1

Evidence cases
G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the
Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the prohibited
devices in Section 1 of the Act, such that its use to overhear a private conversation would constitute
unlawful interception of communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed by the
petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel
Montebon were in the living room of complainant's residence discussing the terms for the
withdrawal of the complaint for direct assault which they filed with the Office of the City
Fiscal of Cebu against Leonardo Laconico. After they had decided on the proposed
conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office
and advise him on the settlement of the direct assault case because his regular lawyer,
Atty. Leon Gonzaga, went on a business trip. According to the request, appellant went to
the office of Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22,
1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the
telephone conversation through a telephone extension so as to hear personally the
proposed conditions for the settlement. Appellant heard complainant enumerate the
following conditions for withdrawal of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to
P8,000.00. A breakdown of the P8,000.00 had been made together with other demands, to
wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself
in persuading his client to withdraw the case for Direct Assault against Atty. Laconico
before the Cebu City Fiscal's Office;

(b) Public apology to be made by Atty. Laconico before the students of Don Bosco
Technical High School;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco
Technical High School;
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Evidence cases
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against
Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of
desistance on the Direct Assault Case against Atty. Laconico to be filed later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass
media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to
the conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for
instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his wife at the
office of the then Department of Public Highways. Laconico who earlier alerted his friend
Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary,
insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-
33). When he received the money at the Igloo Restaurant, complainant was arrested by
agents of the Philippine Constabulary.

Appellant executed on the following day an affidavit stating that he heard complainant
demand P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the
affidavit of appellant to the complainant for robbery/extortion which he filed against
complainant. Since appellant listened to the telephone conversation without complainant's
consent, complainant charged appellant and Laconico with violation of the Anti-
Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and
Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1)
year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the appellate
court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that
the communication between the complainant and accused Laconico was private in nature and, therefore,
covered by Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge
and consent of the complainant; and that the extension telephone which was used by the petitioner to
overhear the telephone conversation between complainant and Laconico is covered in the term "device' as
provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the
following issues; (a) whether or not the telephone conversation between the complainant and accused
Laconico was private in nature; (b) whether or not an extension telephone is covered by the term "device
or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or
overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and,
therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

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Section 1. It shall be unlawful for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable or by using any other
device or arrangement, to secretly overhear, intercept, or record such communication or
spoken word by using a device commonly known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape-recorder, or however otherwise described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in
the next preceeding sentence, to knowingly possess any tape record, wire record, disc
record, or any other such record, or copies thereof, of any communication or spoken word
secured either before or after the effective date of this Act in the manner prohibited by this
law; or to replay the same for any other person or persons; or to communicate the contents
thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete
or partial, to any other person: Provided, that the use of such record or any copies thereof
as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3
hereof, shall not be covered by this prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The
issue is not the admissibility of evidence secured over an extension line of a telephone by a third party.
The issue is whether or not the person called over the telephone and his lawyer listening to the
conversation on an extension line should both face prison sentences simply because the extension was
used to enable them to both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty.
Laconico was "private" in the sense that the words uttered were made between one person and another
as distinguished from words between a speaker and a public. It is also undisputed that only one of the
parties gave the petitioner the authority to listen to and overhear the caller's message with the use of an
extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would not have
discussed the alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct
assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer
was also listening. We have to consider, however, that affirmance of the criminal conviction would, in
effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how
obscene, criminal, or annoying the call may be. It would be the word of the caller against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy
loads which telephone cables are made to carry in certain areas, telephone users often encounter what
are called "crossed lines". An unwary citizzen who happens to pick up his telephone and who overhears
the details of a crime might hesitate to inform police authorities if he knows that he could be accused
under Rep. Act 4200 of using his own telephone to secretly overhear the private communications of the
would be criminals. Surely the law was never intended for such mischievous results.

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any
other device or arrangement." Is an extension of a telephone unit such a device or arrangement as would
subject the user to imprisonment ranging from six months to six years with the accessory penalty of
perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries with
extension lines to their bosses' telephones are sometimes asked to use answering or recording devices to
record business conversations between a boss and another businessman. Would transcribing a recorded
message for the use of the boss be a proscribed offense? or for that matter, would a "party line" be a
device or arrangement under the law?
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The petitioner contends that telephones or extension telephones are not included in the enumeration of
"commonly known" listening or recording devices, nor do they belong to the same class of enumerated
electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act
No. 4200) was being considered in the Senate, telephones and extension telephones were already widely
used instruments, probably the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of the
Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the
enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or
tape recorder or however otherwise described." The omission was not a mere oversight. Telephone party
lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device"
within the context of the aforementioned law because it is not a part or portion of a complete set of a
telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire
and a set of telephone receiver not forming part of a main telephone set which can be detached or
removed and can be transferred away from one place to another and to be plugged or attached to a main
telephone line to get the desired communication corning from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of
secretly overhearing, intercepting, or recording the communication. There must be either a physical
interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear,
intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other
devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the
wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It
just happened to be there for ordinary office use. It is a rule in statutory construction that in order to
determine the true intent of the legislature, the particular clauses and phrases of the statute should not be
taken as detached and isolated expressions, but the whole and every part thereof must be considered in
fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66
SCRA 113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:

Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a
contract may be, they shall not be understood to comprehend things that are distinct and
cases that are different from those upon which the parties intended to agree.' Similarly,
Article 1374 of the same Code provides that 'the various stipulations of a contract shall be
interpreted together, attributing to the doubtful ones that sense which may result from all of
them taken jointly.

xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph
5(c) and 7(d) should be then restricted only to those listed in the Inventory and should not
be construed as to comprehend all other obligations of the decedent. The rule that
'particularization followed by a general expression will ordinarily be restricted to the former'
is based on the fact in human experience that usually the minds of parties are addressed
specially to the particularization, and that the generalities, though broad enough to
comprehend other fields if they stood alone, are used in contemplation of that upon which
the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134
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Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973
ed, pp. 180-181).

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that
enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is,
instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to
instruments whose installation or presence cannot be presumed by the party or parties being overheard
because, by their very nature, they are not of common usage and their purpose is precisely for tapping,
intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended unit
does not have to be connected by wire to the main telephone but can be moved from place ' to place
within a radius of a kilometer or more. A person should safely presume that the party he is calling at the
other end of the line probably has an extension telephone and he runs the risk of a third party listening as
in the case of a party line or a telephone unit which shares its line with another. As was held in the case
of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause the
bell to ring in more than one ordinarily used instrument. Each party to a telephone
conversation takes the risk that the other party may have an extension telephone and may
allow another to overhear the conversation. When such takes place there has been no
violation of any privacy of which the parties may complain. Consequently, one element of
605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of
repeating the message he held out his hand-set so that another could hear out of it and that there is no
distinction between that sort of action and permitting an outsider to use an extension telephone for the
same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused.
Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the
phrase "device or arrangement", the penal statute must be construed as not including an extension
telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the
rule:

American jurisprudence sets down the reason for this rule to be the tenderness of the law
of the rights of individuals; the object is to establish a certain rule by conformity to which
mankind would be safe, and the discretion of the court limited. (United States v. Harris, 177
US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v.
State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all
cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of forbidden acts."
(State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction,
Rev. Ed. pp. 183-184).

In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative
measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of the
Senate Congressional Records will show that not only did our lawmakers not contemplate the inclusion of
an extension telephone as a prohibited device or arrangement" but of greater importance, they were more
concerned with penalizing the act of recording than the act of merely listening to a telephone conversation.

xxx xxx xxx

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Senator Taada. Another possible objection to that is entrapment which is
certainly objectionable. It is made possible by special amendment which
Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less

possible with the amendment than without it, because with the amendment
the evidence of entrapment would only consist of government testimony as
against the testimony of the defendant. With this amendment, they would
have the right, and the government officials and the person in fact would
have the right to tape record their conversation.

Senator Taada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could
record and, therefore, the court would be limited to saying: "Okay, who is
more credible, the police officers or the defendant?" In these cases, as
experienced lawyers, we know that the Court go with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

xxx xxx xxx

Senator Diokno. The point I have in mind is that under these conditions,
with an agent outside listening in, he could falsify the testimony and there is
no way of checking it. But if you allow him to record or make a recording in
any form of what is happening, then the chances of falsifying the evidence
is not very much.

Senator Taada. Your Honor, this bill is not intended to prevent the
presentation of false testimony. If we could devise a way by which we could
prevent the presentation of false testimony, it would be wonderful. But what
this bill intends to prohibit is the use of tape record and other electronic
devices to intercept private conversations which later on will be used in
court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather
evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the
telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with
the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that an
extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated
August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of
violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.
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Evidence cases

SILKAIR (SINGAPORE) PTE. G.R. No. 184398

LTD.,
Petitioner, Present:

PUNO, C.J.,
Chairperson,
CARPIO MORALES,
- versus - LEONARDO-DE CASTRO,
BERSAMIN, and
VILLARAMA, JR., JJ.

COMMISSIONER OF INTERNAL Promulgated:

REVENUE,
Respondent. February 25, 2010
x---------------------------------------------------x

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court is a Petition for Review on Certiorari, assailing the May 27, 2008
Decision[1] and the subsequent September 5, 2008 Resolution[2] of the Court of Tax
Appeals (CTA) En Banc in C.T.A. E.B. No. 267. The decision dated May 27, 2008
denied the petition for review filed by petitioner Silkair (Singapore) Pte. Ltd., on the
ground, among others, of failure to prove that it was authorized to operate in
the Philippines for the period June to December 2000, while the Resolution dated
September 5, 2008 denied petitioners motion for reconsideration for lack of merit.

The antecedent facts are as follows:

Petitioner, a foreign corporation organized under the laws of Singapore with a

Philippine representative office in Cebu City, is an online international carrier plying
the Singapore-Cebu-Singapore and Singapore-Cebu-Davao-Singapore routes.
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Evidence cases

Respondent Commissioner of Internal Revenue is impleaded herein in his official

capacity as head of the Bureau of Internal Revenue (BIR), an attached agency of the
Department of Finance which is duly authorized to decide, approve, and grant refunds
and/or tax credits of erroneously paid or illegally collected internal revenue taxes.[3]

On June 24, 2002, petitioner filed with the BIR an administrative claim for the
refund of Three Million Nine Hundred Eighty-Three Thousand Five Hundred Ninety
Pesos and Forty-Nine Centavos (P3,983,590.49) in excise taxes which it allegedly
erroneously paid on its purchases of aviation jet fuel from Petron Corporation (Petron)
from June to December 2000. Petitioner used as basis therefor BIR Ruling No. 339-92
dated December 1, 1992, which declared that the petitioners Singapore-Cebu-Singapore
route is an international flight by an international carrier and that the petroleum
products purchased by the petitioner should not be subject to excise taxes under Section
135 of Republic Act No. 8424 or the 1997 National Internal Revenue Code (NIRC).
Since the BIR took no action on petitioners claim for refund, petitioner sought judicial
recourse and filed on June 27, 2002, a petition for review with the CTA (docketed
as CTA Case No. 6491), to prevent the lapse of the two-year prescriptive period within
which to judicially claim a refund under Section 229[4] of the NIRC. Petitioner invoked
its exemption from payment of excise taxes in accordance with the provisions of
Section 135(b) of the NIRC, which exempts from excise taxes the entities covered by
tax treaties, conventions and other international agreements; provided that the country
of said carrier or exempt entity likewise exempts from similar taxes the petroleum
products sold to Philippine carriers or entities. In this regard, petitioner relied on the
reciprocity clause under Article 4(2) of the Air Transport Agreement entered between
the Republic of the Philippines and the Republic of Singapore.

Section 135(b) of the NIRC provides:

SEC. 135. Petroleum Products Sold to International Carriers and

Exempt Entities or Agencies. Petroleum products sold to the following are
exempt from excise tax:

xxxx

(b) Exempt entities or agencies covered by tax treaties, conventions

and other international agreements for their use or
 9
Evidence cases

consumption: Provided, however, That the country of said foreign

international carrier or exempt entities or agencies exempts from
similar taxes petroleum products sold to Philippine carriers, entities
or agencies; x x x.

Article 4(2) of the Air Transport Agreement between

the Philippines and Singapore, in turn, provides:

ART. 4. x x x.

xxxx

(2) Fuel, lubricants, spare parts, regular equipment and aircraft stores
introduced into, or taken on board aircraft in the territory of one Contracting
Party by, or on behalf of, a designated airline of the other Contracting Party
and intended solely for use in the operation of the agreed services shall, with
the exception of charges corresponding to the service performed, be exempt
from the same customs duties, inspection fees and other duties or taxes
imposed in the territory of the first Contracting Party, even when these
supplies are to be used on the parts of the journey performed over the territory
of the Contracting Party in which they are introduced into or taken on
board.The materials referred to above may be required to be kept under
customs supervision and control.

In a Decision[5] dated July 27, 2006, the CTA First Division found that petitioner
was qualified for tax exemption under Section 135(b) of the NIRC, as long as
the Republic of Singapore exempts from similar taxes petroleum products sold to
Philippine carriers, entities or agencies under Article 4(2) of the Air Transport
Agreement quoted above. However, it ruled that petitioner was not entitled to the excise
tax exemption for failure to present proof that it was authorized to operate in the
Philippines during the period material to the case due to the non-admission of some of
its exhibits, which were merely photocopies, including Exhibit A which was petitioners
Certificate of Registration with the Securities and Exchange Commission (SEC) and
Exhibits P, Q and R which were its operating permits issued by the Civil Aeronautics
Board (CAB) to fly the Singapore-Cebu-Singapore and Singapore-Cebu-Davao-
Singapore routes for the period October 1999 to October 2000.
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Evidence cases

Petitioner filed a motion for reconsideration but the CTA First Division denied
the same in a Resolution[6] dated January 17, 2007.

Thereafter, petitioner elevated the case before the CTA En Banc via a petition for
review, which was initially denied in a Resolution[7] dated May 17, 2007 for failure of
petitioner to establish its legal authority to appeal the Decision dated July 27, 2006 and
the Resolution dated January 17, 2007 of the CTA First Division.

Undaunted, petitioner moved for reconsideration. In the Resolution[8] dated

September 19, 2007, the CTA En Banc set aside its earlier resolution dismissing the
petition for review and reinstated the same. It also required respondent to file his
comment thereon.

On May 27, 2008, the CTA En Banc promulgated the assailed Decision and
denied the petition for review, thus:

WHEREFORE, premises considered, the instant petition is

hereby DENIED for lack of merit. The assailed Decision dated July 27, 2006
dismissing the instant petition on ground of failure of petitioner to prove that
it was authorized to operate in the Philippines for the period from June to
December 2000, is hereby AFFIRMED WITH MODIFICATION that
petitioner is further not found to be the proper party to file the instant claim
for refund.[9]

In a separate Concurring and Dissenting Opinion,[10] CTA Presiding Justice Ernesto D.

Acosta opined that petitioner was exempt from the payment of excise taxes based on
Section 135 of the NIRC and Article 4 of the Air Transport Agreement between
the Philippines and Singapore. However, despite said exemption, petitioners claim for
refund cannot be granted since it failed to establish its authority to operate in
the Philippines during the period subject of the claim. In other words, Presiding Justice
Acosta voted to uphold in toto the Decision of the CTA First Division.
Petitioner again filed a motion for reconsideration which was denied in the
Resolution dated September 5, 2008. Hence, the instant petition for review
on certiorari, which raises the following issues:

I
 11
Evidence cases

Whether or not petitioner has substantially proven its authority to operate

in the Philippines.

II

Whether or not petitioner is the proper party to claim for the refund/tax
credit of excise taxes paid on aviation fuel.

Petitioner maintains that it has proven its authority to operate in the Philippines with the
admission of its Foreign Air Carriers Permit (FACP) as Exhibit B before the CTA,
which, in part, reads:

[T]his Board RESOLVED, as it hereby resolves to APPROVE the petition of

SILKAIR (SINGAPORE) PTE LTD., for issuance of a regular operating
permit (Foreign Air Carriers Permit), subject to the approval of the President,
pursuant to Sec. 10 of R.A. 776, as amended by P.D. 1462.[11]

Moreover, petitioner argues that Exhibits P, Q and R, which it previously filed with the
CTA, were merely flight schedules submitted to the CAB, and were not its operating
permits. Petitioner adds that it was through inadvertence that only photocopies of these
exhibits were introduced during the hearing.

Petitioner also asserts that despite its failure to present the original copy of its SEC
Registration during the hearings, the CTA should take judicial notice of its SEC
Registration since the same was already offered and admitted in evidence in similar
cases pending before the CTA.

Petitioner further claims that the instant case involves a clear grant of tax exemption to
it by law and by virtue of an international agreement between two
governments. Consequently, being the entity which was granted the tax exemption and
which made the erroneous tax payment of the excise tax, it is the proper party to file the
claim for refund.
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Evidence cases

In his Comment[12] dated March 26, 2009, respondent states that the admission in
evidence of petitioners FACP does not change the fact that petitioner failed to formally
offer in evidence the original copies or certified true copies of Exhibit A, its SEC
Registration; and Exhibits P, Q and R, its operating permits issued by the CAB to fly its
Singapore-Cebu-Singapore and Singapore-Cebu-Davao-Singapore routes for the period
October 1999 to October 2000. Respondent emphasizes that petitioners failure to
present these pieces of evidence amounts to its failure to prove its authority to operate
in the Philippines.

Likewise, respondent maintains that an excise tax, being an indirect tax, is the direct
liability of the manufacturer or producer. Respondent reiterates that when an excise tax
on petroleum products is added to the cost of goods sold to the buyer, it is no longer a
tax but becomes part of the price which the buyer has to pay to obtain the
article. According to respondent, petitioner cannot seek reimbursement for its alleged
erroneous payment of the excise tax since it is neither the entity required by law nor the
entity statutorily liable to pay the said tax.

After careful examination of the records, we resolve to deny the petition.

Petitioners assertion that the CTA may take judicial notice of its SEC Registration,
previously offered and admitted in evidence in similar cases before the CTA, is
untenable.

We quote with approval the disquisition of the CTA En Banc in its Decision dated May
27, 2008 on the non-admission of petitioners Exhibits A, P, Q and R, to wit:

Anent petitioners argument that the Court in Division should have

taken judicial notice of the existence of Exhibit A (petitioners SEC Certificate
of Registration), although not properly identified during trial as this has
previously been offered and admitted in evidence in similar cases involving
the subject matter between the same parties before this Court, We are in
agreement with the ruling of the Court in Division, as discussed in its
Resolution dated April 12, 2005 resolving petitioners Motion for
Reconsideration on the courts non-admission of Exhibits A, P, Q and R,
wherein it said that:
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Evidence cases

Each and every case is distinct and separate in character and

matter although similar parties may have been involved. Thus, in a
pending case, it is not mandatory upon the courts to take judicial
notice of pieces of evidence which have been offered in other cases
even when such cases have been tried or pending in the same
court. Evidence already presented and admitted by the court in a
previous case cannot be adopted in a separate case pending
before the same court without the same being offered and
identified anew.

The cases cited by petitioner concerned similar parties before

the same court but do not cover the same claim. A court is not
compelled to take judicial notice of pieces of evidence offered and
admitted in a previous case unless the same are properly offered
or have accordingly complied with the requirements on the rules
of evidence. In other words, the evidence presented in the
previous cases cannot be considered in this instant case without
being offered in evidence.

Moreover, Section 3 of Rule 129 of the Revised Rules of Court

provides that hearing is necessary before judicial notice may be taken
by the courts. To quote said section:

Sec. 3. Judicial notice, when hearing necessary. During

the trial, the court, on its own initiative, or on request of a party,
may announce its intention to take judicial notice of any matter
and allow the parties to be heard thereon.

After the trial, and before judgment or on appeal, the

proper court, on its own initiative or on request of a party, may
take judicial notice of any matter and allow the parties to be
heard thereon if such matter is decisive of a material issue in the
case.

Furthermore, petitioner admitted that Exhibit A have (sic) been

offered and admitted in evidence in similar cases involving the same
subject matter filed before this Court. Thus, petitioner is and should
have been aware of the rules regarding the offering of any
documentary evidence before the same can be admitted in court.
 14
Evidence cases

As regards Exhibit[s] P, Q and R, the original copies of these

documents were not presented for comparison and verification in
violation of Section 3 of Rule 130 of the 1997 Revised Rules of
Court. The said section specifically provides that when the subject of
inquiry is the contents of a document, no evidence shall be admissible
other than the original document itself x x x. It is an elementary rule
in law that documents shall not be admissible in evidence unless
and until the original copies itself are offered or presented for
verification in cases where mere copies are offered, save for the
exceptions provided for by law.Petitioner thus cannot hide behind
the veil of judicial notice so as to evade its responsibility of
properly complying with the rules of evidence. For failure of
herein petitioner to compare the subject documents with its
originals, the same may not be admitted. (Emphasis Ours)

Likewise, in the Resolution dated July 15, 2005 of the Court in

Division denying petitioners Omnibus Motion seeking allowance to compare
the denied exhibits with their certified true copies, the court a quo explained
that:

Petitioner was already given enough time and opportunity to

present the originals or certified true copies of the denied documents
for comparison. When petitioner received the resolution denying
admission of the provisionally marked exhibits, it should have
submitted the originals or certified true copies for comparison,
considering that these documents were accordingly available. But
instead of presenting these documents, petitioner, in its Motion for
Reconsideration, tried to hide behind the veil of judicial notice so as
to evade its responsibility of properly applying the rules on
evidence. It was even submitted by petitioner that these documents
should be admitted for they were previously offered and admitted in
similar cases involving the same subject matter and parties. If this
was the case, then, there should have been no reason for petitioner to
seasonably present the originals or certified true copies for
comparison, or even, marking. x x x.

In view of the foregoing discussion, the Court en banc finds that

indeed, petitioner indubitably failed to establish its authority to operate in
the Philippines for the period beginning June to December 2000.[13]
 15
Evidence cases

This Court finds no reason to depart from the foregoing findings of the CTA En Banc as
petitioner itself admitted on page 9[14] of its petition for review that [i]t was through
inadvertence that only photocopies of Exhibits P, Q and R were introduced during the
hearing and that it was rather unfortunate that petitioner failed to produce the original
copy of its SEC Registration (Exhibit A) for purposes of comparison with the
photocopy that was originally presented.

Evidently, said documents cannot be admitted in evidence by the court as the original
copies were neither offered nor presented for comparison and verification during the
trial. Mere identification of the documents and the markings thereof as exhibits do not
confer any evidentiary weight on them as said documents have not been formally
offered by petitioner and have been denied admission in evidence by the CTA.

Furthermore, the documents are not among the matters which the law mandatorily
requires the Court to take judicial notice of, without any introduction of evidence, as
petitioner would have the CTA do.Section 1, Rule 129 of the Rules of Court reads:

SECTION 1. Judicial notice, when mandatory. A court shall take

judicial notice, without the introduction of evidence, of the existence and
territorial extent of states, their political history, forms of government and
symbols of nationality, the law of nations, the admiralty and maritime courts
of the world and their seals, the political constitution and history of the
Philippines, the official acts of the legislative, executive and judicial
departments of the Philippines, the laws of nature, the measure of time, and
the geographical divisions.

Neither could it be said that petitioners SEC Registration and operating permits
from the CAB are documents which are of public knowledge, capable of unquestionable
demonstration, or ought to be known to the judges because of their judicial functions, in
order to allow the CTA to take discretionary judicial notice of the said documents.[15]

Moreover, Section 3 of the same Rule[16] provides that a hearing is necessary

before judicial notice of any matter may be taken by the court. This requirement of a
hearing is needed so that the parties can be heard thereon if such matter is decisive of a
material issue in the case.
 16
Evidence cases

Given the above rules, it is clear that the CTA En Banc correctly did not admit
petitioners SEC Registration and operating permits from the CAB which were merely
photocopies, without the presentation of the original copies for comparison and
verification. As aptly held by the CTA En Banc, petitioner cannot rely on the principle
of judicial notice so as to evade its responsibility of properly complying with the rules
of evidence. Indeed, petitioners contention that the said documents were previously
marked in other cases before the CTA tended to confirm that the originals of these
documents were readily available and their non-presentation in these proceedings was
unjustified. Consequently, petitioners failure to compare the photocopied documents
with their original renders the subject exhibits inadmissible in evidence.

Going to the second issue, petitioner maintains that it is the proper party to claim
for refund or tax credit of excise taxes since it is the entity which was granted the tax
exemption and which made the erroneous tax payment. Petitioner anchors its claim on
Section 135(b) of the NIRC and Article 4(2) of the Air Transport Agreement between
the Philippines and Singapore. Petitioner also asserts that the tax exemption, granted to
it as a buyer of a certain product, is a personal privilege which may not be claimed or
availed of by the seller. Petitioner submits that since it is the entity which actually paid
the excise taxes, then it should be allowed to claim for refund or tax credit.

At the outset, it is important to note that on two separate occasions, this Court has
already put to rest the issue of whether or not petitioner is the proper party to claim for
the refund or tax credit of excise taxes it allegedly paid on its aviation fuel
purchases.[17] In the earlier case of Silkair (Singapore) Pte, Ltd. v. Commissioner of
Internal Revenue,[18] involving the same parties and the same cause of action but
pertaining to different periods of taxation, we have categorically held that Petron, not
petitioner, is the proper party to question, or seek a refund of, an indirect tax, to wit:

The proper party to question, or seek a refund of, an indirect tax is the
statutory taxpayer, the person on whom the tax is imposed by law and who
paid the same even if he shifts the burden thereof to another. Section 130 (A)
(2) of the NIRC provides that [u]nless otherwise specifically allowed, the
return shall be filed and the excise tax paid by the manufacturer or producer
before removal of domestic products from place of production. Thus, Petron
Corporation, not Silkair, is the statutory taxpayer which is entitled to claim a
refund based on Section 135 of the NIRC of 1997 and Article 4(2) of the Air
Transport Agreement between RP and Singapore.
 17
Evidence cases

Even if Petron Corporation passed on to Silkair the burden of the tax,

the additional amount billed to Silkair for jet fuel is not a tax but part of the
price which Silkair had to pay as a purchaser.

In the second Silkair[19] case, the Court explained that an excise tax is an indirect tax
where the burden can be shifted or passed on to the consumer but the tax liability
remains with the manufacturer or seller.Thus, the manufacturer or seller has the option
of shifting or passing on the burden of the tax to the buyer. However, where the burden
of the tax is shifted, the amount passed on to the buyer is no longer a tax but a part of
the purchase price of the goods sold.

Petitioner contends that the clear intent of the provisions of the NIRC and the Air
Transport Agreement is to exempt aviation fuel purchased by petitioner as an exempt
entity from the payment of excise tax, whether such is a direct or an indirect
tax. According to petitioner, the excise tax on aviation fuel, though initially payable by
the manufacturer or producer, attaches to the goods and becomes the liability of the
person having possession thereof.

We do not agree. The distinction between a direct tax and an indirect tax is relevant to
this issue. In Commissioner of Internal Revenue v. Philippine Long Distance Telephone
Company,[20] this Court explained:

Based on the possibility of shifting the incidence of taxation, or as to

who shall bear the burden of taxation, taxes may be classified into either
direct tax or indirect tax.

In context, direct taxes are those that are exacted from the very person
who, it is intended or desired, should pay them; they are impositions for
which a taxpayer is directly liable on the transaction or business he is engaged
in.

On the other hand, indirect taxes are those that are demanded, in the
first instance, from, or are paid by, one person in the expectation and intention
that he can shift the burden to someone else. Stated elsewise, indirect taxes
are taxes wherein the liability for the payment of the tax falls on one person
but the burden thereof can be shifted or passed on to another person, such as
 18
Evidence cases

when the tax is imposed upon goods before reaching the consumer who
ultimately pays for it. When the seller passes on the tax to his buyer, he, in
effect, shifts the tax burden, not the liability to pay it, to the purchaser as part
of the purchase price of goods sold or services rendered.

Title VI of the NIRC deals with excise taxes on certain goods. Section 129 reads as
follows:

SEC. 129. Goods Subject to Excise Taxes. Excise taxes apply to goods
manufactured or produced in the Philippines for domestic sale or
consumption or for any other disposition and to things imported. x x x.

As used in the NIRC, therefore, excise taxes refer to taxes applicable to certain
specified or selected goods or articles manufactured or produced in the Philippines for
domestic sale or consumption or for any other disposition and to things imported into
the Philippines. These excise taxes may be considered taxes on production as they are
collected only from manufacturers and producers. Basically an indirect tax, excise taxes
are directly levied upon the manufacturer or importer upon removal of the taxable
goods from its place of production or from the customs custody. These taxes, however,
may be actually passed on to the end consumer as part of the transfer value or selling
price of the goods sold, bartered or exchanged.[21]

In Maceda v. Macaraig, Jr.,[22] this Court declared:

[I]ndirect taxes are taxes primarily paid by persons who can shift the burden
upon someone else. For example, the excise and ad valorem taxes that oil
companies pay to the Bureau of Internal Revenue upon removal of petroleum
products from its refinery can be shifted to its buyer, like the NPC, by adding
them to the cash and/or selling price.

And as noted by us in the second Silkair[23] case mentioned above:

When Petron removes its petroleum products from its refinery in

Limay, Bataan, it pays the excise tax due on the petroleum products thus
removed. Petron, as manufacturer or producer, is the person liable for the
 19
Evidence cases

payment of the excise tax as shown in the Excise Tax Returns filed with the
BIR. Stated otherwise, Petron is the taxpayer that is primarily, directly and
legally liable for the payment of the excise taxes. However, since an excise
tax is an indirect tax, Petron can transfer to its customers the amount of the
excise tax paid by treating it as part of the cost of the goods and tacking it on
the selling price.

As correctly observed by the CTA, this Court held in Philippine

Acetylene Co., Inc. v. Commissioner of Internal Revenue:

It may indeed be that the economic burden of the tax finally

falls on the purchaser; when it does the tax becomes part of the price
which the purchaser must pay.

Even if the consumers or purchasers ultimately pay for the tax, they are
not considered the taxpayers. The fact that Petron, on whom the excise tax is
imposed, can shift the tax burden to its purchasers does not make the latter the
taxpayers and the former the withholding agent.

Petitioner, as the purchaser and end-consumer, ultimately bears the tax

burden, but this does not transform petitioners status into a statutory taxpayer.

Thus, under Section 130(A)(2) of the NIRC, it is Petron, the taxpayer, which has
the legal personality to claim the refund or tax credit of any erroneous payment of
excise taxes. Section 130(A)(2) states:

SEC. 130. Filing of Return and Payment of Excise Tax on Domestic

Products.

(A) Persons Liable to File a Return, Filing of Return on Removal and

Payment of Tax.

(1) Persons Liable to File a Return. x x x

(2) Time for Filing of Return and Payment of the Tax. Unless otherwise
specifically allowed, the return shall be filed and the excise tax paid by
the manufacturer or producer before removal of domestic products
from place of production: x x x. (Emphasis supplied.)
 20
Evidence cases

Furthermore, Section 204(C) of the NIRC provides a two-year prescriptive period

within which a taxpayer may file an administrative claim for refund or tax credit, to wit:

SEC. 204. Authority of the Commissioner to Compromise, Abate, and

Refund or Credit Taxes. The Commissioner may

xxxx

(C) Credit or refund taxes erroneously or illegally received or penalties

imposed without authority, refund the value of internal revenue stamps when
they are returned in good condition by the purchaser, and, in his discretion,
redeem or change unused stamps that have been rendered unfit for use and
refund their value upon proof of destruction. No credit or refund of taxes or
penalties shall be allowed unless the taxpayer files in writing with the
Commissioner a claim for credit or refund within two (2) years after the
payment of the tax or penalty: Provided, however, That a return filed
showing an overpayment shall be considered as a written claim for credit or
refund. (Emphasis supplied.)

From the foregoing discussion, it is clear that the proper party to question, or
claim a refund or tax credit of an indirect tax is the statutory taxpayer, which is Petron
in this case, as it is the company on which the tax is imposed by law and which paid the
same even if the burden thereof was shifted or passed on to another. It bears stressing
that even if Petron shifted or passed on to petitioner the burden of the tax, the additional
amount which petitioner paid is not a tax but a part of the purchase price which it had to
pay to obtain the goods.

Time and again, we have held that tax refunds are in the nature of tax exemptions
which represent a loss of revenue to the government. These exemptions, therefore, must
not rest on vague, uncertain or indefinite inference, but should be granted only by a
clear and unequivocal provision of law on the basis of language too plain to be
mistaken.[24] Such exemptions must be strictly construed against the taxpayer, as taxes
are the lifeblood of the government.

In fine, we quote from our ruling in the earlier Silkair[25] case:

 21
Evidence cases

The exemption granted under Section 135 (b) of the NIRC of 1997 and
Article 4(2) of the Air Transport Agreement between RP
and Singapore cannot, without a clear showing of legislative intent, be
construed as including indirect taxes. Statutes granting tax exemptions must
be construed in strictissimi juris against the taxpayer and liberally in favor of
the taxing authority, and if an exemption is found to exist, it must not be
enlarged by construction.

This calls for the application of the doctrine, stare decisis et non quieta movere. Follow
past precedents and do not disturb what has been settled. Once a case has been decided
one way, any other case involving exactly the same point at issue, as in the case at bar,
should be decided in the same manner.[26]

WHEREFORE, the instant petition for review is DENIED. We AFFIRM the

assailed Decision dated May 27, 2008 and the Resolution dated September 5, 2008 of
the Court of Tax Appeals En Banc in C.T.A. E.B. No. 267. No pronouncement as to
costs.

SO ORDERED.

.R. No. 211672, June 14, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOHN HAPPY DOMINGO Y CARAG, Accused-Appellant.

DECISION

PEREZ, J.:

We resolve the appeal of John Happy Domingo y Carag (accused-appellant) assailing the 21 November 2012
Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 03575. The CA Decision affirmed the ruling of the
Regional Trial Court (RTC), Branch 5, Tuguegarao City, Cagayan finding the accused guilty of violating Section 5,
Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

The Case

On 27 August 2008, the RTC promulgated a Decision2 finding accused-appellant guilty beyond reasonable doubt
of violating Section 5, Article II of R.A. No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of
2002 and sentenced him to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand
Pesos (P500,000.00). The RTC ruled that the evidence presented by the prosecution successfully established the
elements of illegal sale of a dangerous drug as accused-appellant was caught in flagrante delicto in a valid buy-
bust operation. It noted that the defense of denial and frame-up offered by the defense cannot overturn the
presumption of regularity in the performance of official duties accorded to the apprehending officers.
 22
Evidence cases
On intermediate appellate review, the CA upheld the RTC ruling. It found no reason to disturb the findings of the
RTC as it is in accordance with law and jurisprudence and was based on the evidence presented and proven during
trial. The appellate court likewise rejected the claim of accused-appellant that he was framed-up by the
apprehending officers because his brother failed to repair the cell phone of the police asset. It agreed with the RTC
that it is highly unbelievable that the buy-bust team would concoct such a serious charge against accused-
appellant especially considering that it is the police asset, who is not even a member of the buy-bust team, that
allegedly has an issue against the brother of accused-appellant. The CA also held that the apprehending officers
complied with the proper procedure in the custody and disposition of the seized drug and that the identity of the
confiscated drug has been duly preserved and its chain of custody has been properly established by the
prosecution.3

Issue

Whether the lower courts gravely erred in finding the accused-appellant guilty for violation of Section 5, Article II
of R.A. No. 9165.4

Our Ruling

We affirm the accused-appellant's conviction.

The elements of illegal sale

of dangerous drugs

In the prosecution of a case of illegal sale of dangerous drugs, it is necessary that the prosecution is able to
establish the following essential elements: (1) the identity of the buyer and the seller, the object of the sale and
the consideration; and (2) the delivery of the thing sold and its payment. What is material is the proof that the
transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence. The
delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money successfully
consummate the buy-bust transaction.5

In this case, all of these elements were clearly established. The prosecution's evidence positively identified Police
Officer 1 Marcial Eclipse (PO1 Eclipse) as the buyer and accused-appellant as the seller of the shabu. The
prosecution established through testimony and evidence the object of the sale, which is a heat-sealed transparent
plastic sachet containing shabu and the two (2) marked Php 100.00 bills, as the consideration thereof. Finally, the
delivery of the shabu sold and its payment were clearly testified to by prosecution witness PO1 Eclipse.

Accused-appellant denied the accusation that he sold shabu to PO1 Eclipse and maintained that it was only in the
police station that he first saw the sachet containing the white crystalline substance and the marked money
allegedly taken from him. He claimed that the reason for his frame-up was the failure of his brother to repair the
cell phone of the police civilian asset Boyet Relos.

Accused-appellant's defense which is anchored mainly on denial and frame-up cannot be given credence. It does
not have more evidentiary weight than the positive assertions of the prosecution witnesses. His defense is
unavailing considering that he was caught in flagrante delicto in a legitimate buy-bust operation. This Court has
ruled that the defense of denial or frame-up, like alibi, has been invariably viewed by the courts with disfavor for it
can just as easily be concocted and is a common and standard defense ploy in most prosecution for violation of the
Dangerous Drugs Act.6 Moreover, we agree with the lower courts that the ill-motive imputed on the apprehending
officers is unworthy of belief. Accused-appellant's defense that he was framed-up because his brother found it
difficult to repair the cell phone of the police asset deserves scant consideration. When the police officers involved
in the buy-bust operation have no motive to testify against the accused, the courts shall uphold the presumption
that they performed their duties regularly.7 In fact, for as long as the identity of the accused and his participation
in the commission of the crime has been duly established, motive is immaterial for conviction. As correctly noted
by the appellate court, the person who allegedly had a grudge against the brother of the accused-appellant was
not even a member of the buy-bust team. He was only a police informant. Moreover, accused-appellant was
clearly identified by PO1 Eclipse as the person who sold to him for two hundred pesos a substance contained in a
heat-sealed transparent plastic sachet which later on tested positive for methamphetamine hydrochloride
or shabu.

Chain of Custody Rule

Accused-appellant also submits that the lower courts failed to consider the procedural flaws committed by the
arresting officers in the seizure and custody of drugs as embodied in Section 21, paragraph 1, Article II, R.A. No.
 23
Evidence cases
9165.8 Accused-appellant alleged that the trial court failed to consider the admission of PO1 Eclipse that the
alleged item taken from him was not photographed in the latter's presence and no inventory was made
immediately after the alleged operation.

We are not persuaded. The procedure to be followed in the custody and handling of the seized dangerous drugs is
outlined in Section 21 (a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which states:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office
of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further,
that non-compliance with these requirements under justifiable grounds, as long as the integrity and
the evidentiary value of the seized items are properly preserved by the apprehending officer/team,
shall not render void and invalid such seizures of and custody over said items[.] (Emphasis supplied)

The last part of the aforequoted provision stated the exception to the strict compliance with the requirements of
Section 21 of R.A. No. 9165. Although ideally the prosecution should offer a perfect chain of custody in the
handling of evidence, "substantial compliance with the legal requirements on the handling of the seized item" is
sufficient.9 This Court has consistently ruled that even if the arresting officers failed to strictly comply with the
requirements under Section 21 of R.A. No. 9165, such procedural lapse is not fatal and will not render the items
seized inadmissible in evidence.10What is of utmost importance is the preservation of the integrity and evidentiary
value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the
accused.11In other words, to be admissible in evidence, the prosecution must be able to present through records or
testimony, the whereabouts of the dangerous drugs from the time these were seized from the accused by the
arresting officers; turned-over to the investigating officer; forwarded to the laboratory for determination of their
composition; and up to the time these are offered in evidence. For as long as the chain of custody remains
unbroken, as in this case, even though the procedural requirements provided for in Sec. 21 of R.A. No. 9165 were
not faithfully observed, the guilt of the accused will not be affected.12

Contrary to the contention of accused-appellant, this Court finds no broken links in the chain of custody over the
seized drug. Records reveal that after the arrest of the accused-appellant; the seizure of the suspected shabu and
recovery of the marked money in the latter's possession, PO1 Eclipse, with the assistance of the other members of
the buy-bust team, brought accused-appellant to the police station.13

Upon their arrival at the police station, PO1 Eclipse handed the marked money and the confiscated plastic sachet
containing white crystalline substance to their investigator,14 PO3 Wilfredo Taguinod (PO3 Taguinod).15 PO3
Taguinod marked the plastic sachet containing white crystalline substance with words "WAT," representing the
initials of his name "Wilfredo A. Taguinod."16 Thereafter, PO3 Taguinod turned over the confiscated plastic sachet
and the marked money to the desk officer so that the incident and the confiscated items will be recorded in their
blotter.17

PO3 Taguinod also prepared a letter-request18 addressed to the PNP Crime Laboratory in Tuguegarao City to have
the contents of the plastic sachet examined for presence of illegal drugs.19 PO3 Taguinod then handed the said
letter-request, together with the confiscated plastic sachet, to PO3 Rolando Domingo who brought the same to the
PNP Crime Laboratory in Tuguegarao City. Said letter-request and the plastic sachet were received by PO1 Myrna
B. Janson of the PNP Crime Laboratory in Tuguegarao City.20

PSI Alfredo M. Quintero, Forensic Chemist of the PNP Crime Laboratory in Tuguegarao City, performed qualitative
examination of the contents of the plastic sachet with the markings "WAT."21Said examination proved that the
confiscated plastic sachet contained 0.07 gram of methamphetamine hydrochloride or shabu as evidenced by
Chemistry Report No. D-073-2005.22

It is clear from the foregoing that the substance marked, tested and offered in evidence was the same item seized
from accused-appellant. We have previously ruled that as long as the state can show by record or testimony that
the integrity of the evidence has not been compromised by accounting for the continuous whereabouts of the
object evidence at least between the time it came into the possession of the police officers until it was tested in
the laboratory, then the prosecution can maintain that it was able to prove the guilt of the accused beyond
reasonable doubt.23
 24
Evidence cases
The integrity of the evidence is presumed to have been preserved unless there is a showing of bad faith, ill will, or
proof that the evidence has been tampered with. Accused-appellant bear the burden of showing that the evidence
was tampered or meddled with in order to overcome the presumption of regularity in the handling of exhibits by
public officers and the presumption that public officers properly discharged their duties.24 Here, accused-appellant
failed to convince the Court that there was ill motive on the part of the arresting officers. Thus, the testimony of
PO1 Eclipse deserves full faith and credit. Accused-appellant did not even question the credibility of the
apprehending officers. He simply insisted that the civilian informant had an ax to grind against his brother for the
latter's failure to repair the cell phone. It is unbelievable that the apprehending officers would go to the extent of
fabricating a story just to have a reason to arrest accused-appellant and get back at the latter's brother.

Imposable penalty

Section 5 of R.A. No. 9165 provides the penalty for the illegal sale of dangerous drugs, viz.:

Sect. 5 Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs
and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00) shall be imposed
upon any person, who, unless authorized by law, shall sell, trade administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium
poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

We sustain the penalty imposed on accused-appellant as it is in conformity with the above-quoted provision of the
law.chanrob leslaw

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-HC No. 03575 affirming the Regional Trial Court
Decision finding the accused John Happy Domingo y Carag guilty beyond reasonable doubt of violating Section 5,
Article II of Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002,"
sentencing him to suffer the penalty of life imprisonment and ordering him to pay a fine of Five Hundred Thousand
Pesos (P500,000.00) is hereby AFFIRMED.

SO ORDERED. cralawlawlibra ry

G.R. No. 173540 January 22, 2014

PEREGRINA MACUA VDA. DE AVENIDO, Petitioner,

vs.
TECLA HOYBIA AVENIDO, Respondent.

DECISION

PEREZ, J.:

This is a Petition for Review on Certiorari under Rule 45.ofthe Rules of Court, assailing the 31 August
2005 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 79444, which reversed the 25 March 2003
Decision2 of the Regional Trial Court (RTC), Branch 8 of Davao City, in a complaint for Declaration of
Absolute Nullity of Marriage docketed as Civil Case No. 26, 908-98.

The Facts

This case involves a contest between two women both claiming to have been validly married to the same
man, now deceased.
 25
Evidence cases
Respondent Tecla Hoybia Avenido (Tecla) instituted on 11 November 1998, a Complaint for Declaration of
Nullity of Marriage against Peregrina Macua Vda. de Avenido (Peregrina) on the ground that she (Tecla),
is the lawful wife of the deceased Eustaquio Avenido (Eustaquio). In her complaint, Tecla alleged that her
marriage to Eustaquio was solemnized on 30 September 1942 in Talibon, Bohol in rites officiated by the
Parish Priest of the said town. According to her, the fact of their marriage is evidenced by a Marriage
Certificate recorded with the Office of the Local Civil Registrar (LCR) of Talibon, Bohol. However, due to
World War II, records were destroyed. Thus, only a Certification3 was issued by the LCR.

During the existence of Tecla and Eustaquios union, they begot four (4) children, namely: Climaco H.
Avenido, born on 30 March 1943; Apolinario H. Avenido, born on 23 August 1948; Editha A. Ausa, born on
26 July 1950, and Eustaquio H. Avenido, Jr., born on 15 December 1952. Sometime in 1954, Eustaquio
left his family and his whereabouts was not known. In 1958, Tecla and her children were informed that
Eustaquio was in Davao City living with another woman by the name of Buenaventura Sayson who later
died in 1977 without any issue.

In 1979, Tecla learned that her husband Eustaquio got married to another woman by the name of
Peregrina, which marriage she claims must be declared null and void for being bigamous an action she
sought to protect the rights of her children over the properties acquired by Eustaquio.

On 12 April 1999, Peregrina filed her answer to the complaint with counterclaim,4 essentially averring that
she is the legal surviving spouse of Eustaquio who died on 22 September 1989 in Davao City, their
marriage having been celebrated on 30 March 1979 at St. Jude Parish in Davao City. She also contended
that the case was instituted to deprive her of the properties she owns in her own right and as an heir of
Eustaquio.

Trial ensued.

Tecla presented testimonial and documentary evidence consisting of:

1) Testimonies of Adelina Avenido-Ceno (Adelina), Climaco Avenido (Climaco) and Tecla herself
to substantiate her alleged prior existing and valid marriage with (sic) Eustaquio;

2) Documentary evidence such as the following:

a. Certification of Loss/Destruction of Record of Marriage from 1900 to 1944 issued by the

Office of the Civil Registrar, Municipality of Talibon, Bohol;5

b. Certification of Submission of a copy of Certificate of Marriage to the Office of the Civil

Registrar General, National Statistics Office (NSO), R. Magsaysay Blvd., Sta Mesa,
Manila;6

c. Certification that Civil Registry records of births, deaths and marriages that were actually
filed in the Office of the Civil Registrar General, NSO Manila, started only in 1932;7

d. Certification that Civil Registry records submitted to the Office of the Civil Registrar
General, NSO, from 1932 to the early part of 1945, were totally destroyed during the
liberation of Manila;8

e. Certification of Birth of Apolinario Avenido;9

f. Certification of Birth of Eustaquio Avenido, Jr.;10

 26
Evidence cases
g. Certification of Birth of Editha Avenido;11

h. Certification of Marriage between Eustaquio Sr., and Tecla issued by the Parish Priest of
Talibon, Bohol on 30 September 1942;12

i. Certification that record of birth from 1900 to 1944 were destroyed by Second World War
issued by the Office of the Municipal Registrar of Talibon, Bohol, that they cannot furnish
as requested a true transcription from the Register of Birth of Climaco Avenido;13

j. Certificate of Baptism of Climaco indicating that he was born on 30 March 1943 to

spouses Eustaquio and Tecla;14

k. Electronic copy of the Marriage Contract between Eustaquio and Peregrina.15

On the other hand, Peregrina testified on, among others, her marriage to Eustaquio that took place in
Davao City on 3 March 1979; her life as a wife and how she took care of Eustaquio when he already had
poor health, as well as her knowledge that Tecla is not the legal wife, but was once a common law wife of
Eustaquio.16 Peregrina likewise set forth documentary evidence to substantiate her allegations and to
prove her claim for damages, to wit:

1) Marriage Contract17 between Pregrina and the late Eustaquio showing the date of marriage on 3
March 1979;

2) Affidavit of Eustaquio executed on 22 March 1985 declaring himself as single when he

contracted marriage with the petitioner although he had a common law relation with one Tecla
Hoybia with whom he had four (4) children namely: Climaco, Tiburcio, Editha and Eustaquio, Jr.,
all surnamed Avenido;18

3) Letter of Atty. Edgardo T. Mata dated 15 April 2002, addressed to the Civil Registrar of the
Municipality of Alegria, Surigao del Norte;19 and

4) Certification dated 25 April 2002 issued by Colita P. Umipig, in her capacity as the Civil
Registrar of Alegria, Surigao del Norte.20

In addition, as basis for the counterclaim, Peregrina averred that the case was initiated in bad faith so as
to deprive her of the properties she owns in her own right and as an heir of Eustaquio; hence, her
entitlement to damages and attorneys fees.

On 25 March 2003, the RTC rendered a Decision21 denying Teclas petition, as well as Peregrinas
counter-claim. The dispositive portion thereof reads:

For The Foregoing, the petition for the "DECLARATION OF NULLITY OF MARRIAGE" filed by petitioner
TECLA HOYBIA AVENIDO against respondent PEREGRINA MACUA is hereby DENIED.

The "COUNTERCLAIM" filed by respondent PEREGRINA MACUA against petitioner TECLA HOYBIA
AVENIDO is hereby DISMISSED.22

Not convinced, Tecla appealed to the CA raising as error the trial courts alleged disregard of the evidence
on the existence of her marriage to Eustaquio.
 27
Evidence cases
In its 31 August 2005 Decision,23 the CA ruled in favor of Tecla by declaring the validity of her marriage to
Eustaquio, while pronouncing on the other hand, the marriage between Peregrina and Eustaquio to be
bigamous, and thus, null and void. The CA ruled:

The court a quo committed a reversible error when it disregarded (1) the testimonies of [Adelina], the sister
of EUSTAQUIO who testified that she personally witnessed the wedding celebration of her older brother
EUSTAQUIO and [Tecla] on 30 September 1942 at Talibon, Bohol; [Climaco], the eldest son of
EUSTAQUIO and [Tecla], who testified that his mother [Tecla] was married to his father, EUSTAQUIO,
and [Tecla] herself; and (2) the documentary evidence mentioned at the outset. It should be stressed that
the due execution and the loss of the marriage contract, both constituting the condition sine qua non, for
the introduction of secondary evidence of its contents, were shown by the very evidence the trial court has
disregarded.24

Peregrina now questions the said ruling assigning as error, among others, the failure of the CA to
appreciate the validity of her marriage to Eustaquio. For its part, the Office of the Solicitor General (OSG),
in its Memorandum25dated 5 June 2008, raises the following legal issues:

1. Whether or not the court can validly rely on the "presumption of marriage" to overturn the validity
of a subsequent marriage;

2. Whether or not secondary evidence may be considered and/or taken cognizance of, without
proof of the execution or existence and the cause of the unavailability of the best evidence, the
original document;

and

3. Whether or not a Certificate of Marriage issued by the church has a probative value to prove the
existence of a valid marriage without the priest who issued the same being presented to the
witness stand.26

Our Ruling

Essentially, the question before us is whether or not the evidence presented during the trial proves the
existence of the marriage of Tecla to Eustaquio.

The trial court, in ruling against Teclas claim of her prior valid marriage to Eustaquio relied on Teclas
failure to present her certificate of marriage to Eustaquio. Without such certificate, the trial court
considered as useless the certification of the Office of the Civil Registrar of Talibon, Bohol, that it has no
more records of marriages during the period 1900 to 1944. The same thing was said as regards the
Certification issued by the National Statistics Office of Manila. The trial court observed:

Upon verification from the NSO, Office of the Civil Registrar General, Manila, it, likewise, issued a
Certification (Exhibit "B") stating that:

records from 1932 up to early part of 1945 were totally destroyed during the liberation of Manila on
February 4, 1945. What are presently filed in this office are records from the latter part of 1945 to date,
except for the city of Manila which starts from 1952. Hence, this office has no way of verifying and could
not issue as requested, certified true copy of the records of marriage between [Eustaquio] and [Tecla],
alleged to have been married on 30th September 1942, in Talibon, Bohol.27
 28
Evidence cases
In the absence of the marriage contract, the trial court did not give credence to the testimony of Tecla and
her witnesses as it considered the same as mere self-serving assertions. Superior significance was given
to the fact that Tecla could not even produce her own copy of the said proof of marriage. Relying on
Section 3 (a) and Section 5, Rule 130 of the Rules of Court, the trial court declared that Tecla failed to
prove the existence of the first marriage.

The CA, on the other hand, concluded that there was a presumption of lawful marriage between Tecla and
Eustaquio as they deported themselves as husband and wife and begot four (4) children. Such
presumption, supported by documentary evidence consisting of the same Certifications disregarded by the
trial court, as well as the testimonial evidence especially that of Adelina Avenido-Ceno, created, according
to the CA, sufficient proof of the fact of marriage. Contrary to the trial courts ruling, the CA found that its
appreciation of the evidence presented by Tecla is well in accord with Section 5, Rule 130 of the Rules of
Court.

We uphold the reversal by the CA of the decision of the trial court. Quite recently, in Aonuevo v. Intestate
Estate of Rodolfo G. Jalandoni,28 we said, citing precedents, that:

While a marriage certificate is considered the primary evidence of a marital union, it is not regarded as the
sole and exclusive evidence of marriage. Jurisprudence teaches that the fact of marriage may be proven
by relevant evidence other than the marriage certificate. Hence, even a persons birth certificate may be
recognized as competent evidence of the marriage between his parents.

The error of the trial court in ruling that without the marriage certificate, no other proof of the fact can be
accepted, has been aptly delineated in Vda de Jacob v. Court of Appeals.29 Thus:

It should be stressed that the due execution and the loss of the marriage contract, both constituting the
conditio sine qua non for the introduction of secondary evidence of its contents, were shown by the very
evidence they have disregarded. They have thus confused the evidence to show due execution and loss
as "secondary" evidence of the marriage. In Hernaez v. Mcgrath, the Court clarified this misconception
thus:

x x x [T]he court below was entirely mistaken in holding that parol evidence of the execution of the
instrument was barred. The court confounded the execution and the contents of the document. It is the
contents, x x x which may not be proven by secondary evidence when the

instrument itself is accessible. Proofs of the execution are not dependent on the existence or non-
existence of the document, and, as a matter of fact, such proofs of the contents: due execution, besides
the loss, has to be shown as foundation for the inroduction of secondary evidence of the contents.

xxxx

Evidence of the execution of a document is, in the last analysis, necessarily collateral or primary. It
generally consists of parol testimony or extrinsic papers. Even when the document is actually produced, its
authencity is not necessarily, if at all, determined from its face or recital of its contents but by parol
evidence. At the most, failure to produce the document, when available, to establish its execution may
effect the weight of the evidence presented but not the admissibility of such evidence.

The Court of Appeals, as well as the trial court, tried to justify its stand on this issue by relying on Lim
Tanhu v. Ramolete. But even there, we said that "marriage may be prove[n] by other competent evidence.
 29
Evidence cases
Truly, the execution of a document may be proven by the parties themselves, by the swearing officer, by
witnesses who saw and recognized the signatures of the parties; or even by those to whom the parties
have previously narrated the execution thereof. The Court has also held that "[t]he loss may be shown by
any person who [knows] the fact of its loss, or by any one who ha[s] made, in the judgment of the court, a
sufficient examination in the place or places where the document or papers of similar character are usually
kept by the person in whose custody the document lost was, and has been unable to find it; or who has
made any other investigation which is sufficient to satisfy the court that the instrument [has] indeed [been]
lost."

In the present case, due execution was established by the testimonies of Adela Pilapil, who was present
during the marriage ceremony, and of petitioner herself as a party to the event. The subsequent loss was
shown by the testimony and the affidavit of the officiating priest, Monsignor Yllana, as relevant, competent
and admissible evidence. Since the due execution and the loss of the marriage contract were clearly
shown by the evidence presented, secondary evidencetestimonial and documentarymay be admitted to
prove the fact of marriage.30

As correctly stated by the appellate court:

In the case at bench, the celebration of marriage between [Tecla] and EUSTAQUIO was established by
the testimonial evidence furnished by [Adelina] who appears to be present during the marriage ceremony,
and by [Tecla] herself as a living witness to the event. The loss was shown by the certifications issued by
the NSO and LCR of Talibon, Bohol. These are relevant, competent and admissible evidence. Since the
due execution and the loss of the marriage contract were clearly shown by the evidence presented,
secondary evidence testimonial and documentary may be admitted to prove the fact of marriage. In
PUGEDA v. TRIAS, the

Supreme Court held that "marriage may be proven by any competent and relevant evidence. The
testimony by one of the parties to the marriage or by one of the witnesses to the marriage has been held
to be admissible to prove the fact of marriage. The person who officiated at the solemnization is also
competent to testify as an eyewitness to the fact of marriage."

xxxx

The court a quo committed a reversible error when it disregarded (1) the testimonies of [Adelina], the sister
of EUSTAQUIO who testified that she personally witnessed the wedding celebration of her older brother
EUSTAQUIO and [Tecla] on 30 September 1942 at Talibon, Bohol; [Climaco], the eldest son of
EUSTAQUIO and [Tecla], who testified that his mother [Tecla] was married to his father, EUSTAQUIO,
and [Tecla] herself; and (2) the documentary evidence mentioned at the outset. It should be stressed that
the due execution and the loss of the marriage contract, both constituting the condition sine qua non for
the introduction of secondary evidence of its contents, were shown by the very evidence the trial court has
disregarded.31

The starting point then, is the presumption of marriage.

As early as the case of Adong v. Cheong Seng Gee,32 this Court has elucidated on the rationale behind the
presumption:

The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction
1wphi1

is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is
deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons
dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or
evidence special to the case, to be in fact married. The reason is that such is the common order of society,
 30
Evidence cases
and if the parties were not what they thus hold themselves out as being, they would be living in the
constant violation of decency and of law. A presumption established by our Code of Civil Procedure is that
a man and a woman deporting themselves as husband and wife have entered into a lawful contract of
marriage. (Sec. 334, No. 28) Semper praesumitur pro matrimonio Always presume marriage.

In the case at bar, the establishment of the fact of marriage was completed by the testimonies of Adelina,
Climaco and Tecla; the unrebutted the certifications of marriage issued by the parish priest of the Most
Holy Trinity Cathedral of Talibon, Bohol.

WHEREFORE, the Petition is DENIED and the assailed Decision of the Court of Appeals in CA-G.R. CV
No. 79444 is AFFIRMED. The marriage between petitioner Peregrina Macua Avenido and the deceased
Eustaquio Avenido is hereby declared NULL and VOID. No pronouncement as to costs.

SO ORDERED.

SPS. ANTONIO & LETICIA VEGA, G.R. No. 181672

Petitioner,
Present:
CARPIO, J., Chairperson,
- versus - PERALTA,

BERSAMIN,*

ABAD, and

PEREZ,** JJ.

SOCIAL SECURITY SYSTEM (SSS)

& PILAR DEVELOPMENT Promulgated:

CORPORATION,

Respondents. September 20, 2010

x --------------------------------------------------------------------------------------- x
 31
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DECISION

ABAD, J.:

This case is about the lack of authority of a sheriff to execute upon a property
that the judgment obligor had long sold to another although the registered title to the
property remained in the name of the former.

The Facts and the Case

Magdalena V. Reyes (Reyes) owned a piece of titled land[1] in Pilar Village, Las
Pias City. On August 17, 1979 she got a housing loan from respondent Social Security
System (SSS) for which she mortgaged her land.[2] In late 1979, however, she asked the
petitioner spouses Antonio and Leticia Vega (the Vegas) to assume the loan and buy
her house and lot since she wanted to emigrate.[3]

Upon inquiry with the SSS, an employee there told the Vegas that the SSS did
not approve of members transferring their mortgaged homes. The Vegas could,
however, simply make a private arrangement with Reyes provided they paid the
monthly amortizations on time. This practice, said the SSS employee, was
commonplace.[4] Armed with this information, the Vegas agreed for Reyes to execute
in their favor a deed of assignment of real property with assumption of mortgage and
paid Reyes P20,000.00 after she undertook to update the amortizations before leaving
the country. The Vegas then took possession of the house in January 1981.[5]

But Reyes did not readily execute the deed of assignment. She left the country
and gave her sister, Julieta Reyes Ofilada (Ofilada), a special power of attorney to
 32
Evidence cases

convey ownership of the property.Sometime between 1983 and 1984, Ofilada finally
executed the deed promised by her sister to the Vegas. Ofilada kept the original and
gave the Vegas two copies. The latter gave one copy to the Home Development
Mortgage Fund and kept the other.[6] Unfortunately, a storm in 1984 resulted in a
flood that destroyed the copy left with them.[7]

In 1992, the Vegas learned that Reyes did not update the amortizations for they
received a notice to Reyes from the SSS concerning it.[8] They told the SSS that they
already gave the payment to Reyes but, since it appeared indifferent, on January 6,
1992 the Vegas updated the amortization themselves and paid P115,738.48 to the SSS,
through Antonio Vegas personal check.[9] They negotiated seven additional
remittances and the SSS accepted P8,681.00 more from the Vegas.[10]

Meanwhile, on April 16, 1993 respondent Pilar Development Corporation (PDC)

filed an action for sum of money against Reyes before the Regional Trial Court (RTC)
of Manila in Civil Case 93-6551.PDC claimed that Reyes borrowed from Apex Mortgage
and Loans Corporation (Apex) P46,500.00 to buy the lot and construct a house on
it.[11] Apex then assigned Reyes credit to the PDC on December 29, 1992,[12] hence, the
suit by PDC for the recovery of the unpaid debt. On August 26, 1993 the RTC rendered
judgment, ordering Reyes to pay the PDC the loan of P46,398.00 plus interest and
penalties beginning April 11, 1979 as well as attorneys fees and the costs.[13] Unable to
do so, on January 5, 1994 the RTC issued a writ of execution against Reyes and its
Sheriff levied on the property in Pilar Village.[14]

On February 16, 1994 the Vegas requested the SSS to acknowledge their status
as subrogees and to give them an update of the account so they could settle it in
full. The SSS did not reply. Meantime, the RTC sheriff published a notice for the
auction sale of the property on February 24, March 3 and 10, 1994.[15] He also served
on the Vegas notice of that sale on or about March 20, 1994.[16] On April 5, 1994, the
Vegas filed an affidavit of third party claimant and a motion for leave to admit a
motion in intervention to quash the levy on the property.[17]
 33
Evidence cases

Still, stating that Vegas remedy lay elsewhere, the RTC directed the sheriff to
proceed with the execution.[18] Meantime, the Vegas got a telegram dated August 29,
1994, informing them that the SSS intended to foreclose on the property to satisfy the
unpaid housing debt of P38,789.58.[19] On October 19, 1994 the Vegas requested the
SSS in writing for the exact computation of the indebtedness and for assurance that
they would be entitled to the discharge of the mortgage and delivery of the proper
subrogation documents upon payment. They also sent a P37,521.95 managers check
that the SSS refused to accept.[20]

On November 8, 1994 the Vegas filed an action for consignation, damages, and
injunction with application for preliminary injunction and temporary restraining order
against the SSS, the PDC, the sheriff of RTC Branch 19, and the Register of Deeds
before the RTC of Las Pias in Civil Case 94-2943. Still, while the case was pending, on
December 27, 1994 the SSS released the mortgage to the PDC.[21] And on August 22,
1996 the Register of Deeds issued TCT T-56657 to the PDC.[22] A writ of possession
subsequently evicted the Vegas from the property.

On May 8, 2002 the RTC decided Civil Case 94-2943 in favor of the Vegas. It
ruled that the SSS was barred from rejecting the Vegas final payment of P37,521.95
and denying their assumption of Reyes debt, given the SSS previous acceptance of
payments directly from them. The Vegas were subrogated to the rights of Reyes and
substituted her in the SSS housing loan and mortgage contract. That the Vegas had the
receipts show that they were the ones who made those payments. The RTC ordered
the PDC to deliver to the Vegas the certificate of title covering the property. It also
held the SSS and PDC solidarily liable to the Vegas for P300,000.00 in moral
damages, P30,000.00 in exemplary damages, and P50,000.00 in attorneys fees and for
costs of the suit.[23]

The SSS appealed to the Court of Appeals (CA) in CA G.R. CV 77582. On August 30,
2007 the latter court reversed the RTC decision[24] for the reasons that the Vegas were
unable to produce the deed of assignment of the property in their favor and that such
 34
Evidence cases

assignment was not valid as to PDC. Their motion for reconsideration having been
denied, the Vegas filed this petition for review on certiorari under Rule 45.[25]

The Issues Presented

The issues in this case are:

1. Whether or not the Vegas presented adequate proof of Reyes sale of the
subject property to them;

2. In the affirmative, whether or not Reyes validly sold her SSS-mortgaged

property to the Vegas; and

3. In the affirmative, whether or not the sheriff validly sold the same at public
auction to satisfy Reyes debt to PDC.

The Rulings of the Court

One. The CA ruled that the Vegas were unable to prove that Reyes assigned the
subject property to them, given that they failed to present the deed of assignment in
their favor upon a claim that they lost it.[26]But the rule requiring the presentation of
the original of that deed of assignment is not absolute. Secondary evidence of the
contents of the original can be adduced, as in this case, when the original has been lost
without bad faith on the part of the party offering it.[27]
 35
Evidence cases

Here, not only did the Vegas prove the loss of the deed of assignment in their
favor and what the same contained, they offered strong corroboration of the fact of
Reyes sale of the property to them. They took possession of the house and lot after
they bought it. Indeed, they lived on it and held it in the concept of an owner for 13
years before PDC came into the picture. They also paid all the amortizations to the SSS
with Antonio Vegas personal check, even those that Reyes promised to settle but did
not. And when the SSS wanted to foreclose the property, the Vegas sent a managers
check to it for the balance of the loan. Neither Reyes nor any of her relatives came
forward to claim the property. The Vegas amply proved the sale to them.

Two. Reyes acquired the property in this case through a loan from the SSS in
whose favor she executed a mortgage as collateral for the loan. Although the loan was
still unpaid, she assigned the property to the Vegas without notice to or the consent of
the SSS. The Vegas continued to pay the amortizations apparently in Reyes
name. Meantime, Reyes apparently got a cash loan from Apex, which assigned the
credit to PDC. This loan was not secured by a mortgage on the property but PDC
succeeded in getting a money judgment against Reyes and had it executed on the
property. Such property was still in Reyes name but, as pointed out above, the latter
had disposed of it in favor of the Vegas more than 10 years before PDC executed on it.

The question is: was Reyes disposal of the property in favor of the Vegas valid
given a provision in the mortgage agreement that she could not do so without the
written consent of the SSS?

The CA ruled that, under Article 1237[28] of the Civil Code, the Vegas who paid the SSS
amortizations except the last on behalf of Reyes, without the latters knowledge or
against her consent, cannot compel the SSS to subrogate them in her rights arising
from the mortgage. Further, said the CA, the Vegas claim of subrogation was invalid
because it was done without the knowledge and consent of the SSS as required under
the mortgage agreement.[29]

But Article 1237 cannot apply in this case since Reyes consented to the transfer
of ownership of the mortgaged property to the Vegas. Reyes also agreed for the Vegas
 36
Evidence cases

to assume the mortgage and pay the balance of her obligation to SSS. Of course,
paragraph 4 of the mortgage contract covering the property required Reyes to secure
SSS consent before selling the property. But, although such a stipulation is valid and
binding, in the sense that the SSS cannot be compelled while the loan was unpaid to
recognize the sale, it cannot be interpreted as absolutely forbidding her, as owner of
the mortgaged property, from selling the same while her loan remained unpaid. Such
stipulation contravenes public policy, being an undue impediment or interference on
the transmission of property.[30]

Besides, when a mortgagor sells the mortgaged property to a third person, the
creditor may demand from such third person the payment of the principal obligation.
The reason for this is that the mortgage credit is a real right, which follows the
property wherever it goes, even if its ownership changes. Article 2129[31] of the Civil
Code gives the mortgagee, here the SSS, the option of collecting from the third person
in possession of the mortgaged property in the concept of owner. [32] More, the
mortgagor-owners sale of the property does not affect the right of the registered
mortgagee to foreclose on the same even if its ownership had been transferred to
another person. The latter is bound by the registered mortgage on the title he
acquired.

After the mortgage debt to SSS had been paid, however, the latter had no
further justification for withholding the release of the collateral and the registered title
to the party to whom Reyes had transferred her right as owner. Under the
circumstance, the Vegas had the right to sue for the conveyance to them of that title,
having been validly subrogated to Reyes rights.

Three. The next question is: was Reyes sale of the property to the Vegas binding
on PDC which tried to enforce the judgment credit in its favor on the property that
was then still mortgaged to the SSS?
The CA ruled that Reyes assignment of the property to the Vegas did not bind PDC,
which had a judgment credit against Reyes, since such assignment neither appeared in
 37
Evidence cases

a public document nor was registered with the register of deeds as Article 1625 of the
Civil Code required. Article 1625 reads:

Art. 1625. An assignment of a credit, right or action shall produce no effect

as against third persons, unless it appears in a public instrument, or the
instrument is recorded in the Registry of Property in case the assignment
involves real property. (1526)

But Article 1625 referred to assignment of credits and other incorporeal rights. Reyes
did not assign any credit or incorporeal right to the Vegas. She sold the Vegas her
house and lot. They became owner of the property from the time she executed the
deed of assignment covering the same in their favor. PDC had a judgment for money
against Reyes only. A courts power to enforce its judgment applies only to the
properties that are indisputably owned by the judgment obligor.[33] Here, the property
had long ceased to belong to Reyes when she sold it to the Vegas in 1981.

The PDC cannot take comfort in the fact that the property remained in Reyes
name when it bought the same at the sheriff sale. The PDC cannot assert that it was a
buyer in good faith since it had notice of the Vegas claim on the property prior to such
sale.

Under the circumstances, the PDC must reconvey the subject property to the
Vegas or, if this is no longer possible, pay them its current market value as the trial
court may determine with interest of 12 percent per annum from the date of the
determination of such value until it is fully paid. Further, considering the distress to
which the Vegas were subjected after the unlawful levy on their property, aggravated
by their subsequent ouster from it through a writ of possession secured by PDC, the
RTC was correct in awarding the Vegas moral damages of P300,000.00, exemplary
damages of P30,000.00 and attorneys fees of P50,000.00 plus costs of the suit. But
these are to be borne solely by PDC considering that the SSS had nothing to do with
 38
Evidence cases

the sheriffs levy on the property. It released the title to the PDC simply because it had
a sheriffs sale in its favor.

The PDC is, however, entitled to reimbursement from the Vegas of the sum
of P37,820.15 that it paid to the SSS for the release of the mortgaged title.

WHEREFORE, the Court GRANTS the petition, REVERSES the assailed decision of
the Court of Appeals in CA-G.R. CV 77582 dated August 30, 2007, and in its
place DIRECTS respondent Pilar Development Corporation:

1. To convey to petitioner spouses Antonio and Leticia Vega the

title to and possession of the property subject of this case, covered by
Transfer Certificate of Title 56657 of the Register of Deeds of Las Pias City,
for the issuance of a new title in their names; and

2. To pay the same petitioner spouses moral damages

of P300,000.00, exemplary damages of P30,000.00, and attorneys fees
of P50,000.00.

On the other hand, the Court DIRECTS petitioner spouses to reimburse

respondent Pilar Development Corp. the sum of P37,820.15, representing what it paid
the respondent SSS for the release of the mortgaged certificate of title.

SO ORDERED.

G.R. No. 197813 September 25, 2013

 39
Evidence cases
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
EDWIN IBANEZ y ALBANTE and ALFREDO (FREDDIE) NULLA y IBANEZ, Accused-appellants.

DECISION

PEREZ, J.:

Before us is an appeal via a Notice of Appeal from the Decision of the Court of Appeals in CA-G.R. CR-
H.C. No. 04051.1 The appellate court affirmed in toto the Decision2 of the Regional Trial Court (RTC),
Branch18, Malolos, Bulacan which convicted accused-appellants Edwin Ibaez y Albante (Edwin) and
Alfredo Nulla y Ibaez (Alfredo) of Murder in Criminal Case No. 3517-M-2004.

Appellants Edwin and Alfredo, with Jesus Monsillo y Taniares (Jesus), were all charged in an Information
for Murder under Article 248 of the Revised Penal Code, which reads:

The undersigned Asst. Provincial Prosecutor accuses Jesus Montisillo y Taniares @ Dodong, Edwin
Ibaez y Albante and Alfredo(Freddie) Nulla y Ibaez of the crime of murder, penalized under the
provisions of Article 248 of the Revised Penal Code, committed as follows:

That on or about the 29th day of August, 2004, in the municipality of Bocaue, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a
soil digger (bareta) and with intent to kill one Wilfredo Atendido y Dohenog, conspiring, confederating and
helping one another did then and there willfully, unlawfully and feloniously, with evident premeditation,
abuse of superior strength and treachery, attack, assault and hit with the said soildigger (bareta) the said
Wilfredo Atendido y Dohenog, hitting the latter on his head, thereby inflicting upon him serious physical
injuries which directly caused his death.3

During arraignment, Edwin and Alfredo pleaded not guilty. Jesus, on the other hand, remained at large;
the case against him was archived. Thereafter, trial ensued.

The prosecutions version was testified to by the victims wife and daughter, in succession.

On that fateful day, Wilfredo Atendido y Dohenog (Wilfredo) was invited by Alfredo to a drinking session
with Jesus and Edwin making them a party of four. Rachel, Wilfredos daughter, an adolescent at the time,
was underneath the house (silong in the vernacular) of a neighbor, three (3)meters away from the place
where Wilfredo and his companions were ostensibly in merrymaking.

Rachel saw her father step away from the group to urinate. While Wilfredo relieved himself, Edwin
snatched a t-shirt from a nearby clothesline, and hooded the t-shirt over the head and face of Wilfredo.
Robbed of vision as his head was fully covered, Wilfredo was wrestled and pinned down by Edwin, while
Alfredo boxed the left side of Wilfredos chest. Jesus, armed with a long iron bar, swung at and hit Wilfredo
in the head. Terrified, Rachel stood immobilized as she watched the attack on father. Thereafter, she saw
her mother running out of their house and crying for help.

On that same auspicious date, 29 August 2004, Rowena, Wilfredos wife and Rachels mother, was inside
their house taking care of their youngest daughter. She heard a commotion coming from the neighboring
house, about eight (8) steps away, so she rushed in that direction. Once outside their house, she saw
Wilfredo prostrate on the ground covered with blood on his face and forehead. Upon reaching Wilfredo,
Rowena saw accused Jesus, standing one meter away from Wilfredo, holding an iron bar. Edwin and
Alfredo stood beside Jesus; Edwin held a white shirt. Forthwith, Jesus and Alfredo ran away while Edwin
 40
Evidence cases
went home. Rowena asked for help to bring Wilfredo to the hospital. However, Wilfredo did not reach the
hospital alive and was pronounced dead on arrival.

Expectedly, the defense mainly of Edwin and Alfredo, proffered an altogether different version of the
events.

The two accused-appellants pointed to Jesus as the sole culprit, proclaimed their innocence and
professed to being at the scene of the crime only because of their curiosity for what had occurred.

Allegedly, on that day, the two buddies were having their regular drinking session at Edwins house when
they heard a commotion outside. Curious about the ruckus, they approached and saw Wilfredo prostrate
on the ground; Jesus, held an iron bar and was being held back by his sister who was shouting, "Tama na!
Tama na!." Edwin then called for a tricycle so Wilfredo could be brought to a hospital and given medical
attention. Alfredo stood by and merely watched as events transpired.

To corroborate their claim of innocence, the defense called Aniceta Dosil (Aniceta) to the witness stand
who testified as follows:

(1) She sold doormats for a living which she peddled on the road;

(2) On 29 August 2004, Rachel helped her in selling the doormats;

(3) On that day, they finished at around 6:00 p.m. and headed to their respective residences along
the railroad track;

(4) Upon arriving at their vicinity, Aniceta witnessed the immediate aftermath of the purported fight
between Jesus and Wilfredo;

(5) At that juncture, Jesus was being embraced by his sister, Marilou, and the two were two meters
away from the body of Wilfredo;

(6) Marilou recounted to Aniceta that Jesus had hit Wilfredo with an iron bar, a preemptive move
because Wilfredo was about to stab Jesus;

(7) While Aniceta and Marilou discussed the incident, Rachel stood and listened to them;

(8) At that time, only the four of them, Jesus, Marilou, Aniceta and Rachel, were at the place of the
incident;

(9) After learning the entirety of what had transpired, Aniceta, who was afraid to get involved, and
Rachel, ran to their respective houses;

(10) For the duration of the day, Aniceta did not step out of her house, neither did she volunteer
information to the police when the case was investigated in the following days; and

(11) Aniceta only came forward to testify at the request of Adela Ibaez, wife of Edwin.

As previously adverted to, the trial court convicted Edwin and Alfredo of Murder. It disposed of the case, to
wit:
 41
Evidence cases
WHEREFORE, accused Edwin Ibaez y Albante and Alfredo (Freddie) Nulla y Ibaez are hereby found
GUILTY beyond reasonable doubt of the crime of murder and are hereby sentenced to suffer
imprisonment of reclusion perpetua and to indemnify the heirs of Wilfredo D. Atendido in the amount of:

a) Fifty Thousand Pesos (P50,000.00) as civil indemnity;

b) Twenty-Five Thousand Pesos (P25,000.00) as temperate damages;

c) Fifty Thousand Pesos (P50,000.00) as moral damages;

d) Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages; and

e) One Million Nine Hundred Forty-Six Thousand and One Hundred Eighty Pesos (P1,946,180.00)
for the unearned income of Wilfredo Atendido.4

On appeal, Edwin and Alfredo found no reprieve. The Court of Appeals did not deviate from the RTCs
ruling and affirmed in toto its finding of guilt.

In this appeal, Edwin and Alfredo assign the following as errors:

THE LOWER COURTS GRAVELY ERRED IN GIVING FULLWEIGHT AND CREDENCE TO THE
TESTIMONY OF THEALLEGED PROSECUTION EYEWITNESS.

II

THE LOWER COURTS GRAVELY ERRED IN NOT GIVINGWEIGHT AND CREDENCE TO THE
DEFENSES EVIDENCE.

III

THE LOWER COURTS GRAVELY ERRED IN CONVICTING THEACCUSED-APPELLANTS

WHEN THEIR GUILT WAS NOT PROVENBEYOND REASONABLE DOUBT.5

In sum, the issue is whether the accused are guilty of murder.

Edwin and Alfredo maintain their innocence and point to Jesus as the sole perpetrator of the crime. They
insist that they were at the scene of the crime only because they wanted to know what the commotion was
all about. They claim that, in fact, Edwin called for a tricycle so Wilfredo could be brought to a hospital. To
discredit the eyewitness testimony of Rachel, they presented Aniceta who testified that she and Rachel
were out on that day selling doormats and only returned at 6:00 p.m. Thus, Rachel could not have
witnessed the murder of Wilfredo.

Both lower courts, however, found the testimony of Rachel credible:

This Court finds the testimony of Rachel clear and convincing. The testimony flows from a person who was
present in the place where the killing occurred. They are replete with details sufficient to shift the burden of
evidence to appellants. We have no reason to doubt Rachels credibility. Her candid account of the
incident, standing alone, clearly established the components of the crime of murder. Appellants defense of
 42
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denial, not sufficiently proven, cannot overcome the conclusions drawn from said evidence. We find no
cogent reason to deviate from the findings and conclusions of the trial court. Rachels testimony was
delivered in a firm, candid, and straightforward manner. There is no showing that Rachel wavered from the
basic facts of her testimony, even when she was subjected to a rigorous examination.

Rachel was only ten (10) years old when she witnessed the murder of the victim. She testified in open
court two (2) years later. Thus, she cannot be expected to give an error-free narration of the events that
happened two years earlier. The alleged inconsistencies between her sworn statement and testimony
referred to by appellants do not affect her credibility. What is important is that in all her narrations she
consistently and clearly identified appellants as the perpetrators of the crime. Inconsistencies between the
sworn statement and the testimony in court do not militate against witness credibility since sworn
statements are generally considered inferior to the testimony in open court.6

We find no error in the lower courts disposal of the issue.

Well-entrenched in jurisprudence is that the trial court's 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.7 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. Thus, the trial
judge's 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.8

We have scrutinized the testimony of lone eyewitness, Rachel. Throughout her testimony, in her direct,
cross and re-direct and re-cross examinations, she candidly recounted the events surrounding the killing of
her father as follows:

PROS. LAGROSA:

Your Honor please, may we invoke the right of the child the provisions (sic) under the child witness
wherein we can ask leading questions and in Tagalog.

COURT:

Anyway, the questions can be interpreted.

PROS. LAGROSA:

Only the leading questions, your Honor.

Q: You said that your father came from sleeping in your house, did you know what time of the day your
father went to sleep?

A: I do not know because I do not know how to read time.

xxxx

Q: But do you know whether or when your father went to sleep? It was morning, noon or afternoon or
nighttime or daytime?

A: "Hapon po." (In the afternoon.)

 43
Evidence cases
Q: Early afternoon, late afternoon or mid-afternoon?

A: Late in the afternoon, Your Honor. ("bandang hapon-hapon po.")

Q: Was it already dark?

A: Not yet, your Honor.

PROS. LAGROSA:

Q: According to you, your father went to sleep, where were you when your father went to sleep?

A: I was in the house, maam.

xxxx

Q: And when your father woke up, were you still in the house?

A: Yes, maam.

Q: Also inside the house?

A: Yes, maam.

Q: When your father woke up, what did he do?

A: All of us ate rice, maam. ("Kumain po kaming lahat ng kanin.")

Q: Can you tell us if that is already dark or still daytime?

A: It was still daytime, maam.

xxxx

Q: After eating rice, will you tell us what happened, if you still remember?

A: My father was called by his compadre, maam.

Q: And who was that compadre who called your father?

A: Freddie, maam.

Q: Do you know the full name of this Freddie?

A: Freddie Nulla, maam.

Q: Why do you know Freddie Nulla?

A: He is a compadre of my father, maam.

 44
Evidence cases
Q: Did you often see him in your place?

A: Yes, maam.

Q: Is Freddie Nulla now here in court?

A: Yes, maam.

Q: Will you look around and point to him?

INTERPRETER:

Witness pointed to a detention prisoner (sic) when asked to identify himself answered FREDDIE
NULLA.Q: Now, you said that Freddie Nulla, the compadre, called your father, do you still remember how
he was called?

A: Yes, maam.

Q: How?

A: "Pare. Pare."

Q: And when your father was called, what did your father do?

A: My father followed Freddie at the back of the house of Kuya Edwin.

Q: At the time your father followed Freddie at the back of the house of your Kuya Edwin, where were you?

A: I was under the house of Kuya Unyo, maam.

Q: Now, you mentioned that your father followed Freddie at the back of the house of Kuya Edwin, who is
this Kuya Edwin?

INTERPRETER:

Witness pointing to a detention prisoner who identified himself as EDWIN IBAEZ.PROS. LAGROSA:

Q: You said that at that time you were under the house of Kuya Unyo, what is the full name of this Kuya
Unyo, if you know?

A: I do not know, maam.

Q: What were you doing under the house of Kuya Unyo?

A: I was throwing stones, maam.

Q: And this house of Kuya Unyo, is that near or far from your house?

A: Just near our house, maam.

 45
Evidence cases
Q: Can you point a place here where you are now sitted (sic) up to this courtroom to show the distance
between your house and the house of Kuya Unyo?

PROS. LAGROSA

The witness pointed up to the wall.

ATTY. MALLILLIN:

Can we estimate, your Honor.

A: Just near, maam, 3 to 4 meters.9

xxxx

Q: Rachel, last time you testified that your father followed Freddie Nulla at the back of the house of Kuya
Unyo and at that time you were under the house of Kuya Unyo, do you remember having stated that last
time?

A: Yes, maam.

Q: While you were at the house of Kuya Unyo, do you remember anything unusual that happened at that
time?

A: When my father was being killed, maam.

Q: You said that your father was being killed or "pinapatay na po si papa ko," who killed your father?

A: Kuya Edwin, Kuya Freddie and Kuya Dodong, maam.

Q: You said that Kuya Freddie, Kuya Edwin and Kuya Dodong were killing your father, how did Kuya
Edwin, how was he killing your father as you said?

A: "Pinuluputan po sa mukha ng damit ni Kuya Edwin." (Kuya Edwin put around a piece of cloth).

Q: You said that Kuya Edwin put around a piece of cloth on your papa, in what part of your fathers body
(sic) that cloth being put around by Kuya Edwin?

A: He put it around all over the face and the head, maam.

PROS. LAGROSA:

The witness was demonstrating by making a circling movement or motion of her hand all over the head
and the face.

Q: And then what happened when Kuya Edwin put around that piece of cloth all over the head and face of
your papa?

A: "Itinumba po siya."
 46
Evidence cases
Q: You said "itinumba po siya," who caused your father to tumble down?

A: After Kuya Edwin had put around the piece of cloth on my father, he tumbled him down.

Q: And when your father tumbled down, what else happened?

A: Kuya Freddie boxed him, maam.

Q: Did you see in what part of your fathers body was he boxed by Kuya Freddie?

A: Yes, maam.

Q: What part of his body was boxed?

A: On the left portion of the shoulder blade, maam.

Q: And how about Kuya Dodong when Kuya Edwin put around a piece of cloth and when Kuya Freddie
boxed your father, where was Kuya Dodong at that time?

A: He was also there, maam.

Q: And what was he doing, if he was doing anything at that time?

A: "Binareta na po yong papa ko sa ulo."

COURT:

Q: What did he use noong" binareta"?

A: It is a long iron bar used in digging soil?

PROS. LAGROSA:

Q: Now, what happened after Kuya Dodong " binareta" (sic) your father on the head?

A: "Nandoon pa po ako sa silong nila Kuya Unyo nakita ko nalang ponandoon na po ang nanay ko pati po
mga kapatid ko tsaka na poako lumabas."10

As the lower courts have done, we accord full faith and credence to Rachels testimony. She was young
and unschooled, but her narration of the incident was categorical, without wavering. It has no markings of
a concocted story, impressed upon her by other people.

The defense, accused-appellants herein, tried to further discredit Rachels testimony by arguing that
Rachel was a mere child who had studied only until the first grade of elementary school and could barely
read, and did not know how to tell time.

We cannot take Rachels 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.
 47
Evidence cases
With exceptions provided in the Rules of Court,11 all persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses. That is even buttressed by the Rule on Examination
of a Child Witness which specifies that every child is presumed qualified to be a witness. To rebut this
presumption, the burden of proof lies on the party challenging the child's 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.12 Thus, petitioners flimsy objections on Rachels
lack of education and inability to read and tell time carry no weight and cannot overcome the clear and
convincing testimony of Rachel as to who killed her father.

We likewise note that the line of questioning of the defense during cross-examination on the competency
of Rachel to read and tell time did not distract her in recollecting how her father was attacked by accused-
appellants. From her position underneath the house of her "Kuya Unyo," she saw her father, Wilfredo,
attacked by accused-appellants. Although she was astonished as the happening unfolded, her ability to
perceive, remember, and make known her perception was not diminished.

As regards Anicetas version of the events that Jesus was the sole perpetrator of the crime who attacked
Wilfredo only in self-defense, we easily see the fatal flaw: Aniceta arrived after the supposed fight between
Wilfredo and Jesus, and what transpired was merely relayed to her by Jesus sister, Marilou.

Quite apparent from Anicetas narration of events is that she has no personal knowledge of Wilfredos
killing. Anicetas testimony is mainly hearsay, specially on the purported fight between Wilfredo and Jesus
that ended in Wilfredos death. Anicetas testimony as such carries no probative weight. At best, Anicetas
testimony is an independent relevant statement: offered only as to the fact of its declaration and the
substance of what had been relayed to Aniceta by Marilou, not as to the truth thereof.13

Section 36 of Rule 130 of the Rules of Court explicitly provides:

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

We detect a clever, albeit transparent ploy, to pin Jesus who had already fled and is temporarily out of
reach of the law. Thus, with Jesus temporarily shielded from punishment, accused-appellants freely
accuse and point to him as the sole perpetrator of the crime. This cannot trump the solid testimony of
Rachel on accused-appellants direct participation in killing Wilfredo.

We likewise affirm the lower courts appreciation of the aggravating circumstance of treachery:

The essence of treachery is the sudden and unexpected attack by an aggressor without the slightest
provocation on the part of the victim, depriving the latter of any real chance to defend himself, thereby
ensuring its commission without risk to the aggressor. Treachery attended the killing of the victim because
he was unarmed and the attack on him was swift and sudden. He had not means and there was no time
for him to defend himself. Indeed, nothing can be more sudden and unexpected than when petitioners
Edwin and Alfredo attacked the victim. The latter did not have the slightest idea that he was going to be
attacked because he was urinating and his back was turned from his assailants. The prosecution was able
to establish that petitioners attack on the victim was without any slightest provocation on the latters part
and that it was sudden and unexpected. This is a clear case of treachery.14

Finally, we affirm the lower courts award of damages consistent with jurisprudence:15 (1) P50,000.00 as
civil indemnity; (2) P25,000.00 as temperate damages; and (3) P50,000.00 as moral damages. Consistent
with current jurisprudence, we increase the award of exemplary damages from P25,000.00
 48
Evidence cases
to P30,000.00.16 However, we delete the award of P1,946,180.00 representing the unearned income of
Wilfredo.

To obviate confusion on the award of loss of earning capacity, we reiterate herein that compensation for
lost income is in the nature of damages and as such requires due proof of the damages suffered; there
must be unbiased proof of the deceaseds average income.17 In this case, we only had he testimony of
Wilfredos spouse, Rowena, who claimed that Wilfredo earned P400.00 to P500.00 daily as a doormat
vendor.

On more than one occasion, we have held that the bare testimony of a deceaseds mother or spouse as to
the income or earning capacity of the deceased must be supported by competent evidence like income tax
returns or receipts.18

In People v. Caraig,19 we have drawn two exceptions to the rule that "documentary evidence should be
presented to substantiate the claim for damages for loss of earning capacity," and have thus awarded
damages where there is testimony that the victim was either (1) self-employed earning less than the
minimum wage under current labor laws, and judicial notice may be taken of the fact that in the victim's
line of work no documentary evidence is available; or (2) employed as a daily-wage worker earning less
than the minimum wage under current labor laws."

Although Wilfredos occupation as a doormat vendor may fall under the first exception, the minimum wage
for Region III, which includes the province of Bulacan, is below P400.00 as per the National Wages and
Productivity Commission Regional Daily Minimum Wage Rates as of August 2013.20 Regrettably, except
for the bare assertion of Rowena, Wilfredo's spouse, we have nothing to anchor the award for loss of
earning capacity. Thus, we delete the award for loss of earning capacity in the amount of P1,946,180.00.

WHEREFORE, the appeal is DISMISSED. The Decisions of the Court of Appeals in CA-G.R. H.C. No.
04051 and the Regional Trial Court, Branch 18, Malolos, Bulacan in Criminal Case No. 3517-M-2004 are
AFFIRMED with MODIFICATION. The award of exemplary damages is increased from P25,000.00
to P30,000.00 and we delete the award for loss of earning capacity in the amount of P1,946, 180.00.

SO ORDERED.

G.R. No. 185008 September 22, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
MAXIMO OLIMBA alias "JONNY," Accused-Appellant.

DECISION

PEREZ, J.:

Widower Maximo Olimba alias "Jonny," herein appellant, was accused of several counts of rape by two (2)
of his three (3) minor daughters aged thirteen1 and twelve.2 He seeks before this Court the reversal of his
conviction by the trial court and the appellate court.
 49
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Consistent with the ruling of this Court in People v. Cabalquinto,3 we shall withhold the real names of
victims AAA and BBB, as well as those of their family members, and any other relevant information that
would tend to establish or compromise their identities.

On 11 June 2003, the prosecution filed before the regional trial court twelve (12) separate Informations for
rape against appellant. Ten (10) charges, docketed as Criminal Case Nos. N-2234 and N-2237 to N-
2245,4 were allegedly committed against his daughter AAA. The remaining two (2), docketed as Criminal
Case Nos. N-2235 and N-2236, were allegedly committed against his daughter BBB.5

On 17 July 2003, appellant entered pleas of not guilty to all the charges. On 9 September 2003, pre-trial
was terminated without any stipulation of facts. Thereafter, trial ensued with the prosecution presenting the
testimonies of: (1) AAA;6 (2) BBB;7 and (3) Dr. Fernando B. Montejo,8 Municipal Health Officer, Municipality
of xxx, Province of xxx, who identified the Medical Certificate issued to BBB. On the other hand, only
appellant9testified for the defense.

Criminal Case Nos. N-2234 and N-2237 to N-2245

The evidence for the prosecution may be summarized in the following manner:

AAA was born on 18 November 1989.10 She was first raped by appellant at the early age of eight (8) years
old.11She never told the incident to her grandmother, who was then staying with them, because the
appellant threatened to kill her siblings.12 Besides, her grandmother was sick at the time of the
incident.13 Since then, AAA has been repeatedly raped.

AAA testified that sometime during the first week of January 2003, she, herein appellant, and the rest of
the children took their supper and retired for the night.14 AAA, however, could not sleep as she was
apprehensive that appellant would rape her again.15 True enough, around midnight, appellant took off
AAAs shorts and underwear, and inserted his male organ into her vagina.16 She pleaded and begged for
pity but to no avail.17 She could not shout because he threatened to harm her.18 She pinched her sister
BBB lying next to her but the latter did nothing.19 Helpless and without recourse, she just kept on crying.20

Appellant also raped AAA on or about the second week of January 2003.21 At around midnight, when the
rest of the children were already fast asleep, appellant removed her shorts and underwear and inserted his
male organ into her vagina.22 She asked him to stop and reminded him that she is his daughter. As before,
she did not shout because she was afraid he would hurt her.23

The rape was repeated on or about the third week of January 2003. Appellant took AAAs shorts and
underwear and inserted his male organ into her vagina.24 She asked for mercy but to no avail.25 She did
not attempt to shout or thereafter report the incident because she was afraid that appellant would kill her
siblings.26

Despite the sexual abuses, AAA could not leave the house for good because of the repeated threats to the
lives of her siblings.27 Appellant also maltreated her whenever she refused to submit to his lustful
desires.28 On an unspecified date, he kicked her stomach and she collapsed on the floor.29

Appellant continued to rape AAA on or about the 30th and 31st of January 2003; the first, second, third,
and fourth week of March 2003; and the 19th of April 2003.30

Thereafter, AAA agreed to be the housemaid of CCC. She went with CCC to Manila.31 While in Manila,
she told CCC of the sexual abuses she suffered from his father.32 CCC sent her back to file charges
against the appellant.33 She, accompanied by CCCs daughter DDD, returned and proceeded to the police
 50
Evidence cases
station to report the incidents.34 AAA also submitted herself to physical examination,35 which revealed the
following findings:

Genitalia: no gross deformities

: non-hyperemia

: (+) old hymenal scar 9 oclock position36

In refuting the allegations,37 appellant claimed AAA was not in their hometown in January 200338 on the
alleged rape incidents subject of Criminal Case Nos. 2234, 2237, 2239, 2240, and 2241. She was in
Manila from April 2002 to January 2003.39 He learned from his cousin EEE that AAA returned only on 1
February 2003. She stayed with EEE because she did not send the money she earned from working in
Manila to appellant.40

On 14 April 2003, AAA finally went back to appellants house.41 He hit her with a bamboo stick because
she refused to go home with him when he tried to fetch her on an unspecified date.42 Afterwards, he
learned from a certain FFF that AAA went back to Manila.43 Appellant thereafter saw her at the police
station on 26 May 2003.44

Criminal Case Nos. N-2235 and N-2236

BBB, who was born on 6 January 1991,45 could not remember the date when she was first raped by
appellant.46She was subsequently defiled on two (2) more occasions.47

Thus, sometime during the last week of April 2003, appellant, BBB, and her two (2) brothers retired for the
night48in their living room.49 Two (2) of her siblings were not around. One of them was AAA. She was
already in Manila.50

Later that evening, BBB felt appellant undress her.51 Appellant took off her underwear and inserted his
male organ into her vagina.52 She did not exert any effort to resist him because she was afraid of the six-
inch long knife he held.53 Her attempt to wake a brother up, who lay next to her, proved to be futile.54

This was repeated in the evening of 24 May 2003 while BBBs siblings were fast asleep.55 He kissed BBB
on her lips and inserted his male organ into her vagina.56

During trial, Dr. Fernando B. Montejo, MD, MPH, Municipal Health Officer, Municipality of xxx, Province of
xxx, identified the Medical Certificate submitted to the court to be the same he issued when he examined
BBB. The Certificate indicated the following: (1) "abrasion with mucosal swelling (R) vaginal vault;"57 and
(2) "semen-like substance seen and felt at cervical os."58

On examination, the doctor testified that the abrasion and swelling in the right side of BBBs vagina could
have been caused by a male organ. Further, the semen-like substance at the cervical canal could have
come from a male organ. However, he clarified that the substance was not conclusively identified as
semen allegedly because the medical technologist was not "competent" to further examine it in the
microscope.59

Appellant solely testified for the defense and denied the allegations of rape.60 He countered that BBB left
his house on 14 April 2003, the very day that he maltreated AAA.61 He looked for and found BBB only on
25 May 2003.62 Hence, she was not staying in his house during the last week of April 2003 and on 24 May
2003 when the rapes were allegedly committed.63 He added that BBB started leaving his house without
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permission in 2002 and has been given scoldings.64 He also claimed that he was in his house working and
could not recall any unusual incident on 24 May 2003 when BBB was allegedly raped for the third time.65 1avv phi1

When asked what could be the possible motive for the filing of the case against appellant, he answered
that AAA and BBB did not want anybody to look after them.66 He also believed that AAA filed a complaint
against him because "she made mistake (sic) since she did not give [him] money xxx."67 On the other
hand, BBB filed the complaints because he scolded her.68

On 5 July 2004, the regional trial court found appellant guilty of twelve (12) counts of rape69 in Criminal
Case Nos. N-2234, 2235, 2236, 2237, 2238, 2239, 2240, 2241, 2242, 2243, 2244 and 2245. The
dispositive portion reads:

WHEREFORE, premises considered, this Court finds the accused Maximo Olimba Y Montero
GUILTY beyond reasonable doubt of the crime of Rape in two (2) counts for Crim. Case No.
2235 and Crim. Case No. 2236. He is meted the penalty of two (2) Death penalties by lethal injections.

The victim (BBB) is awarded P150,000.00 in civil indemnity and P175,000.00 in moral damages, for each
count.

In Criminal Cases Nos. 2234, 2237, 2238, 2239, 2240, 2241, 2242, 2243, 2244 and 2245, where the
victim is (AAA), the accused Maximo Olimba Y Montero is found GUILTY beyond reasonable doubt of
the crime of Rape on Ten (10) Counts. He is meted the penalty of Death for each count, through lethal
injection.

The accused Maximo Olimba Y Montero shall pay the victim (AAA) the amount of P75,000.00 in civil
indemnity for each rape committed. The accused shall further pay P100,000.00 to (AAA) in moral
damages for each Rape.

Appealed to this Court, the case was transferred to the Court of Appeals for its disposition70 in accordance
with the ruling in People v. Mateo71 allowing an intermediate review by the Court of Appeals of cases
where the penalty imposed is reclusion perpetua, life imprisonment, or death.

On 30 August 2007, the decision72 of the trial court was AFFIRMED by the Court of Appeals in CA-G.R.
CEB-CR-H.C. No. 00530 with the MODIFICATION that the penalty of death in each of the cases should be
reduced to reclusion perpetua in accordance with the law prohibiting the imposition of death penalty.73

On 14 July 2008, the Court of Appeals gave due course to the appellants notice of appeal.74 This Court
required the parties to simultaneously file their respective supplemental briefs.75 Only the appellant opted
to submit his supplemental brief.76

Our Ruling

We uphold the conviction of the appellant.

The well-entrenched principles in the determination of the innocence or guilt of the accused in rape cases
are, once again, seriously considered in the evaluation of this case. The three principles are:

(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused,
though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which only two
persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution;
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and (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to
draw strength from the weakness of the evidence for the defense.77

Due to the nature of the commission of the crime of rape, the testimony of the victim may be sufficient to
convict the accused, provided that such testimony is "credible, natural, convincing and consistent with
human nature and the normal course of things."78 Thus, in People v. Leonardo,79 we stated the evidentiary
value of the testimony of the rape victim:

Credible witness and credible testimony are the two essential elements for the determination of the weight
of a particular testimony. This principle could not ring any truer where the prosecution relies mainly on the
testimony of the complainant, corroborated by the medico-legal findings of a physician. Be that as it may,
the accused may be convicted on the basis of the lone, uncorroborated testimony of the rape victim,
provided that her testimony is clear, convincing and otherwise consistent with human nature.80

Upon these considerations, we have ascertained that the prosecution has sufficiently established the
appellants guilt beyond reasonable doubt.

Credibility of the Witnesses for the Prosecution

The trial court categorically stated that AAA and BBB "were straightforward and coherent, further made
believable by their display of candor and naivete."81 The appellate court, in turn, applied the settled policy
that "the finding of trial courts on the credibility of witnesses deserve[s] a high degree of respect and will
not be disturbed on appeal."82

Before us, appellant now posits that the instant case falls within the established exceptions83 finding refuge
in our ruling in People v. Guittap.84 Thus:

While it is our policy to accord proper deference to the factual findings of the trial court, owing to their
unique opportunity to observe the witnesses firsthand and note their demeanor, conduct, and attitude
under grueling examination, where there exist facts or circumstances of weight and influence which have
been ignored or misconstrued, or where the trial court acted arbitrarily in its appreciation of facts, we may
disregard its findings.85

We find the exception to the rule inapplicable in this case.

No material inconsistencies in the testimony of AAA

In his Supplemental Brief dated 5 March 2009, appellant points out that there were material
inconsistencies in the testimony of AAA that cannot be considered insignificant.86 Specifically, it was
revealed on cross examination that her grandmother was also staying in the house and sleeping thereat at
the time of the rape incident. This, he argues, affects the likelihood of the consummation of rape because
AAAs grandmother would definitely have noticed the untoward incident.87

We are not convinced. Time and again, we reiterate that lust is no respecter of time and place. Thus, in
People v. Anguac,88 we rejected appellants claim that it is impossible for the victims siblings, who were
sleeping with her, not to be awakened during the rape incident because, in numerous cases, this Court
has found that rape could indeed be committed in the same room where other family members are
sleeping.89

Even assuming for the sake of argument that the prosecution failed to reconcile AAAs statements as to
the dates when her grandmother lived with them, we consider such to be trivial a matter to impair AAAs
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credibility. Such would not diminish the value of the testimony.90 On the contrary, it would strengthen the
credibility of the testimony because it erases any suspicion of a coached or rehearsed witness.91

Appellant further contends that the inconsistent testimony on AAAs attempt to wake BBB up is likewise
material because the act could not have been consummated if, indeed, BBB was roused from her sleep.92

This is likewise unmeritorious. It should be noted that BBB, the supposed witness to the incident, is a mere
child, who could be cowed into silence by a person exercising moral ascendancy and influence over her.
Granting that appellant could have discontinued his bestial act, if and when there was a witness to the
commission of the crime, it was clear in the testimony of AAA that appellant was not aware that BBB was
then already awake.

Q And [BBB] was awaken[ed] while your father was doing this thing to you?

A Yes, sir.

Q What did [BBB] do?

A She did not do anything.

Neither can we sustain the appellants contention that AAA was in Manila when some of the rape incidents
were allegedly committed. The source of the information is a third person93 who was not presented in
court. Sans any validation, the allegation remains to be hearsay. Further, a thorough examination of the
testimony of AAA would show that she left for Manila only once94 sometime after 19 April 2003 after the
last rape incident.95 We confirm the observation of the trial court that her entire testimony was clear,
consistent, and convincing.

Failure to immediately report the rape incidents was reasonable

Applying People v. Romero, Jr.,96 where this Court doubted the credibility of the seventeen-year-old
complainant because she failed to "come out in the open and bring her abuser[-compadre of her aunt] to
justice" in a span of eight months,97 appellant argues that the failure of AAA and BBB to immediately report
the rape incidents significantly affects their credibility.98 Romero, however, is not on all fours with the
prevailing circumstances of this case. The flaws and inconsistencies in the testimony of the complaining
witness in that case were so material that it seriously impaired the witnesscredibility.99

In the recent case of People v. Alarcon,100 this Court well explained the reason why the failure of a victim
to immediately report the rape does not essentially weaken the case against an accused.101

The charge of rape is rendered doubtful only if the delay was unreasonable and unexplained. In this case,
AAA did not report what her father did to her because she was terribly afraid that he would harm her. This
is a normal reaction by minors to hide the truth because they are easily intimidated by threats on their
person and other members of the family. xxx The only time she felt safe was after they had moved out of
their fathers house.102 As written in People vs. Macapanas,

x x x. How the victim comforted herself after the incident was not significant as it had nothing to do with the
elements of the crime of rape. Not all rape victims can be expected to act conformably to the usual
expectations of everyone. Different and varying degrees of behavioral responses are expected in the
proximity of, or in confronting, an aberrant episode. It is settled that different people react differently to a
given situation or type of situation and there is no standard form of human behavioral response when one
is confronted with a strange, startling or frightful experience. 103
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The reliance of appellant on the acquittal of the accused in People v. Ladrillo104 is likewise misplaced. In
that case, it was alleged that the crime was committed "on or about the year 1992," in appellants
residence in Abanico, Puerto Princesa City, when the defense was able to prove that appellant had never
been there nor was he familiar with the complainant and her family until he resided thereat in 1993.105 With
this piece of information, together with other material inconsistencies in the testimony of the complainant,
we ruled:

xxx. But the mind cannot rest easy if this case is resolved against accused-appellant on the basis of the
evidence for the prosecution which, xxx, is characterized by glaring inconsistencies, missing links and
loose ends that refuse to tie up.106

In the case at bar, we found no inconsistent statement so material that it would seriously affect the
credibility of the witnesses.

Moral character of the victim is immaterial

Neither can we sustain appellants argument that the credibility of BBBs testimony is compromised by her
"apparent exposure xxx to the ways of the world at an early age of seven (7)"107 because she and her
friends frequent the poblacion.108 BBB has satisfactorily explained the reason why she sometimes passed
the night in the poblacion with her friends. She was afraid that her father would rape her
again.109 Assuming for the sake of argument that BBB is a woman of loose morals, she is not precluded
from being a victim of rape.110 Even prostitutes can be victims of rape.111
It bears stressing that in rape, the moral character of the victim is immaterial, the essence of rape being
the act of having carnal knowledge of a woman without her consent. 112

Motive vis-a-vis credible testimony

Appellants contention that AAA and BBB charged him of rape only because they wanted to be
emancipated from parental guidance and discipline is likewise without merit. Time-honored is the doctrine
that motives, such as those attributable to revenge, family feuds, or resentment, cannot destroy the
credibility of minor complainants who gave unwavering testimonies during their direct and cross-
examinations.113 The testimonies of AAA and BBB were solid throughout the direct and cross-examination.
In fact, the cross-examination even strengthened the cases against the appellant as most of the material
questions necessary to prove the elements of rape were established when the witnesses answered the
questions of the defense counsel.114

Bare Denial of the Appellant

We cannot give weight to the self-serving alibi and denial of the appellant over the positive and straight
forward testimony of AAA and BBB. Once more, we apply the settled rule that "alibi is an inherently weak
defense that is viewed with suspicion because it is easy to fabricate."115 Alibi and denial must be strongly
supported by corroborative evidence in order to merit credibility.116 Appellants alibi is, simply,
uncorroborated.

Elements of Rape

Under Sec. 2 of the Anti-Rape Law of 1997,117 rape is committed, among others, "[b]y a man who shall
have carnal knowledge of a woman" by means of force, threat or intimidation.118

On the bases of the consistent and forthright testimonies of 13-year-old victim AAA and 12-year-old victim
BBB detailing their harrowing experiences that concluded with positive statements that appellant inserted
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his organ into their private parts,119 the prosecution has sufficiently established that appellant had carnal
knowledge of (1) AAA on or about the 1st, 2nd and 3rd week of January, 2003 [Criminal Case Nos. 2234,
2237, and 2239] and (2) BBB on or about the last week of April, 2003 and 24 May 2003 [Criminal Case
Nos. 2235 and 2236].

The presence of threat and intimidation was likewise established. After every rape, appellant threatened
AAA that he would kill her siblings should she report the incidents. Also, in view of their father-daughter
relationship, the moral ascendancy of appellant over AAA and BBB can substitute for violence and
intimidation.120 For this reason, appellants use of a six-inch long knife121 to cower BBB in fear and yield her
into submission can be considered already a surplusage for the purpose of proving the element of threat
or intimidation.

With the testimonies of AAA and BBB, and even assuming for the sake of argument that the defense was
able to diminish the probative value of the medical findings presented to corroborate the testimony of the
victims, we are convinced that the prosecution has established the guilt of the appellant beyond
reasonable doubt. It bears stressing that the lone and uncorroborated testimony of a rape victim, as long
as it is clear, convincing and otherwise consistent with human nature, may suffice to convict the
accused.122

Presence of Special Qualifying Circumstances

The twin qualifying circumstances of minority and relationship that were specifically alleged in the
Informations were likewise adequately established by the prosecution. The machine copies of the
certificates of live birth of AAA and BBB, which the defense voluntarily admitted to be faithful reproductions
of the original copies,123 the testimonies of AAA and BBB stating that the appellant is their father,124 and the
testimony of appellant himself admitting that AAA and BBB are his daughters,125 sufficiently proved the
following: (1) that AAA and BBB were born on 18 November 1989 and 6 January 1991, respectively; (2)
that they were minors, being 13 and 12 years old, respectively, at the time they were repeatedly defiled
during the early months of 2003; and (3) that appellant is their father.

These are judicial admissions within the contemplation of Section 4, Rule 129 of the Revised Rules of
Court, which provides that "[a]n admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof."126

Modifications in the Ruling of the Court of Appeals

Quantum of evidence in each and every charge of rape

Settled is the rule that each and every charge of rape is a distinct and separate crime;127 each must be
proven beyond reasonable doubt.128 It is, therefore, necessary that the victim of rape provide further details
on how each of the act was committed, otherwise, the bare allegation would be inadequate to establish the
guilt of the accused.129

Applying this principle, the conviction of the appellant in Criminal Case Nos. 2238, 2240, 2241, 2242,
2243, 2244 and 2245 (referring to the rape incidents on or about the 30th and 31st of January 2003, the
1st, 2nd, 3rd and 4th weeks of March 2003, and on or about 19 April 2003) should be reversed.

In these cases, the prosecution merely had AAA testify that she was repeatedly raped on different
dates130 but failed to touch on how each of the acts was committed. Thus:

[Criminal Case No. 2240]

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Q On January 30, 2003 what happened?

A He again raped me.

Q Where?

A In our house.

Q What time was it?

A Midnight.

Q Where were your siblings then?

A They [were] all asleep.

[Criminal Case No. 2241]

Q How about on the following day that is January 31, 2003 what happened?

A He again raped me.

Q Where?

A In our house.

Q What time was it?

A Also midnight.

Q What were your siblings do[ing] then?

A They [were] sleeping.

[Criminal Case No. 2242]

Q In the first week of March year 2003 what happened?

A I was again raped by my father.

Q What time was it?

A Midnight.

Q And your siblings[,] what were they doing?

A Sleeping.

[Criminal Case No. 2243]

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Q On the second week of March, 2003 what happened?

A He again raped me.

Q What time was it?

A Midnight.

Q How about your siblings where were they?

A Sleeping.

[Criminal Case No. 2244]

Q In the third week of March what happened?

A He again raped me.

Q Where?

A In our house.

Q What time was it?

A Midnight.

Q How about your siblings where were they?

A In our house sleeping.

[Criminal Case No. 2245]

Q On the fourth week of March 2003 what happened?

A He again raped me.

Q What time was it?

A Midnight.

Q How about your siblings where were they?

A Sleeping.

[Criminal Case No. 2238]

Q Now, [AAA] on April 19, 2003, what happened?

A He again raped me.

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Q Where?

A In our house.

Q What time was it?

A Midnight.

Q How about your siblings?

A In our house sleeping.

On cross examination,131 AAA testified:

xxxx

Q The same thing happened subsequent weeks particularly on January 30 and weeks of March 2003?

A Yes, Sir.

ATTY. ALBAO:

Q And in these particular incidents you were likewise wearing shorts?

A Sometimes I am wearing pants.

Q But when this rape incidents happened you are already wearing shorts?

A Sometimes I was wearing long pants.

Clearly, these are too general, inadequate and insufficient to establish the appellants guilt beyond
reasonable doubt.132

Basic is the rule that where the prosecution fails to meet the quantum of evidence required for the
conviction of an accused, that is, proof beyond reasonable doubt, this Court shall consider in the latters
favor his constitutional right to be presumed innocent.133 Necessarily, appellant should be acquitted in
these cases.

In light of this result, we see a need to remind the prosecution to ensure that the quantum of evidence
required for the conviction of an accused charged of multiple counts of rape or any crime for that matter is
met in accordance with the ruling in this case.

Penalty of reclusion perpetua in lieu of death penalty; non-eligibility for parole

Article 266-B of the Revised Penal Code provides that the penalty of death shall be imposed when rape is
committed with the twin qualifying circumstances of minority and relationship.134 However, with the
enactment of Republic Act No. 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines)
on 24 June 2006, the Court of Appeals correctly reduced the penalty of death to reclusion perpetua135 in
Criminal Case Nos. 2234 to 2237 and 2239.
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This, notwithstanding, appellant should not be eligible for parole as the law136 specifically provides:

Sec. 3. Person convicted of offenses punished with reclusion perpetua, or whose sentences will be
reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103,
otherwise known as the Indeterminate Sentence Law, as amended.

Monetary liability

Finding appellant guilty of only three (3) counts of rape committed against AAA in Criminal Case Nos.
2234, 2237, and 2239 and two (2) counts of rape committed against BBB in Criminal Case Nos. 2235 and
2236, all qualified by the twin special aggravating circumstances of minority and relationship, and applying
current jurisprudence,137each victim shall be entitled to the following for each count of rape: civil indemnity
in the amount of P75,000.00; and moral damages in the amount of P75,000.00. Also for each count of
rape, the award of exemplary damages in the amount of P30,000.00 "to set a public example and serve as
deterrent against elders who abuse and corrupt the youth"138 is likewise in order.

WHEREFORE, the Decision dated 30 August 2007 of the Court of Appeals in CA-G.R. CEB-CR-H.C. No.
00530, finding appellant Maximo Olimba guilty beyond reasonable doubt of twelve (12) counts of rape is
hereby MODIFIED in the following manner:

1. Appellant is found GUILTY beyond reasonable doubt of three (3) counts of qualified rape
committed against AAA in Criminal Case Nos. 2234, 2237, and 2239. For each count of rape, he is
hereby sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay
AAA the amount of P75,000.00 (or a total of P225,000.00) as civil indemnity, P75,000.00 (or a total
of P225,000.00) as moral damages, and P30,000.00 (or a total of P90,000.00) as exemplary
damages;

2. Appellant is also found GUILTY beyond reasonable doubt of two (2) counts of qualified rape
committed against BBB in Criminal Case Nos. 2235 and 2236. For each count of rape, he is
hereby sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay
BBB the amount of P75,000.00 (or a total of P150,000.00) as civil indemnity, P75,000.00 (or a total
of P150,000.00) as moral damages, and P30,000.00 (or a total of P60,000.00) as exemplary
damages; and

3. With respect to Criminal Case Nos. 2238, 2240, 2241, 2242, 2243, 2244 and 2245, the
appellant is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable
doubt.

SO ORDERED.

JOSE PORTUGAL PEREZ

.R. Nos. 172532 172544-45 November 20, 2013

PRIMO C. MIRO, in his capacity as Deputy Ombudsman for the Visayas, Petitioner,
vs.
MARILYN MENDOZA VDA. DE EREDEROS, CATALINA ALINGASA and PORFERIO I.
MENDOZA, Respondents.
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DECISION

BRION, J.:

We resolve the petition for review on certiorari1 assailing the decision2 dated November 22 2005 and the
resolution3 dated April 21 2006 of the Court of Appeals CA) in CA-G.R. SP Nos. 83149 83150 and 83576.

The CA decision reversed and set aside the joint decision4 dated January 9 2004 of the Deputy
Ombudsman for the Visayas (Deputy Ombudsman), Primo C. Miro in OMB-V-A-02-0414-H finding
respondents Marilyn Mendoza Vda. de Erederos Catalina Alingasa and Porferio I Mendoza guilty of the
administrative charge of Grave Misconduct. The Deputy Ombudsman also found Oscar Peque guilty of
Simple Misconduct.

The Factual Antecedents

As culled from the records, the antecedents of the present case are as follows:

Mendoza, Director of the Regional Office VII of the Land Transportation Office, Cebu City (LTO Cebu),
Erederos, Mendoza's niece and secretary, Alingasa, LTO clerk, and Peque, Officer-in-Charge, Operation
Division of LTO Cebu, were administratively charged with Grave Misconduct before the Deputy
Ombudsman by private complainants, namely: Maricar G Huete (Liaison Officer of GCY Parts), Ernesto R
Cantillas (Liaison Officer of Isuzu Cebu, Inc.), Leonardo Villaraso (General Manager of TBS Trading), and
Romeo C. Climaco (Corporate Secretary of Penta Star).5 They were likewise charged with criminal
complaints for violation of Section 3(e) of Republic Act No. 3019, otherwise known as the Anti Graft and
Corrupt Practices Act."

The administrative and criminal charges arose from the alleged anomalies in the distribution at the LTO
Cebu of confirmation certificates, an indispensable requirement in the processing of documents for the
registration of motor vehicle with the LTO.

Specifically, the private complainants accused Alingasa of selling the confirmation certificates, supposed
to be issued by the LTO free of charge. This scheme allegedly existed upon Mendoza's assumption in
office as Regional Director of LTO Cebu. They observed that:

(1) Confirmation certificates were sold for the amount of P2,500.00 per pad without official receipt;

(2) Alingasa would usually remit the collections to Erederos who would, in turn, remit all the
collections to Mendoza;6

(3) The official receipt for the processing of the confirmation certificates issued to the private
complainants acknowledged only the amount of P40.00 which they paid for each engine, chassis
or new vehicle, as MR. (Miscellaneous Receipt-LTO Form 67);

(4) Said amount was separate and distinct from the P2,500.00 required to be paid for each pad;

(5) The official receipt also served as the basis for the individual stock/sales reports evaluation of
Erederos;7 and

(6) The confirmation certificates processed during the previous administration were no longer
honored; thus, the private complainants were constrained to reprocess the same by purchasing
new ones.
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The NBI/Progress report submitted to the LTO Manila also revealed that the confirmation certificates were
given to the representatives of car dealers, who were authorized to supply the needed data therein. In the
Requisition and Issue Voucher, it was Roque who received the forms. On August 19, 2002, Cantillas
executed an Affidavit of Desi stance on the ground that he was no longer interested in prosecuting the
case.

On September 25, 2002, the Deputy Ombudsman ordered the respondents to file their respective counter-
affidavits. The respondents complied with the order and made the required submission.

On December 12, 2002, the case was called for preliminary conference. At the conference, the
respondents, thru their counsels, manifested their intention to submit the case for decision on the basis of
the evidence on record after the submission of their memoranda/position papers.

In the interim, additional administrative and criminal complaints for the same charges were filed by Rova
Carmelotes (Liaison Officer of ZC Trading Center), Mildred Regidor (Liaison Officer of Grand Ace
Commercial), Estrella dela Cerna (Liaison Officer of JRK Automotive Supply), and Vevencia Pedroza
(Liaison Officer of Winstar Motor Sales) against the respondents. These new complaints were
consolidated with the complaints already then pending.

In their complaints, the new complainants commonly alleged that they had to pay P2,500.00 per pad to
Alingasa before they could be issued confirmation certificates by the LTO Cebu. Alingasa would give her
collections to Erederos and to Mendoza. When they protested, Erederos and Alingasa pointed to Mendoza
as the source of the instructions. They were also told that the confirmation certificates processed during
the previous administration would no longer be honored under Mendoza s administration; hence, they had
to buy new sets of confirmation certificates to process the registration of their motor vehicles with the LTO.

In his counter-affidavit, Mendoza vehemently denied the accusations. He alleged that the confirmation
certificates actual distribution and processing were assigned to Alingasa; the processing entails the
payment of P40.00 per confirmation certificate, as administrative fee; payment is only made when the
confirmation certificates are filled up and submitted for processing with the LTO, not upon issuance; and
he did not give any instructions to impose additional fees for their distribution.

He also alleged that the case against him was instigated by Assistant Secretary Roberto T. Lastimosa of
the LTO Head Office so that a certain Atty. Manuel I way could replace him as Regional Director of the L
TO Cebu.8

Mendoza additionally submitted the affidavits of desistance of Carmelotes and Dela Cerna. Carmelotes
testified that she has no evidence to support her allegations against Mendoza. Dela Cerna, on the other
hand, stated that she was merely told to sign a document which turned out to be an affidavit-complaint
against the respondents. Subsequently, however, Dela Cerna executed a second affidavit, retracting her
previous statements and narrating how she was threatened by Peque to sign an affidavit of desistance
(1st affidavit).

Erederos and Alingasa commonly contended that they did not collect, demand and receive any money
from the complainants as payment for the confirmation certificates.

Erederos stated that the case against her was initiated by Huete because she found several discrepancies
in the documents she had processed. According to her, the present case was Huete s ploy to avoid any
liability.
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For their part, Alingasa stressed that her act of maintaining a control book for the releases of the
confirmation certificate pads negates her liability, while Peque denied any participation in the distribution
and sale of the confirmation certificates.

On January 9, 2004, the Deputy Ombudsman rendered a joint decision on the administrative aspect of the
cases filed against the respondents, and a joint resolution on the criminal aspect of the cases.

The Deputy Ombudsman s Ruling

In its joint decision, the Deputy Ombudsman found Mendoza, Erederos and Alingasa guilty of grave
misconduct and imposed the penalty of dismissal from the service. Peque, on the other hand, was only
found guilty of simple misconduct and was meted the penalty of reprimand.

The Deputy Ombudsman believed the complainants allegations that Alingasa collected P2,500.00 for the
issuance of confirmation certificates and, thereafter, remitted the collections to Erederos and to Mendoza.
He relied largely on the affidavits supporting the respondents guilt. He found the affidavits and the
NBI/Progress report strong enough to establish the respondents guilt. The Deputy Ombudsman also
explained that while the distribution of confirmation certificates to authorized car dealers is not prohibited,
the demand and the collection of payment during their distribution are anomalous.

The respondents separately moved for reconsideration, but the Deputy Ombudsman denied their motions
on March 5, 2004.9

The respondents separately appealed to the CA to challenge the rulings against them.

The CAs Ruling

On November 22, 2005, the CA granted the respondents petition and reversed the Deputy Ombudsman s
joint decision in the administrative aspect. The CA ruled that the Deputy Ombudsman s finding of grave
misconduct was not supported by substantial evidence because the affidavits, on which the decision was
mainly anchored, were not corroborated by any other documentary evidence. Additionally, the affiants did
not appear during the scheduled hearings. The CA also found that the affiants failed to categorically
specify that the respondents personally demanded from them the payment of P2,500.00 -an allegation that
the appellate court deemed material in establishing their personal knowledge. Without this allegation of
personal knowledge, the CA held that the statements in the affidavits were hearsay and, thus, should not
be given any evidentiary weight. The dispositive portion of the decision reads:

WHEREFORE, in light of the foregoing premises, the consolidated petitions are GRANTED and
accordingly the assailed Joint Decision dated January 9, 2004 (administrative aspect of the cases filed by
the private respondents) is REVERSED and SET ASIDE.

Consequently, the administrative charges against petitioners are DISMISSED for lack of merit.

With respect to the assailed Joint Resolution also dated January 9, 2004 (criminal aspect) issued by the
public respondent, this Court has no jurisdiction to review the same.10

The Deputy Ombudsman moved for the reconsideration of the decision, but the CA denied the motion in
its resolution of April 21, 2006. The denial led to the filing of the present petition.

The Petitioners Arguments

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The Deputy Ombudsman posits that the evidence adduced by the complainants satisfied the requisite
quantum of proof. He argues that the complainants personal knowledge can be gleaned from the preface
of their narration; hence, their affidavits could not have been hearsay. Their affidavits read:

3. That in doing my job, I have noticed and witnessed the following anomalies concerning the processing
of vehicle registration, x x x, as follows:

a. That in order to secure the forms of Confirmation of Certificates, you have to buy the same at
the present price of P2,500.00 per pad from Catalina Alingasa, an L TO personnel, who will remit
her collections to a certain Marilyn Mendoza Vda. de Erederos, a niece and the Secretary of the
Regional Director, Porferio Mendoza;

b. That Confirmation Certificates processed during previous administration would not be honored
and under such situations, they would require that the same be reprocessed which means that we
have to buy and use the new forms supplied by the present administration.11

The Deputy Ombudsman also argues that his joint decision was not solely based on the complainants
affidavits since he also took into account the NBI/Progress report, which uncovered the alleged anomalies.
He posits that these pieces of evidence, taken together, more than satisfy the required quantum of proof to
hold the respondents administratively liable for grave misconduct.

The Case for the Respondents

In their respective comments, the respondents separately argue that the complainants statements in their
affidavits lack material details and particulars, particularly on the time, the date, and the specific
transactions.

They commonly alleged that the affidavits, which contained general averments, and the NBI/Progress
report that was based on the same affidavits, failed to meet the quantum of proof required to hold them
administratively liable.

For his part, Mendoza argues that since the affidavits failed to categorically state that the complainants
personally witnessed the transfer of money from Alingasa to Erederos and eventually to him, his
participation in the anomalous scheme has not been sufficiently shown; hence, he should not have been
found liable.

The Issue

The case presents to us the issue of whether the CA committed a reversible error in dismissing the
administrative charge against the respondents.

The Court's Ruling

We deny the petition. The CA committed no reversible error in setting aside the findings and conclusions
of the Deputy Ombudsman on the ground that they were not supported by substantial evidence.

Doctrine of conclusiveness of administrative findings of fact is not absolute

It is well settled that findings of fact by the Office of the Ombudsman are conclusive when supported by
substantial evidence.12 Their factual findings are generally accorded with great weight and respect, if not
 64
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finality by the courts, by reason of their special knowledge and expertise over matters falling under their
jurisdiction.

This rule was reiterated in Cabalit v. Commission on Audit-Region VII,13 where we held that: When the
findings of fact of the Ombudsman are supported by substantial evidence, it should be considered as
conclusive. This Court recognizes the expertise and independence of the Ombudsman and will avoid
interfering with its findings absent a finding of grave abuse of discretion. Hence, being supported by
substantial evidence, we find no reason to disturb the factual findings of the Ombudsman which are
affirmed by the CA.

This rule on conclusiveness of factual findings, however, is not an absolute one. Despite the respect given
to administrative findings of fact, the CA may resolve factual issues, review and re-evaluate the evidence
on record and reverse the administrative agency s findings if not supported by substantial evidence. Thus,
when the findings of fact by the administrative or quasi-judicial agencies (like the Office of the
Ombudsman/Deputy Ombudsman) are not adequately supported by substantial evidence, they shall not
be binding upon the courts.14

In the present case, the CA found no substantial evidence to support the conclusion that the respondents
are guilty of the administrative charges against them. Mere allegation and speculation is not evidence, and
is not equivalent to proof.15 Since the Deputy Ombudsmans findings were found wanting by the CA of
substantial evidence, the same shall not bind this Court.

Parameters of a judicial review under a Rule 45 petition

a. Rule 45 petition is limited to questions of law

Before proceeding to the merits of the case, this Court deems it necessary to emphasize that a petition for
review under Rule 45 is limited only to questions of law. Factual questions are not the proper subject of an
appeal by certiorari. This Court will not review facts, as it is not our function to analyze or weigh all over
again evidence already considered in the proceedings below. As held in Diokno v. Hon. Cacdac,16 a re-
examination of factual findings is outside the province of a petition for review on certiorari to wit:

It is aphoristic that a re-examination of factual findings cannot be done through a petition for review on
certiorari under Rule 45 of the Rules of Court because as earlier stated, this Court is not a trier of facts.
xxx The Supreme Court is not duty-bound to analyze and weigh again the evidence considered in the
proceedings below. This is already outside the province of the instant Petition for Certiorari.

There is a question of law when the doubt or difference arises as to what the law is on a certain set of
facts; a question of fact, on the other hand, exists when the doubt or difference arises as to the truth or
falsehood of the alleged facts.17 Unless the case falls under any of the recognized exceptions, we are
limited solely to the review of legal questions.18

b. Rule 45 petition is limited to errors of the appellate court

Furthermore, the "errors" which we may review in a petition for review on certiorari are those of the CA,
and not directly those of the trial court or the quasi-judicial agency, tribunal, or officer which rendered the
decision in the first instance.19 It is imperative that we refrain from conducting further scrutiny of the
findings of fact made by trial courts, lest we convert this Court into a trier of facts. As held in Reman Recio
v. Heirs of the Spouses Agueda and Maria Altamirano etc. et al.20 our review is limited only to the errors of
law committed by the appellate court, to wit:
 65
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Under Rule 45 of the Rules of Court, jurisdiction is generally limited to the review of errors of law
committed by the appellate court. The Supreme Court is not obliged to review all over again the evidence
which the parties adduced in the court a quo. Of course, the general rule admits of exceptions, such as
where the factual findings of the CA and the trial court are conflicting or contradictory.

In Montemayor v. Bundalian,21 this Court laid down the guidelines for the judicial review of decisions
rendered by administrative agencies in the exercise of their quasi-judicial powers, as follows:

First, the burden is on the complainant to prove by substantial evidence the allegations in his complaint.
Substantial evidence is more than a mere scintilla of evidence. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, even if other minds equally
reasonable might conceivably opine otherwise. Second, in reviewing administrative decisions of the
executive branch of the government, the findings of facts made therein are to be respected so long as they
are supported by substantial evidence. Hence, it is not for the reviewing court to weigh the conflicting
evidence, determine the credibility of witnesses, or otherwise substitute its judgment for that of the
administrative agency with respect to the sufficiency of evidence.

Third, administrative decisions in matters within the executive jurisdiction can only be set aside on proof of
gross abuse of discretion, fraud, or error of law. These principles negate the power of the reviewing court
to re-examine the sufficiency of the evidence in an administrative case as if originally instituted therein,
and do not authorize the court to receive additional evidence that was not submitted to the administrative
agency concerned. [emphases ours]

The present petition directly raises, as issue, the propriety of the CA s reversal of the Deputy Ombudsman
s decision that found the respondents guilty of grave misconduct. While this issue may be one of law, its
resolution also requires us to resolve the underlying issue of whether or not substantial evidence exists to
hold the respondents liable for the charge of grave misconduct. The latter question is one of fact, but a
review is warranted considering the conflicting findings of fact of the Deputy Ombudsman and of the CA.
Accordingly, we now focus on and assess the findings of fact of the Deputy Ombudsman and of the CA for
their merits.

The Deputy Ombudsmans appreciation of evidence

The Deputy Ombudsman found the respondents guilty of grave misconduct based on the affidavits
submitted by the complainants and the NBI/Progress report. In giving credence to the affidavits, the
Deputy Ombudsman ruled that the complainants have amply established their accusations by substantial
evidence.

The CAs appreciation of evidence

The CA, on the other hand, reversed the Deputy Ombudsman s findings and ruled that no substantial
evidence exists to support the latters decision as the affidavits upon which said decision was based are
hearsay evidence. It found that the affidavits lack the important element of personal knowledge and were
not supported by corroborating evidence.

We agree with the CA. The findings of fact of the Deputy Ombudsman are not supported by substantial
evidence on record.

Substantial evidence, quantum of proof in administrative cases

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Substantial evidence is defined as such amount of relevant evidence which a reasonable mind might
accept as adequate to support a conclusion. It is more than a mere scintilla of evidence.22 The standard of
substantial evidence is satisfied when there is reasonable ground to believe, based on the evidence
submitted, that the respondent is responsible for the misconduct complained of. It need not be
overwhelming or preponderant, as is required in an ordinary civil case,23 or evidence beyond reasonable
doubt, as is required in criminal cases, but the evidence must be enough for a reasonable mind to support
a conclusion.

Section 27 of The Ombudsman Act of 198924 provides that:

Findings of fact by the Officer of the Ombudsman when supported by substantial evidence are conclusive.
Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not
more than one (1) month's salary shall be final and unappealable. [emphasis ours]

The only pieces of evidence presented by the complainants to establish the respondents' guilt of the act
charged are: (1) their complaint-affidavits and the (2) NBl/Progress report. As correctly found by the CA,
these pieces of evidence do not meet the quantum of proof required in administrative cases.

The Evidence Against Mendoza, Erederos and Alingasa

i. Private complainants affidavits

The affidavits show that the complainants lack personal knowledge of the participation of Mendoza and
Erederos in the allegedly anomalous act. These affidavits indicate that the complainants have commonly
noticed and witnessed the anomalous sale transaction concerning the confirmation certificates. Without
going into details, they uniformly allege that to secure the confirmation certificates, an amount
of P2,500.00 would be paid to Alingasa, an L TO personnel, "who will remit her collections to a certain
Marilyn Mendoza vda. Erederos, a niece and the Secretary of the Regional Director, Porferio
Mendoza."25 While the payment to Alingasa might be considered based on personal knowledge, the
alleged remittance to Erederos and Mendoza -on its face - is hearsay.

Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal
knowledge of he witness

It is a basic rule in evidence that a witness can testify only on the facts that he knows of his own Rersonal
knowledge, i.e. those which are derived from his own perception.26 A witness may not testify on what he
merely learned, read or heard from others because such testimony is considered hearsay and may not be
received as proof of the truth of what he has learned, read or heard.27 Hearsay evidence is evidence, not of
what the witness knows himself but, of what he has heard from others; it is not only limited to oral
testimony or statements but likewise applies to written statements, such as affidavits.28

The records show that not one of the complainants actually witnessed the transfer of money from Alingasa
to Erederos and Mendoza. Nowhere in their affidavits did they specifically allege that they saw Alingasa
remit the collections to Erederos. In fact, there is no specific allegation that they saw or witnessed
Erederos or Mendoza receive money. That the complainants alleged in the preface of their affidavits that
they "noticed and witnessed" the anomalous act complained of does not take their statements out of the
coverage of the hearsay evidence rule. Their testimonies are still "evidence not of what the witness knows
himself but of what he has heard from others."29 Mere uncorroborated hearsay or rumor does not constitute
substantial evidence.30

The affidavits also show that the complainants did not allege any specific act of the respondents. All that
the affidavits allege is a description of the allegedly anomalous scheme and the arrangement whereby
 67
Evidence cases
payments were to be made to Alingasa. There is no averment relating to any "personal demand" for the
amount of P2,500.00.

Based on these considerations, we cannot conclude that the complainants have personal knowledge of
Erederos' and Mendoza's participation in the anomalous act. At most, their personal knowledge only
extends to the acts of Alingasa who is the recipient of all payments for the processing of confirmation
certificates. This situation, however, is affected by the complainants' failure to specify Alingasa's act of
personally demanding P2,500.00 -a crucial element in determining her guilt or innocence of the grave
misconduct charged.

With respect to Pedroza's allegation in her affidavit31 that Alingasa and Erederos categorically told them
that it was Mendoza who instructed them to collect the P2,500.00 for the confirmation certificates, we once
again draw a distinction between utterances or testimonies that are merely hearsay in character or "non-
hearsay," and those that are considered as legal hearsay.

Non-hearsay v. legal hearsay, distinction

To the former belongs the fact that utterances or statements were made; this class of extrajudicial
utterances or statements is offered not s an assertion to prove the truth of the matter asserted, but only as
to the fact of the utterance made. The latter class, on the other hand, consists of the truth of the facts
asserted in the statement; this kind pertains to extrajudicial utterances and statements that are offered as
evidence of the truth of the fact asserted.

The difference between these two classes of utterances lies in the applicability of the rule on exclusion of
hearsay evidence. The first class, i.e. the fact that the statement was made, is not covered by the hearsay
rule, while the second class, i.e. the truth of the facts asserted in the statement, is covered by the hearsay
rule. Pedroza's allegation belongs to the first class; hence, it is inadmissible to prove the truth of the facts
asserted in the statement. The following discussion, made m Patula v. People of the Philippines32 is
particularly instructive:

Moreover, the theory of the hearsay rule is that when a human utterance is offered as evidence of the truth
of the fact asserted, the credit of the assertor becomes the basis of inference, and, therefore, the assertion
can be received s evidence only when made on the witness stand, subject to the test of cross-
examination. However, if an extrajudicial utterance is offered, not as an assertion to prove the matter
asserted but without reference to the truth of the matter asserted, the hearsay rule does not apply. For
example, in a slander case, if a prosecution witness testifies that he heard the accused say that the
complainant was a thief, this testimony is admissible not to prove that the complainant was really a thief,
but merely to show that the accused uttered those words. This kind of utterance is hearsay in character
but is not legal hearsay. The distinction is, therefore, between (a) the fact that the statement was made, to
which the hearsay rule does not apply, and (b) the truth of the facts asserted in the statement, to which the
hearsay rule applies. [citations omitted]

Failure to identify the affidavits renders them inadmissible under the hearsay evidence rule

We additionally note that the affidavits were never identified by the complainants. All the allegations
contained therein were likewise uncorroborated by evidence, other than the NBI/Progress report.

In Tapiador v. Office of the Ombudsman,33 we had the occasion to rule on the implications of the affiants'
failure to appear during the preliminary investigation and to identify their respective sworn statements, to
wit:
 68
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Notably, the instant administrative complaint was resolved by the Ombudsman merely on the basis of the
evidence extant in the record of OMB-ADM-0-94-0983. The preliminary conference required under
Republic Act No. 6770 was dispensed with after the nominal complainant, then BID Resident Ombudsman
Ronaldo P. Ledesma, manifested on July 29, 1996 that he was submitting the case for resolution on the
basis of the documents on record while the petitioner agreed to simply file his memorandum.
Consequently, the only basis for the questioned resolution of the Ombudsman dismissing the petitioner
from the government service was the unverified complaint-affidavit of Walter H. Beck and that of his
alleged witness, Purisima Terencio.

A thorough review of the records, however, showed that the subject affidavits of Beck and Terencio were
not even identified by the respective affiants during the fact-finding investigation conducted by the BID
Resident Ombudsman at the BID office in Manila. Neither did they appear during the preliminary
investigation to identify their respective sworn statements despite prior notice before the investigating
officer who subsequently dismissed the criminal aspect of the case upon finding that the charge against
the petitioner "was not supported by any evidence." Hence, Beck's affidavit is hearsay and inadmissible in
evidence. On this basis alone, the Administrative Adjudication Bureau of the Office of the Ombudsman
should have dismissed the administrative complaint against the petitioner in the first instance. (emphasis
supplied)

For the affiants' failure to identify their sworn statements, and considering the seriousness of the charges
filed, their affidavits must not be accepted at face value and should be treated as inadmissible under the
hearsay evidence rule.

ii. NBI/Progress report

With regard to the NBI/Progress report submitted by the complainants as corroborating evidence, the
same should not be given any weight. Contrary to the Ombudsman's assertions, the report cannot help its
case under the circumstances of this case as it is insufficient to serve as substantial basis. The pertinent
portion of this report reads:

04. P/Sinsp. JESUS KABIGTING and Senior TRO ALFONSO ALIANZA visited JAGNA District Office at
Jagna, Bohol wherein they were able to conduct interview with MR. RODOLFO SANTOS, Officer-In-
Charge who has assumed his new post only in February 2002. During the conduct of the interview, Mr.
SANTOS revealed that the anomalous Dos-por-Dos transactions have been prevented and eliminated
when the previous District Manager in the person of Mr. LEONARDO G. OLAIVAR, who was transferred to
Tagbilaran District Office allegedly on a floating status and under the direct control and supervision of its
District Manager, Mr. GA VINO PADEN, Mr. SANTOS allegations of the existence of "Dos-por-Dos"
transactions were supported by the records/documents gathered of which the signatures of Mr. OLAIVAR
affixed thereof. Copies are hereto attached marked as Annexes D-D-6.

xxxx

06. Submitted Affidavits of Ms. MARICAR G. HUETE, a resident of Lahug, Cebu City and liaison Officer of
GCY Parts, Kabancalan Mandaue City and Mr. ERNESTO R. CARTILLAS a resident of Basak, Mandaue
City and liaison Officer of Isuzu Cebu, Inc. in Jagobiao, Mandaue City stated among others and both
attested that: Annexes "E-E-1."

In order to secure the forms of Confirmation of Certificates, you have to buy the same at the present cost
of P2,500.00 per pad from CATALINA ALINGASA, an LTO Personnel, who will remit her collections to a
certain MARILYN MENDOZA V da De EREDEROS, a niece and secretary of the Regional Director,
PORFERIO MENDOZA.34
 69
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This quoted portion shows that it was based on complainant Huete's and Cantillas' affidavits. It constitutes
double hearsay because the material facts recited were not within the personal knowledge of the officers
who conducted the investigation. As held in Africa, et al. v. Caltex Phil.) Inc., et al.,35 reports of
investigations made by law enforcement officers or other public officials are hearsay unless they fall within
the scope of Section 44, Rule 130 of the Rules of Court, to wit: The first question before Us refers to the
admissibility of certain reports on the fire prepared by the Manila Police and Fire Departments and by a
certain Captain Tinio of the Armed Forces of the Philippines. xxx.

xxxx

There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a
public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public
officer in the performance of his duties, or by such other person in the performance of a duty specially
enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information. (Moran,
Comments on the Rules of Court, Vol. 3 [1957] p. 383.)

Of the three requisites just stated, only the last need be considered here. Obviously the material facts
recited in the reports as to the cause and circumstances of the fire were not within the personal knowledge
of the officers who conducted the investigation. Was knowledge of such facts, however, acquired by them
through official information? xxx.

The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not
acquired by the reporting officers through official information, not having been given by the informants
pursuant to any duty to do so. [emphases ours]

The NBI/Progress report, having been submitted by the officials in the performance of their duties not on
the basis of their own personal observation of the facts reported but merely on the basis of the
complainants affidavits, is hearsay. Thus, the Deputy Ombudsman cannot rely on it.

Non-applicability of strict technical rules of procedure in administrative or quasi-judicial bodies is not a

license to disregard certain fundamental evidentiary rules

While administrative or quasi-judicial bodies, such as the Office of the Ombudsman, are not bound by the
technical rules of procedure, this rule cannot be taken as a license to disregard fundamental evidentiary
rules; the decision of the administrative agencies and the evidence it relies upon must, at the very least, be
substantial. that:

In Lepanto Consolidated Mining Company v. Dumapis,36 we ruled that:

While it is true that administrative or quasi-judicial bodies like the NLRC are not bound by the technical
rules of procedure in the adjudication of cases, this procedural rule should not be construed as a license to
disregard certain fundamental evidentiary rules. The evidence presented must at least have a modicum of
admissibility for it to have probative value. Not only must there be some evidence to support a finding or
conclusion, but the evidence must be substantial. Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Conclusion
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With a portion of the complainants affidavits and the NBI/Progress report being hearsay evidence, the only
question that remains is whether the respondents conduct, based on the evidence on record, amounted to
grave misconduct, warranting their dismissal in office.

Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful
behavior or gross negligence by a public officer.37 The misconduct is considered as grave if it involves
additional elements such as corruption or willful intent to violate the law or to disregard established rules,
which must be proven by substantial evidence; otherwise, the misconduct is only simple. Corruption, as an
element of grave misconduct, consists in the act of an official or fiduciary person who unlawfully and
wrongfully uses his station or character to procure some benefit for himself or for another person, contrary
to duty and the rights of others.38

Based on these rulings, the Deputy Ombudsman failed to establish the elements of grave misconduct. To 1w phi 1

reiterate, no substantial evidence exists to show that Erederos and Mendoza received collected payments
from Alingasa Their involvement or complicity in the allegedly anomalous scheme cannot be justified
under the affidavits of the complainants and the NBI/Progress report, which are both hearsay.

With respect to Alingasa, in view of the lack of substantial evidence showing that she personally
demanded the payment of P2,500.00 a crucial factor in the wrongdoing alleged we find that the
elements of misconduct, simple or grave, to be wanting and unproven.

WHEREFORE, in view of the foregoing, we hereby AFFIRM the assailed decision dated November 22,
2005 and the resolution dated April 21, 2006 of the Court of Appeals in CA-G.R. SP Nos. 83149, 83150
and 83576.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, G.R. No. 178063

Plaintiff-Appellee, [Formerly G.R. No. 149894]

Present:

PUNO, C.J., Chairperson,

- versus - CARPIO MORALES,
LEONARDO-DE CASTRO,
BERSAMIN, and
VILLARAMA, JR., JJ.

TIRSO SACE y MONTOYA, Promulgated:

Accused-Appellant.
April 5, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 71
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DECISION

VILLARAMA, JR., J.:

This is an appeal from the Decision[1] dated November 20, 2006 of the Court of
Appeals in CA- G.R. CR-H.C. No. 02324 which affirmed the June 1, 2001
Decision[2] of the Regional Trial Court (RTC) of Boac, Marinduque, Branch 94
convicting appellant Tirso Sace y Montoya of the crime of rape with homicide.
Appellant was charged in an Information[3] which reads,
That on or about the 9th day of September 1999, at around 7:00 oclock in the
evening, at barangay Tabionan, municipality of Gasan, province of
Marinduque, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused did then and there by means of force and
intimidation, willfully, unlawfully and feloniously lie and succeed in having
carnal knowledge of [AAA][4] against her will and consent and thereafter, the
accused did then and there, with intent to kill, stab with a sharp bladed
weapon, said victim, inflicting upon her fatal injuries causing her death, to the
damage and prejudice of her legal heirs represented by her mother.
CONTRARY TO LAW.
At the arraignment, appellant entered a plea of not guilty. Trial thereafter ensued.
The prosecution presented the following as witnesses: BBB, CCC, Rafael Motol,
Bonifacio Vitto, Maribeth Mawac (Maribeth), Carmelita Mawac, Dr. Erwin Labay,
SPO2 Praxedo Seo and Domingo Motol. On the other hand, appellant testified for his
own behalf.
The prosecutions evidence established the following version:
On September 9, 1999, at around seven (7) oclock in the evening, AAA was
inside their house with her 10-year-old brother BBB and a nephew, who was still a
toddler, when appellant suddenly showed up. As admitted by appellant, he came from a
drinking spree that began at about eleven (11) oclock in the morning. AAA told
appellant to leave and go home, but he did not heed her. Appellant then made sexual
advances on AAA. AAA was able to evade appellant when he tried to embrace her, but
appellant pulled a bladed weapon from his pocket. Sensing danger, AAA ran upstairs to
the second level of their house. Appellant followed AAA, leaving BBB and the toddler
in the first floor of the house. BBB heard appellant ordering AAA to remove her
clothes, otherwise, he will stab her.[5] Scared with the turn of events, the two (2)
children hid at the lower portion of the house for around twenty (20) minutes, and came
out only when CCC, the mother of AAA and BBB, arrived.
 72
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CCC, together with her elder daughter DDD and a certain Abelardo Motol
(Abelardo), was on her way home when she and her companions heard AAA scream.
They hurried towards the house and searched it but found it to be empty. As they
searched further, appellant came out from somewhere in the kitchen area of the house.
They noticed that he was bloodied and he told them that he was chasing someone.
Appellant then joined in the search for AAA. Before long, Abelardo found the lifeless
body of AAA lying on the ground nearby. AAA was half-naked and she appeared to
have been ravished when they found her. Immediately, Abelardo called the barangay
officials and the police.
Barangay Kagawad Carmelita Mawac (Carmelita) and other barangay officials
and tanods, including Rafael Motol and Bonifacio Vitto, arrived. Upon arrival, they
noticed the bloodstains on appellants clothing. Carmelita asked appellant what he did,
but appellant denied any knowledge of what happened. Carmelita then went to the half-
naked body of AAA and again asked appellant why he did such a thing to his cousin. At
that point, appellant admitted to the barangay officials and tanods that he was the one
(1) who committed the crime. He admitted that he raped and killed
AAA.[6] Barangay Tanod Rafael Motol also obtained the same confession from
appellant when he interviewed him infront of other people, namely, Abelardo,
Carmelita, and Bonifacio Vitto, as well as Arnaldo Mawac, Conchita and Iboy Serdea,
and Salvador and Julieta Motol. Appellant was then photographed by the police and
Maribeth, who at that time had a camera on hand.
Dr. Erwin M. Labay examined AAAs body. He found stab wounds and
lacerations on the body, and also found irregular corrugations and lacerations of the
hymenal ring.[7]
On the part of the defense, appellant denied participation in the crime. Appellant
claimed that he was on his way home from a drinking spree when he passed by AAAs
house. As he was walking, appellant saw AAA who was bloodied and lying on the
ground. He held his cousin to determine whether she was still alive. He then saw in the
vicinity of AAAs house, two (2) men whom he allegedly chased. Appellant could not
identify nor remember what the two (2) men were wearing because it was dark at the
time. Convinced that AAA was already dead, appellant did not any more call for help.
Instead, appellant went to the house of his aunt and slept. When CCC and her
companion arrived, he relayed to them how he had chased two (2) men who may have
been responsible for AAAs death. Appellant denied that he confessed to the crime.[8]
On June 1, 2001 the RTC found appellant guilty beyond reasonable doubt for the
rape and killing of AAA, to wit:
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WHEREFORE, premises considered and finding the accused Tirso Sace y Montoya GUILTY beyond
reasonable doubt of the crime of Rape with Homicide defined and punished under Article 335 of the
Revised Penal Code, as amended by RA No. 7659 and RA No. 8353, he is hereby sentenced to suffer the
supreme penalty of DEATH and to indemnify the heirs of [AAA] the amount of P100,000.00 as civil
indemnity, P50,000.00 as moral damages, and P30,000.00 for exemplary damages.
The body of said accused is committed to the custody of the Bureau of Corrections, Muntinlupa City through
the Provincial Jail Warden of Marinduque.
Let the entire records of this case be forwarded to the Supreme Court, Manila for automatic review.
SO ORDERED.
The trial court did not give credence to appellants alibi since he even
categorically admitted that he was at the crime scene and saw AAAs lifeless body.
Because the crime occurred more or less around the time appellant left the drinking
session, the trial court held that it was not impossible for appellant to accomplish his
bestial act shortly after he left the drinking session as he had to pass by AAAs house on
his way home. Also, other than his bare denial, appellant did not offer any evidence to
support his alibi.
The trial court further pointed out that during the trial, appellant was positively
identified by the 10-year-old brother of AAA, BBB, as the culprit who chased AAA
with a bladed weapon and threatened to kill her if she would not remove her clothes.
BBB, who was only an arms length away from AAA and appellant, was able to describe
vividly the appearance of appellant that night, his attire, and how appellant tried to
embrace and chase AAA. The trial court found no improper motive on the part of BBB
to testify falsely against appellant. BBBs testimony was notably straightforward and
spontaneous and considering his age, the trial court held that it was improbable for him
to concoct such a terrifying story against his own cousin.[9]
The RTC found appellants defense as not only incredible and incredulous but
also innately false and fatuous. Appellant never bothered to ask for help nor made an
outcry when he found his cousin AAA dead. Instead, he claimed to have left the area
and proceeded to the house of his aunt to sleep. When asked why he was bloodied,
appellant merely said that he was chasing someone without disclosing that he carried
the dead body of AAA. Appellant also disclaimed any knowledge on what happened to
AAA when the others asked him.[10]
Lastly, the RTC also took into consideration the confession of appellant that he
was the one (1) who raped and killed AAA. The trial court noted that the confession
was made voluntarily and spontaneously in public, and witnessed by prosecutions
witnesses, who were not shown to have any ill motive against appellant. Thus,
appellants declaration was admissible as part of res gestae, his statement concerning the
 74
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crime having been made immediately subsequent to the rape-slaying before he had time
to contrive and devise.[11]
On November 20, 2006, the Court of Appeals upheld the decision of the RTC,
thus:
WHEREFORE, premises considered, the Decision dated 1 June 2001 of the
Regional Trial Court of Boac, Marinduque is AFFIRMED, except insofar as Republic
Act No. 9346 retroactively reduces the penalty for heinous crimes from death
to reclusion perpetua.
The death penalty imposed by the trial court is
consequently REDUCED to reclusion perpetua and herein judgment may be appealed
to the Supreme Court by notice of appeal filed with this court.
IT IS SO ORDERED.
The appellate court ruled that while appellants bloodied shirt and pants alone do
not establish that he committed the crime, his version is too perforated with
inconsistencies to be believable. Appellant claimed to have previously located and
embraced the corpse of AAA then left her at the crime scene before he went to the
house of his aunt to sleep but he pretended to look for AAA with the others. And
assuming that he took pity and wanted to help AAA, who was wounded and half-naked,
appellants behavior was inconsistent with human nature when he went to his aunts
house to sleep instead of asking for assistance. Likewise, the Court of Appeals found
appellants testimony to be too evasive and vague. Moreover, the appellate court noted
that, while flight oftentimes denotes guilt, the failure of the accused to flee does not per
se establish his innocence. It held that appellant was in all probability too drunk to think
of escape in the darkness of the night.[12]

Hence this appeal.

Appellant had assigned an error in his appeal initially passed upon by the Court
of Appeals, to wit: whether the RTC erred in finding him guilty beyond reasonable
doubt of the crime of rape with homicide.[13]
Appellant claimed that the circumstantial evidence relied upon by the RTC did
not prove his guilt beyond reasonable doubt. The fact that appellant was wearing a
bloodstained shirt did not mean that he committed the crime charged. Appellant had
explained that when he saw AAA he held her in his arm to see if she was still alive;
thus, his shirt was stained with blood. Moreover, if indeed he was guilty of the crime,
he would not have assisted in the search for AAAs body as he could have just escaped
 75
Evidence cases

or at least changed his clothing. He stressed that it was not impossible that the two (2)
unidentified men he chased had committed the crime.
We affirm appellants conviction.

It is doctrinal that the requirement of proof beyond reasonable doubt in criminal

law does not mean such a degree of proof as to exclude the possibility of error and
produce absolute certainty. Only moral certainty is required or that degree of proof
which produces conviction in an unprejudiced mind.[14] While it is established that
nothing less than proof beyond reasonable doubt is required for a conviction, this
exacting standard does not preclude resort to circumstantial evidence when direct
evidence is not available. Direct evidence is not a condition sine qua non to prove the
guilt of an accused beyond reasonable doubt. For in the absence of direct evidence, the
prosecution may resort to adducing circumstantial evidence to discharge its
burden. Crimes are usually committed in secret and under conditions where
concealment is highly probable. If direct evidence is insisted on under all
circumstances, the prosecution of vicious felons who commit heinous crimes in secret
or secluded places will be hard, if not impossible, to prove.[15]

In this case, as found by the RTC, the following chain of events was established
by prosecutions evidence: (a) a drunken appellant came to AAAs house; (b) appellant
tried to embrace AAA but when the latter resisted and ran away, he chased her with a
knife; (c) when appellant caught up with AAA at the upper portion of the house, he was
heard uttering the words Pag hindi daw po naghubad ay asaksakin; (d) appellant was
hiding when CCC and her companion searched the house for AAA, then he suddenly
appeared from his hiding place with bloodied apparels; (e) when asked by CCC,
appellant denied any knowledge of the whereabouts of AAA and what happened to her;
and (f) appellant voluntarily confessed to having committed the rape with homicide
infront of many witnesses then he submitted himself to police custody. [16]

BBBs candid and unequivocal narration, which positively identified appellant as

the culprit who tried to force himself on AAA, debunks appellants denial of any
participation in the crime. BBB testified,

Fiscal Balquiedra : x x x On September 9, 1999 at around seven oclock in the

evening, where were you?
Witness : At our house.
 76
Evidence cases

Fiscal Balquiedra : Who were your companion at that time?

Witness : My sister and my pamangkin.
Fiscal Balquiedra : How old is that pamangkin of yours?
Witness : Four (4) years old.
xxxx
Fiscal Balquiedra : What happened during that time?
Witness : Manong Tirso came to our house, sir.
Fiscal Balquiedra : That Manong Tirso of yours who came to your house,
where is he now?
Witness (Interpreter): Witness pointing to a man who identified himself as
Tirso Sace.
Fiscal Balquiedra : What happened when Tirso Sace arrived?
Witness : When Manong Tirso arrived at our house he was drunk.
xxxx
Fiscal Balquiedra : When he did not leave, what else happened?
Witness : Ayapusin po si Ate noong hindi po siya umalis.
Fiscal Balquiedra : What happened next when Tirso tried to embrace your Ate
[AAA]?
Witness : Hindi po nagpayapos si Ate.
Fiscal Balquiedra : And what happened next?
Witness : Tumayo po si Ate and Manong Tirso also stand up and bumunot ng
patalim.
Fiscal Balquiedra : What happened when he pulled out bladed weapon?
Witness : Ate [AAA] ran towards the upper portion of our house.
Fiscal Balquiedra : How about Tirso, what did he do?
Witness : He ran after her.
Fiscal Balquiedra : Then what happened next?
Witness : Ate [AAA] shouted.
Fiscal Balquiedra : What happened after your Ate [AAA] shouted?
 77
Evidence cases

Witness : My pamangkin was awakened and he went to the lower portion of

our house.
Fiscal Balquiedra : How about Tirso, what did he do?
Interpreter : No answer.
Fiscal Balquiedra : When your Ate [AAA] shouted, did you hear Tirso say
anything?
Witness : Yes, sir.
Fiscal Balquiedra : What did he say?
Witness : Pag hindi daw po naghubad ay asaksakin.
Fiscal Balquiedra : Who said that?
Witness : Manong Tirso.
Fiscal Balquiedra : After hearing that, what did you and your pamangkin do?
Witness : We hid, sir.
Fiscal Balquiedra : Why did you and your pamangkin hide?
Witness : Because we were afraid, sir.
Fiscal Balquiedra : You said that your Ate [AAA] ran and Tirso ran after her,
when Tirso ran after her, where was the patalim?
Witness : On his hands, kinuha po sa bulsa niya.
Fiscal Balquiedra : What happened next?
Witness : Ate [AAA] ran when she saw the knife of Tirso.[17]

BBB did not waver during cross-examination, to wit:

Atty. de Luna : You testified that accused embraced the victim, is that
correct?
Witness : Yes, sir.
Atty. de Luna : And was the accused successful when he allegedly embraced
the victim?
Witness : No, sir.
Atty. de Luna : Why?
 78
Evidence cases

Witness : [AAA] evaded.

Atty. de Luna : When the accused allegedly embraced the victim, was he
behind or infront the victim?
Witness : Infront, sir.
Atty. de Luna : How far were you from the victim when accused allegedly
embraced her/or when he tried to embrace her?
Witness : Kalahating dipa.
xxxx
Atty. de Luna : When accused arrived in your house, were you sleeping at
that time?
Witness : No, sir.
Atty. de Luna : You testified that Tirso Sace pulled up a bladed weapon that
night, is that correct?
Witness : Yes, sir.
Atty. de Luna : Did the accused pulled the knife before or after accused tried
to embrace [AAA]?
Witness : After embracing, sir.
xxxx
Atty. de Luna : Where did the accused get the knife?
Witness : From his pocket, sir.
Atty. de Luna : And how far were you when you saw it?
Witness : Mga isang dipa po.[18]
xxxx

It is axiomatic that a witness who testifies in a categorical, straightforward,

spontaneous and frank manner and remains consistent on cross-examination is a
credible witness.[19] We see no justification to reverse the RTCs appreciation of the
testimony of BBB. Having observed the witnesss deportment while testifying, the trial
courts assessment of the credibility of BBB deserves our highest respect.
 79
Evidence cases

In contrast, appellant could only offer denial and alibi in his defense. Denial and
alibi are weak defenses which must be supported by strong evidence of non-culpability
to merit credibility. These are negative self-serving evidence which cannot be given
greater weight than the testimony of a credible witness who testified on affirmative
matters. Between the positive declarations of a prosecution witness and the negative
statements of the accused, the former deserves more credence.[20] Thus, between the
positive identification made by BBB and the bare denial and alibi of appellant, there is
scarcely any doubt that decisive weight must be given to the positive testimony of BBB.

Also, the facts in this case clearly show that appellant admitted the commission
of the crime to the prosecutions witnesses. According to their testimonies, appellant
admitted having raped and killed AAA. Their testimonies were not rebutted by the
defense. Appellants statements infront of the prosecution witnesses are admissible for
being part of the res gestae. Under the Revised Rules on Evidence,[21] a declaration is
deemed part of the res gestae and admissible in evidence as an exception to the hearsay
rule when the following requisites concur: (1) the principal act, the res gestae, is a
startling occurrence; (2) the statements were made before the declarant had time to
contrive or devise; and (3) the statements must concern the occurrence in question and
its immediately attending circumstances.[22] All these requisites are present in this case.
Appellant had just been through a startling and gruesome occurrence, AAAs death. His
admission was made while he was still under the influence of said startling occurrence
and before he had an opportunity to concoct or contrive a story. In addition, he was still
under the influence of alcohol at that time, having engaged in a drinking spree
from 1:00 p.m. to 7:00 p.m. that day. His confession concerned the rape and killing of
AAA. Appellants spontaneous statements made to private persons, not agents of the
State or law enforcers, are not covered by the constitutional safeguards on custodial
investigation and, as res gestae, admissible in evidence against him.

The rule is settled that where the culpability or innocence of the accused hinges
on the credibility of the witnesses and the veracity of their testimonies, the findings of
trial courts are given the highest degree of respect. Hence, their findings on such
matters are binding and conclusive on appellate courts, unless some fact or
circumstance of weight and substance has been overlooked, misapprehended or
misinterpreted.[23] We find no circumstance of weight or substance that was overlooked
by the trial court.
 80
Evidence cases

With regard to damages, we modify the award of moral damages affirmed by the
Court of Appeals. The heirs of AAA are entitled to moral damages amounting
to P75,000.00,[24] pursuant to prevailing jurisprudence. Likewise, as to actual damages,
we have held that if the amount of the actual damages cannot be determined because no
receipts were presented to prove the same, but it was shown that the heirs are entitled
thereto, temperate damages amounting to P25,000.00 may be awarded.[25] There being a
sufficient showing in the instant case that the heirs of AAA incurred funeral expenses,
the award of temperate damages is in order.

WHEREFORE, the appeal of Tirso Sace y Montoya is DISMISSED and the

November 20, 2006 Decision of the Court of Appeals in CA-G.R. CR- H.C. No. 02324
is AFFIRMED with MODIFICATIONS. Temperate damages amounting
to P25,000.00 are hereby awarded in lieu of actual damages and the award of moral
damages is increased to P75,000.00 in line with current jurisprudence.

With costs against the accused-appellant.

MARY ANN DEHEZA-INAMARGA, G.R. No. 171321

Petitioner,
Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.
CELENIA C. ALANO, BERNALDA
A. PAROHINOG, GODOFREDO
ALANO, AVELINO
ALANO, ESTRELLA ALANO,
FORTUNATA ALANO, NANY Promulgated:
ALANO, SALLY ALANO,
ADIONITO ALANO, and December 18, 2008
SUFRONIA ALANO,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 81
Evidence cases

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision [1] dated September 8,
2004 and Resolution[2] dated January 4, 2006 of the Court of Appeals in CA-G.R. CV
No. 64164. The appellate court had affirmed the Decision[3] dated November 26,
1998 of the Regional Trial Court (RTC) Branch 1, Kalibo, Aklan in Civil Case No.
4278.

The facts of the case are as follows:

Tomas Alano, husband of respondent Celenia Alano, owned two parcels of land
covered by Original Certificates of Title (OCT) Nos. P-761 and P-762. He mortgaged
the properties in favor of Renato Gepty on September 20, 1972. In 1976, Gepty
demanded that Tomas pay the loan. Tomas, however, did not have money at that time to
redeem his properties so he sought help from his niece, petitioner Mary Ann Deheza-
Inamarga. Petitioner agreed to pay the loan while the spouses, in turn, mortgaged said
properties to her. Petitioner kept in her possession OCT Nos. P-761 and P-762 and
asked the spouses to sign blank pieces of paper which petitioner said will be converted
into receipts evidencing their indebtedness to her.

In November 1990, after Tomas had passed away, respondents Celenia and her
children went to petitioner to redeem the property. Petitioner, however, told them that
she had mortgaged the property to the Rural Bank of Libacao. Respondents verified the
matter with the bank and discovered that OCT Nos. P-761 and P-762 have been
cancelled and in lieu thereof, Transfer Certificates of Title (TCT) Nos. T-9080 and T-
9081 were issued in petitioners name. Respondents learned that the TCTs in petitioners
favor were issued by virtue of a Deed of Sale purportedly executed by the Spouses
Alano in her favor.

On January 24, 1991, respondents filed a complaint for the declaration of nullity
of document, reconveyance and damages against petitioner and the Rural Bank of
Libacao. Respondents contended that the deed of sale is null and void because the
signatures of the Spouses Alano were forged and even if they were the signatures of the
 82
Evidence cases

spouses, they were affixed on blank sheets of paper which were not intended to be a
deed of sale.

Petitioner, on the other hand, denied the allegation of forgery and maintained that
the deed of sale was valid. She claimed that the spouses offered to sell her the property
so they can use the purchase price of P7,000 to redeem the property from
Gepty. Petitioner added that the action is barred by prescription, laches and estoppel.

On November 26, 1998, the RTC rendered its decision, the dispositive portion of
which reads as follows:
WHEREFORE, judgment is hereby rendered:

1. Declaring the transaction between the plaintiffs and defendant Mary

Ann Deheza (Inamarga) as an EQUITABLE MORTGAGE and declaring the
plaintiffs entitled to redeem the mortgaged properties which shall be effected
upon payment of the mortgage debt to said defendant in the amount
of P2,400.00 with legal rate of interest from 1983, the year plaintiffs ceased
paying said defendant interests;

2. Declaring the nullity of the Deed of Absolute Sale (Exh. B)

dated March 4, 1978 allegedly executed by Tomas Alano in favor of Mary
Ann Deheza;

3. Declaring the nullity of Transfer Certificate of Title No. T-9080 and

Transfer Certificate of Title No. T-9081 in the name of Mary Ann Deheza;

4. Ordering the reconveyance of Lot 7 and Lot 2, all of Psu-235010, by

defendant Mary Ann Deheza Inamarga in favor of the plaintiffs. In the event
that said defendant fails to reconvey to plaintiffs said lots, the Clerk of Court
is hereby directed to execute it pursuant to the provisions of Section 10 of
Rule 39 of the 1997 Rules of Civil Procedure. As Amended;

5. Ordering defendant Mary Ann Deheza-Inamarga to pay plaintiffs

exemplary damages in the amount of P50,000.00 and attorneys fees in the
amount of P10,000.00.

Costs against said defendant.

SO ORDERED.[4]
 83
Evidence cases

Petitioner elevated the case to the Court of Appeals but her appeal was
denied.[5] The appellate court held that the signatures in the Deed of Sale were forged
and even if they were genuine, the agreement entered into by the parties was one of
equitable mortgage. It likewise upheld the trial courts award of damages, ruling that the
transactions involved in the case were repeatedly tainted with fraud.

Petitioners motion for reconsideration having been denied, petitioner filed the
instant appeal, assigning errors as follows:
I.
THE LOWER COURT ERRED IN DECLARING THE TRANSACTION
BETWEEN [THE] SPOUSES TOMAS AND CELENIA ALANO AND THE
[PETITIONER] MARY ANN DEHEZA-INAMARGA AS ONE OF
EQUITABLE MORTGAGE AND NOT ONE OF SALE.

II.
THE LOWER COURT ERRED IN ORDERING THE RECONVEYANCE
OF THE LANDS IN QUESTION IN FAVOR OF THE [RESPONDENTS]
AND ORDERING THE NULLITY OF TCT NO. T-9080 AND TCT NO. T-
9081 IN THE NAME OF MARY ANN DEHEZA.

III.
THE LOWER COURT ERRED IN FINDING THAT THE QUESTIONED
DEED OF SALE WAS A FORGERY OR THAT IT WAS SIGNED IN
BLANK BY [THE] SPOUSES TOMAS AND CELENIA ALANO AND I[N]
GIVING CREDENCE TO THE EVIDENCE OF THE [RESPONDENTS].

IV.
THE LOWER COURT ERRED IN NOT DECLARING THAT
[RESPONDENTS] ACTION IS ALREADY BARRED BY
PRESCRIPTION, LACHES OR ESTOPPEL.

V.
THE LOWER COURT ERRED IN AWARDING EXEMPLARY
DAMAGES AND ATTORNEYS FEE[S] TO THE [RESPONDENTS].[6]

Essentially, the issues for resolution are: (1) whether the Deed of Sale is a forgery; (2)
whether the transaction between petitioner and the Spouses Alano is one of sale or
equitable mortgage; (3) whether respondents action is already barred by prescription,
 84
Evidence cases

laches or estoppel; and (4) whether the award of exemplary damages and attorneys fees
in favor of respondents is legal and justifiable.

As to the first issue, petitioner contends that respondents never presented a

handwriting expert to prove that the signatures of Tomas and Celenia Alano were forged
and such allegation of forgery cannot overcome the presumption of regularity in the
performance of duty of the notary public as well as the due execution of the public
document.[7] Respondents, in turn, contend that the findings of handwriting experts are
not conclusive upon the trial court.

The question of forgery is one of fact.[8] It is well-settled that when supported by

substantial evidence or borne out by the records, the findings of fact of the Court of
Appeals are conclusive and binding on the parties and are not reviewable by this
Court.[9]

It is a hornbook doctrine that the findings of fact of trial courts are entitled to
great weight on appeal and should not be disturbed except for strong and valid
reasons. It is not a function of this Court to analyze and weigh evidence by the parties
all over again. Our jurisdiction is limited to reviewing errors of law that might have
been committed by the Court of Appeals. Where the factual findings of the trial court
are affirmed in toto by the Court of Appeals as in this case, there is great reason for not
disturbing such findings and for regarding them as not reviewable by this Court. [10]

Moreover, after a careful perusal of the records and a thorough consideration of this
case, this Court finds sufficient basis for the finding of the Court of Appeals that the said
signatures were indeed forged. The Court of Appeals cited apparent differences in the
signatures on the face of the documentary evidence submitted before the RTC. Also, it
found that the signatures on the deed of sale appeared to be different in characteristics,
spacing and strokes from the signatures of the Spouses Alano appearing in other
documents forming part of the records of this case which are admittedly genuine.

Moreover, contrary to petitioners contention, the presentation of a handwriting

expert is not necessary. Handwriting experts are usually helpful in the examination of
forged documents because of the technical procedure involved in analyzing them. But
resort to these experts is not mandatory or indispensable to the examination or the
comparison of handwriting.[11] The findings of handwriting experts are not conclusive
 85
Evidence cases

upon the courts. As this Court has once observed, the authenticity of signatures is not a
highly technical issue in the same sense that questions concerning, e.g., quantum
physics or topology or molecular biology, would constitute matters of a highly technical
nature. The opinion of a handwriting expert on the genuineness of a questioned
signature is certainly much less compelling upon a judge than an opinion rendered by a
specialist on a highly technical issue. The signatures on a questioned document can be
examined visually by a judge who can and should exercise independent judgment on the
issue of authenticity of such signatures.[12]

With regard to the second issue, petitioner contends that it was the Spouses Alano
who caused the execution of the deed of sale in question and that the document was
signed by them in the presence of the notary public. She likewise argues that after the
sale, she took possession of the land; and she adds that the consideration for the
property was adequate because the property was not productive.[13] On the other hand,
respondents aver that the transaction between the Spouses Alano and petitioner is not
one of sale but one of equitable mortgage. Respondents stress that they continued to be
in possession of the property even after the alleged execution of the Deed of Sale and
they claim that the P7,000 consideration is grossly inadequate for the market value of
the property. Respondents further stated that they paid P500 interest annually for the
loan.[14]

In our considered view, the appellate court did not err in sustaining the decision
of the trial court holding that the transaction between the parties is an equitable
mortgage.

An equitable mortgage is one which, although lacking in some formality, or

form, or words, or other requisites demanded by a statute, nevertheless reveals the
intention of the parties to charge real property as security for a debt, and contains
nothing impossible or contrary to law.[15]

Articles 1602 and 1604 of the Civil Code of the Philippines state:
ART. 1602. The contract shall be presumed to be an equitable
mortgage, in any of the following cases:

(1) When the price of the sale with right to repurchase is unusually
inadequate;
(2) When the vendor remains in possession as lessee or otherwise;
 86
Evidence cases

(3) When upon or after the expiration of the right to repurchase

another instrument extending the period of redemption or granting a new
period is executed;
(4) When the purchaser retains for himself a part of the purchase
price;
(5) When the vendor binds himself to pay the taxes on the thing sold;
(6) In any case where it may be fairly inferred that the real intention
of the parties is that the transaction shall secure the payment of a debt or the
performance of any other obligation.

In any of the foregoing case, any money, fruits, or other benefit to be

received by the vendee as rent or otherwise shall be considered as interest
which shall be subject to the usury laws.

ART. 1604. The provisions of Article 1602 shall also apply to a

contract purporting to be an absolute sale.

In the instant case, the RTC, as affirmed by the Court of Appeals, correctly found
that more than one of the circumstances enumerated in Article 1602 are present, to
wit: the inadequacy of the selling price of the properties in relation to its true value; the
vendors (Spouses Alano) remained in possession as lessee or otherwise; respondents
paid the real property taxes; and the spouses secured the payment of the principal debt
owed to petitioner with said properties.[16] On this score, we are in agreement that the
parties intended an equitable mortgage and not a contract of sale.

On the third issue, petitioner claims that the complaint was barred by extinctive
prescription as it was filed only on January 24, 1991, or almost 13 years from March 7,
1978 when the TCTs were issued in favor of petitioner. Petitioner argues that the
prescriptive period for reconveyance of land based on implied or constructive trust is 10
years.[17] Respondents counter that since the deed of sale and the certificates of title in
the name of petitioner are all null and void, prescription, laches or estoppel has not set
in.[18]

Again, we find for the respondents. Where there is no consent given by one party
in a purported contract, such contract was not perfected; therefore, there is no contract
to speak of. The deed of sale relied upon by petitioner is deemed a void contract. This
being so, the action based on said deed of sale shall not prescribe in accordance with
Article 1410[19] of the Civil Code.
 87
Evidence cases

On the issue of damages, petitioner contends that the award of exemplary damages
and attorneys fees were not justified under the law and the facts obtaining in this
case.[20] Respondents, on their part, state that petitioner having acted in bad faith to the
damage and prejudice of respondents, it is but proper that she should pay for such
deception and unlawful acts.[21]

We do not find any cogent reason to disturb the findings of the RTC on this point
as affirmed by the Court of Appeals with respect to the award of damages and attorneys
fees. As correctly held by the RTC, the act of petitioner of inducing her two trusting old
relatives to sign blank pieces of paper purporting to be a deed of sale so that the
certificates of title of their properties could be transferred in her name is a fraudulent
act. Exemplary damages were rightfully imposed in order to deter persons similarly
disposed from committing such acts of fraud. Consequently, with the grant of
exemplary damages, attorneys fees should likewise be awarded.[22]

WHEREFORE, the Decision dated September 8, 2004 and the Resolution

dated January 4, 2006 of the Court of Appeals in CA-G.R. CV No. 64164
are AFFIRMED.

Costs against petitioner.

SO ORDERED.

G.R. Nos. 168830-31 February 6, 2007

ERNESTO M. DE CHAVEZ, PORFIRIO C. LIGAYA, ROLANDO L. LONTOK, SR., ROLANDO M.

LONTOK, JR. and GLORIA G. MENDOZA, Petitioners,
vs.
OFFICE OF THE OMBUDSMAN and NORA L. MAGNAYE, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari1 under Rule 65 of the 1997 Rules of Civil Procedure which
seeks the nullification of the Joint Resolution dated 14 February 20052 and the Supplemental Resolution
dated 12 July 20053 in cases OMB-1-01-1036-K and OMB-1-01-1083-K, both issued by the public
respondent Office of the Ombudsman. It also prays for the issuance of a Temporary Restraining Order
commanding the public respondent to cease and desist from implementing the said Supplemental
 88
Evidence cases
Resolution dated 12 July 2005 or from conducting further proceedings in cases OMB-1-01-1036-K and
OMB-1-01-1083-K.

Culled from the records are the following facts:

On 7 November 2001, private respondent Nora L. Magnaye (Magnaye), Professor IV of the Batangas
State University (BSU), filed with the public respondent an administrative complaint for Grave Misconduct,
Oppression, Conduct Prejudicial to the Best Interests of the Service, Falsification of Official Documents,
Dishonesty, Gross Neglect of Duty and Violation of Section 5(a) of Republic Act No. 6713 otherwise
known as "CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND
EMPLOYEES" against petitioners Ernesto M. de Chavez (de Chavez), BSU President; Porfirio C. Ligaya
(Ligaya), BSU Vice- President for Extension Campus Operations; Rolando L. Lontok, Sr. (Lontok, Sr.),
BSU Vice-President for Academic Affairs; Rolando M. Lontok, Jr. (Lontok, Jr.), BSU Associate Dean of the
College of Computer Science and Information Technology; Gloria G. Mendoza (Mendoza), BSU Dean of
the College of Liberal Arts; and other BSU officials namely, Virginia Baes, BSU Executive Vice-President;
Amador M. Lualhati (Lualhati), BSU University Secretary; Victoria A. Zaraspe (Zaraspe), BSU Vice-
President for Finance and Administration; and Jessie A. Montalbo (Montalbo), BSU Vice-President and
Dean of the College of Computer Science and Information Technology.4 The case was docketed as OMB-
1-01-1036-K. The generative facts which gave rise to the filing of the complaint are summarized in the
Comment dated 8 September 20055 of the public respondent, to wit:

1. De Chavez, Lontok, Sr. and Mendoza caused to be collected, and received the proceeds of,
graduation fees from the graduating class of SY 2000-2001 without issuing an official receipt and
without remitting the same to BSU.

2. De Chavez and Lontok, Sr., did not conduct any public bidding for the rental of caps and gowns
which were used during the graduation for the SY 2000-2001 and gave the contract to rent caps
and gowns to their relatives.

3. De Chavez and Lontok, Sr. required and received from the graduating class of SY 2000-2001
the amount of P200.00 from each student as payment for said students comprehensive
examination. Said collection was not authorized by the BSU Board of Regents.

4. Lontok, Jr. and Montalbo collected from BSU students internet fees without issuing an official
receipt and despite the absence of internet facilities in BSU Lipa City Campus.

5. Ligaya collected from BSU students the amount P200.00 each as payment for Related Learning
Experience Fee (RLEF) without issuing any official receipt.

6. De Chavez and Baes conspired in designating close relatives of De Chavez to key

administrative positions in BSU.

7. De Chavez made appointments of faculty members and transmitted said appointments to the
CSC [Civil Service Commission] without the approval of the BSU Board of Regents.

8. De Chavez prevented the elected President of the Federation of Supreme Student Assembly to
sit as a member of the Board of Regents.

9. De Chavez issued a Memorandum increasing the rates of fees for records and other documents
issued by BSU without any approval of the governing Board of the BSU.
 89
Evidence cases
10. De Chavez, Baes and Zaraspe designated and appointed faculty members to key positions in
BSU without any authority under the law, rule or regulation.

11. De Chavez and Lontok, Sr. failed to respond to the letter of officials of the PTA-BSU Lipa
Campus in violation of R.A. 6713.

12. De Chavez collected notarial fees from contractual employees without issuing official receipts.

13. De Chavez and Lontok, Sr. did not renew the contract of two faculty members.6

Subsequently, on 13 November 2001, based on the above imputed acts plus an additional one,7 private
respondent also filed with the public respondent another Complaint imputing criminal liability to the BSU
officials above-named for Violation of Section 3(a) and (e) of Republic Act No. 3019, otherwise known as
the "ANTI-GRAFT AND CORRUPT PRACTICES ACT," Violation of Section 5(a) of Republic Act No. 6713,
Falsification of Official Documents and Estafa.8 The criminal complaint was docketed as OMB-1-01-1083-
K.

Petitioners denied the allegations of private respondent. In their Joint Counter-Affidavit dated 30 January
2002,9which was summarized in the Joint Resolution dated 14 February 2005 of the public respondent,
petitioners countered the following:

1. The BSU management did not collect graduation fees for the commencement exercises of SY
2000-2001 like in the previous years. It was claimed that the members of the graduating class, with
the guidance of their advisers, were the ones who fixed, collected and disbursed the
contributions/fees for the commencement exercises.

2. No public bidding was conducted for the rental of the caps and gowns because the BSU did not
enter into contract with any supplier. The graduating students have the complete freedom to hire
their caps and gowns from anyone. The receipts signed by Lontok, Sr. was merely in
acknowledgment of the receipts of certain amounts from Magnaye which the latter requested to be
given to Mr. Fralundio Sulit from whom the graduating class rented their caps and gowns.

3. Whenever a collection of the internet fee is made, a receipt was issued by the BSU using
Accountable Form No. 51. Further no collection of internet fees was made at BSU Lipa City
Campus.

4. The collection of the Related Learning Experience Fee was done by the Cashiers Office of the
College. What was being collected in the past by the Office of Dr. Porfirio Ligaya was the Dual
Training Fee for non-degree courses. However, effective the second week of December 2001, the
collection of this fee was already turned over to the Cashiers Office of the BSU.

5. De Chavez relied on the authority of the Resolution issued by the Office of the President
declaring that the designation of the relatives of De Chavez to certain positions in the BSU is not
violative of the rule against nepotism. The subject designations were all duly confirmed by the
Board of Regents.

6. The Board of Regents recognized the practice of De Chavez of submitting first the appointments
he made to the CSC for attestation before submitting the same for confirmation of the Board. The
appointments of professors/instructors which Magnaye claim is violative of existing law and rules
has already been confirmed by the Board of Regents.
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7. No one has been elected as President of the Federation of Student Assembly. Said position is
still non-existent in view of the failure of the student to draft and ratify their constitution and by-
laws.

8. The increase in miscellaneous fees was duly approved by the Board of Trustees of PBMIT
through Board Resolution No. 6 series of 1997.

9. The failure to respond to some letters query was brought about by the pre-occupation of
petitioners to other pressing and more important matters.

10. The BSU neither collects nor shares in the notarial fees charged by the notary public.

11. The management can opt to renew or not to renew the contract for employment of some
faculty members. They are not governed by the security of tenure as commonly enjoyed by the
regular employees of the government.10

In her Reply dated 8 March 2002,11 private respondent attached therewith a photocopy of the alleged Audit
Report dated 7 February 2001 of State Auditor IV Milagros D. Masangkay, Office of the Auditor, Pablo
Borbon Memorial Institute of Technology,12 containing a finding and recommendation on the graduation
fees collected by BSU, thus:

4. FINDING

Graduation fees were not yet issued official receipts and were not taken up in the books of the College
despite prior years audit recommendations and in violation of the provisions of Sections 63 and 68 of
Presidential Decree (P.D.) No. 1445, and Section 4(d) of Republic Act (R.A.) No. 8292 resulting to an
aggregate understatement of Cash and Trust Liability accounts by about P3,342,550.00.

Section 63 of Presidential Decree (P.D.) No. 1445 requires all moneys and property officially received by a
public officer in any capacity or upon any occasion to be accounted for as government funds and
government property, while Section 68 of the same presidential decree provides that no payment of any
nature shall be received by a collecting officer without immediately issuing an official receipt in
acknowledgment thereof.

Under Section 4(d) of Republic Act (R.A.) No. 8292, the higher Education Modernization Act of 1997, state
universities and colleges are authorized to deposit in any authorized government depository bank and
treat as Special Trust Fund, income from tuition fees and other necessary school charges such as
matriculation fees, graduation fees, and laboratory fees.

The existing practice of not issuing official receipts and not taking up in the books of accounts graduation
fees paid by graduating students has been an audit finding since 1997.

Based on the Annual Audit Report for calendar year 1999, the graduation fees from 1997-1999
totaled P2,057,600 with an expenses of P921,529.00.

The graduation fees collected and the expenses paid out of these fees during the calendar year 2000
could not be determined due to failure of the employee concerned to furnish this Office with certified
statement of collections of graduation fees and the related disbursements together with the supporting
papers despite our request to the College President in a letter dated January 17, 2001.
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Likewise, in response to our Memorandum dated October 11, 2000 requesting information as to the status
of the implementation of the 1999 audit recommendations, the College President informed this Office and I
quote "the holding of graduation rites is a tradition of the PBMIT [Pablo Borbon Memorial Institute of
Technology] academic community but it is never compulsory. Graduating students may not join the
ceremonies but if majority of them decided to hold one, it is their prerogative to plan, execute and evaluate
their ceremony. In the process, and through the senior council and/or its advisers, they may agree among
themselves to contribute certain amount voluntarily to finance the program. After the rites and if there are
cash balances, the graduating class usually donate something to their Alma Mater as their remembrance
or legacy. This office, with all due respect to the COA, may not be able to follow the recommendation. This
office is not yet ready to break this hallowed tradition.

The continuous refusal of management to implement prior years audit recommendations and the letter of
the Honorable Chairman of the Commission on Audit relative to the handling of graduation fees was
already communicated to the Commission on Audit thrice, the latest was last November 8, 2000 when the
General Counsel of the Commission on Audit asked for status report.

Since graduation fee is one of the items to be recorded under Special Trust Fund per R.A. No. 8292,
failure to record the same in the books of accounts of the Institute understated the cash and trust liability
accounts.

Since there were no records submitted to this Office pertaining to graduation fees collected from
graduating students, understatement of Cash and Trust Liability Accounts amounting to P1,284,950.00
(Annex G) was based on the number graduating students and the graduation fee per student last school
year 1999-2000. The 1999 Annual Audit Report of the previous COA Auditor reported a total collections
from 1997 to 1999 of P2,057,600.00. These amounts when added will yield an aggregate understatement
of Cash and Trust Liability accounts by about P3,342,550.00.

RECOMMENDATION

Require the accountable officer to issue official receipts (Accountable Form 51) for graduation fees
collected and deposit the collections in an authorized government depository bank. Enjoin the Accountant
to record in the books of accounts of the College all collections and disbursements conformably with
generally accepted accounting principles and in accordance with pertinent laws and regulations.

Private respondent Magnaye also accused the petitioners of grave oppression and harassment for giving
her two unsatisfactory performance ratings corresponding to the periods of June to 15 July 2001 and 16
July 2001 to 20 October 2001. She claimed that these ratings were given "as a way to get back at her and
lay the basis for dropping her from the rolls of BSU."13 Of course, petitioners refuted the said imputations.

After the conduct of a clarificatory hearing14 and upon submission of both parties of their respective
position papers, the public respondent, through Graft Investigation and Prosecution Officer II Joy N.
Casihan-Dumlao with Director Joaquin F. Salazar and Deputy Ombudsman for Luzon Victor C. Fernandez
concurring, issued its Joint Resolution dated 14 February 2005 in OMB-1-01-1036-K and OMB-1-01-1083-
K recommending the indictment of petitioners De Chavez, Lontok, Sr., and Mendoza for violation of
Section 3(a) of Republic Act No. 3019. It, however, proposed the dismissal of the complaints against
petitioners Ligaya and Lontok, Jr., and other officials of BSU namely, Lualhati, Zaraspe, and Montalbo for
lack of probable cause.15 The fallo states:

WHEREFORE, premises considered, it is respectfully recommended that respondents ERNESTO M. DE

CHAVEZ, ROLANDO L. LONTOK, SR., and GLORIA G. MENDOZA, be indicted for violation of Section
3(a) of Republic Act No. 3019.
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With regard to the rest of respondents, namely: VIRGINIA BAES, AMADOR M. LUALHATI, PORFIRIO C.
LIGAYA, VICTORIA A. ZARASPE, ROLANDO M. LONTOK, JR., and JESSIE A. MONTALBO, it is
recommended that instant complaints against them be dismissed for lack of probable cause.

Upon review by Ombudsman Simeon V. Marcelo, he issued a Supplemental Resolution dated 12 July
2005 "partially approving" with modifications the Joint Resolution dated 14 February 2005. Among other
findings, he found petitioners de Chavez, Lontok, Sr., Lontok, Jr., and Mendoza liable for violation of
Section 3(e) and (h) of Republic Act No. 3019 and for violation of Article 315(2)(b) of the Revised Penal
Code. He also found petitioners de Chavez, Lontok, Sr., Lontok, Jr., and Ligaya guilty of Dishonesty and
Grave Misconduct, and, thus, imposed on them the penalty of Dismissal from the Service with the
accessory penalties of forfeiture of retirement benefits and perpetual disqualification from reemployment in
the government service.16 The decretal portion of the Supplemental Resolution reads:

WHEREFORE, the 14 February 2005 Joint Resolution of the Office of the Deputy Ombudsman for Luzon
is partially approved subject to the following modifications:

a) Respondents De Chavez, Lontok, Sr., and Mendoza are hereby found liable for violation of
Section 3 (e) RA 3019, as amended, for unlawfully collecting graduation fees. In addition, they are
also liable for Estafa under Art. 315 (2) (b) of the Revised Penal Code;

b) Respondents De Chavez and respondent Lontok, Sr. are hereby found liable for violation of
Section 3 (e) RA 3019, as amended, in relation to Section 3 (h) thereof, relative to their engaging
in the business of rental of caps and gowns;

c) Respondent De Chavez and respondent Lontok, Jr., are found liable for violation of Section 3
(e) RA 3019, as amended, for illegally collecting internet fees from students. In addition, they are
also liable for Estafa under Art. 315 (2) (b) of the Revised Penal Code;

d) The Field Investigation Office (FIO) is directed to conduct further fact-finding on respondent
Ligaya for probable Malversation under Art. 217 of the Revised Penal Code, for collecting P200.00
each from BSU students as payment for Related Learning Experience Fee (RLEF) without issuing
official receipts and misappropriating the same, and to establish with certainty the total amount
collected;

e) The Office of the Deputy Ombudsman for Luzon is hereby directed to refer to the Civil Service
Commission the administrative aspect of the charges relating to nepotism, appointment,
assignment/designation, transfer of personnel, and performance evaluation ratings;

f) The Office of the Deputy Ombudsman for Luzon is also ordered to immediately conduct a fact-
finding investigation with respect to the holding of comprehensive examination and the collection of
fees therefore;

g) The Field Investigation Office (FIO) is directed to immediately conduct an investigation to gather
evidence relative to the students who rented caps and gowns for the school year 2000-2001 and
prior to said school year; and

h) Respondents De Chavez, Lontok, Sr., Ligaya and Lontok Jr., are hereby found guilty of
Dishonesty and Grave Misconduct and are, thus, meted the penalty of Dismissal from the Service,
pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil Service,
with the accessory penalties of forfeiture of retirement benefits and perpetual disqualification from
employment in government service pursuant to Section 58, Rule IV of the same Uniform Rules on
Administrative Cases in the Civil Service.
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Corollary thereto, the Civil Service Commission is hereby requested to implement this Order in accordance
with law and to advice this Office of compliance thereon. Let a copy of this decision be furnished the
Honorable Chairman, Civil Service Commission, Constitution Hills, Diliman, Quezon City.

Aggrieved, the petitioners filed this petition. Petitioner Mendoza filed a Petition in Intervention dated 12
December 2005 after her lawyer found out that she was not included in the instant petition.17 Her
intervention was allowed in the Courts First Division Resolution of 28 August 2006.18 Both petitions raised
the following issues for our consideration:

I.

RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION

AND ACTED WITHOUT JURISDICTION IN FINDING PETITIONERS ALREADY LIABLE FOR
CRIMINAL OFFENSES.

II.

RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION

WHEN IT DID NOT DISMISS THE TWO SEPARATE BUT IDENTICAL CRIMINAL COMPLAINTS
OF PRIVATE RESPONDENT.19

Apropos the first issue, the petitioners alleged that the public respondents Supplemental Resolution dated
12 July 2005 categorically stated that petitioners are liable for the criminal acts complained of; that the
public respondent did not even discuss the matter of probable cause but instead immediately ruled on their
guilt; that the said resolution did not state or instruct the filing of the appropriate criminal informations
against them before the courts of justice. Hence, the public respondents instantaneous finding of criminal
liability on their part renders any trial against them an "exercise in futility" which "inevitably clashes with
Section 14(2) of the 1987 Constitution which grants to the accused, inter alia, the right to have a speedy,
impartial and public trial." Therefore, the public respondent had exceeded its jurisdiction under Republic
Act No. 6770, otherwise known as the "Ombudsman Act of 1989," since there is nothing in the said statute
which grants to it the power to determine the guilt or innocence of the accused.20

Further, they argued that "the public respondents directive to the Field Investigation Office (FIO) to
conduct further fact-finding on x x x [petitioner] Ligaya for probable Malversation under Art. 217 of the
Revised Penal Code, is questionable as it had already arbitrarily decreed the guilt of petitioner Ligaya
when it pilloried him for collecting P200.00 each from BSU Students as payment for Related Experience
Fee (RLEF) without issuing official receipts and misappropriating the same x x x."21

We reject the foregoing asseverations.

Petitioners make mountain on the use of the words "liable for violation x x x" employed by the
Ombudsman. A review of the specific powers of the Ombudsman under the Constitution, the laws and
jurisprudential pronouncements is in order. Both the 1987 Constitution and the Ombudsman Act of 1989
(Republic Act No. 6770) empower the public respondent to investigate and prosecute on its own or on
complaint by any person, any act or omission of any public official or employee, office or agency when
such act or omission appears to be illegal, unjust, improper or inefficient.22 By virtue of this power,23 it may
conduct a preliminary investigation for the mere purpose of determining whether there is a sufficient
ground to engender a well-founded belief that a crime has been committed and the respondent is probably
guilty thereof, and should be held for trial.24

A preliminary investigation is merely inquisitorial, and it is often the only means of discovering the persons
who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or
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information. It is not a trial of the case on the merits and has no objective except that of determining
whether a crime has been committed and whether there is probable cause to believe that the respondent
is guilty thereof.25 In the conduct of preliminary investigation, the prosecutor does not decide whether there
is evidence beyond reasonable doubt of the guilt of respondent. A prosecutor merely determines the
existence of probable cause, and to file the corresponding information if he finds it to be so.26

At the threshold, we must accentuate that in the exercise of the powers and in the discharge of his
functions and responsibilities, the Ombudsman, as in that of the other officials, enjoys the presumption of
regularity in the performance of official functions. Rule 131, Section 3(m) of the Revised Rules of
1avvphi1.net

Evidence provides:

SEC. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence:

xxxx

(m) That official duty has been regularly performed; x x x. 1awphi 1.net

This presumption of regularity includes the public officers official actuations in all the phases of his work.27

With particular reference to the Ombudsman, it is well to state that his office is, indeed, one of the more
powerful agencies of the government and wields vast powers, though limited to a certain extent.
Concomitant to this stature, our laws have required more stringent qualifications, most especially to the
intellectual quality and capacity, for the person who will run for the office.

In light of this observation, the presumption that the Ombudsman knows whereof he speaks forcefully
applies. We must then presume that he is well aware of the extent and limitations of his powers. Thus,
when Ombudsman Marcelo used the words "liable for" in his Supplemental Resolution of 12 July 2005, he
is presumed to have used these within the sense of the limited power vested in him by our laws and
jurisprudence the finding of probable cause.

Further, the word "liable" is described as to mean "subject or exposed to some usually adverse
contingency or action."28 The word is now rather wide in its use and is considered synonymous to the
words "susceptible," "prone," and "exposed," all indicating temporary or fluctuating situations.29

We, likewise, call special attention to the fact that nowhere in the challenged resolution is it stated that
petitioners are found "guilty" beyond reasonable doubt of the crime charged, in stark contrast to the
disposition of the administrative case30 wherein petitioners "De (sic) Chavez, Lontok, Sr., Ligaya and
Lontok, Jr., are hereby found guilty of x x x" and were meted the corresponding penalty.

We, then, conclude that the words "liable for" employed by the Ombudsman in the challenged resolution
really alluded only to the probability of guilt. They simply imply that the Ombudsman had found probable
cause to hold petitioners liable for the crimes imputed and, thus, should be held liable for trial in the courts
of law. It is not a declaration of guilt.

Probable cause, as used in preliminary investigations, has been defined as the existence of such facts and
circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.31 We
reiterate this in the case of Pimentel Jr. v. COMELEC,32 thus:
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[a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has
been committed and was by the suspects. Probable cause need not be based on evidence establishing
absolute certainty of guilt. As well put in Brinegar vs. United States, while probable cause demands more
than "bare suspicion," it requires "less than evidence which would justify x x x conviction." A finding of
probable cause merely binds over the suspects to stand trial. It is not a pronouncement of guilt. (Emphasis
ours.)

The public respondents finding of probable cause to indict petitioners for the crime charged is based on
and supported by the complaints under oath of the private respondent, sworn statements and notarized
affidavits of her witnesses, and official and public documents submitted by the private respondent.33 A
clarificatory hearing34attended by private respondent and almost all of the petitioners was conducted by
the public respondent on 13 May 2004. During the hearing, the public respondent asked the private
respondent some clarificatory questions with regard to the latters complaints.

The 24-paged Supplemental Resolution dated 12 July 2005, as well as the 24-paged Joint Resolution
dated 14 February 2005, of the public respondent contains lengthy and substantial discussions on the
bases of its finding of probable cause to indict the petitioners for the criminal offenses. The Resolutions
took pains to determine the appropriate crimes to be imputed to petitioners and to analyze each charge
vis-a-vis the elements of the crime. The evidences submitted by the private respondent for each charge
were subjected to careful scrutiny.

As to petitioner Ligaya, it is asserted that "the public respondents directive to the Field Investigation Office
(FIO) to conduct further fact-finding on x x x [petitioner] Ligaya for probable Malversation under Art. 217 of
the Revised Penal Code, is questionable as it had already arbitrarily decreed the guilt of petitioner Ligaya
when it pilloried him for collecting P200.00 each from BSU Students as payment for Related Experience
Fee (RLEF) without issuing official receipts and misappropriating the same x x x." The subject directive
reads:

d) The Field Investigation Office (FIO) is directed to conduct further fact-finding on respondent Ligaya for
probable Malversation under Art. 217 of the Revised Penal Code, for collecting P200.00 each from BSU
students as payment for related Learning Experience Fee (RLEF) without issuing official receipts and
misappropriating the same, and to establish with certainty the total amount collected;

As it is, the public respondent merely directed the FIO to conduct further investigation and gather more
evidence on the liability of petitioner Ligaya for "probable" malversation. It did not in any way conclude that
petitioner Ligaya is guilty beyond reasonable doubt of malversation. In fact, it saw the need to first gather
more information and evidence before deciding on whether petitioner Ligaya may be indicted for
malversation.

Coming now to the second issue, petitioners argued that the public respondent should have dismissed the
"two separate but identical complaints" filed by private respondent on the ground of forum shopping.

The test in determining the presence of forum shopping is whether in the two or more cases pending,
there is identity of (1) parties, (2) rights or causes of action, and (3) relief(s) sought.35 In the instant case,
although the parties, facts and circumstances are essentially the same, the rights or causes of action, as
well as the relief(s) sought are different. The complaint filed on 7 November 2001 is for an administrative
case. The causes of action are grave misconduct, oppression, conduct prejudicial to the best interest of
the service, dishonesty, gross neglect of duty and violation of Section 5(a) of Republic Act No. 6713. The
relief sought against petitioners is dismissal from the service with forfeiture of retirement benefits and
leave credits. On the other hand, the complaint filed on 13 November 2001 is for a criminal case. The
causes of action are violations of Section 3(a) and (e) of Republic Act No. 3019, falsification of official
documents and estafa. The relief(s) sought against petitioners are, among other prayers, for
 96
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imprisonment, perpetual disqualification from public office and confiscation or forfeiture in favor of the
government of any prohibited interest and unexplained wealth manifestly out of proportion to their salary
and other lawful income. Thus, petitioners allegation of forum shopping is vacuous.

Relative to petitioners rantings in the probative value of the affidavits presented during the preliminary
investigation and on the conclusions of fact reached by the public respondent, suffice it to say that the
technical rules of evidence should not be applied in the conduct of preliminary investigation by the public
respondent strictly. This is clear in the Administrative Order No. 08 entitled "CLARIFYING AND
MODIFYING CERTAIN RULES OF PROCEDURE OF THE OMBUDSMAN"36 The validity and the merits
of a partys defense or accusations as well as the admissibility of testimonies and evidences are better
ventilated during the trial stage than in the preliminary stage.

The factual and evidentiary issues can best be passed upon and threshed out during a full-blown court trial
since it is the courts task to determine guilt beyond reasonable doubt based on the evidence presented by
the parties at a trial on the merits.37

We have consistently refrained from interfering with the constitutionally-mandated investigatory and
prosecutorial powers of the public respondent absent any compelling reason.38 In the case of Quiambao v.
Desierto,39 citing The Presidential Ad-Hoc Fact Finding Committee on Behest Loans v. Ombudsman
Aniano Desierto,40 we ruled:

The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To
insulate the Office from outside pressure and improper influence, the Constitution as well as R.A. 6770
has endowed it with wide latitude of investigatory and prosecutory powers virtually free from legislative,
executive, or judicial intervention. This Court consistently refrains from interfering with the exercise of its
powers, and respect the initiative and independence inherit in the Ombudsman who, "beholden to no one,
acts as the champion of the people and the preserver of the integrity of the public service."

In Maturan v. People,41 we held:

A policy of non-interference by the courts in the exercise of the Ombudsmans constitutionally mandated
powers is based not only upon respect for the investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the
Court will be grievously hampered by innumerable petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much
the same way that the courts would be extremely swamped if they were compelled to review the exercise
of discretion on the part of the fiscals, or prosecuting attorneys, each time they decide to file an information
in court or dismiss a complaint by private complainant."

One final and significant observation. This Court noted that the present petition seeks the annulment of
public respondents Supplemental Resolution dated 12 July 2005 on the criminal (OMB-1-01-1083-K) and
administrative (OMB-1-01-1036-K) complaints of private respondent. Procedurally, the remedy of an
aggrieved party in criminal complaints before the public respondent where the latter found probable cause
is to file with this Court a petition for certiorari under Rule 65.42 Thus, we gave due course and resolved the
issue of finding of probable cause in the criminal aspect of the instant petition.

This Court, however, cannot and will not pass judgment on the administrative liability of petitioners. In the
leading case of Fabian v. Desierto,43 we ruled that appeals from decisions of the public respondent in
administrative liability cases should be taken to the Court of Appeals under Rule 43 of the 1997 Rules of
Civil Procedure. Consequently, the administrative aspect of the present petition should be referred to the
Court of Appeals for proper disposition.
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WHEREFORE, the instant petition as regards criminal case OMB-1-01-1083-K is hereby DISMISSED.
Petitioners appeal of the public respondents Supplemental Resolution dated 12 July 2005 with regard to
administrative case OMB-1-01-1036-K is hereby REFERRED to the Court of Appeals for proper
disposition. Costs against petitioners.

SO ORDERED.

G.R. No. 199282, March 14, 2016

TRAVEL & TOURS ADVISERS, INCORPORATED, Petitioner, v. ALBERTO CRUZ, SR., EDGAR HERNANDEZ
AND VIRGINIA MUOZ, Respondents.

DECISION

PERALTA, J.:

For resolution of this Court is the Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court
dated December 28, 2011, of petitioner Travel & Tours Advisers, Inc. assailing the Decision1dated May 16, 2011
and Resolution2 dated November 10, 2011 of the Court of Appeals (CA), affirming with modifications the
Decision3 dated January 30, 2008 of the Regional Trial Court (RTC), Branch 61, Angeles City finding petitioner
jointly and solidarity liable for damages incurred in a vehicular accident.

The facts follow.

Respondent Edgar Hernandez was driving an Isuzu Passenger Jitney (jeepney) that he owns with plate number
DSG-944 along Angeles-Magalang Road, Barangay San Francisco, Magalang, Pampanga, on January 9, 1998,
around 7:50 p.m. Meanwhile,. a Daewoo passenger bus (RCJ Bus Lines) with plate number NXM-116, owned by
petitioner Travel and Tours Advisers, Inc. and driven by Edgar Calaycay travelled in the same direction as that of
respondent Edgar Hernandez vehicle. Thereafter, the bus bumped the rear portion of the jeepney causing it to ram
into an acacia tree which resulted in the death of Alberto Cruz, Jr. and the serious physical injuries of Virginia
Muoz.

Thus, respondents Edgar Hernandez, Virginia Muoz and Alberto Cruz, Sr., father of the deceased Alberto Cruz,
Jr., filed a complaint for damages, docketed as Civil Case No. 9006 before the RTC claiming that the collision was
due to the reckless, negligent and imprudent manner by which Edgar Calaycay was driving the bus, in complete
disregard to existing traffic laws, rules and regulations, and praying that judgment be rendered ordering Edgar
Calaycay and petitioner Travel & Tours Advisers, Inc. to pay the following:
chanRoble svirtual Lawlib ra ry

1. For plaintiff Alberto Cruz, Sr.

a. The sum of P140,000.00 for the reimbursement of the expenses incurred for coffin, funeral expenses, for vigil,
food, drinks for the internment (sic) of Alberto Cruz, Jr. as part of actual damages;

b. The sum of P300,000.00, Philippine Currency, as moral, compensatory and consequential damges.

c. The sum of P6,000.00 a month as lost of (sic) income from January 9, 1998 up to the time the Honorable Court
may fixed (sic);

2. For plaintiff Virginia Muoz:

a. The sum of P40,000.00, Philippine Currency, for the reimbursement of expenses for hospitalization, medicine,
treatment and doctor's fee as part of actual damages;

b. The sum of P150,000.00 as moral, compensatory and consequential damages;

3. For plaintiff Edgar Hernandez:

a. The sum of P42,400.00 for the damage sustained by plaintiffs Isuzu Passenger Jitney as part of actual damages,
plus P500.00 a day as unrealized net income for four (4) months;
 98
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b. The sum of P150,000.00, Philippine Currency, as moral, compensatory and consequential damages;

4. The sum of P50,000.00 pesos, Philippine Currency, as attorney's fees, plus P1,000.00 per appearance fee in
court;

5. Litigation expenses in the sum of P30,000.00; and

6. To pay the cost of their suit.

Other reliefs just and equitable are likewise prayed for.4 Chan RoblesVirt ualawli bra ry

For its defense, the petitioner claimed that it exercised the diligence of a good father of a family in the selection
and supervision of its employee Edgar Calaycay and further argued that it was Edgar Hernandez who was driving
his passenger jeepney in a reckless and imprudent manner by suddenly entering the lane of the petitioner's bus
without seeing to it that the road was clear for him to enter said lane. In addition, petitioner alleged that at the
time of the incident, Edgar Hernandez violated his franchise by travelling along an unauthorized line/route and that
the jeepney was overloaded with passengers, and the deceased Alberto Cruz, Jr. was clinging at the back thereof.

On January 30, 2008, after trial on the merits, the RTC rendered judgment in favor of the respondents, the
dispositive portion of the decision reads:
chanRoble svirtual Lawlib ra ry

WHEREFORE, premises considered, judgment is hereby rendered ordering the defendants Edgar Calaycay Ranese
and Travel & Tours Advisers, Inc. to jointly and solidarity pay the following:
chanRoble svirtual Lawlib ra ry

I. 1. To plaintiff Alberto Cruz, Sr. and his family -

a) the sum of P50,000.00 as actual and compensatory damages;

b) the sum of P250,000.00 for loss of earning capacity of the decedent Alberto Cruz, Jr. and;

c) the sum of P50,000.00 as moral damages.

2. To plaintiff Virginia Muoz -
a) the sum of P16,744.00 as actual and compensatory damages; and

b) the sum of P150,000.00 as moral damages.

3. To Edgar Hernandez -
a) the sum of P50,000.00 as actual and compensatory damages.
II. The sum of P50,000.00 as attorney's fees, and

III. The sum of P4,470.00 as cost of litigation

SO ORDERED.

Angeles City, Philippines, January 30, 2008.5 ChanRoblesVi rtualaw lib rary

Petitioner filed its appeal with the CA, and on May 16, 2011, the appellate court rendered its decision, the decretal
portion of which reads as follows:
chanRoble svirtual Lawlib ra ry

WHEREFORE, the instant appeal is PARTLY GRANTED. The assailed Decision of the RTC, Branch 61, Angeles City,
dated January 30, 2008, is AFFIRMED with MODIFICATIONS. The defendants are ordered to pay, jointly and
severally, the following:

1. To plaintiff Alberto Cruz, Sr. and family -

a) the sum of P25,000.00 as actual damages;

b) the sum of P250.000.00 for the loss of earning capacity of the decedent Alberto Cruz, Jr.;

c) the sum of P50,000.00 as civil indemnity for the death of Alberto Cruz, Jr.;

d) the sum of P50,000.00 as moral damages.

2. To plaintiff Virginia Muoz -

a) the sum of P16,744.00 as actual damages; and

b) the sum of P30,000.00 as moral damages.

 99
Evidence cases

3. To plaintiff Edgar Hernandez -

a) The sum of P40,200.00 as actual damages.

4. The award of attorney's fees (P50,000.00) and cost of litigation (P4,470.00) remains.

SO ORDERED.6 ChanRoblesVi rtualaw lib rary

Hence, the present petition wherein the petitioner assigned the following errors:
chanRoble svirtual Lawlib ra ry

I.

THE PETITIONER'S BUS WAS NOT "OUT OF LINE;"

II.

THE FACT THAT THE JEEPNEY WAS BUMPED ON ITS LEFT REAR PORTION DOES NOT PREPONDERANTLY PROVE
THAT THE DRIVER OF THE BUS WAS THE NEGLIGENT PARTY;

III.

THE DECEASED ALBERTO CRUZ, JR. WAS POSITIONED AT THE RUNNING BOARD OF THE JEEPNEY;

IV.

THE BUS DRIVER WAS NOT SPEEDING OR NEGLIGENT WHEN HE FAILED TO STEER THE BUS TO A COMPLETE
STOP;

V.

THE PETITIONER EXERCISED EXTRAORDINARY DILIGENCE OF A GOOD FATHER OF A FAMILY IN ITS SELECTION
AND SUPERVISION OF DRIVER CALAYCAY; AND

VI.

THERE IS NO FACTUAL AND LEGAL BASIS FOR THE VARIOUS AWARDS OF MONETARY DAMAGES. 7 ChanRoblesVirtualawl ibra ry

According to petitioner, contrary to the declaration of the RTC, the petitioner's passenger bus was not "out-of-line"
and that petitioner is actually the holder of a PUB (public utility bus) franchise for provincial operation from Manila-
Ilocos Norte/Cagayan-Manila, meaning the petitioner's passenger bus is allowed to traverse any point between
Manila-Ilocos Norte/Cagayan-Manila. Petitioner further asseverates that the fact that the driver of the passenger
bus took the Magalang Road instead of the Bamban Bridge is of no moment because the bridge was under
construction due to the effects of the lahar; hence closed to traffic and the Magalang Road is still in between the
points of petitioner's provincial operation. Furthermore, petitioner claims that the jeepney was traversing a road
way out of its allowed route, thus, the presumption that respondent Edgar Hernandez was the negligent party.

Petitioner further argues that respondent Edgar Hernandez failed to observe that degree of care, precaution and
vigilance that his role as a public utility called for when he allowed the deceased Alberto Cruz, Jr., to hang on to
the rear portion of the jeepney.

After due consideration of the issues and arguments presented by petitioner, this Court finds no merit to grant the
petition.

Jurisprudence teaches us that "(a)s a rule, the jurisdiction of this Court in cases brought to it from the Court of
Appeals x x x is limited to the review and revision of errors of law allegedly committed by the appellate court, as
its findings of fact are deemed conclusive. As such, this Court is not duty-bound to analyze and weigh all over
again the evidence already considered in the proceedings below.8 This rule, however, is not without
exceptions."9 The findings of fact of the Court of Appeals, which are, as a general rule, deemed conclusive, may
admit of review by this Court:10
(1) when the factual findings of the Court of Appeals and the trial court are contradictory;

(2) when the findings are grounded entirely on speculation, surmises, or conjectures;
 100
Evidence cases
(3) when the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd, or
impossible;

(4) when there is grave abuse of discretion in the appreciation of facts;

(5) when the appellate court, in making its findings, goes beyond the issues of the case, and such findings are
contrary to the admissions of both appellant and appellee;

(6) when the judgment of the Court of Appeals is premised on a misapprehension of facts;

(7) when the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a
different conclusion;

(8) when the findings of fact are themselves conflicting;

(9) when the findings of fact are conclusions without citation of the specific evidence on which they are based; and

(10) when the findings of fact of the Court of Appeals are premised on the absence of evidence but such findings
are contradicted by the evidence on record.
The issues presented are all factual in nature and do not fall under any of the exceptions upon which this Court
may review. Moreover, well entrenched is the prevailing jurisprudence that only errors of law and not of facts are
reviewable by this Court in a petition for review on certiorari under Rule 45 of the Revised Rules of Court, which
applies with greater force to the Petition under consideration because the factual findings by the Court of Appeals
are in full agreement with what the trial court found.11

Nevertheless, a review of the issues presented in this petition would still lead to the finding that petitioner is still
liable for the damages awarded to the respondents but with certain modifications.

The RTC and the CA are one in finding that both vehicles were not in their authorized routes at the time of the
incident. The conductor of petitioner's bus admitted on cross-examination that the driver of the bus veered off
from its usual route to avoid heavy traffic. The CA thus observed:
chanRoble svirtual Lawlib ra ry

First. As pointed out in the assailed Decision, both vehicles were not in their authorized routes at the time of the
mishap. FRANCISCO TEJADA, the conductor of defendant-appellant's bus, admitted on cross-examination that the
driver of the bus passed through Magalang Road instead of Sta. Ines, which was the usual route, thus:

xxx

Q: What route did you take from Manila to Laoag, Ilocos Sur?
A: Instead of Sta. Ines, we took Magalang Road, sir.

Q: So that is not your usual route that you are taking?

A: No, sir, it so happened that there was heavy traffic at Bamban, Tarlac, that is why we took the
Magalang Road.

xxx

The foregoing testimony of defendant-appellant's own witness clearly belies the contention that its driver took the
Magalang Road instead of the Bamban Bridge because said bridge was closed and under construction due to the
effects of lahar. Regardless of the reason, however, the irrefutable fact remains that defendant-appellant's bus
likewise veered from its usual route.12 ChanRobles Vi rtua lawlib rary

Petitioner now claims that the bus was not out of line when the vehicular accident happened because the PUB
(public utility bus) franchise that the petitioner holds is for provincial operation from Manila-Ilocos Norte/Cagayan-
Manila, thus, the bus is allowed to traverse any point between Manila-Ilocos Norte/Cagayan-Manila. Such assertion
is correct. "Veering away from the usual route" is different from being "out of line." A public utility vehicle can and
may veer away from its usual route as long as it does not go beyond its allowed route in its franchise, in this case,
Manila-Ilocos Norte/Cagayan-Manila. Therefore, the bus cannot be considered to have violated the contents of its
franchise. On the other hand, it is indisputable that the jeepney was traversing a road out of its allowed route.
Necessarily, this case is not that of "in pari delicto" because only one party has violated a traffic regulation. As
such, it would seem that Article 2185 of the New Civil Code is applicable where it provides that:
chanRoble svirtual Lawlib ra ry

Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating any traffic regulation.
 101
Evidence cases
The above provision, however, is merely a presumption. From the factual findings of both the RTC and the CA
based on the evidence presented, the proximate cause of the collision is the negligence of the driver of petitioner's
bus. The jeepney was bumped at the left rear portion. Thus, this Court's past ruling,13 that drivers of vehicles who
bump the rear of another vehicle are presumed to be the cause of the accident, unless contradicted by other
evidence, can be applied. The rationale behind the presumption is that the driver of the rear vehicle has full control
of the situation as he is in a position to observe the vehicle in front of him.14 Thus, as found by the CA:
chanRoble svirtual Lawlib ra ry

Second. The evidence on record preponderantly shows that it was the negligence of defendant-appellant's driver,
EDGAR CALAYCAY, that was the proximate cause of the collision.

Even without considering the photographs (Exhibit "N", " " and "N-2") showing the damage to the jeepney, it
cannot be denied that the said vehicle was bumped in its left rear portion by defendant-appellant's
bus. The same was established by the unrebutted testimonies of plaintiffs-appellees EDGAR HERNANDEZ and
VIRGINIA MUOZ, as follows:
chanRoble svirtual Lawlib ra ry

EDGAR HERNANDEZ

xxx

Q: Now, according to you, you were not able to reach the town proper of Magalang because your vehicle was
bumped. In what portion of your vehicle was it bumped, Mr. Witness?
A: At the left side edge portion of the vehicle, sir.

Q: When it was bumped on the rear left side portion, what happened to your vehicle?
A: It was bumped strongly, sir, and then, "sinulpit ya", sir.

Q: When your vehicle was "sinulpit" and hit an acacia tree, what happened to the acacia tree?
A: The jeepney stopped and Alberto Cruz died and some of my passengers were injured, sir.

xxx

VIRGINIA MUOZ

xxx

Q: what portion of the vehicle wherein you were boarded that was hit by the Travel Tours Bus?
A: The rear portion of the jeep, sir.

Q: It was hit by the Travel Tours Bus?

A: Yes, sir.

Q: What happened to you when the vehicle was bumped?

A: I was thrown off the vehicle, sir.

xxx
It has been held that drivers of vehicles "who bump the rear of another vehicle" are presumed to be "the cause of
the accident, unless contradicted by other evidence." The rationale behind the presumption is that the driver of the
rear vehicle has full control of the situation as he is in a position to observe the vehicle in front of him.

In the case at bar, defendant-appellant failed to overturn the foregoing presumption. FRANCISCO TEJADA, the
conductor of the bus who was admittedly "seated in front, beside the driver's seat," and thus had an unimpeded
view of the road, declared on direct examination that the jeepney was about 10 to 15 meters away from the bus
when he first saw said vehicle on the road. Clearly, the bus driver, EDGAR CALAYCAY, would have also been aware
of the presence of the jeepney and, thus, was expected to anticipate its movements.

However, on cross-examination, TEJADA claimed that the jeepney "suddenly appeared" before the bus, passing it
diagonally, and causing it to be hit in its left rear side. Such uncorroborated testimony cannot be accorded
credence by this Court because it is inconsistent with the physical evidence of the actual damage to the jeepney.
On this score, We quote with approval the following disquisition of the trial court:
chanRoble svirtual Lawlib ra ry

x x x (F)rom the evidence presented, it was established that it was the driver of the RCJ Line Bus which was
negligent and recklessly driving the bus of the defendant corporation.

Francisco Tejada, who claimed to be the conductor of the bus, testified that it was the passenger jeepney coming
from the pavement which suddenly entered diagonally the lane of the bus causing the bus to hit the rear left
 102
Evidence cases
portion of the passenger jeepney. But such testimony is belied by the photographs of the jeepney (Exhs. N and N-
1). As shown by Exh. N-1, the jeepney was hit at the rear left portion and not when the jeepney was in a diagonal
position to the bus otherwise, it should have been the left side of the passenger jeepney near the rear portion that
could have been bumped by the bus. It is clear from Exh. N-1 and it was even admitted that the rear left portion
of the passenger jeepney was bumped by the bus. Further, if the jeepney was in diagonal position when it was hit
by the bus, it should have been the left side of the body of the jeepney that could have sustained markings of such
bumping. In this case, it is clear that it is the left rear portion of the jeepney that shows the impact of the
markings of the bumping. The jeepney showed that it had great damage on the center of the front portion (Exh.
N-2). It was the center of the front portion that hit the acacia tree (Exh. N). As admitted by the parties, both
vehicles were running along the same direction from west to east. As testified to by Francisco Tejada, the jeepney
was about ten (10) to fifteen (15) meters away from the bus when he noticed the jeepney entering diagonally the
lane of the bus. If this was so, the middle left side portion of the jeepney could have been hit, not the rear portion.
The evidence is clear that the bus was in fast running condition, otherwise, it could have stopped to evade hitting
the jeepney. The hitting of the acacia tree by the jeepney, and the damages caused on the jeepney in its front
(Exh. N-2) and on its rear left side show that the bus was running very fast.

xxxx
Assuming ex gratia argumenti that the jeepney was in a "stop position," as claimed by defendant-appellant, on the
pavement of the road 10 to 15 meters ahead of the bus before swerving to the left to merge into traffic, a cautious
public utility driver should have stepped on his brakes and slowed down. The distance of 10 to 15 meters would
have allowed the bus with slacked speed to give way to the jeepney until the latter could fully enter the lane.
Obviously, as correctly found by the court a quo, the bus was running very fast because even if the driver stepped
on the brakes, it still made contact with the jeepney with such force that sent the latter vehicle crashing head-on
against an acacia tree. In fact, FRANCISCO TEJADA effectively admitted that the bus was very fast when he
declared that the driver "could not suddenly apply the break (sic) in full stop because our bus might turn turtle
xxx." Incidentally, the allegation in the appeal brief that the driver could not apply the brakes with force because
of the possibly that the bus might turn turtle "as they were approaching the end of the gradient or the decline of
the sloping terrain or topography of the roadway" was only raised for the first time in this appeal and, thus, may
not be considered. Besides, there is nothing on record to substantiate the same.

Rate of speed, in connection with other circumstances, is one of the principal considerations in determining
whether a motorist has been reckless in driving a vehicle, and evidence of the extent of the damage caused may
show the force of the impact from which the rate of speed of the vehicle may be modestly inferred. From the
evidence presented in this case, it cannot be denied that the bus was running very fast. As held by the Supreme
Court, the very fact of speeding is indicative of imprudent behavior, as a motorist must exercise ordinary care and
drive at a reasonable rate of speed commensurate with the conditions encountered, which will enable him to keep
the vehicle under control and avoid injury to others using the highway.15 ChanRoblesVirt ualawli bra ry

From the above findings, it is apparent that the proximate cause of the accident is the petitioner's bus and that the
petitioner was not able to present evidence that would show otherwise. Petitioner also raised the issue that the
deceased passenger, Alberto Cruz, Jr. was situated at the running board of the jeepney which is a violation of a
traffic regulation and an indication that the jeepney was overloaded with passengers. The CA correctly ruled that
no evidence was presented to show the same, thus:
chanRoble svirtual Lawlib ra ry

That the deceased passenger, ALBERTO CRUZ, JR., was clinging at the back of the jeepney at the time of the
mishap cannot be gleaned from the testimony of plaintifff-appellee VIRGINIA MUOZ that it was she who was
sitting on the left rearmost of the jeepney.

VIRGINIA MUOZ herself testified that there were only about 16 passengers on board the jeepney when the
subject incident happened. Considering the testimony of plaintiff-appellee EDGAR HERNANDEZ that the seating
capacity of his jeepney is 20 people, VIRGINIA'S declaration effectively overturned defendant-appellant's defense
that plaintiff-appellee overloaded his jeepney and allowed the deceased passenger to cling to the outside railings.
Yet, curiously, the defense declined to cross-examine VIRGINIA, the best witness from whom defendant-appellant
could have extracted the truth about the exact location of ALBERTO CRUZ, JR. in or out of the jeepney. Such
failure is fatal to defendant-appellant's case. The only other evidence left to support its claim is the testimony of
the conductor, FRANCISCO TEJADA, that there were 3 passengers who were clinging to the back of the
jeepney, and it was the passenger clinging to the left side that was bumped by the bus. However, in
answer to the clarificatory question from the court a quo, TEJADA admitted that he did not really see
what happened, thus:
Q: What happened to the passenger clinging to the left side portion?
A: He was bumped, your Honor.

Q: Why, the passenger fell?

A: I did not really see what happened, Mam [sic], what I know he was bumped.
 103
Evidence cases
This, despite his earlier declaration that he was seated in front of the bus beside the driver's seat and knew what
happened to the passengers who were clinging to the back of the jeepney. Indubitably, therefore, TEJADA was not
a credible witness, and his testimony is not worthy of belief.16
ChanRob les Vi rtualaw lib rary

Consequently, the petitioner, being the owner of the bus and the employer of the driver, Edgar Calaycay, cannot
escape liability. Article 2176 of the Civil Code provides:
chanRoble svirtual Lawlib ra ry

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.
Complementing Article 2176 is Article 2180 which states the following:
chanRoble svirtual Lawlib ra ry

The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those
of persons for whom one is responsible x x x.

Employers shall be liable for the damages caused by their employees and household helpers acting within the
scope of their assigned tasks, even though the former are not engaged in any business or industry x x x.

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.
Article 2180, in relation to Article 2176, of the Civil Code provides that the employer of a negligent employee is
liable for the damages caused by the latter. When an injury is caused by the negligence of an employee there
instantly arises a presumption of the law that there was negligence on the part of the employer either in the
selection of his employee or in the supervision over him after such selection. The presumption, however, may be
rebutted by a clear showing on the part of the employer that it had exercised the care and diligence of a good
father of a family in the selection and supervision of his employee. Hence, to escape solidary liability for quasi-
delict committed by an employee, the employer must adduce sufficient proof that it exercised such degree of
care.17 In this case, the petitioner failed to do so. The RTC and the CA exhaustively and correctly ruled as to the
matter, thus:
chanRoble svirtual Lawlib ra ry

Thus, whenever an employee's (defendant EDGAR ALAYCAY) negligence causes- damage or injury to another,
there instantly arises a presumption that the employer (defendant-appellant) failed to exercise the due diligence of
a good father of the family in the selection or supervision of its employees. To avoid liability for a quasi-delict
committed by its employee, an employer must overcome the presumption by presenting convincing proof that it
exercised the care and diligence of a good father of a family in the selection and supervision of its employee. The
failure of the defendant-appellant to overturn this presumption was meticulously explained by the court a quo as
follows:
chanRoble svirtual Lawlib ra ry

The position of the defendant company that it cannot be held jointly and severally liable for such damages because
it exercised the diligence of a good father of a family, that (sic) does not merit great credence.

As admitted, Edgar Calaycay was duly authorized by the defendant company to drive the bus at the time of the
incident. Its claim that it has issued policies, rules and regulation's to be followed, conduct seminars and see to it
that their drivers and employees imbibe such policies, rules and regulations, have their drivers and conductors
medically checked-up and undergo drug-testing, did not show that all these rudiments were applied to Edgar
Calaycay. No iota of evidence was presented that Edgar Calaycay had undergone all these activities to ensure that
he is a safe and capable drivers [sic]. In fact, the defendant company did not put up a defense on the said driver.
The defendant company did not even secure a counsel to defend the driver. It did not present any evidence to
show it ever counseled such driver to be careful in his driving. As appearing from the evidence of the defendant
corporation, the driver at the time of the incident was Calaycay Francisco (Exh. 9) and the conductor was Tejada.
This shows that the defendant corporation does not exercise the diligence of a good father of a family in the
selection and supervision of the employees. It does not even know the correct and true name of its drivers. The
testimony of Rolando Abadilla, Jr. that they do not have the records of Edgar Calaycay because they ceased
operation due to the death of his father is not credible. Why only the records of Edgar Calaycay? It has the
inspection and dispatcher reports for January 9, 1998 and yet it could not find the records of Edgar Calaycay. As
pointed out by the Supreme Court in a line of cases, the evidence must not only be credible but must come from a
credible witness. No proof was submitted that Edgar Calaycay attended such alleged seminars and examinations.
Thus, under Art. 2180 of the Civil Code, Employers shall be liable for the damage caused by their employees and
household helper acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry. The liability of the employer for the tortuous acts or negligence of its employer [sic] is
primary and solidary, direct and immediate, and not conditional upon the insolvency of prior recourse against the
negligent employee. The cash voucher for the alleged lecture on traffic rules and regulations (Exh. 12) presented
by the defendant corporation is for seminar allegedly conducted on May 20 and 21, 1995 when Edgar Calaycay
was not yet in the employ of the defendant corporation. As testified to by Rolando Abadilla, Jr., Edgar Calaycay
stated his employment with the company only in 1996. Rolando Abadilla, Jr. testified that copies of the manual
(Exh. 8) are given to the drivers and conductors for them to memorize and know the same, but no proof was
presented that indeed Edgar Calaycay was among the recipients. Nobody testified categorically that indeed Edgar
 104
Evidence cases
Calaycay underwent any of the training before being employed by the defendant company. All the testimonies are
generalizations as to the alleged policies, rules and regulations but no concrete evidence was presented that
indeed Edgar Calaycay underwent such familiarization, trainings and seminars before he got employed and during
that time that he was performing his duties as a bus driver of the defendant corporation. Moreover, the driver's
license of the driver was not even presented. These omissions did not overcome the liability of the defendant
corporation under Article 2180 of the Civil Code. x x x
The observation of the court a quo that defendant-appellant failed to show proof that EDGAR CALAYCAY did in fact
undergo the seminars conducted by it assumes greater significance when viewed in the light of the following
admission made by ROLANDO ABADILLA, JR., General Manager of the defendant-appellant corporation, that
suggest compulsory attendance of said seminars only among drivers and conductors in Manila, thus:
chanRoble svirtual Lawlib ra ry

xxxx

Q: How many times does (sic) the seminars being conducted by your company a year?
A: Normally, it is a minimum of two (2) seminars per year, sir.

Q: In these seminars that you conduct, are all drivers and conductors obliged to attend?
A: Yes, sir, if they are presently in Manila.

Q: It is only in Manila that you conduct seminars?

A: Yes, sir.

xxx
Moreover, with respect to the selection process, ROLANDO ABADILLA, JR. categorically admitted in open court that
EDGAR CALAYCAY was not able to produce the clearances required by defendant-appellant upon employment,
thus:
chanRoble svirtual Lawlib ra ry

xxxx

Q: By the way, Mr. Witness, do you know this Edgar Calaycay who was once employed by your company as a
driver?
A: Yes, sir.

Q: Have you seen the application of Edgar Calaycay?

A: Yes, sir.

Q: From what I have seen, what documents did he submit in applying as a driver in your business?

Atty. De Guzman: Very leading, your Honor.

Q: Before a driver could be accepted, what document is he required to submit?

A: The company application form; NBI clearance; police clearance; barangay clearance; mayor's clearance and
other clearances, sir.

Q: Was he able to reproduce these clearances by Mr. Calaycay?

A: No, sir.

x x x18 ChanRobles Virtualawl ibra ry

In the selection of prospective employees, employers are required to examine them as to their qualifications,
experience, and service records.19 On the other hand, due diligence in the supervision of employees includes the
formulation of suitable rules and regulations for the guidance of employees, the issuance of proper instructions
intended for the protection of the public and persons with whom the employer has relations through his or its
employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be
warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. To
this, we add that actual implementation and monitoring of consistent compliance with said rules should be the
constant concern of the employer, acting through dependable supervisors who should regularly report on their
supervisory functions.20 In this case, as shown by the above findings of the RTC, petitioner was not able to prove
that it exercised the required diligence needed in the selection and supervision of its employee.

Be that as it may, this doesn't erase the fact that at the time of the vehicular accident, the jeepney was in
violation of its allowed route as found by the RTC and the CA, hence, the owner and driver of the jeepney likewise,
are guilty of negligence as defined under Article 2179 of the Civil Code, which reads as follows:
chanRoble svirtual Lawlib ra ry
 105
Evidence cases
When the plaintiffs negligence was the immediate and proximate cause of his injury, he cannot recover damages.
But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's
lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.
The petitioner and its driver, therefore, are not solely liable for the damages caused to the victims. The petitioner
must thus be held liable only for the damages actually caused by his negligence.21 It is, therefore, proper to
mitigate the liability of the petitioner and its driver. The determination of the mitigation of the defendant's liability
varies depending on the circumstances of each case.22 The Court had sustained a mitigation of 50% in Rakes v. AG
& P;23 20% in Phoenix Construction, Inc. v. Intermediate Appellate Court24 and LBC Air Cargo, Inc. v. Court of
Appeals;25 and 40% in Bank of the Philippine Islands v. Court of Appeals26 and Philippine Bank of Commerce v.
Court of Appeals.27 cralawre d

In the present case, it has been established that the proximate cause of the death of Alberto Cruz, Jr. is the
negligence of petitioner's bus driver, with the contributory negligence of respondent Edgar Hernandez, the driver
and owner of the jeepney, hence, the heirs of Alberto Cruz, Jr. shall recover damages of only 50% of the award
from petitioner and its driver. Necessarily, 50% shall be bourne by respondent Edgar Hernandez. This is pursuant
to Rakes v. AG & P and after considering the circumstances of this case.

In awarding damages for the death of Alberto Cruz, Jr., the CA ruled as follows:
chanRoble svirtual Lawlib ra ry

For the death of ALBERTO CRUZ, JR. the court a quo awarded his heirs P50,000.00 as actual and compensatory
damages; P250,000.00 for loss of earning capacity; and another P50,000.00 as moral damages. However, as
pointed out in the assailed Decision dated January 30, 2008, only the amount paid (P25,000.00) for funeral
services rendered by Magalena Memorial Home was duly receipted (Exhibit "E-1"). It is settled that actual
damages must be substantiated by documentary evidence, such as receipts, in order to prove expenses incurred
as a result of the death of the victim. As such, the award for actual damages in the amount of P50,000.00 must be
modified accordingly.

Under Article 2206 of the Civil Code, the damages for death caused by a quasi-delict shall, in addition to the
indemnity for the death itself which is fixed by current jurisprudence at P50,000.00 and which the court a
quo failed to award in this case, include loss of the earning capacity of the deceased and moral damages for
mental anguish by reason of such death. The formula for the computation of loss of earning capacity is as follows:

Net earning capacity = Life expectancy x [Gross Annual Income - Living Expenses (50% of gross annual income)],
where life expectancy = 2/3 (80 - the age of the deceased)

Evidence on record shows that the deceased was earning P6,000.00 a month as smoke house operator at
Pampanga's Best, Inc., as per Certification (Exhibit "K") issued by the company's Production Manager, Enrico Ma.
O. Hizon, on March 18, 1998, His gross income therefore amounted to P72,000.00 [P6,000.00 x 12]. Deducting
50% therefrom (P36,000.00) representing the living expenses, his net annual income amounted to P36,000.00.
Multiplying this by his life expectancy of 40.67 years [2/3(80-19)] having died at the young age of 19, the award
for loss of earning capacity should have been P1,464,000.00. Considering, however, that his heirs represented by
his father, ALBERTO CRUZ, SR., no longer appealed from the assailed Decision dated January 30, 2008, and no
discussion thereon was even attempted in plaintiffs-appellees' appeal brief, the award for loss of earning capacity
in the amount of P250,000.00 stands.

Moral damages in the amount of P50,000.00 is adequate and reasonable, bearing in mind that the purpose for
making such award is not to enrich the heirs of the victim but to compensate them however inexact for injuries to
their feelings.

xxx28 ChanRobles Vi rtualaw lib rary

In summary, the following were awarded to the heirs of Alberto Cruz, Jr.:
chanRoble svirtual Lawlib ra ry

1) P25,000.00 as actual damages;

2) P250,000.00 for the loss of earning;

3) P50,000.00 as civil indemnity for the death of Alberto Cruz, Jr.; and

4) P50,000.00 as moral damages

Petitioner contends that the CA erred in awarding an amount for the loss of earning capacity of Alberto Cruz, Jr. It
claims that the certification from the employer of the deceased stating that when he was still alive - he earned
P6,000.00 per month was not presented and identified in open court.

In that aspect, petitioner is correct. The records are bereft that such certification was presented and identified
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during the trial. It bears stressing that compensation for lost income is in the nature of damages and as such
requires due proof of the damages suffered; there must be unbiased proof of the deceased's average income.29

Therefore, applying the above disquisitions, the heirs of Alberto Cruz, Jr. shall now be awarded the following:
chanRoble svirtual Lawlib ra ry

1) P12,500.00 as actual damages;

2) P25,000.00 as civil indemnity for the death of Alberto Cruz, Jr., and

3) P25,000.00 as moral damages.

In the same manner, petitioner is also partly responsible for the injuries sustained by respondent Virginia Muoz
hence, of the P16,744.00 actual damages and P30,000.00 moral damages awarded by the CA, petitioner is liable
for half of those amounts. Anent respondent Edgar Hernandez, due to his contributory negligence, he is only
entitled to receive half the amount (P40,200.00) awarded by the CA as actual damages which is P20,100.00.

As to the award of attorney's fees, it is settled that the award of attorney's fees is the exception rather than the
general rule; counsel's fees are not awarded every time a party prevails in a suit because of the policy that no
premium should be placed on the right to litigate. Attorney's fees, as part of damages, are not necessarily equated
to the amount paid by a litigant to a lawyer. In the ordinary sense, attorney's fees represent the reasonable
compensation paid to a lawyer by his client for the legal services he has rendered to the latter; while in its
extraordinary concept, they may be awarded by the court as indemnity for damages to be paid by the losing party
to the prevailing party. Attorney's fees as part of damages are awarded only in the instances specified in Article
220830 of the Civil Code. As such, it is necessary for the court to make findings of fact and law that would bring the
case within the ambit of these enumerated instances to justify the grant of such award, and in all cases it must be
reasonable.31 In this case, the RTC, in awarding attorney's fees, reasoned out that [w]hile there is no document
submitted to prove that the plaintiffs spent attorney's fees, it is clear that they paid their lawyer in the prosecution
of this case for which they are entitled to the same.32Such reason is conjectural and does not justify the grant of
the award, thus, the attorney's fees should be deleted. However, petitioner shall still have to settle half of the cost
of the suit. chanroble slaw

WHEREFORE, the Petition for Review on Certiorari under Rule 45, dated December 28, 2011, of petitioner Travel
& Tours Advisers, Inc. is DENIED. However, the Decision dated May 16, 2011 of the Court of Appeals
is MODIFIED as follows:

The petitioner and Edgar Calaycay are ORDERED to jointly and severally PAY the following:
chanRoble svirtual Lawlib ra ry

1. To respondent Alberto Cruz, Sr. and family:

chanRoble svirtual Lawlib ra ry

a) P12,500.00 as actual damages;

b) P25,000.00 as civil indemnity for the death of Alberto Cruz, Jr., and

c) P25,000.00 as moral damages.

2. To respondent Virginia Muoz:
chanRoble svirtual Lawlib ra ry

a) P8,372.00 as actual damages;

b) P15,000.00 as moral damages.

3. To respondent Edgar Hernandez:
chanRoble svirtual Lawlib ra ry

a) P20,100.00 as actual damages, and

4. The sum of P2,235.00 as cost of litigation.
Respondent Edgar Hernandez is also ORDERED to PAY the following:
chanRoble svirtual Lawlib ra ry

1. To respondent Alberto Cruz, Sr. and family:

chanRoble svirtual Lawlib ra ry

a) P12,500.00 as actual damages;

b) P25,000.00 as civil indemnity for the death of Alberto Cruz, Jr., and

c) P25,000.00 as moral damages.

2. To respondent Virginia Muoz:
chanRoble svirtual Lawlib ra ry

a) P8,372.00 as actual damages;

b) P15,000.00 as moral damages, and

3. The sum of P2,235.00 as cost of litigation.
SO ORDERED.