner, cannot be considered as

interference.[80]
Upon the findings and conclusions we have reached above,
petitioner is situated squarely as such third-party claimant. The
questioned restraining order of the lower court, as well as the
order granting preliminary injunction, does not constitute
interference with the powers or processes of the labor
department. The registration of the mortgage document
operated as notice to all on the matter of the mortgagees prior
claims. Official proceedings relative to the foreclosure of the
subject properties constituted a prima facie showing of
ownership of such claimant to support the issuance of
injunctive reliefs.
As correctly held by the lower court:
The subject incidents for TRO and/or Writ of Injunction
were summarily heard and in resolving the
same, the Court believes, that the petitioner has
a clear and unmistakable right over the levied
properties. The existence of the subject Deed of
Real Estate and Chattel Mortgage, the fact that
petitioner initiated a foreclosure of said
properties before the Clerk of Court and ExOfficio Sheriff, RTC Branch 61, Kabankalan City
on July 13, 2001, the fact that said Ex-Officio
Sheriff and the Clerk of Court issue a Notice of
Foreclosure, Possession and Control over said
mortgaged properties on July 19, 2001 and the
fact that a Sheriffs Certificate of Sale was
issued on December 3, 2001 are the basis of its
conclusion. Unless said mortgage contract is
annulled or declared null and void, the
presumption of regularity of transaction must be
considered and said document must be looked
[upon] as valid.

Notably, the Office of the Solicitor General also aptly observed

that when the respondent maintained that the Deed of Real
Estate and Chattel mortgage was entered into in fraud of
creditors, it thereby admitted that the mortgage was not void,
but merely rescissible under Article 1381(3) of the Civil Code;
and, therefore, an independent action is needed to rescind the
contract of mortgage.[81] We, however, hold that such an
independent action cannot now be maintained, because the
mortgage has been previously recognized to exist, with a valid
consideration, in Republic, etc., v. G Holdings, Inc.
A final word
The Court notes that the case filed with the lower court
involves a principal action for injunction to prohibit execution
over properties belonging to a third party not impleaded in the
legal dispute between NAMAWU and MMC. We have
observed, however, that the lower court and the CA failed to
take judicial notice of, or to consider, our Decisions inRepublic,
etc., v. G Holdings, Inc., and Maricalum Mining Corporation v.
Brion and NAMAWU, in which we respectively recognized the
entitlement of GHI to the shares and the company notes of
MMC (under the Purchase and Sale Agreement), and the
rights of NAMAWU to its labor claims. At this stage, therefore,
neither the lower court nor the CA, nor even this Court, can
depart from our findings in those two cases because of the
doctrine of stare decisis.
From our discussion above, we now rule that the trial court, in
issuing the questioned orders, did not commit grave abuse of
discretion, because its issuance was amply supported by
factual and legal bases.

We are not unmindful, however, of the fact that the labor

claims of NAMAWU, acknowledged by this Court
in Maricalum, still awaits final execution. As success fades
from NAMAWUs efforts to execute on the properties of MMC,
which were validly foreclosed by GHI, we see that NAMAWU
always had, and may still have, ample supplemental remedies
found in Rule 39 of the Rules of Court in order to protect its
rights against MMC. These include the examination of the
judgment obligor when judgment is unsatisfied,[82] the
examination of the obligors of judgment obligors, [83] or even the
resort to receivership.[84]
While, theoretically, this case is not ended by this
decision, since the lower court is still to try the case filed with it
and decide it on the merits, the matter of whether the
mortgage and foreclosure of the assets that are the subject of
said foreclosure is ended herein, for the third and final time. So
also is the consequential issue of the separate and distinct
personalities of GHI and MMC. Having resolved these
principal
issues
with
certainty,
we
find no more need to remand the case to the lower court, only f
or the purpose of resolving again the matter of whether GHI
owns the properties that were the subject of the latters
foreclosure.
WHEREFORE,
the
Petition
is GRANTED. The
Decision of the Court of Appeals dated October 14, 2003
is SET ASIDE. The Omnibus Order dated December 4, 2002
of the Regional Trial Court, Branch 61 of Kabankalan City,
Negros Occidental is AFFIRMED. No costs.
SO ORDERED.

hand, respondents-spouses Frank and Teresita Cuaso (the

Cuasos) own Lot 65 which is adjacent to the Tanjangcos lots.

CORINTHIAN GARDENS ASSOCIATION, INC.,

- versus SPOUSES REYNALDO and MARIA LUISA TANJANGCO,
and SPOUSES FRANK and TERESITA CUASO
G.R. No. 160795 June 27, 2008
DECISION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari[1] under
Rule 45 of the Rules of Civil Procedure seeking the reversal of
the Court of Appeals (CA) Decision[2] datedJanuary 31, 2003 in
CA-G.R. CV No. 43217, which reversed and set aside the
Decision[3] of the Regional Trial Court (RTC) of Quezon City,
dated March 30, 1993.
The Antecedents:
Respondents-spouses Reynaldo and Maria Luisa Tanjangco
(the Tanjangcos) own Lots 68 and 69 covered by Transfer
Certificates
of
Title
(TCT)
No.
242245 [4] and
282961[5]respectively, located at Corinthian Gardens
Subdivision, Quezon City, which is managed by petitioner
Corinthian Gardens Association, Inc. (Corinthian). On the other

Before the Cuasos constructed their house on Lot 65, a

relocation survey was necessary. As Geodetic Engineer
Democrito De Dios (Engr. De Dios), operating under the
business name D.M. De Dios Realty and Surveying,
conducted all the previous surveys for the subdivision's
developer, Corinthian referred Engr. De Dios to the
Cuasos. Before, during and after the construction of the said
house, Corinthian conducted periodic ocular inspections in
order to determine compliance with the approved plans
pursuant to the Manual of Rules and Regulations of
Corinthian.[6] Unfortunately, after the Cuasos constructed their
house employing the services of C.B. Paraz & Construction
Co., Inc. (C.B. Paraz) as builder, their perimeter fence
encroached on the Tanjangcos Lot 69 by 87 square meters.
No amicable settlement was reached between the
parties. Thus, the Tanjangcos demanded that the Cuasos
demolish the perimeter fence but the latter failed and refused,
prompting the Tanjangcos to file with the RTC a suit against
the Cuasos for Recovery of Possession with Damages.[7]
Eventually, the Cuasos filed a Third-Party Complaint [8] against
Corinthian, C.B. Paraz and Engr. De Dios. The Cuasos
ascribed negligence to C.B. Paraz for its failure to ascertain
the proper specifications of their house, and to Engr. De Dios
for his failure to undertake an accurate relocation survey,
thereby, exposing them to litigation. The Cuasos also faulted
Corinthian for approving their relocation survey and building
plans without verifying their accuracy and in making
representations as to Engr. De Dios' integrity and
competence. The Cuasos alleged that had Corinthian
exercised diligence in performing its duty, they would not have

been involved in a boundary dispute with the Tanjangcos.

Thus, the Cuasos opined that Corinthian should also be held
answerable for any damages that they might incur as a result
of such construction.
On March 30, 1993, the RTC rendered a Decision in favor of
the Tanjangcos. It ruled that the Cuasos perimeter wall
encroached on the land of the Tanjangos by 87 square
meters. It, however, ruled that the Cuasos were builders in
good faith, and gave the Tanjangcos the option to sell and the
Cuasos the option to buy the encroaching portion of the land,
at a price to be agreed upon by the parties within sixty (60)
days from receipt of the said Decision. In the event that the
Cuasos were unable and unwilling to purchase the said
portion, the perimeter wall should be demolished at the latters
expense. The RTC also ordered the Cuasos to pay monthly
rentals of P2,000.00 commencing from the time of the filing of
the complaint. The RTC likewise held that C.B. Paraz was
grossly negligent in not taking into account the correct
boundaries of Cuasos lot when it constructed the house. It,
thus, ordered C.B. Paraz to pay moral and exemplary
damages as well as attorneys fees to the Tanjangcos and the
Cuasos. The third-party complaint against Corinthian and
Engr. De Dios, on the other hand, was dismissed for lack of
cause of action.
The Tanjangcos filed a Motion for Reconsideration[9] of the said
RTC Decision which the RTC, however, denied in its
Order[10] dated June 28, 1993.
Dissatisfied with the RTC ruling, the Tanjangcos, the Cuasos,
and C.B. Paraz all appealed to the CA.
On appeal, the CA reversed and set aside the RTC Decision. It
held that the Cuasos acted in bad faith in land-grabbing the 87
square meter-portion of Lot 69 as of April 5, 1989.

Correlatively, the CA allowed the Tanjangcos to exercise the

rights granted under Articles 449, 450, 451 and 549 of the New
Civil Code, which include the right to demand the demolition of
the offending perimeter wall after reimbursing the Cuasos the
necessary expenses for the preservation of the encroached
area. The Cuasos were ordered to pay monthly rentals
of P10,000.00 for the use, enjoyment and occupancy of the lot
from 1989 up to the time they vacate the property considering
the location and category of the same. They were, likewise,
ordered to pay the Tanjangcos P100,000.00, as moral
damages, P50,000.00
as
exemplary
damages,
and P150,000.00 as attorneys fees. The CA also imposed six
percent (6%) interest per annum on all the awards. The
Cuasos appeal against the Tanjangcos, on the other hand,
was dismissed for lack of merit. On the third-party complaints,
Corinthian, C.B. Paraz and Engr. De Dios were all found
negligent in performing their respective duties and so they
were ordered to contribute five percent (5%) each, or a total of
fifteen percent (15%) to all judgment sums and amounts that
the Cuasos shall eventually pay under the decision, also with
interest of six percent (6%) per annum.
Only Corinthian filed a Motion for Reconsideration [11] of the CA
Decision within the 15-day reglementary period. No motion for
reconsideration was filed by the Cuasos, C.B. Paraz and/or
Engr. De Dios.
About six (6) months later, or on August 12, 2003, the Cuasos
filed a Comment/Manifestation[12] praying that they be allowed
to adopt Corinthians Motion for Reconsideration.
In its Resolution[13] dated November 14, 2003, the CA denied
Corinthians Motion for Reconsideration.
Hence, Corinthian filed the instant Petition for Review
on Certiorari assailing the CA Decision and Resolution, and

impleading the Cuasos as one of the respondents being the

third-party plaintiffs in the RTC.
This Court gave due course to Corinthians petition and
required the parties to submit their respective memorandum.
[14]
In
compliance,
the
Cuasos
submitted
their
Memorandum[15] and Supplement to Memorandum,[16] which
were both noted by this Court in its Resolutions dated January
10, 2005[17] and February 2, 2005, [18]respectively.
In the meantime, the Tanjangcos moved for partial entry of
judgment of the CA Decision which was granted by the CA in
its Resolution[19] dated May 26, 2006, directing the issuance of
an Entry of Judgment and a Certification that its Decision
dated January 31 2003 has become final and executory with
respect to the Cuasos, C.B. Paraz and Engr. De Dios for their
failure to file an appeal assailing the said Decision before this
Court.
The Tanjangcos then moved for the execution of the judgment
against the Cuasos, specifically the demolition of the perimeter
fence,[20] which was also granted by the RTC in its
Order[21] dated December 18, 2006.
Other than the filing of an Opposition [22] and a Motion for
Reconsideration[23] before the RTC, the Cuasos prayed for the
issuance of a temporary restraining order (TRO) and/or
preliminary injunction before this Court to enjoin the demolition
of the perimeter fence. They averred that the premature
demolition of the alleged encroaching perimeter wall and other
improvements will cause grave and irreparable damage to
them, because what is sought to be demolished is part of their
residence. They claimed that no amount of money will
compensate for the damage they stand to suffer should any
demolition subsequently prove to be wrongful. They argued
that before any execution can be carried out, it is necessary to
first determine whether or not Corinthian was negligent in

approving the building plan and whether or not it acted in good

faith in doing so. Such determination, according to the Cuasos,
will in turn determine whether or not they were in good faith in
constructing the house.[24]
The Tanjangcos opposed the Cuasos' application for TRO.
They countered that the only pending matter with this Court is
the appeal by Corinthian; hence, the implementation of the
January 31, 2003 Decision of the CA against the Cuasos will
not preempt the outcome of the said pending incidents. Also,
any action taken by this Court on Corinthians petition would
not benefit the Cuasos for they did not appeal the adverse
decision against them. Accordingly, they cannot obtain
affirmative relief from this Court by reason or on account of the
appeal taken by Corinthian. The appeal, they added, is
personal to Corinthian. Finally, they argued that the Cuasos
are now estopped from questioning the enforcement of the CA
Decision since they issued a managers check to pay the
money judgment.[25]
In this Court's Resolution dated July 18, 2007, we denied the
Cuasos' application for TRO and/or writ of preliminary
injunction for lack of merit.
The denial was based on sound legal principles. It is axiomatic
that to be entitled to the injunctive writ, one must show that
there exists a right to be protected which is directly threatened
by the act sought to be enjoined. Furthermore, there must be a
showing that the invasion of the right is material and
substantial, that the right of complainant is clear and
unmistakable, and that there is an urgent and paramount
necessity for the writ to issue in order to prevent serious
damage.[26]
In the Cuasos case, their right to injunctive relief had not been
clearly and unmistakably demonstrated. They failed to show
proof that there is material and substantial invasion of their

right to warrant the issuance of an injunctive writ. Indeed, the

enforcement of the writ of execution, which would demolish the
Cuasos perimeter fence, is manifestly prejudicial to their
interest. However, they possess no clear and unmistakable
legal right that merits protection through the writ of preliminary
injunction.[27] Their right to maintain the said fence had been
declared inferior to the Tanjangcos right to the demolition of
the fence, after the CA judgment had become final and
executory as to the Cuasos.
It bears stressing that the Cuasos failed to appeal the ruling of
the CA. This failure to contest the CA decision before this
Court was fatal to their cause. It had the effect of an admission
that they indeed acted in bad faith, as they accepted the CA
ruling. The decision of the CA, therefore, became binding and
final as to them.[28] As a matter of fact, the CA already issued a
partial entry of judgment against the Cuasos.
An injunction to stay a final and executory decision is
unavailing except only after a showing that facts and
circumstances exist which would render execution unjust or
inequitable, or that a change in the situation of the parties
occurred. Here, no such exception exists as shown by the
facts earlier narrated.[29]
While it is true that this Court noted the Memorandum and
Supplemental Memorandum filed by the Cuasos, such
notation was made only insofar as Corinthian made them
respondents in this petition. This Court cannot grant to the
Cuasos any affirmative relief as they did not file a petition
questioning the CA ruling. Consequently, the Decision of the
CA holding that the Cuasos acted in bad faith and that the
perimeter fence may now be demolished cannot be put in
issue by the Cuasos. It is a fundamental principle that a party
who does not appeal, or file a petition for certiorari, is not
entitled to any affirmative relief.[30] An appellee who is not an
appellant may assign errors in his brief where his purpose is to

maintain the judgment, but he cannot seek modification or

reversal of the judgment or claim affirmative relief unless he
has also appealed.[31] This applies to C.B. Paraz and Engr. De
Dios who likewise failed to assail the aforementioned CA
Decision.
With this matter put to rest, we now go to the main issues
raised by Corinthian, the sole petitioner in this case, to wit:
a) Whether or not there is legal basis for the
Court of Appeals to hold petitioner Corinthian
Gardens Association, Inc. liable to pay 5%
of the judgment money to Sps. Tanjangco on
account of the encroachment made by Sps.
Cuaso[; and]
b)

Whether or not the Court of Appeals has

legal basis to increase unilaterally and
without proof the amount prayed for in the
Complaint, i.e., P2,000.00, as reasonable
compensation for the use and enjoyment of
the portion of the lot encroached upon,
to P10,000.00.[32]

Corinthian claims that the approval of the building plan of the

Cuasos was not tainted with negligence as it did not approve
the survey relocation plan but merely the architectural,
structural and sanitary plans for Cuasos' house; that the
purpose of the said approval is not to ensure that the house to
be erected on a particular lot is constructed within its
boundaries but only to ensure compliance with the Manual of
Rules and Regulations; that while Corinthian conducts actual
site inspections, the inspection and approval of the building
plans are limited to table inspection only; that the survey
relocation plan was never submitted for Corinthian's approval;

that the acceptance of the builder's bond did not make

Corinthian automatically liable for the encroachment and for
damages; and that Corinthian approved the building plan with
the good faith and due diligence required under the
circumstances. It, thus, concludes that it cannot be held liable
to pay five
percent
(5%)
of
the money
judgment
to the Tanjangcos on account of the encroachment made by
the Cuasos. Likewise, it finds no legal basis for the CA to
unilaterally increase the amount of the adjudged rent
from P2,000.00 to P10,000.00 which was not prayed for by the
Tanjangcos in their complaint and in the absence of evidence
adduced by the parties.[33]
On the other hand, the Tanjangcos stand by the ruling of the
CA and opine that Corinthian was negligent in approving the
building plan of the Cuasos. They submit that Corinthian's
claim that it merely conducts table inspections of buildings
further bolsters their argument that Corinthian was negligent in
conveniently and unilaterally restricting and limiting the
coverage of its approval, contrary to its own Manual of Rules
and Regulations; that the acceptance of a builder's bond does
not automatically make Corinthian liable but the same affirms
the fact that a homeowner can hold it liable for the
consequences of the approval of a building plan; and that
Corinthian, by regularly demanding and accepting membership
dues, must be wary of its responsibility to protect the rights
and interests of its members. Lastly, the Tanjangcos contend
that a court can take judicial notice of the general increase in
the rentals of real estate, as in this case, where the CA
considered the value of their lot in the posh-and-swank
Corinthian Gardens Subdivision and the fact that they were
deprived of it for almost two decades. The Tanjangcos pray
that this Court sustain the ruling of the CA.[34]

ART. 2176. Whoever by act or omission causes

damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no
pre-existing contractual relation between the
parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
In every tort case filed under this provision, plaintiff has to
prove by a preponderance of evidence: (1) the damages
suffered by the plaintiff; (2) the fault or negligence of the
defendant or some other person for whose act he must
respond; and (3) the connection of cause and effect between
the fault or negligence and the damages incurred.[35]

The instant case is obviously one for tort, as governed by

Article 2176 of the Civil Code, which provides:

The test to determine the existence of negligence in a

particular case may be stated as follows: Did the defendant in
committing the alleged negligent act use that reasonable care

Undeniably, the perimeter fence of the Cuasos encroached

on Lot 69 owned by the Tanjangcos by 87 square meters as
duly found by both the RTC and the CA in accordance with the
evidence on record. As a result, the Tanjangcos suffered
damage in having been deprived of the use of that portion of
their lot encroached upon. Thus, the primordial issue to be
resolved in this case is whether Corinthian was negligent
under the circumstances and, if so, whether such negligence
contributed to the injury suffered by the Tanjangcos.
A negligent act is an inadvertent act; it may be merely
carelessly done from a lack of ordinary prudence and may be
one which creates a situation involving an unreasonable risk to
another because of the expectable action of the other, a third
person, an animal, or a force of nature. A negligent act is one
from which an ordinary prudent person in the actor's position,
in the same or similar circumstances, would foresee such an
appreciable risk of harm to others as to cause him not to do
the act or to do it in a more careful manner.[36]

and caution which an ordinary person would have used in the

same situation? If not, then he is guilty of negligence. The law,
in effect, adopts the standard supplied by the imaginary
conduct of the discreet paterfamilias in Roman law. The
existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless,
blameworthy, or negligent in a man of ordinary intelligence and
prudence, and determines liability according to that standard.
[37]

By this test, we find Corinthian negligent.

While the issue of Corinthian's alleged negligence is factual in
character,[38] a review by this Court is proper because the CA's
factual findings differ from those of the RTC's.[39] Thus, after a
meticulous review of the evidence on record, we hold that the
CA committed no reversible error when it deviated from the
findings of fact of the RTC. The CA's findings and conclusions
are substantiated by the evidence on record and are more in
accord with law and reason. Indeed, it is clear that Corinthian
failed to exercise the requisite diligence in insuring that the
Cuasos abide by its Manual of Rules and Regulations, thereby
resulting in the encroachment on the Tanjangcos property.
We agree with the CA when it aptly held:
Corinthian cannot and should not be allowed to
justify or excuse its negligence by claiming that
its approval of the Cuasos building plans was
only limited to a so-called table inspection; and
not actual site measurement. To accept some
such postulate is to put a premium on
negligence. Corinthian was not organized solely
for the defendants Cuasos. It is also the
subdivision of the plaintiffs-spouses Tanjangcos
- and of all others who have their dwelling units

or abodes therein. Pertinently, its Manual of

Rules and Regulations stipulates in Section 3
thereof (under the heading Construction), thus:
A. Rules and Regulations
No new construction can be
started unless the building
plans are approved by the
Association and the appropriate
Builders cash bond and preconstruction fees are paid. The
Association will not allow the
entry of construction materials
and process identification cards
for workers if the above
conditions are not complied
with. Likewise, all renovations,
repairs,
additions
and
improvements to a finished
house except electrical wiring,
will have to be approved by the
Association. Water
service
connection of a homeowner who
undertakes construction work
without prior approval of the
Association will be cut-off in
addition
to
the
sanctions
previously mentioned.
It goes without saying that this Manual of Rules
and Regulations applies to all - or it does not
apply at all. To borrow a popular expression,
what is sauce for the gander is sauce for the
goose - or ought to be. To put it matter-of-factly
and bluntly, thus, its so-called table inspection

approval of the Cuasos building plans is no less

of an approval, as approvals come and go. And
since it is an approval tainted with negligence,
the necessary and inevitable consequences
which law and justice attach to such negligence
must, as a matter of law and justice, also
necessarily attach to Corinthian.
And then again third party defendantappellee Corinthian Garden required
the
posting of a builders cash bond (Exh. 5Corinthian) from the defendants-appellants
Cuasos and the third-party defendant C.B.
Paraz Construction to secure the performance
of their undertaking. Surely, Corinthian does not
imply that while it may take the benefits from
the Builders cash bond, it may, Pilate-like, wash
its hands of any responsibility or liability that
would or might arise from the construction or
building of the structure for which the cash bond
was in the first place posted. That is not only
unjust and immoral, but downright unchristian
and iniquitous.
Under the same parity of reasoning, the
payment by the appellants-Cuasos to the
appellee Corinthian of pre-construction and
membership fees in the Association must
necessarily entail the creation of certain
obligations on the part of Corinthian. For duties
and responsibilities always go hand in hand
with rights and privileges. That is the law of life and that is the law of every civilized society. It is
an axiom of equity that he who receives the
benefits must share the burdens.[40]

By its Manual of Rules and Regulations, it is reasonable to

assume that Corinthian, through its representative, in the
approval of building plans, and in the conduct of periodic
inspections of on-going construction projects within the
subdivision, is responsible in insuring compliance with the
approved plans, inclusive of the construction of perimeter
walls, which in this case is the subject of dispute between the
Tanjangcos and the Cuasos.[41] It is not just or equitable to
relieve Corinthian of any liability when, by its very own rules, it
imposes its authority over all its members to the end that no
new construction can be started unless the plans are approved
by the Association and the appropriate cash bond and preconstruction fees are paid. Moreover, Corinthian can impose
sanctions for violating these rules. Thus, the proposition that
the inspection is merely a table inspection and, therefore,
should exempt Corinthian from liability, is unacceptable. After
all, if the supposed inspection is merely a table inspection and
the approval granted to every member is a mere formality,
then the purpose of the rules would be defeated. Compliance
therewith would not be mandatory, and sanctions imposed for
violations could be disregarded. Corinthian's imprimatur on the
construction of the Cuasos' perimeter wall over the property of
the Tanjangcos assured the Cuasos that everything was in
order.
In sum, Corinthians failure to prevent the encroachment of the
Cuasos perimeter wall into Tanjangcos property despite the
inspection conducted constitutes negligence and, at the very
least, contributed to the injury suffered by the Tanjangcos.
On the second issue, our ruling in Spouses Badillo v.
Tayag[42] is instructive:
Citing Sia v. Court of Appeals [272 SCRA 141,
May 5, 1997], petitioners argue that the MTC
may take judicial notice of the reasonable rental

or the general price increase of land in order to

determine the amount of rent that may be
awarded to them. In that case, however, this
Court relied on the CA's factual findings, which
were
based
on
the
evidence
presented before the trial court. In determining
reasonable rent,
the RTC therein took account of the following
factors: 1) the realty assessment of the land, 2)
the increase in realty taxes, and 3) the
prevailing rate of rentals in the vicinity. Clearly,
the trial court relied, not on mere judicial notice,
but on the evidence presented before it.
Indeed, courts may fix the reasonable amount
of rent for the use and occupation of a disputed
property. However, petitioners herein erred in
assuming that courts, in determining the
amount of rent, could simply rely on their own
appreciation of land values without considering
any evidence. As we have said earlier, a court
may fix the reasonable amount of rent, but it
must still base its action on the evidence
adduced by the parties.
In Herrera v. Bollos [G.R. No. 138258, January
18, 2002], the trial court awarded rent to the
defendants in a forcible entry case. Reversing
the RTC, this Court declared that the
reasonable amount of rent could be determined
not by mere judicial notice, but by supporting
evidence:

controversy. The court may take

judicial notice of matters of
public knowledge, or which are
capable
of
unquestionable
demonstration, or ought to be
known to judges because of their
judicial functions. Before taking
such judicial notice, the court
must allow the parties to be
heard thereon. Hence, there can
be no judicial notice on the rental
value of the premises in question
without supporting evidence.
Truly, mere judicial notice is inadequate, because evidence is
required for a court to determine the proper rental value. But
contrary to Corinthian's arguments, both the RTC and the CA
found that indeed rent was due the Tanjangcos because they
were deprived of possession and use of their property. This
uniform factual finding of the RTC and the CA was based on
the evidence presented below. Moreover, in Spouses
Catungal v. Hao,[43] we considered the increase in the award of
rentals as reasonable given the particular circumstances of
each case. We noted therein that the respondent denied the
petitioners the benefits, including rightful possession, of their
property for almost a decade.
Similarly, in the instant case, the Tanjangcos were deprived of
possession and use of their property for more than two
decades through no fault of their own. Thus, we find no cogent
reason to disturb the monthly rental fixed by the CA.
All told, the CA committed no reversible error.

x x x A court cannot take judicial

notice of a factual matter in

WHEREFORE, the petition is DENIED. The Decision of the

Court of Appeals is AFFIRMED. Costs against petitioner.

SO ORDERED.