SECOND DIVISION

G.R. No. 179535, June 09, 2014

JOSE ESPINELI A.K.A. DANILO ESPINELI, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
DEL CASTILLO, J.:
Jurisprudence teaches us that for circumstantial evidence to be sufficient to support a conviction, all circumstances
must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time
inconsistent with the hypothesis that he is innocent x x x. 1 Thus, conviction based on circumstantial evidence can be
upheld provided that the circumstances proven constitute an unbroken chain which leads to one fair and reasonable
conclusion that points to the accused, to the exclusion of all others, as the guilty person. 2cralawred

Assailed in the present Petition for Review on Certiorari3 is the July 6, 2007 Decision4 of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 02252 which modified the August 31, 1999 Decision5 of the Regional Trial Court (RTC) of Imus, Cavite,
Branch 90, by finding petitioner Jose Espineli a.k.a. Danilo Danny Espineli (petitioner) guilty of the crime of homicide
instead of murder. Also questioned is the CAs September 14, 2007 Resolution 6 denying petitioners Motion for
Reconsideration.7cralawred
Factual Antecedents

On June 24, 1997, an Information8 charging petitioner with the crime of murder was filed before the RTC, 9 the
accusatory portion of which reads as follows:ChanRoblesVirtualawlibrary
That on or about the 15th day of December, 1996 in the Municipality of Imus, Province of Cavite, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, together with one (1) Sotero Paredes and three (3)
other unidentified persons, whose real names, identities and whereabouts are still unknown, said Sotero Paredes
having been earlier charged with the same offense, and is now undergoing trial before Branch 90, of the Regional Trial
Court of Cavite, then armed with firearms, conspiring, confederating and mutually helping one another, with intent to
kill, with treachery and evident premeditation and taking advantage of superior strength, did then and there, willfully,
unlawfully and feloniously, attack, assault and shoot one Alberto Berbon y Downie with the use of said firearms,
thereby inflicting upon the latter multiple gunshot wounds on his head and different parts of his body which caused his
instantaneous death, to the damage and prejudice of the heirs of said Alberto Berbon y Downie.

CONTRARY TO LAW.10

Petitioner was arrested on July 1, 1997 and when arraigned on July 7, 1997 with the assistance of counsel, entered a
plea of not guilty.11cralawred

The facts show that in the early evening of December 15, 1996, Alberto Berbon y Downie (Alberto), a 49-year old Senior
Desk Coordinator of the radio station DZMM, was shot in the head and different parts of the body in front of his house
in Imus, Cavite by unidentified malefactors who immediately fled the crime scene on board a waiting car.

Meanwhile, the group of Atty. Orly Dizon (Atty. Dizon) of the National Bureau of Investigation (NBI) arrested and took
into custody one Romeo Reyes (Reyes) for the crime of Illegal Possession of Deadly Weapon. Reyes confided to the
group of Atty. Dizon that he was willing to give vital information regarding the Berbon case. In due course, NBI Agent
Dave Segunial (NBI Agent Segunial) interviewed Reyes on February 10, 1997 and reduced his statement into writing
whereby Reyes claimed that on December 15, 1996, he saw petitioner and Sotero Paredes (Paredes) board a red car
while armed with a .45 caliber firearm and armalite, respectively; and that petitioner told Paredes that ayaw ko nang
abutin pa ng bukas yang si Berbon.12 Subsequently, Reyes posted bail and was released on February 14,
1997. Thenceforth, he jumped bail and was never again heard of. NBI Agent Segunial testified on these facts during
the trial.

The victims widow, Sabina Berbon (Sabina) likewise testified. According to her, sometime in the third week of
February 1997 Reyes sought financial help so he could transfer his family to the province and protect them from any
untoward consequence that may result from his giving information to the NBI regarding the death of Sabinas
husband. Sabina gave him the total amount of P1,500.00 and promised to help him in applying for the witness
protection program. This was affirmed on the witness stand by Sabinas brother, Bartolome Pakingan. After that,
however, Reyes never came back.

Another prosecution witness, Rodolfo Dayao (Rodolfo), testified that he sold his red Ford Escort car to three persons
who came to his residence in the afternoon of September 1, 1996. He later identified the said car from the
photographs presented to him by the police officers.

Dr. Ludivino J. Lagat (Dr. Lagat), the NBI Medico-Legal Officer who conducted a post-mortem examination on Alberto,
 declared in his Autopsy Report that the victim suffered multiple gunshot wounds in the head and body. He also stated
that based on the size of the gunshot wounds or entrance, high-powered guns were used in the killing.

Petitioner, on the other hand, did not adduce evidence for his defense. Instead, he filed a Demurrer to
Evidence13 without leave of court. As no action whatsoever was taken thereon by the trial court, petitioner just moved
that the case be deemed submitted for decision.
Ruling of the Regional Trial Court

In its Decision14 dated August 31, 1999, the trial court adjudged petitioner guilty of murder,
thus:ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, accused JOSE ESPINELI a.k.a. DANILO Danny Espineli, is found guilty beyond
reasonable doubt of committing the crime of Murder as charged. He is, therefore, sentenced to suffer the penalty of
RECLUSION PERPETUA, and is likewise ordered to pay the heirs of Alberto Berbon y Downie, the civil indemnity of
P50,000.00, and actual and compensatory damages in the total amount of P135,000.00 as funeral expenses (Exhibit
H), interment fee of P8,360.00 (Exhibit C), medical expenses in the total amount of P1,519.45 (Exhibit[s] D, D-1
and D-2) and for the contract fees of Memorial Park Care the amount of P15,700.00 (Exhibit E).

Furthermore, considering that he is a high risk prisoner, his transfer to the National Penitentiary at Muntinlupa City,
Metro Manila, is immediately ordered.

SO ORDERED.15

Petitioner seasonably appealed his conviction before this Court. Pursuant, however, to the Courts pronouncement
in People v. Mateo,16 the case was ordered transferred to the CA for appropriate action and disposition through a
Resolution17 dated March 22, 2006.

Ruling of the Court of Appeals

In its Decision18 promulgated on July 6, 2007, the CA affirmed with modification the findings of the trial court. It
ratiocinated that since none of the prosecution witnesses saw how the killing of the victim was perpetrated, the
qualifying circumstance of abuse of superior strength cannot be appreciated. Neither can nighttime serve as an
aggravating circumstance as the time of the commission of the crime was not even alleged in the Information. In view
thereof, the CA found petitioner guilty only of homicide instead of murder. The decretal portion of the appellate courts
Decision reads:ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, the present appeal is hereby DISMISSED. The appealed Decision dated August 31,
1999 of the Regional Trial Court of Imus, Cavite, Branch 90 is hereby AFFIRMED with MODIFICATION in that accused-
appellant is hereby found GUILTY beyond reasonable doubt of the crime of Homicide and is hereby sentenced to an
indeterminate prison term of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, as maximum.

In all other respects, the said decision STANDS.

In the service of his sentence, accused-appellant shall be credited in full with the period of his preventive
imprisonment.

With costs against the accused-appellant.

SO ORDERED.19

Dissatisfied, petitioner filed a Motion for Reconsideration20 which the CA denied in its Resolution21dated September 14,
2007.

Hence, this Petition.

Arguments of the Parties

Petitioner posits that the CA should not have affirmed the Decision of RTC as the latter
erred:ChanRoblesVirtualawlibrary
1. x x x [in admitting, considering and giving] probative value to Exhibit A, the Sinumpaang Salaysay of [Reyes] because
[he] was not presented in court to confirm, affirm and authenticate the contents of his sworn statement. It resulted in
the denial of petitioners constitutional right to confront and cross-examine his accusers.22cralawred
2. x x x [in convicting] the [petitioner] based on unproven, inadmissible circumstantial evidence. 23cralawred
3. x x x in not acquitting the petitioner for failure of the prosecution to prove [his guilt] beyond reasonable doubt x x x.24
In sum, petitioner anchors his quest for the reversal of his conviction on the alleged erroneous admission in evidence of
the Sinumpaang Salaysay25 of Reyes for being hearsay and inadmissible. He avers that the said sworn statement should
not have been given probative value because its contents were neither confirmed nor authenticated by the affiant.
Thus, all circumstances emanating from or included in the sworn statement must be totally brushed aside as lacking any
evidentiary and probative value. Petitioner emphasizes that as found by the courts below, there was no direct evidence
linking him to the crime; therefore, he wants this Court to review the sufficiency of the circumstantial evidence upon
which his conviction was based as he believes that the same failed to establish his guilt beyond reasonable doubt.

For its part, the Office of the Solicitor General (OSG), representing respondent People of the Philippines, concurs with
the petitioner and recommends his acquittal.26 It is also of the view that the prosecution failed to discharge its burden
of proving petitioners guilt beyond reasonable doubt.
The Courts Ruling

The Petition is devoid of merit.

Truly, direct evidence of the commission of a crime is not the only basis from which a court may draw its finding of
guilt.27 The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of
guilt. Circumstantial evidence is that evidence which indirectly proves a fact in issue through an inference which the
fact-finder draws from the evidence established. 28 Under Section 4, Rule 133 of the Rules of Court, circumstantial
evidence would be sufficient to convict the offender if i) there is more than one circumstance; ii) the facts from which
the inference is derived are proven; and iii) the combination of all circumstances is such as to produce a conviction
beyond reasonable doubt.29 All the circumstances must be consistent with one another, consistent with the
hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent. Thus,
conviction based on circumstantial evidence can be upheld provided that the circumstances proved constitute an
unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all
others as the guilty person.30cralawred

In this case, the circumstances found by the CA as forming an unbroken chain leading to one fair and reasonable
conclusion that petitioner, to the exclusion of all others, is the guilty person are the following:

1. In the morning of December 15, 1996, petitioner was heard telling his co-accused Sotero Paredes (Sotero) ayaw ko
nang abutin pa ng bukas yang si Berbon before boarding a red car. Sotero was holding an armalite rifle while
petitioner was armed with a .45 caliber pistol;

2. The said red car was identified or recognized by prosecution witness Rodolfo to be the same car he had sold to
Sotero for P10,000.00 in September 1996;

3. The victim Alberto was fatally shot later in the day (December 15, 1996) by unidentified gunmen who thereafter
immediately fled riding a red car; and

4. Post-mortem examination of the victims body showed that he sustained multiple gunshot wounds, the nature,
severity and characteristics of which indicate that they were inflicted using high-powered guns, possibly an armalite
rifle and .22 caliber pistol.31cralawred

The records reveal that there was no eyewitness to the actual killing of Alberto. Thus the courts below were forced to
render their verdict of conviction on circumstantial evidence as sanctioned under Section 4, Rule 133 32 of the Rules of
Court. The central issue now confronting this Court is whether the prosecution has amply proved by circumstantial
evidence petitioners guilt beyond reasonable doubt.

The circumstantial evidence relied upon

by the Court of Appeals sufficiently support
petitioners conviction.

The Court has carefully scrutinized the evidence presented in this case in the light of the standards discussed above and
finds the foregoing circumstantial evidence sufficient to support a judgment of conviction. Several reasons deserve our
acceptance of the circumstances upon which petitioners conviction was based, to wit:

First, NBI Agent Segunial testified that he had investigated Reyes and reduced the latters statement into writing
declaring, among others, that in the morning of December 15, 1996, he (Reyes) overheard petitioner telling
Sotero Ayaw ko nang abutin pa ng bukas yang si Berbon and saw them armed with .45 caliber pistol and an armalite,
respectively, before boarding a red car. The CA gave weight to Reyes sworn statement in this
wise:ChanRoblesVirtualawlibrary
The probative value of Romeo Reyes sworn statement as to the words spoken by appellant to his co-accused Sotero
Paredes in the morning of December 15, 1996 cannot be disputed. x x x33

Petitioner takes vigorous exception to the said findings, insisting that the said sworn statement belongs to the category
of hearsay evidence and therefore inadmissible. He asserts that its contents were never confirmed or authenticated by
Reyes, thus, it lacks probative value.

The Court is unconvinced.

The hearsay evidence rule as provided under Section 36, Rule 130 of the Rules of Court
states:ChanRoblesVirtualawlibrary
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.

Evidence is hearsay when its probative force depends in whole or in part on the competency and credibility of some
persons other than the witness by whom it is sought to produce. However, while the testimony of a witness regarding
a statement made by another person given for the purpose of establishing the truth of the fact asserted in the
statement is clearly hearsay evidence, it is otherwise if the purpose of placing the statement on the record is merely to
establish the fact that the statement, or the tenor of such statement, was made. Regardless of the truth or falsity of a
statement, when what is relevant is the fact that such statement has been made, the hearsay rule does not apply and
the statement may be shown. As a matter of fact, evidence as to the making of the statement is not secondary but
primary, for the statement itself may constitute a fact in issue or is circumstantially relevant as to the existence of such
a fact.34 This is known as the doctrine of independently relevant statements. 35cralawred

In the present case, the testimony of NBI Agent Segunial that while he was investigating Reyes, the latter confided to
him that he (Reyes) heard petitioner telling Sotero Ayaw ko nang abutin pa ng bukas yang si Berbon and that he saw
the two (petitioner and Sotero) armed with a .45 caliber pistol and an armalite, respectively, before boarding a red car,
cannot be regarded as hearsay evidence. This is considering that NBI Agent Segunials testimony was not presented to
prove the truth of such statement but only for the purpose of establishing that on February 10, 1997, Reyes executed a
sworn statement containing such narration of facts. This is clear from the offer of the witness oral
testimony.36 Moreover, NBI Agent Segunial himself candidly admitted that he is incompetent to testify on the
truthfulness of Reyes statement.37 Verily then, what the prosecution sought to be admitted was the fact that Reyes
made such narration of facts in his sworn statement and not necessarily to prove the truth thereof. Thus, the
testimony of NBI Agent Segunial is in the nature of an independently relevant statement where what is relevant is the
fact that Reyes made such statement and the truth and falsity thereof is immaterial. In such a case, the statement of
the witness is admissible as evidence and the hearsay rule does not apply. 38 Moreover, the written statement of Reyes
is a notarized document having been duly subscribed and sworn to before Atty. Cesar A. Bacani, a supervising agent of
the NBI. As such, it may be presented in evidence without further proof, the certificate of acknowledgment being
a prima facie evidence of the due execution of this instrument or document involved pursuant to Section 30 of Rule 132
of the Rules of Court. As held in Gutierrez v. Mendoza-Plaza,39 a notarized document enjoys a prima facie presumption
of authenticity and due execution which must be rebutted by clear and convincing evidence. Here, no clear and
convincing evidence was presented by petitioner to overcome such presumption. Clearly, therefore, the CA did not err
in its appreciation of Reyes sworn statement as testified to by NBI Agent Segunial.

Second, the identification and recognition through photograph by Rodolfo of the 1971 Ford Escort red colored car as
the same car he had sold to Sotero in September 1996 clearly and convincingly prove that it was the very same red car
used in the killing of Alberto on December 15, 1996.

Third, Alberto was shot and killed on December 15, 1996 and the gunmen immediately fled the scene riding a red car
which was identified as the same car previously sold by Rodolfo to Sotero.

Fourth, though the testimony of Dr. Lagat was limited to the post-mortem examination of the cadaver of Alberto, his
findings that the victim suffered multiple gunshot wounds and that the same were caused by high-powered guns,
served as corroborative evidence and contributed in a significant way in establishing the level of proof that the law
requires in convicting petitioner.

Lastly, petitioners escape from detention on August 26, 1998 while the case was pending can also be considered as
another circumstance since it is a strong indication of his guilt.

All told, this Court finds the concordant combination and cumulative effect of the alleged established circumstances,
which essentially were the same circumstances found by the trial court and the appellate court, to have satisfied the
requirement of Section 4, Rule 133 of the Rules of Court. Indeed, the incriminating circumstances, when taken
together, constitute an unbroken chain of events enough to arrive at the conclusion that petitioner was responsible for
the killing of the victim.

Besides, it is [a]n established rule in appellate review x x x that the trial courts factual findings, including its
assessment of the credibility of the witnesses and the probative weight of their testimonies, as well as the conclusions
drawn from the factual findings, are accorded respect, if not conclusive effect. These factual findings and conclusions
assume greater weight if they are affirmed by the CA,40 as in this case.

The Crime Committed and the Proper Penalty.

The Court agrees with the CA that petitioner is guilty only of the crime of homicide in view of the prosecutions failure
to prove any of the alleged attendant circumstances of abuse of superior strength and nighttime. As aptly observed by
the appellate court:ChanRoblesVirtualawlibrary
The circumstance of abuse of superior strength is present whenever there is inequality of forces between the victim
and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor, and the
latter takes advantage of it in the commission of the crime. However, as none of the prosecution witnesses saw how
the killing was perpetrated, abuse of superior strength cannot be appreciated in this case. Neither can nighttime serve
as an aggravating circumstance, the time of the commission of the crime was not even alleged in the
Information.41 (Citations omitted)

The penalty prescribed by law for the crime of homicide is reclusion temporal.42 In view of the absence of any
mitigating or aggravating circumstance and applying the Indeterminate Sentence Law, the maximum of the sentence
should be within the range of reclusion temporal in its medium term which has a duration of fourteen (14) years, eight
(8) months and one (1) day to seventeen (17) years and four (4) months, while the minimum should be within the
range of prision mayor which has a duration of six (6) years and one (1) day to twelve (12) years. Thus, the imposition
by the CA of an indeterminate prison term of ten (10) years of prision mayor, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal, as maximum, is in order.

Petitioners Civil liability

While the CA correctly imposed the amount of P50,000.00 as civil indemnity, it failed, however, to award moral
damages. These awards are mandatory without need of allegation and proof other than the death of the victim, owing
to the fact of the commission of murder or homicide.43 Thus, for moral damages, the award of P50,000.00 to the heirs
of the victim is only proper.

Anent the award of actual damages, this Court sees no reason to disturb the amount awarded by the trial court as
upheld by the CA since the itemized medical and burial expenses were duly supported by receipts and other
documentary evidence.

The CA did not grant any award of damages for loss of earning capacity and rightly so. Though Sabina testified as to the
monthly salary of the deceased, the same remains unsubstantiated. Such indemnity cannot be awarded in the
absence of documentary evidence except where the victim was either self-employed or a daily wage worker earning
less than the minimum wage under current labor laws.44 The exceptions find no application in this case.

In addition and in conformity with current policy, an interest at the legal rate of 6% per annum is imposed on all the
monetary awards for damages from date of finality of this judgment until fully paid.

WHEREFORE, in light of all the foregoing, the Petition is hereby DENIED. The Decision dated July 6, 2007 and Resolution
dated September 14, 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 02252 are AFFIRMED with
the MODIFICATIONS that petitioner JOSE ESPINELI a.k.a. DANILO DANNY ESPINELI is further ordered to pay the heirs
of the victim ALBERTO BERBON y DOWNIE P50,000.00 as moral damages as well as interest on all the damages assessed
at the legal rate of 6% per annum from date of finality of this judgment until fully paid.

SO ORDERED.

Carpio, (Chairperson), Brion, Perez, and Perlas-Bernabe, JJ., concur.

Endnotes:
1
People v. Lopez, 371 Phil. 852, 860 (1999).
2
People v. Abdulah, 596 Phil. 870, 876 (2009).
3
Rollo, pp. 10-39.
4
CA rollo, 119-142; penned by Associate Justice Martin S. Villarama, Jr. (now a member of this Court) and concurred in
by Associate Justices Noel G. Tijam and Sesinando S. Villon.
5
Records, pp.183-196; penned by Executive Judge Dolores L. Espaol.
6
CA rollo, p. 164
7
Id. at 147-152.
8
Records, pp. 1-2.
9
Later docketed as Criminal Case No. 4898-97.
10
Records, p. 1.
11
Id. at 30, 32.12 Id. at 36.13 Id. at 133-136.14 Id. at 183-196.15 Id. at 196.
16
G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
17
CA rollo, pp. 39-40.
18
Id. at 119-142.19 Id. at 141.20 Id. at 147-152.21 Id. at 164.22Rollo, p. 29.23 Id. at 32.24 Id. at 35.
25
Records, pp. 36-37.
26
See the OSGs Manifestation and Motion in Lieu of Comment, rollo, pp. 142-157.
27
People v. Manchu, 593 Phil. 398, 406 (2008).
28
People v. Osianas, 588 Phil. 615, 627 (2008).
29
People v. Gaffud, Jr., 587 Phil. 521,530 (2008).
30
People v. Abdulah, supra note 2.
31
CA rollo, pp. 138-139.
32
Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inference are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
33
CA rollo, p. 139.

34
Republic v. Heirs of Felipe Alejaga, Sr., 441 Phil. 656, 672 (2002).

35
Id.

36
TSN, August 1, 1993, p. 3.

37
Id. at 25.

38
People v. Gumimba, 545 Phil. 627, 652 (2007).

39
G.R. No. 185477, December 4, 2009, 607 SCRA 807,817.

40
People v. Villasan, 618 Phil. 240, 251 (2009).

41
CA rollo, p. 140.

42
REVISED PENAL CODE, Article 249.

Art. 249. Homicide. Any person who, not falling within the provisions of Article 246, shall kill another without the
attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide
and be punished by reclusion temporal.

43
People v. Orias, G.R. No. 186539, June 29, 2010, 622 SCRA 417,437-438.

44
People v. Mamaruncas, G.R. No. 179497, January 25, 2012, 664 SCRA 182, 202.
 Republic of the Philippines
Supreme Court
Manila

FIRST DIVISION

JALLALUDIN ABDULRAHMAN
GULAM,
Petitioner,
- versus -

SPOUSES CATALINO and

RICARDA SANTOS,
Respondents.

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

DECISION

AUSTRIA-MARTINEZ, J.:

The question of whether or not petitioner has fully paid the stipulated price under the Contract to Sell between him
and respondents is a question of fact that is not proper in the present petition for review on certiorari under Rule 45 of
the Rules of Court, as only questions of law may be raised therein, [1] save for certain exceptions,[2] which are not
present in this case.

Petitioner and respondents entered into a Contract to Sell on January 1994, whereby the latter agreed to sell to
petitioner a 72-square meter parcel of land located in Sampaloc, Manila, for the price of P1,700,000.00, including a 2-
storey townhouse to be constructed by respondents on the property. The terms of payment were as
follows: P500,000.00 to be paid on the first month of construction, another P500,000.00 to be paid on the second
month of construction, the remaining balance to be added on the full payment of the contract price; and a reservation
of P50,000.00 shall be paid by petitioner. A final deed of sale shall be executed by respondents upon full payment of
the contract price, with petitioner bearing the costs of the taxes. Written on the contract is the note: Received the
amount of Five Hundred Thousand Pesos only (P500,000.00) representing Partial Payment of Full Downpayment.

Two years after the execution of the Contract to Sell, petitioner filed against respondents an action for Specific
Performance, asking the Regional Trial Court (RTC) of Manila, Branch 50, to order respondents to execute a final deed
of sale, plus damages and costs. Petitioner contended that he already fulfilled his end of the bargain by paying the
stipulated amount, including the taxes, or a total of P2,050,000.00, broken down as follows:

UCPB Check No. 157244 dated March 3, 1993 P 50,000.00

UCPB Check CMRO 19635 dated Jan. 19, 1994 P 500,000.00
UCPB Check CMRO 40154 dated March 8, 1994 P 300,000.00
Private receipt made on March 9, 1994 P 500,000.00
UCPB Check CMRO 40154 dated March 22, 1994 P 200,000.00
Private receipt in the contract to sell P 500,000.00[3]

Respondents denied petitioners allegations, claiming that petitioner is yet to fully pay the agreed price, having paid
only P1,000,000.00, exclusive of the P50,000.00 reservation fee. According to respondents, petitioner paid P500,000.00
upon the execution of the Contract to Sell, as acknowledged in the Contract to Sell, and another P500,000,00 in two
separate payments made in March 1994. Thus, respondents set up a counter-claim by asking for the rescission of the
contract due to petitioners refusal to abide by its terms.

On September 17, 1998, the RTC rendered a Decision dismissing the complaint and ordering the rescission of the
Contract to Sell. The dispositive portion of the Decision reads:

WHEREFORE, the foregoing facts considered, the case against the defendant is hereby dismissed. The
reciprocal obligation between the plaintiff and the defendant is hereby ordered rescinded under Article 1191
of the Civil Code. This Article recognizes an implied or tacit revolutionary condition in reciprocal obligations. It
is a condition imposed exclusively by law, even if there is no corresponding agreement between the parties. In
reciprocal obligations, when one party has performed his part of the contract, the other party incurs in delay
hence, the party who has performed or is ready and willing to perform may rescind the obligation if the other
does not perform or is not ready and willing to perform (Civil Code of the Phils. Vol. IV Tolentino, 1986 ed p.
176).

Under the circumstances the failure of the plaintiff to pay their correlative obligation was not a casual breach
but it was a breach of contract tainted with fraud or malice (dolo) as distinguished from mere negligence
(culpa) (Luzon Brokerage Co., Inc. vs. Wantime Building Co., Inc. 43 SCRA 93).

The amount of P1,100,000.00, the amount admitted by the defendant to have been paid by the plaintiffs and
received by herein defendant is hereby declared as forfeited in favor of the defendants to be applied as rental
of the house from June of 1994 up to the time of rendition of judgment and the payment of P20,000.00 a
month from the time of rendition of the judgment until the plaintiff and all persons claiming rights under him
shall have finally vacated the premises, and to pay the amount of P200,000.00 by way of attorneys fees for
unjustly refusing to comply with their obligation in bad faith thus forcing the defendants to litigate this matter
in court. The amount of P200,000.00 by way of moral damages and to pay the amount of P100,000.00 by way
of exemplary damages and cost.

SO ORDERED.[4]

Petitioner appealed to the Court of Appeals (CA), docketed as CA-

G.R. CV No. 62803, and in a Decision[5] promulgated on June 22, 2001, the CA affirmed the RTC Decision, with
modification as to the amount of damages. The dispositive portion of the CA Decision reads:

IN VIEW OF ALL THE FOREGOING, the appealed Decision is hereby AFFIRMED with the modification that the
award of attorneys fees as well as moral damages is reduced to P75,000.00 and P50,000.00, respectively. Costs
against appellant.

SO ORDERED.[6]

Petitioner sought reconsideration of the decision but this was denied by the CA in its Resolution dated January 10,
2002.[7]

Hence, this petition based on the following assignment of errors:

First Assigned Error

THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT THE PLAINTIFF VIOLATED SECTIONS 20[8] AND
22[9] OF RULE 132 OF THE RULES OF COURT.

Second Assigned Error

THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT PLAINTIFF MR. GULAM DID NOT OR WAS INCOMPETENT
TO TESTIFY ON DUE EXECUTION OF THE RECEIPT IN THE CONTRACT TO SELL, NORHAYA, THE PLAINTIFFS WIFE
SHOULD HAVE BEEN ASKED INSTEAD SINCE SHE WOULD BE COMPETENT ON THIS MATTER BUT THE ISSUE ON
SAID RECEIPT ON THE CONTRACT TO SELL WAS INSTEAD AVOIDED ON DIRECT EXAMINATION, MR. GULAM
WAS ALSO DECLARED INCOMPETENT TO TESTIFY ON THE MARCH 9, 1994 RECEIPT FOR THE AMOUNT
OF P500,000.00 SINCE IT WAS NORHAYA WHO MADE THE PAYMENT THEREOF, MR GULAM CANNOT TESTIFY
ON THE DUE EXECUTION OF SAID RECEIPT.

Fourth Assigned Error [sic]

THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE PLAINTIFF MISERABLY FAILED TO ESTABLISH THEIR
CLAIM, THEIR CAUSE OF ACTION AGAINST DEFENDANTS ARE HEREBY DISMISSED AGAINST THE DEFENDANTS
HAVING PROVED OR ESTABLISHED THEIR CLAIM THROUGH PREPONDERANCE OF EVIDENCE THAT THE
PLAINTIFF TRIED TO AVOID THEIR OBLIGATION IN RECIPROCAL ONE BY FRAUDULENT MEANS WITH THE USE OF
CLEAVER [sic] MANIPULATIONS IN EVIDENT BAD FAITH SHOWS THAT THE DEFENDANTS ARE ENTITLED TO
RESCISSION OF THE CONTRACT.
 Fifth Assigned Error [sic]

THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE AMOUNT OF P1,100,000.00 ADMITTED BY THE
DEFENDANT [sic] TO HAVE BEEN RECEIVED BY PLAINTIFFS AND RECEIVED TO BE APPLIED AS PAYMENT OR
RENTAL OF THE HOUSE FROM JUNE 1994 TO THE TIME OF RENDITION OF THE JUDGMENT AND PAYMENT
OF P20,000.00 A MONTH FROM THE TIME OF RENDITION OF THE JUDGMENT UNTIL THE PLAINTIFF AND ALL
PERSONS CLAIMING RIGHTS UNDER HIM SHALL HAVE FINALLY VACATED THE PREMISES.[10]

The Court notes that the above-quoted assignment of errors is an exact reproduction of assigned errors I, III, IV
and V raised in the appeal brief filed by petitioner with the CA, except assigned error II, [11] which was not raised in the
present petition.

As Comment, respondents adopted their Defendants-Appellees Brief filed with the CA.

Petitioners arguments basically hinge on his claim of overpayment. These arguments, however, do not raise
any question of law. As stated at the outset, the principal issue in this case, i.e., whether petitioner has fully paid the
stipulated price under the Contract to Sell, thus entitling him to the execution of a final deed of sale, is one of fact,
which is beyond the province of Rule 45 of the Rules of Court.
As earlier mentioned, the exceptions adverted to, to wit:[12]

(1) when the factual findings of the Court of Appeals and the trial court are contradictory;

(2) when the findings are grounded entirely on speculations, surmises, or conjectures;

(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 Appeal are premised on the absence of evidence but
such findings are contradicted by the evidence on record.

are not present in the present case.

Moreover, the Court finds no plausible reason to analyze and weigh all over again the evidence already
considered by the RTC and the CA, especially since these findings are not tainted with any capriciousness or palpable
error. The rule is that where the factual findings of both courts are in accord, the same are binding on this Court. [13]

The RTC sifted through the evidence on record, testimonial as well as

documentary, to determine the veracity of petitioners claim that there was overpayment, due to the alleged issuance
of several checks and cash payments to respondents, and ruled that petitioner failed to prove his claim of
overpayment. It was the RTCs finding that the receipt acknowledging the payment of the sum of P500,000.00, which
allegedly was signed by respondent Ricarda Santos (Santos) on March 9, 1994 and which was examined by the NBI,
cannot be given any credence because Santos denied having furnished any specimen signature from which the
signature in the receipt may be compared, in violation of Sections 20 and 22 of the Rules of Court. Instead, the RTC
gave weight to the conclusion of the PNP Crime Laboratory that the documents were written by two different
persons. The RTC also observed that the issuance by petitioner of UCPB Check No. CMR0 19635 dated January 19,
1994 for P500,000.00 is actually the payment acknowledged in the contract as it coincides with the stipulation in the
contract wherein petitioner had to pay P500,000.00 on the first month of construction, which in fact, started in January
1994. The RTC also ruled that petitioner cannot testify on the alleged receipt of these contested amounts as he was not
present during the time that it was made, since according to petitioner himself, it was his wife Norhaya who allegedly
made the payments.[14]The RTC, meanwhile, gave credence to respondents claim that petitioner is yet to pay the full
amount of the purchase price, relying on the two letters sent by petitioners wife Norhaya to Santos admitting that the
amount of P1,100,000.00 has already been given to respondents, and a balance of P446,036.00 in the purchase price
remains, exclusive of the cost of labor and improvements, and which Norhaya seeks to reimburse from respondents.[15]

The CA sustained the RTCs findings, stating that the receipt dated March 9, 1994 is a forgery. It also ruled that
respondents are entitled to a rescission of the Contract to Sell as petitioner failed to comply with his obligations under
the contract, to wit:

In the final analysis, it is apparent that appellant has not kept his own end of the bargain in the Contract. A
computation of the payments made based on evidence on hand, without including the bogus receipt dated
March 9, 1994, would eventually show that appellant had only paid a total of P1,100,000.00, thus leaving an
unpaid balance of more or less P600,000.00 (Exhibit 13). This is bolstered by the appellants admission in a
letter addressed to appellees through his counsel (Exhibit 3) wherein he asserted that he had already
paid P1,500,000.00. Likewise, in a letter by appellants wife to appellees, admitting having paid
only P1,500,000.00. This is contrary to his later claim that he had already paid a total of P2,050,000.00
by March 22, 1994. If this were true, why was appellants wife still paying for the house on May 7,
1994 (Exhibits 15 and 15-A), as correctly observed by appellees.

All told, We are in accord with the finding of the lower court that appellant committed a substantial breach
when he tried to weasel out of his obligation through fraudulent means by utilizing a forged check and
receipt. Appellants vain attempt to cloak with legal color his devious scheme to acquire at all costs the house
and lot at the expense of the rightful owner. Correspondingly, appellees are entitled to avail of the provisions
of Article 1191 of the Civil Code, which authorizes an injured party in a reciprocal obligation to rescind an
obligation to be decreed by the court, in case one of the obligors should not comply with what is incumbent
upon him. Surely, the introduction of forged documents can be considered a significant breach in the
reciprocal obligation as would warrant the resolution of the contract. [16]
xxxx

The Court agrees with the foregoing evaluation of both the RTC and the CA, as it finds support in the evidence
on record. Despite his protestations, petitioner failed to show any reversible error committed by the RTC and the CA.

Petitioner, however, insists that the CA erred in holding that his testimony with regard to the payments made by his
wife was hearsay. Petitioner argues that the purpose of such testimony was merely to establish the fact that such
statement was made.

It is a hornbook doctrine of evidence that a witness can testify only to those facts which he knows of his
personal knowledge, which means those facts which are derived from his perception. [17] A witness may not testify as to
what he merely learned from others either because he was told or read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth of what he has learned. The hearsay rule is based
upon serious concerns about the trustworthiness and reliability of hearsay evidence inasmuch as such evidence are not
given under oath or solemn affirmation and, more importantly, have not been subjected to cross-examination by
opposing counsel to test the perception, memory, veracity, and articulateness of the out-of-court declarant or actor
upon whose reliability on which the worth of the out-of-court statement depends.[18]

True, petitioners statements may be considered as independently relevant statements and may be admissible
not as to the veracity thereof but to the fact that they had been thus uttered. [19] However, the admissibility of his
testimony to such effect should not be equated with its weight and sufficiency. [20] Admissibility of evidence depends on
its relevance and competence, while the weight of evidence pertains to evidence already admitted and its tendency to
convince and persuade.[21] In this case, both the RTC and the CA refused to give credence to petitioners testimony, and
the Court finds no reason to doubt the assessments made by both courts. Even assuming that his wife, indeed, told him
that payments were made on these dates, still, it does not follow that it is sufficient proof to establish his claim of
overpayment. These should be weighed vis--vis the other evidence on record, which, as appraised by the RTC and the
CA, do not support petitioners claim.
Although Norhaya testified, she did not, however, give any credible testimony regarding these alleged
payments. In fact, Norhaya failed to testify on the alleged separate payment made in the amount of P500,000.00, which
was annotated on the Contract to Sell.[22] With regard to the alleged payment and receipt made on March 9, 1994,
respondent Santos categorically denied having received any payment on said date. [23] Moreover, the RTC and the CA
chose to ignore her testimony, and instead gave weight to the testimony of the PNP Crime Laboratory Document
 Examiner that the signature appearing on the receipt was not made by respondent Santos based on her standard
signature.[24] On this score, the Court will not interfere with the judgment exercised by the RTC and the CA since it is in
the best position to assess the credibility of witnesses and their testimonies because of its unique opportunity to
observe the witnesses firsthand and note their demeanor, conduct and attitude under grilling examination. As such, its
evaluation of the credibility of witnesses is accorded great respect.[25]

Finally, petitioner laments the disregard made on the NBI finding that the signature of
respondent Santos appearing on the March 9, 1994 receipt was genuine. On this score, it should be stressed that
although they may have probative value, reception in evidence of expert testimonies is within the discretion of the
court.[26] The RTC and the CA did not commit any error in disregarding the NBIs finding since it was convincingly shown
that the specimen signature of respondent Santos from which the signature on the receipt was compared, was not
actually supplied by Santos but by petitioner. Thus, as correctly stated by the CA:

A fortiori, We agree with the trial court that the NBI expert is considered to have no adequate knowledge of
the genuine signatures of the parties whose signatures are claimed to be forged, for this witness was not in
possession of the genuine signatures of the appellees. Moreover, opinion of handwriting experts are not
necessarily binding upon the courts, the experts function being to place before the court data upon which the
court can form its own opinion. x x x[27]

Verily, the RTC and the CA did not err in dismissing petitioners complaint and ordering the rescission of the
Contract to Sell.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated June 22, 2001 in CA-G.R. CV
No. 62803 and its Resolution dated January 10, 2002 are hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.

[1]
Air Philippines Corporation v. International Business Aviation Services Philippines, Inc., G.R. No. 151963, September 9, 2004,
438 SCRA 51, 76.
[2]
Fuentes v. Court of Appeals, 335 Phil. 1163, 1168 (1997).
[3]
Records, pp. 1-4.
[4]
Id. at 372-373.
[5]
Penned by Associate Justice Conrado M. Vasquez, Jr., with Associate Justices Martin S. Villarama, Jr. and Sergio L. Pestao,
concurring.
[6]
CA rollo, p. 137.
[7]
Id. at 160.
[8]
Proof of Private Document.
[9]
How Genuineness of Authenticity Proved.
[10]
Rollo, pp. 13-14.
[11]
II. THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE PLAINTIFF AND HIS WITNESS LACKS THAT CANDOR AND
TRUTHFULNESS AS THEY TRIED TO SEEK REFUGE AND BASED THEIR CLAIM ON SPECULATIONS, THEIR CAUSE OF ACTION
NOT HAVING ANY LEGS TO STAND ON MUST FALL AND ARE THEREFORE ESTOPPED FROM DENYING THE EXISTENCE OF
DEFENDANTS (sic) CLAIM.
[12]
Fuentes v. Court of Appeals, supra note 2, at 1168-1169.
[13]
David v. Manila Bulletin Publishing Company, Inc., 400 Phil. 838, 845. (2000).
[14]
Records, pp. 364-371.
[15]
See Exhibits 11 to 12-D, id. at 273-278.
[16]
CA rollo, p. 136.
[17]
RULES OF COURT, Rule 130, Section 36.
[18]
Country Bankers Insurance Corporation v. Lianga Bay and Community Multi-Purpose Cooperative, Inc., 425 Phil. 511, 520
(2002).
[19]
People v. Velasquez, G.R. Nos. 132635 & 14387275, February 21, 2001, 352 SCRA 455, 476.
[20]
People v. Manhuyod, Jr., 352 Phil. 866, 885 (1998).
[21]
People v. Navarro, 357 Phil. 1010, 1031 (1998).
[22]
See TSN, September 25 and October 2, 1996.
[23]
TSN, March 12, 1997, pp. 18-19.
[24]
TSN, October 29, 1997, pp. 22-27.
[25]
Cirelos v. Hernandez, G.R. No. 146523, June 15, 2006.
[26]
Cebu Shipyard and Engineering Works, Inc. v. William Lines, Inc., 366 Phil. 439, 454 (1999).
[27]
CA rollo, p. 135.
 Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION

LEODEGARIO BAYANI,
Petitioner,

- versus -

PEOPLE OF THE
PHILIPPINES,
Respondent.
x----------------------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.:

Leodegario Bayani (petitioner) was charged with Violation of Batas Pambansa Blg. 22 in an Information, to wit:

That on or about the 20th day of August 1992, in the Municipality of Candelaria, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there
willfully, unlawfully and feloniously issue and make out Check No. 054924 dated August 26, 1992, in the
amount of TEN THOUSAND PESOS (P10,000.00) Philippine Currency, drawn against the PS Bank, Candelaria
Branch, Candelaria, Quezon, payable to Cash and give the said check to one Dolores Evangelista in exchange
for cash although the said accused knew fully well at the time of issuance of said check that he did not have
sufficient funds in or credit with the drawee bank for payment, the same was dishonored and refused payment
for the reason that the drawer thereof, the herein accused, had no sufficient funds therein, and that despite
due notice said accused failed to deposit the necessary amount to cover said check, or to pay in full the
amount of said check, to the damage and prejudice of said Dolores Evangelista in the aforesaid amount.

Contrary to law.[1]
After trial, petitioner was convicted by the Regional Trial Court (RTC) of Lucena City, Branch 55, in a Decision rendered
on November 20, 1995, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing considerations, this Court finds the accused Leodegario S. Bayani,
GUILTY beyond reasonable doubt of violating Section 1, Batas Pambansa Blg. 22, and hereby sentences him to
suffer one (1) year imprisonment and a fine of Five Thousand (P5,000.00) Pesos, with subsidiary imprisonment
in case of insolvency. He shall likewise pay the complaining witness, Dolores Evangelista, the sum
of P10,000.00, the value of Check No. 054924 he issued and drew against PS Bank, Candelaria Branch, which
was subsequently dishonored by the said drawee bank for insufficiency of funds.

The accused Leodegario Bayani is further ordered to pay Dolores Evangelista the amount of P5,000.00
representing attorney's fees. He shall also pay double the cost of this suit.

SO ORDERED.[2]

In convicting petitioner, the trial court made the following findings of facts:
1. That the Philippine Savings Bank, Candelaria Branch, has issued to the accused check booklet (Exh. C)
on December 12, 1991, with the Check No. 054924 as one of those included in said booklet of checks;

2. That the said Check No. 054924 dated August 26, 1992, was drawn and issued payable to Cash in the
amount of P10,000.00; said drawn check was made to apply to the account of the accused, Leodegario S.
Bayani whose name appears therein in bold print at the upper portion of the said check;

3. That said Check No. 054924, is a post-dated check, was subsequently dishonored by the drawee bank, PS
Bank, Candelaria Branch, for insufficiency of funds;
4. That the checking account of the accused Leodegario S. Bayani with PS Bank, Candelaria Branch, was closed
on September 1, 1992 (Exh. B-3), which at the time had only remaining deposit in the amount of P2,414.96
(Exh. B-4).[3]

The trial court also made the following findings:

The check in question is postdated, issued and drawn on August 20, 1992, and dated August 26, 1992. It was
presented to complaining witness, Dolores Evangelista, for encashment by Alicia Rubia whom the former
knows. After the check was deposited with the bank, it was returned to Evangelista for insufficiency of funds
(Exh. A-5). Thereafter, she pursued the following events to demand payment of the value of the check:

xxxx

After the confrontation at the office of Atty. Emmanuel Velasco, Evangelista has had another
confrontation with the accused Bayani and Alicia Rubia at Candelaria municipal building before Brgy. Captain
Nestor Baera, but again the accused and Rubia pointed to each other for the settlement of the amount
involved in the check in question.

Of these two (2) confrontations Evangelista had with the accused Bayani and Alicia Rubia, including
the chances to have met or known the complaining witness Evangelista since 1977 up to the filing of the
instant case in the Municipal Trial Court of Candelaria, all what the accused Leodegario Bayani could say were
flat denials of having talked with, or otherwise met Evangelista, regarding the latters claim of payment of the
value of Check No. 054924, admittedly from the check booklet of the said accused Bayani issued by PS Bank,
Candelaria Branch.[4]

On appeal, the Court of Appeals (CA)[5] affirmed in toto the trial courts decision. The CAs Decision dated January 30,
2002 provides for the following dispositive portion:

WHEREFORE, and it appearing from the circumstances of both the offense and the offender which does not
indicate good faith or a clear mistake of fact in accordance with the Administrative Circular No. 13-2001, the
judgment appealed from is AFFIRMED in toto, with costs.

SO ORDERED.[6]

Thus, herein petition for review on certiorari under Rule 45, Rules of Court, with the following assignment of errors:

THE COURT OF APPEALS, WITH DUE RESPECT, ERRED IN REFUSING TO ACQUIT THE ACCUSED DESPITE THE
CONVICTION OF THE TRIAL COURT IS UTTERLY BASED ON HEARSAY EVIDENCE;

THE COURT OF APPEALS ERRED IN CONVICTING THE ACCUSED DESPITE THE CONSIDERATION FOR THE
ISSUANCE OF THE CHECK WAS NOT DULY ESTABLISHED;

THE TRIAL COURT AND THE COURT OF APPEALS ERRED WHEN THEY CONVICTED THE ACCUSED BASED ON THE
WEAKNESS OF THE LATTER'S EVIDENCE AND NOT ON THE STRENGTH OF PROSECUTION'S EVIDENCE;

THE TRIAL COURT AND THE COURT OF APPEALED (sic) ERRED IN CONVICTING THE ACCUSED SOLELY ON THE
BASES OF PRESUMPTIONS.[7]

On the other hand, the Office of the Solicitor General (OSG), representing respondent, argues that: (1) petitioners
denial of his liability for Check No. 05492 cannot overcome the primordial fact that his signature appears on the face of
such check; (2) want of consideration is a personal defense and is not available against a holder in due course; and (3)
the constitutional presumption of innocence was overcome by the requisite quantum of proof. [8]
Well-settled is the rule that the factual findings and conclusions of the trial court and the CA are entitled to great
weight and respect, and will not be disturbed on appeal in the absence of any clear showing that the trial court
overlooked certain facts or circumstances which would substantially affect the disposition of the case. Jurisdiction of
this Court over cases elevated from the CA is limited to reviewing or revising errors of law ascribed to the CA, whose
factual findings are conclusive and carry even more weight when said court affirms the findings of the trial court,
absent any showing that the findings are totally devoid of support in the record or that they are so glaringly erroneous
as to constitute serious abuse of discretion.[9]

The Court sustains the CA in affirming petitioners conviction by the RTC.

Petitioner denies having issued the check subject of this case. He argues that the evidence pinpointing him as the
signatory on the check is merely hearsay.

Section 36 of Rule 130 of the Rules of Court provides for the rule on hearsay evidence, to wit:

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.

Under the above rule, any evidence whether oral or documentary is hearsay if its probative value is not based on the
personal knowledge of the witness, but on that of some other person who is not on the witness stand. Hence,
information that is relayed to the former by the latter before it reaches the court is considered hearsay.[10]

In the present case, complainant Evangelista testified that she was approached by Alicia Rubia who told her that she
was requested by petitioner to have the check exchanged for cash, as he needed money badly. [11] Obviously,
Evangelistas testimony is hearsay since she had no personal knowledge of the fact that petitioner indeed requested
Rubia to have the check exchanged for cash, as she was not personally present when petitioner supposedly made this
request. What she testified to, therefore, was a matter that was not derived from her own perception but from Rubias.

However, petitioner is barred from questioning the admission of Evangelistas testimony even if the same is
hearsay. Section 34, Rule 132 of the Rules of Court requires that the trial court shall not consider any evidence which
has not been finally offered. Section 35 of the same Rule provides that as regards the testimony of a witness, the offer
must be made at the time the witness is asked to testify. And under Section 36 of the same Rule, objection to a
question propounded in the course of the oral examination of a witness shall be made as soon as the ground
therefor becomes reasonably apparent.

Thus, it has been held that in failing to object to the testimony on the ground that it was hearsay, the evidence
offered may be admitted.[12] Since no objection to the admissibility of Evangelistas testimony was timely made from the
time her testimony was offered[13] and up to the time her direct examination was conducted [14] then petitioner has
effectively waived[15] any objection to the admissibility thereof and his belated attempts to have her testimony
excluded for being hearsay has no ground to stand on.
While Evangelistas statement may be admitted in evidence, it does not necessarily follow that the same should be
given evidentiary weight. Admissibility of evidence should not be equated with weight of evidence. [16] In this regard, it
has been held that although hearsay evidence may be admitted because of lack of objection by the adverse partys
counsel, it is nonetheless without probative value,[17] unless the proponent can show that the evidence falls within
the exception to the hearsay evidence rule.[18]

In this case, Evangelistas testimony may be considered as an independently relevant statement, an exception to the
hearsay rule, the purpose of which is merely to establish the fact that the statement was made or the tenor of
such statement. Independent of the truth or the falsity of the statement, the fact that it has been made
is relevant.[19] When Evangelista said that Rubia told her that it was petitioner who requested that the check be
exchanged for cash, Evangelista was only testifying that Rubia told her of such request.It does not establish the truth or
veracity of Rubias statement since it is merely hearsay, as Rubia was not presented in court to attest to such
utterance. On this score, evidence regarding the making of such independently relevant statement is not secondary but
primary, because the statement itself may (a) constitute a fact in issue or (2) be circumstantially relevant as to the
existence of that fact.[20] Indeed, independent of its truth or falsehood, Evangelistas statement is relevant to the issues
of petitioners falsehood, his authorship of the check in question and consequently, his culpability of the offense
charged.

In any event, petitioners conviction did not rest solely on Evangelistas testimony. There are other pieces of evidence on
record that established his guilt, to wit: the subject check was included in the booklet of checks issued by the PSBank to
petitioner; the subject check was made to apply to the account of petitioner whose name appears on the upper portion
of the said check; and most telling is that petitioner never categorically denied that the signature appearing on the
 check was his. What petitioner claimed was that the signature on the check was similar to his signature, although there
were differences, viz.:

Q: I am showing to you a certain document purpurting (sic) to be PSB Check No. 054924, will you please look at this
particular document and tell this Honorable Court if this particular check is one of those issued to you by the
Philippine Savings Bank?
A: Yes, sir.

Q: Now, there appears a signature above a line located at the bottom of the said check which appears to be Leodegario
Bayani, please tell this Honorable Court if you know this particular signature?
A: Although it is similar to my signature I could not tell if this is my signature, sir.

Q: Please explain to this Honorable Court why is it so?

A: Because there are some differences, sir.

Q: Please tell this Honorable Court the particular differences you are referring to?
A: At the middle of the signature I usually put my middle initial and also the beginning of my family name is almost
connected with each other, sir.[21]

Neither did petitioner claim that the signature was a forgery. Had he done so, then a forensic examination of the
signature in appearing on the check and his signature would have been made in order to determine the genuineness or
authenticity of the signature appearing on the check.

All these pieces of evidence, taken together, inevitably support the finding of petitioners guilt beyond reasonable doubt
of the offense charged.

Petitioner also argues that he cannot be convicted due to the prosecutions failure to prove that the subject check was
issued to apply on account or for value.

The elements of the offense penalized by Batas Pambansa Blg. 22 are:

(1) the making, drawing, and issuance of any check to apply for account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or credit with
the drawee bank for the payment of such check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the
same reason had not the drawer, without any valid cause, ordered the bank to stop payment. [22]

As regards the first element, it is presumed, upon issuance of the checks and in the absence of evidence to the
contrary, that the same was issued for valuable consideration.[23]Under the Negotiable Instruments Law, it is presumed
that every party to an instrument acquired the same for a consideration or for value.[24] In alleging that there was no
consideration for the subject check, it devolved upon petitioner to present convincing evidence to overthrow the

presumption and prove that the check was issued without consideration.

Valuable consideration may consist either of some right, interest, profit or benefit accruing to the party who makes the
contract; or some forbearance, detriment, loss of some responsibility to act; or labor or service given, suffered or
undertaken by the other side. It is an obligation to do or not to do, in favor of the party who makes the contract, such
as the maker or indorser.[25] It was shown in this case that the check was issued and exchanged for cash. This was the
valuable consideration for which the check was issued.

At any rate, what the law punishes is the mere act of issuing a bouncing check, not the purpose for which it was issued
or the terms and conditions relating to its issuance. The law does not make any distinction on whether the checks
within its contemplation are issued in payment of an obligation or to merely guarantee the obligation. The thrust of the
law is to prohibit the making of worthless checks and putting them in circulation. [26]

Thus, the Court cannot sustain petitioners stance that the prosecution failed to prove his guilt. As ruled in Lee v. Court
of Appeals:
 Proof beyond reasonable doubt does not mean absolute certainty. Suffice it to say the law requires only moral
certainty or that degree of proof which produces conviction in a prejudiced mind.[27]

After going over the evidence presented by the prosecution and the defense in this case, the Court finds no reason to
overturn the judgment of conviction rendered by the RTC, as affirmed by the CA, as the prosecution sufficiently proved
petitioner's guilt beyond reasonable doubt.

WHEREFORE, the petition is DENIED.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

[1]
Records, pp. 2-3.
[2]
Id. at 251.

[3]
Id. at 247-248.
[4]
Id. at 248-249.
[5]
Penned by Associate Justice Teodoro P. Regino, with Associate Justices Eugenio S. Labitoria and Rebecca De Guia-Salvador,
concurring.

[6]
CA rollo, p. 91.
[7]
Rollo, p. 15.
[8]
Id. at 106-107.
[9]
Ty v. People of the Philippines, G.R. No. 149275, September 27, 2004, 439 SCRA 220, 228-229.
[10]
Bon v. People of the Philippines, G.R. No. 152160, January 13, 2004, 419 SCRA 101, 109.
[11]
TSN, June 29, 1993, p. 14.
[12]
Cabugao v. People of the Philippines, G.R. No. 158033, July 30, 2004, 435 SCRA 624, 633.
[13]
TSN, June 29, 1993, pp. 4-6.
[14]
Id.
[15]
Maunlad Savings and Loan Association, Inc. v. Court of Appeals, 399 Phil. 590, 599 (2000).
[16]
People of the Philippines v. Parungao, 332 Phil. 917, 924 (1996).
[17]
De la Torre v. Court of Appeals, 355 Phil. 826, 638 (1998).
[18]
PNOC Shipping and Transport Corporation v. Court of Appeals, 358 Phil. 38, 54 (1998).
[19]
Lea Mer Industries, Inc. v. Malayan Insurance, Co., Inc., G.R. No. 161745, September 30, 2005, 471 SCRA 698, 714.
[20]
Republic of the Philippines v. Alejaga, Sr., 441 Phil. 656, 672 (2002).
[21]
TSN, November 23, 1994, pp. 10-11.
[22]
Marigomen v. People of the Philippines, G.R. No. 153451, May 26, 2005, 459 SCRA 169, 179.
[23]
Ty v. People of the Philippines, supra note 9, at 233.
[24]
NEGOTIABLE INSTRUMENTS LAW, Sec. 24.
[25]
Lee v. Court of Appeals, G.R. No. 145498, January 17, 2005, 448 SCRA 455, 474-475.
[26]
Ty v. People of the Philippines, supra note 9, at 235
[27]
Lee v. Court of Appeals, supra note 25, at 476.
 THIRD DIVISION

LEA MER INDUSTRIES, INC., G.R. No. 161745

Petitioner,
Present

Chairman,
- versus - Sandoval-Gutierrez,
Corona,
Carpio Morales, and
Garcia, JJ
Promulgated:
MALAYAN INSURANCE CO., INC.,*
Respondent. September 30, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

DECISION

PANGANIBAN, J.:

C ommon carriers are bound to observe extraordinary diligence in their vigilance over the goods entrusted to them,
as required by the nature of their business and for reasons of public policy. Consequently, the law presumes that
common carriers are at fault or negligent for any loss or damage to the goods that they transport. In the present case,
the evidence submitted by petitioner to overcome this presumption was sorely insufficient.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, assailing the October 9, 2002
Decision and the December 29, 2003 Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 66028. The challenged
[2]

Decision disposed as follows:

WHEREFORE, the appeal is GRANTED. The December 7, 1999 decision of the Regional Trial Court of
Manila, Branch 42 in Civil Case No. 92-63159 is hereby REVERSED and SET ASIDE. [Petitioner] is ordered to pay
the [herein respondent] the value of the lost cargo in the amount of P565,000.00. Costs against the [herein
petitioner].[4]

The assailed Resolution denied reconsideration.

The Facts

Ilian Silica Mining entered into a contract of carriage with Lea Mer Industries, Inc., for the shipment of 900
metric tons of silica sand valued at P565,000.[5]Consigned to Vulcan Industrial and Mining Corporation, the cargo was to
be transported from Palawan to Manila. On October 25, 1991, the silica sand was placed on board Judy VII, a barge
leased by Lea Mer.[6] During the voyage, the vessel sank, resulting in the loss of the cargo. [7]

Malayan Insurance Co., Inc., as insurer, paid Vulcan the value of the lost cargo. [8] To recover the amount paid
and in the exercise of its right of subrogation, Malayan demanded reimbursement from Lea Mer, which refused to
comply. Consequently, Malayan instituted a Complaint with the Regional Trial Court (RTC) of Manila on September 4,
1992, for the collection of P565,000 representing the amount that respondent had paid Vulcan.[9]
On October 7, 1999, the trial court dismissed the Complaint, upon finding that the cause of the loss was a
fortuitous event.[10] The RTC noted that the vessel had sunk because of the bad weather condition brought about by
Typhoon Trining. The court ruled that petitioner had no advance knowledge of the incoming typhoon, and that the
vessel had been cleared by the Philippine Coast Guard to travel from Palawan to Manila. [11]
 Ruling of the Court of Appeals

Reversing the trial court, the CA held that the vessel was not seaworthy when it sailed for Manila. Thus, the loss of the
cargo was occasioned by petitioners fault, not by a fortuitous event. [12]

Hence, this recourse.[13]

The Issues

Petitioner states the issues in this wise:

A. Whether or not the survey report of the cargo surveyor, Jesus Cortez, who had not been presented as a
witness of the said report during the trial of this case before the lower court can be admitted in evidence to
prove the alleged facts cited in the said report.

B. Whether or not the respondent, Court of Appeals, had validly or legally reversed the finding of fact of the
Regional Trial Court which clearly and unequivocally held that the loss of the cargo subject of this case was
caused by fortuitous event for which herein petitioner could not be held liable.

C. Whether or not the respondent, Court of Appeals, had committed serious error and grave abuse of
discretion in disregarding the testimony of the witness from the MARINA, Engr. Jacinto Lazo y Villegal, to the
effect that the vessel Judy VII was seaworthy at the time of incident and further in disregarding the testimony
of the PAG-ASA weather specialist, Ms. Rosa Barba y Saliente, to the effect that typhoon Trining did not hit
Metro Manila or Palawan.[14]

In the main, the issues are as follows: (1) whether petitioner is liable for the loss of the cargo, and (2) whether the
survey report of Jesus Cortez is admissible in evidence.

The Courts Ruling

The Petition has no merit.

First Issue:
Liability for Loss of Cargo

Question of Fact

The resolution of the present case hinges on whether the loss of the cargo was due to a fortuitous event. This issue
involves primarily a question of fact, notwithstanding petitioners claim that it pertains only to a question of law. As a
general rule, questions of fact may not be raised in a petition for review. [15] The present case serves as an exception to
this rule, because the factual findings of the appellate and the trial courts vary. [16] This Court meticulously reviewed the
records, but found no reason to reverse the CA.

Rule on Common Carriers

Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting
passengers or goods, or both -- by land, water, or air -- when this service is offered to the public for
compensation.[17] Petitioner is clearly a common carrier, because it offers to the public its business of transporting
goods through its vessels.[18]

Thus, the Court corrects the trial courts finding that petitioner became a private carrier when Vulcan chartered
it.[19] Charter parties are classified as contracts of demise (or bareboat) and affreightment, which are distinguished as
follows:

Under the demise or bareboat charter of the vessel, the charterer will generally be considered as
owner for the voyage or service stipulated. The charterer mans the vessel with his own people and becomes,
in effect, the owner pro hac vice, subject to liability to others for damages caused by negligence. To create a
demise, the owner of a vessel must completely and exclusively relinquish possession, command and navigation
thereof to the charterer; anything short of such a complete transfer is a contract of affreightment (time or
voyage charter party) or not a charter party at all.[20]
 The distinction is significant, because a demise or bareboat charter indicates a business undertaking that
is private in character. [21] Consequently, the rights and obligations of the parties to a contract of private carriage are
governed principally by their stipulations, not by the law on common carriers.[22]

The Contract in the present case was one of affreightment, as shown by the fact that it was petitioners crew
that manned the tugboat M/V Ayalit and controlled the barge Judy VII.[23] Necessarily, petitioner was a common carrier,
and the pertinent law governs the present factual circumstances.

Extraordinary Diligence Required

Common carriers are bound to observe extraordinary diligence in their vigilance over the goods and the safety of the
passengers they transport, as required by the nature of their business and for reasons of public policy.[24] Extraordinary
diligence requires rendering service with the greatest skill and foresight to avoid damage and destruction to the goods
entrusted for carriage and delivery.[25]

Common carriers are presumed to have been at fault or to have acted negligently for loss or damage to the
goods that they have transported.[26] This presumption can be rebutted only by proof that they observed extraordinary
diligence, or that the loss or damage was occasioned by any of the following causes:[27]

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;

(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or in the containers;
(5) Order or act of competent public authority.[28]

Rule on Fortuitous Events

Article 1174 of the Civil Code provides that no person shall be responsible for a fortuitous event which could not be
foreseen, or which, though foreseen, was inevitable. Thus, if the loss or damage was due to such an event, a common
carrier is exempted from liability.
Jurisprudence defines the elements of a fortuitous event as follows: (a) the cause of the unforeseen and
unexpected occurrence, or the failure of the debtors to comply with their obligations, must have been independent of
human will; (b) the event that constituted the caso fortuito must have been impossible to foreseeor, if foreseeable,
impossible to avoid; (c) the occurrence must have been such as to render it impossible for the debtors to fulfill their
obligation in a normal manner; and (d) the obligor must have been free from any participation in the aggravation of the
resulting injury to the creditor.[29]

To excuse the common carrier fully of any liability, the fortuitous event must have been the proximate and
only cause of the loss.[30] Moreover, it should have exercised due diligence to prevent or minimize the loss before,
during and after the occurrence of the fortuitous event.[31]

Loss in the Instant Case

There is no controversy regarding the loss of the cargo in the present case. As the common carrier, petitioner bore the
burden of proving that it had exercised extraordinary diligence to avoid the loss, or that the loss had been occasioned
by a fortuitous event -- an exempting circumstance.

It was precisely this circumstance that petitioner cited to escape liability. Lea Mer claimed that the loss of the
cargo was due to the bad weather condition brought about by Typhoon Trining. [32] Evidence was presented to show
that petitioner had not been informed of the incoming typhoon, and that the Philippine Coast Guard had given it
clearance to begin the voyage.[33] On October 25, 1991, the date on which the voyage commenced and the barge sank,
Typhoon Trining was allegedly far from Palawan, where the storm warning was only Signal No. 1. [34]
The evidence presented by petitioner in support of its defense of fortuitous event was sorely insufficient. As
required by the pertinent law, it was not enough for the common carrier to show that there was an unforeseen or
unexpected occurrence. It had to show that it was free from any fault -- a fact it miserably failed to prove.

First, petitioner presented no evidence that it had attempted to minimize or prevent the loss before, during or
after the alleged fortuitous event.[35] Its witness, Joey A. Draper, testified that he could no longer remember whether
anything had been done to minimize loss when water started entering the barge. [36]This fact was confirmed during his
cross-examination, as shown by the following brief exchange:
 Atty. Baldovino, Jr.:
Other than be[a]ching the barge Judy VII, were there other precautionary measure[s] exercised by you and the crew of
Judy VII so as to prevent the los[s] or sinking of barge Judy VII?

xxxxxxxxx

Atty. Baldovino, Jr.:

Your Honor, what I am asking [relates to the] action taken by the officers and crew of tugboat Ayalit and barge
Judy VII x x x to prevent the sinking of barge Judy VII?

xxxxxxxxx

Court:
Mr. witness, did the captain of that tugboat give any instruction on how to save the barge Judy VII?

Joey Draper:
I can no longer remember sir, because that happened [a] long time ago.[37]

Second, the alleged fortuitous event was not the sole and proximate cause of the loss. There is a
preponderance of evidence that the barge was not seaworthy when it sailed for Manila. [38] Respondent was able to
prove that, in the hull of the barge, there were holes that might have caused or aggravated the sinking.[39]Because the
presumption of negligence or fault applied to petitioner, it was incumbent upon it to show that there were no holes; or,
if there were, that they did not aggravate the sinking.

Petitioner offered no evidence to rebut the existence of the holes. Its witness, Domingo A. Luna, testified that
the barge was in tip-top or excellent condition,[40] but that he had not personally inspected it when it left Palawan. [41]

The submission of the Philippine Coast Guards Certificate of Inspection of Judy VII, dated July 31, 1991, did not
conclusively prove that the barge was seaworthy.[42] The regularity of the issuance of the Certificate is disputably
presumed.[43] It could be contradicted by competent evidence, which respondent offered. Moreover, this evidence did
not necessarily take into account the actual condition of
[44]
the vessel at the time of the commencement of the voyage.

Second Issue:
Admissibility of the Survey Report

Petitioner claims that the Survey Report[45] prepared by Jesus Cortez, the cargo surveyor, should not have been
admitted in evidence. The Court partly agrees. Because he did not testify during the trial,[46] then the Report that he
had prepared was hearsay and therefore inadmissible for the purpose of proving the truth of its contents.

The Survey Report Not the Sole Evidence

The facts reveal that Cortezs Survey Report was used in the testimonies of respondents witnesses -- Charlie M. Soriano;
and Federico S. Manlapig, a cargo marine surveyor and the vice-president of Toplis and Harding Company.[47] Soriano
testified that the Survey Report had been used in preparing the final Adjustment Report conducted by their
company.[48] The final Report showed that the barge was not seaworthy because of the existence of the holes. Manlapig
testified that he had prepared that Report after taking into account the findings of the surveyor, as well as the pictures
and the sketches of the place where the sinking occurred. [49] Evidently, the existence of the holes was proved by the
testimonies of the witnesses, not merely by Cortez Survey Report.

Rule on Independently
Relevant Statement

That witnesses must be examined and presented during the trial, [50] and that their testimonies must be confined to
personal knowledge is required by the rules on evidence, from which we quote:

Section 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.[51]
 On this basis, the trial court correctly refused to admit Jesus Cortezs Affidavit, which respondent had offered as
evidence.[52] Well-settled is the rule that, unless the affiant is presented as a witness, an affidavit is considered
hearsay.[53]

An exception to the foregoing rule is that on independently relevant statements. A report made by a person is
admissible if it is intended to prove the tenor, not the truth, of the statements.[54] Independent of the truth or the
falsity of the statement given in the report, the fact that it has been made is relevant. Here, the hearsay rule does not
apply.[55]

In the instant case, the challenged Survey Report prepared by Cortez was admitted only as part of the testimonies of
respondents witnesses. The referral to Cortezs Report was in relation to Manlapigs final Adjustment Report. Evidently,
it was the existence of the Survey Report that was testified to. The admissibility of that Report as part of the
testimonies of the witnesses was correctly ruled upon by the trial court.

At any rate, even without the Survey Report, petitioner has already failed to overcome the presumption of fault that
applies to common carriers.

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution are AFFIRMED. Costs against
petitioner.

SO ORDERED.
*
The Petition included the Court of Appeals as a respondent. However, the CA was omitted by the Court from the title of the
case because, under Section 4 of Rule 45 of the Rules of Court, the appellate court need not be impleaded in petitions
for review.
[1]
Rollo, pp. 12-27.
[2]
Id., pp. 36-41. Tenth Division. Penned by Justice Elvi John S. Asuncion, with the concurrence of Justices Portia Alio-
Hormachuelos (Division chairperson) and Juan Q. Enriquez Jr. (member).
[3]
Id., p. 48. [4] Assailed Decision, pp. 5-6; rollo, pp. 40-41.
[5]
Id., pp. 1 & 36.
[6]
The barge was allegedly owned by J. T. Lighterage Services. (TSN dated September 27, 1995, p. 3) It was non-propelled
therefore, it could only operate through its towing by petitioners tugboat M/T Ayalit. (TSN dated April 26, 1995, p. 12;
TSN dated April 25, 1996, p. 19)
[7]
Assailed Decision, p. 1; rollo, p. 36. [8] Id., pp. 2 & 37.
[9]
Ibid. The case was docketed as Civil Case No. 92-63159 and raffled to Branch 42.
[10]
Ibid. [11] RTC Decision dated December 7, 1999, p. 9; rollo, p. 58.
[12]
Assailed Decision, p. 4; rollo, p. 39.
[13]
The case was deemed submitted for decision on October 25, 2004, upon this Courts receipt of petitioners sparse, 6-page
(with only two pages of argument) Memorandum, signed by Atty. Romualdo M. Jubay. Respondents Memorandum,
signed by Atty. Frederick C. Angel, was received by this Court on October 7, 2004.
[14]
Petition, p. 8; rollo, p. 19. Original in uppercase.
[15]
1 of Rule 45 of the Rules of Court.
[16]
Menchavez v. Teves Jr., 449 SCRA 380, 395, January 26, 2005; Philippine American General Insurance Company v. PKS
Shipping Company, 401 SCRA 222, 230, April 9, 2003; Commissioner of Internal Revenue v. Embroidery and Garments
Industries (Phil.), Inc., 364 Phil. 541, 546, March 22, 1999.
[17]
Art. 1732 of the Civil Code. [18] Petition, pp. 4-5; rollo, pp. 14-15. [19] RTC Decision dated December 7, 1999, p. 7; rollo, p. 56.
[20]
Puromines, Inc. v. Court of Appeals, 220 SCRA 281, 288, per Nocon J. See also National Food Authority v. Court of Appeals, 370
Phil. 735, 743, August 4, 1999.
[21]
Philippine American General Insurance Company v. PKS Shipping Company, supra, p. 228; Coastwise Lighterage Corporation v.
Court of Appeals, 316 Phil. 13, 19, July 12, 1995.
[22]
National Steel Corporation v. Court of Appeals, 347 Phil. 345, 362, December 12, 1997; Valenzuela Hardwood and Industrial
Supply, Inc. v. Court of Appeals, 274 SCRA 642, 654, June 30, 1997.
[23]
RTC Decision dated December 7, 1999, pp. 4-6; rollo, pp. 53-55.
[24]
Art. 1733 of the Civil Code.
[25]
Calvo v. UCPB General Insurance Co., Inc., 429 Phil. 244, 252, March 19, 2002; Compania Maritima v. Court of Appeals, 164
SCRA 685, 692, August 29, 1988.
[26]
Art. 1735 of the Civil Code.
[27]
Ibid. See also National Trucking and Forwarding Corp. v. Lorenzo Shipping Corporation, GR No. 153563, February 7, 2005; Asia
Lighterage and Shipping, Inc. v. Court of Appeals, 409 SCRA 340, 346, August 19, 2003; Philippine American General
Insurance Company v. PKS Shipping Company, supra, p. 229; Coastwise Lighterage Corporation v. Court of
Appeals, supra, p. 20; Basco v. Court of Appeals, 221 SCRA 318, 323, April 7, 1993.
[28]
Art. 1734 of the Civil Code.
[29]
Mindex Resources Development v. Morillo, 428 Phil. 934, 944, March 12, 2002; Philippine American General Insurance Co. Inc.
v. MGG Marine Services, Inc., 428 Phil. 705, 714, March 8, 2002; Metal Forming Corp. v. Office of the President, 317 Phil.
853, 859, August 28, 1995; Vasquez v. Court of Appeals, 138 SCRA 553, 557, September 13, 1985; Republic v. Luzon
Stevedoring Corp., 128 Phil. 313, 318, September 29, 1967.
[30]
Art. 1739 of the Civil Code. [31] Ibid.
[32]
RTC Decision dated December 7, 1999, p. 9; rollo p. 58 (citing the testimony of Rosa S. Barba). See also Petitioners
Memorandum, p. 2; rollo, p. 157.
[33]
Ibid. (citing the testimony of Domingo A. Luna).
[34]
The testimony of Rosa S. Barba, weather specialist of Philippine Atmosphere (PAGASA), was summarized by the RTC as
follows:
In May 1993, upon the request of [petitioners] counsel, she issued a weather bureau report or certification, an official
record of Pagasa, which weather report is based on their weather station at Puerto Princesa, Palawan. x x x
The report on the weather condition on October 21, 1991 at around 11:00 am to 2:00 pm was weathercast
sky. The bad weather condition on October 25, 26, and 27, 1991 was caused by typhoon Trining but said
typhoon then was far from Palawan, which was only signal No. 1. Tropical storm Trining entered the Philippine
area of responsibility on October 24. Pagasa did issue a warning that said storm was approaching the
Philippines. Storm Trining was classified, as super typhoon with a maximum of 185 kilometer[s] per hour and
the coverage was big. On October 24, 1991, typhoon Trining hit Batangas, the Ilocos Provinces, Isabela, but not
Metro Manila or Palawan. Maybe Palawan was affected but if ever it was affected it was only minimal. RTC
Decision dated December 7, 1999, p. 6; rollo, p. 55.
[35]
See Art. 1739 of the Civil Code.
[36]
The testimony of Joey A. Draper, the quarter master in charge of steering the tugboat, was summarized by the RTC as
follows:
On October 25, 1991, he was assigned in the tugboat M/T Ayalit. x x x [The tugboat] was towing the barge Judy VII
which was carrying silica sand. x x x He was an ordinary seaman in 1991 and it was his first year as a seaman,
although he made several trips to Palawan and Manila. x x x He does not know the qualification[s] of a seaman
but he was then a second year high school [student] and though he did not take any examination, he knew
about navigation. When the incident happened in 1991[,] he had no seaman book as it was not yet strict at the
time and the seaman book can be dispensed with. He was only 18 years and has an actual training of the work
when he boarded the tugboat. Even if he has no formal schooling, the master allowed him to handle the wheel
of the tugboat. When they left San Vicente, Palawan for Manila on said date at around 4:00 pm, the weather
was fair. When they passed by Linapakan Island, the waves were quite big and the wind was a little bit strong.
At that point in time, the barge patrol of Judy VII wave[d] his hand [at] them. Their captain decided to
approach the barge. They noticed that [there was] water already inside the barge. About two (2) days later,
their captain decided to beach the barge. The said barge then sank and only the barges house at the back
portion of the barge (the puppa) was above water. He could only remember that they save[d] the bargemen
and proceeded to El Nido, Palawan where they secured themselves to save the tugboat. But he could no
longer remember how long a time they stayed thereat nor if they went back to the barge Judy VII. RTC
Decision, p. 6; rollo, p. 55.
[37]
TSN dated November 22, 1995, pp. 27-29.
[38]
In civil cases, parties who carry the burden of proof must establish their case by a preponderance of evidence. 1 of Rule 133
of the Rules of Court.
[39]
Respondent proved this allegation through the testimony of its witnesses and submission of documentary evidence.
Unseaworthiness was also the finding of the appellate court. Assailed Decision, p. 4; rollo, p. 39.
[40]
TSN dated April 26, 1995, p. 44. [41] TSN dated September 27, 1995, pp. 17-21.
[42]
Petitioners Exhibit 4.
[43]
3(m) of Rule 131 of the Rules of Court.
[44]
Delsan Transport Lines, Inc. v. Court of Appeals, 420 Phil. 824, 834, November 15, 2001.
[45]
Exhibit H. See Respondents Offer of Evidence, p. 2; records, p. 159.
[46]
Petitioners Memorandum, p. 3; rollo, p. 160.
Respondents witness, Federico S. Manlapig, testified that Jesus Cortez -- who had already migrated to Australia -- could no
longer testify. TSN dated December 15, 1994, p. 9.
[47]
RTC Decision dated December 7, 1999, p. 4; rollo, p. 53.
[48]
Ibid. [49] TSN dated December 15, 1994, pp. 9-13. [50] 1 of Rule 132 of the Rules of Court.
[51]
Rule 130 of the Rules of Court. [52] RTC Order dated March 17, 1995; records, p. 165.
[53]
Melchor v. Gironella, GR No. 151138, February 16, 2005; People v. Crispin, 383 Phil. 919, 931, March 2, 2000; People v.
Villeza, 127 SCRA 349, 359, January 31, 1984; Paa v. Chan, 128 Phil. 815, 821, October 31, 1967.
[54]
Country Bankers Insurance v. Lianga Bay and Community Multi-purpose Cooperative, 425 Phil. 511, 521, January 25, 2002.
See also Presidential Commission on Good Government v. Desierto, 445 Phil. 154, 191, February 10, 2003; People v.
Mallari, 369 Phil. 872, 884, July 20, 1999; People v. Cloud, 333 Phil. 306, 322, December 10, 1996.
[55]
People v. Velasquez, 352 SCRA 455, 476, February 21, 2001; Gotesco Investment Corporation v. Chatto, 210 SCRA 18, 32, June
16, 1992.
 FIRST DIVISION
[G.R. No. 134128. September 28, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERARDO DE LAS ERAS y ZAFRA, alias GERRY, accused-appellant.
DECISION
PARDO, J.:
The case is an appeal from the decision[1] of the Regional Trial Court, Branch 3, Bohol, City of Tagbilaran, finding
accused Gerardo de las Eras y Zafra, alias Gerry, guilty beyond reasonable doubt of murder and sentencing him
to reclusion perpetua and to indemnify the heirs of the victim Ursula Calimbo in the sum of P16,992.50, representing
actual civil liability and the further amount of P50,000.00 as moral damages.
On March 30, 1992, assistant city prosecutor of Tagbilaran City Rio C. Achas filed with the Regional Trial Court,
Bohol, at Tagbilaran City, an information[2] charging accused Gerardo de las Eras y Zafra, alias Gerry, with murder,
reading as follows:
That on or about the 17th day of February, 1992, in the municipality of Cortes, province of Bohol, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and without any justifiable cause,
with evident premeditation, taking advantage of superior strength, and treachery by the suddenness and
unexpectedness of the acts, the victim who was unarmed being then unaware thereof, did then and there wilfully,
unlawfully and feloniously attack, assault and strike several times with the use of a club (hard wood) one Ursula
Calimbo, a defenseless old woman, hitting the latter on the head and other vital parts of her body, thereby causing her
immediate death; to the damage and prejudice of the heirs of the victim in the amount to be proved during the trial.
Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, as amended, in relation to Article
14, of the same Code.
City of Tagbilaran, March 24, 1992.
On November 13, 1995, the trial court arraigned the accused. He pleaded not guilty.[3] Trial ensued.
On February 17, 1992, at around 7:00 in the evening, Gerome Diola saw accused Gerardo de las Eras (also known
as Gerry) within the vicinity of the house of Ursula Calimbo (then seventy-three years old).[4] Gerome knew accused de
las Eras since childhood. They had a short conversation, then parted ways. Shortly after that chance meeting, Gerome
learned that Ursula Calimbo had been struck to death.[5]
Hilaria Calimbo Binatero, daughter of Ursula, testified that she lived next door to her mother, their houses
separated only by a fence. In the evening of February 17, 1992, she was cooking in her house when she heard her
mother cry for help, Ellen, tabangin ko (Ellen, please help me). [6] She rushed to her mother and found her bloodied near
the main door. She asked her what happened and who was responsible for her condition. Her mother replied, Gerry.[7]
Hilaria testified that on February 10, 1992, she saw accused de las Eras hiding behind the fence of her mothers
house, looking particularly at the back of the house near the kitchen and the comfort room.On February 12, 1992, her
mother received a pension of P3,000.00. On February 14, 1992, someone stole the money. Her mother suspected
accused de las Eras as the culprit.[8]
Luisito Redulla testified that he rushed to the scene of the crime when he heard Ellen (Hilaria Binatero) cry for
help. He went to the victim and asked what happened to her and who was responsible, and she answered Gerry, the
son of Pepe and Corning struck her (gibunalan siya). [9] Incidentally, accused Gerardo de las Eras parents are Felipe,
nicknamed Pepe, and Cornelia Zafra de las Eras.[10] Luisito Redulla was the arresting officer when, in 1989, accused
Gerry de las Eras was charged with theft.[11]
Hilaria immediately rushed Ursula to the hospital, but after one hour, she died. The family spent P16,992.50 for
the interment and burial of the victim.[12]
Immediately after the incident, police took pictures of the locus criminis showing the deceaseds comfort room, a
pair of slippers and the hard wood used to strike the victim, [13] part of the kitchen sink which also showed an opening in
the wall,[14] and the door beside the sink which was slightly open. [15]
In his defense, accused Gerardo de las Eras invoked denial and alibi. Early in the evening of February 17, 1992, he
accompanied Dedec Carnecer to have a battery recharged, [16] and after which, he went directly to his grandmother to
buy cigarettes and to have supper.[17] His grandmothers house was about one hundred (100) meters away from the
house of the victim.[18]
After due trial, on April 8, 1998, the trial court rendered a decision, the dispositive portion of which reads as
follows:
WHEREFORE, premises considered, this Court finds accused Gerardo de las Eras, alias Gerry, GUILTY beyond reasonable
doubt of the Crime of Murder, and hereby imposes upon him the penalty of imprisonment of reclusion perpetua, to
suffer the necessary penalties imposed by law, and to indemnify the heirs of his victim the sum of P16,992.50,
representing actual civil liability and the further amount of P50,000.00 as moral damages, but without subsidiary
imprisonment in case of insolvency.
Without pronouncement as to Costs.
SO ORDERED.
Given, this 17th day of February, 1998.
(Sgd.) PACITO A. YAPE
Judge[19]
[20]
Hence, this appeal.
 In his brief, accused-appellant raised as issue the prosecutions failure to prove his guilt beyond reasonable
doubt. He contends that the trial court erred in relying heavily on the dying declaration of the deceased and other
circumstantial evidence.[21]
We find the appeal without merit.
The trial court, in convicting accused-appellant, considered the following circumstantial evidence:
(a) That on February 10, 1992 at about 2:00 p.m. or a week before the incident of February 17, 1992, Gerry was hiding
behind the fence of the victims house, near the trunk of a jackfruit tree. He was observed to be surveying the
premises of the house.
(b) That Ursula Calimbo received her monthly pension of P3,000.00 on February 12, 1992, five (5) days before the
incident.
(c) That on February 14, 1992, Ursula Calimbo lost her money and she suspected accused Gerry as the culprit.
(d) That accused Gerardo de las Eras was previously caught, arrested and convicted of theft before the MCTC of
Cortes, Bohol as testified to by Clerk of Court Abelia Redillas.
(e) That on February 17, 1992 at about 7:00 p.m. before the incident took place at about 8:00 p.m., accused Gerry was
seen by prosecution witness Jerome Diola. When asked by Diola during the brief and chance meeting as to his
destination, de las Eras seemed unable to give a definite answer as he was giving two different destinations: first,
that he was on his way to his brothers house; and on the second, to the bakery of Delfina Boot, as if he were up for
some mischief.
(f) That the place where Diola and Gerry parted ways appears to be some 60 meters away to the house of the victim or
a few meters away from the house of his Lola Naning where he took his late supper.
(g) That accused has a strong motive to kill the victim because he wanted to silence her for good, at the same time to
exact vengeance on the victim who suspected accused de las Eras to have stolen her pension money.
(h) That when the victim, who was already bleeding on her brows, when asked as to her assailant, first, by her
daughter Hilaria Calimbo Binatero, and later by SPO3 Lucito Redulla, she mentioned accuseds name
consistently. That the accused is known by his nickname Gerry in the neighborhood, and that is the only Gerry in
the community.[22]
Circumstantial evidence suffices to convict an accused if the following requisites concur: (1) there must be more
than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all
the circumstances produces a conviction beyond reasonable doubt. [23] The totality of the evidence must form an
unbroken chain showing beyond reasonable doubt the culpability of the accused. [24]
The dying declaration made by the victim immediately prior to her death constitutes evidence of the highest
order[25]of the cause of her death and of the identity of the assailant. Under the Revised Rules on Evidence,[26] a dying
declaration is admissible provided the following requisites are present: (1) the statement concerns the crime and
surrounding circumstances of the declarants death; (2) at the time it was made, the declarant was under the
consciousness of an impending death; (3) the declarant would have been competent as a witness had he survived; and
(4) the declaration was offered in a criminal case for homicide, murder, or parricide in which the declarant was the
victim.[27] When asked by her daughter Hilaria Binatero[28]and policeman Luisito Redulla,[29] the victim pointed to
accused-appellant Gerry de las Eras as her assailant. This qualifies as a dying declaration.[30]
Denial and alibi are weak defenses and cannot overturn the positive identification by the prosecution witnesses of
the assailant, more so when there are material inconsistencies in the testimony of the accused denying his participation
in the crime. In this case, accused-appellant gave different responses as to his whereabouts when the crime was
committed, thus:
Q: Do you remember having testified on June 14, 1996 that at 5:00 p.m., more or less, you were at your house when Dedec
arrived at your house?
A: Yes.
Q: And now you are testifying in answer to the courts question that when Dedec went to your house, it was only your sister
whom he met and told your sister to tell you that Dedec wanted to see you, which is which now?
A: When Dedec came to our house, I was at the upper portion of the house.
COURT: Why are you telling the court that you were out when Dedec came?
A: I was at the upper portion and my sister told me that Dedec was there.
Q: So you have a talk with him?
A: Yes, before we left.
Q: So, there are now four versions, on July 14, 1996, you said Dedec came to your house to ask you to help him have his
battery charged, on question of the court today, you answer that you were around the house, on question of
Prosecutor Rodolfo R. Ligason, you said, you were at the upper portion of your house, now, you are telling the court
that your sister told you that Dedec Carnecer was there, and you have a talk with him, which is which now?
A: I wish to tell the court that Dedec Carnecer came to my house, he first see my sister, who told me that Dedec was around,
and I met Dedec, who told me to go to his house.
Q: So you will not change your answer anymore?
A: Yes.[31]
Accused-appellant also gave different versions as to where he stayed during the charging of the battery. First, he
said that they waited at the store across the whole time that the battery was being charged.At another time, he said
that he went first to his grandmothers house and then came back later to get the charged battery, thus:
Q: Is it not a fact that usually in order to give power to the battery, the battery should be charged slowly, and therefore, it
should be charged overnight and to be taken the following day?
A: I do not know.
Q: Do you mean to say that after bringing the battery to Igang, after some few minutes, Dedec Carnecer brought it back to
his house?
A: It was left there for three hours.
Q: Do you mean to say that you waited for that number of hours, three hours?
A: Yes.
Q: What time did you arrive?
A: Almost 6:30 p.m.
Q: So, in effect, you waited until 9:30 p.m?
A: No, because we went back to the shop at 8:30 p.m. because Anoy Igang told us to get the battery.
Q: Did you not tell the court that you waited for three hours to have the battery charged?
A: While we waited, Igang told us to get the battery at 8:30, so we returned to his shop at 8:30 p.m.
Q: So, it did not take you three hours to wait after all?
A: I do not know, because they were not ones who waited.
Q: But you came back at 8:30 p.m?
A: Yes.
Q: And you were able to get the battery?
A: Yes.
Q: In other words, it only took you two hours, not three hours?
A: Yes.
Q: But why did you tell the court that you waited for three hours?
A: Yes, because they were talking with Dedec Carnecer.
Q: In other words, it did not take you about three hours to wait, it only took you 1 hours?
A: Yes, that is true.
xxx xxx xxx
Q: While you were on cross, I heard your answer to the effect that after all, you have the battery charged for three hours,
but in your testimony on June 14, 1996, you said that the battery was charged at Anoy Igangs shop for two hours, my
question is, did you deliberately change the two hours to three hours in order to suit the requirements in charging the
battery?
A: What Anoy Igang told us when I arrived at 6:30 p.m., that we will come back at 8:30 p.m., because the battery will be
ready by that time.
Q: Though, you were not quite responsive to my question, did I get you right just a while ago that you said that you came
back to Anoy Igangs shop to get the battery?
A: Yes.
Q: This is quite a new matter because when you testified on June 14, 1996, you said that from Anoy Igangs shop taking out
the battery, you went to the house of Dedec Carnecer arriving 7:30 p.m., leaving 8:00 p.m. going to the house of your
lola?
A: The truth is, we went to Arsenio Agots store and went back at 8:00 p.m. to get the battery.
COURT: The court noticed that most often you are not responsive to the question asked, remember, these series of questions
are vital, since your defense here is alibi, but on my notes on your testimony of July 16, you declared that there was no
unusual incident at the store of Agot, in fact, you have been seated at the bench of the store with Dedec Carnecer, and
there was no unusual incident thereat. And at about 7:00 p.m., you returned to the shop of Igang and was able to
retrieve the battery, and you went home to the house of Dedec Carnecer, arriving there at 7:30 p.m., it seems that you
are making some conflicting statements. Do not answer the question unless you are very sure of your answer.
A: I was confused because the question of the fiscal was not in series and sequence. [32]
Accused-appellants defense of denial and alibi is further weakened by the fact that he escaped from detention on
May 23, 1992, before his arraignment.[33] On January 21, 1995, he was re-arrested and detained at the Bohol Detention
and Rehabilitation Center (BDRC) for another crime.[34] On June 7, 1997, during the trial of this case, accused-appellant
again escaped from the guard on duty.[35] On December 17, 1997, he was apprehended again.[36] Such escapade is akin
to flight before arrest in the commission of a crime, which is an indication of guilt.[37]
However, there was no eyewitness showing how the assailant attacked the victim. Without any particulars as to
the manner in which the aggression commenced or how the act which resulted in the victims death unfolded, treachery
cannot be appreciated.[38] In the absence of specific evidence proving the qualifying circumstances of treachery and
abuse of superior strength, absorbed therein,[39] the crime committed is homicide, not murder.
WHEREFORE, the Court AFFIRMS the decision of the Regional Trial Court, Bohol, Branch 3, Tagbilaran City, in
Criminal Case No. 7727, convicting accused-appellant Gerardo de las Eras y Zafra, alias Gerry, with the modification that
in lieu of murder, the Court finds accused Gerardo de las Eras y Zafra, alias Gerry, guilty beyond reasonable doubt of
homicide, defined and penalized under Article 249 of the Revised Penal Code. In the absence of any modifying
circumstances and applying the Indeterminate Sentence Law, the Court hereby sentences him to twelve (12) years
of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, to
indemnify the heirs of the deceased Ursula Calimbo in the amount of P50,000.00 plus P16,992.50 as actual damages
andP50,000.00 as moral damages and costs in all instances.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

[1]
In Criminal Case No. 7727. Judge Pacito A. Yape, presiding. Original Record, pp. 83-97; Rollo, pp. 22-36.
[2]
Original Record, pp. 17-18.
[3]
Ibid., p. 32.
[4]
Exh. I (Death Certificate).
[5]
TSN, June 5, 1996, pp. 3-6.
[6]
Ibid., pp. 9, 11.
[7]
Ibid., p. 11.
[8]
TSN, June 5, 1996, pp. 9-11.
[9]
TSN, June 6, 1996, pp. 30-31, 39.
[10]
TSN, June 14, 1996, p. 2.
[11]
TSN, June 6, 1996, pp. 33-37; Exh. H.
[12]
Exhs. D, E and F; TSN, June 6, 1996, pp. 16-20.
[13]
Exh. C. The club (hard wood) was marked as Exh. A.
[14]
Exh. C-1.
[15]
Exh. C-2.
[16]
TSN, June 14, 1996, pp. 5-6.
[17]
TSN, July 17, 1996, p. 8.
[18]
TSN, August 9, 1996, p. 2.
[19]
Original Record, p. 97; Rollo, p. 36. On June 9, 1999, we accepted the appeal (Rollo, pp. 41-42).
[20]
Original Record, p. 99; Rollo, p. 37.
[21]
Appellants Brief, Rollo, p. 64.
[22]
Decision, p. 13 (Rollo, p. 34; Original Record, p. 95). Emphasis supplied.
[23]
People v. Espina, 326 SCRA 753, 762-763 (2000); People v. Ragundiaz, 334 SCRA 193, 201-202 (2000); People v.
Casingal, 337 SCRA 100, 110 (2000); People v. Rendaje, G. R. No. 136745, November 15, 2000.
[24]
People v. Rendaje, supra, Note 23, citing People v. Fronda, 328 SCRA 185 (2000).
[25]
People v. Rada, 367 Phil. 466, 481 (1999). A dying declaration is entitled to the highest credence (People v. Molina,
311 SCRA 517, 525 (1999).
[26]
Rule 130, Section 37, effective July 1, 1989.
[27]
People v. Atrejenio, 310 SCRA 229, 240 (1999); People v. Reduca, 361 Phil. 444, 458-459 (1999); People v. Nialda,
352 Phil. 355, 363-364 (1998); People v. Bromo, 318 SCRA 760, 778 (1999); People v. Gado, 358 Phil. 956, 966 (1998).
[28]
TSN, June 5, 1996, p. 11.
[29]
TSN, June 6, 1996, p. 39.
[30]
People v. Atrejenio, supra, Note 27; People v. Molina, supra, Note 25, at pp. 524-525.
[31]
TSN, August 9, 1996, pp. 4-5 (emphasis supplied).
[32]
TSN, August 9, 1996, pp. 6-9 (emphasis supplied).
[33]
Original Record, p. 25.
[34]
Ibid., p. 29.
[35]
Ibid., p. 52.
[36]
Ibid., pp. 77-80.
[37]
People v. Alvarez, G. R. No. 121769, November 22, 2000.
[38]
People v. Casingal, 337 SCRA 100, 112 (2000), citing People v. Rios, 333 SCRA 823 (2000).
[39]
People v. Taclan, 367 Phil. 648, 662 (1999).
 FIRST DIVISION
[G.R. No. 133964. February 13, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMIL PEA, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant Ramil Pea was charged with murder in an Information which reads, thus:
That on or about the 8th day of December, 1995, in the municipality of Obando, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused armed with a firearm with intent to kill
one Jimbo Pelagio y Ferrer, did then and there wilfully, unlawfully and feloniously, with evident premeditation and
treachery, attack, assault and shoot the said Jimbo Pelagio y Ferrer, hitting the latter on the head thereby inflicting
wound which directly caused the death of the said Jimbo Pelagio y Ferrer.[1]
In the early morning of December 8, 1995, accused-appellant hired Jimbo Pelagio, a tricycle driver working the
night shift, to take him to Paco, Obando, Bulacan. When they reached their destination, he ordered Pelagio to get off
the tricycle. Then, accused-appellant robbed Pelagio of his money and repeatedly struck him on the head with a
gun. Pelagio fell on the ground unconscious. Accused-appellant shot him on the head and fled on board his tricycle.
That same morning, SPO1 Froilan Bautista got a call from the Valenzuela Emergency Hospital stating that a man
had been shot on the head and was in their hospital. SPO1 Bautista and SPO1 Jose Sta. Ana rushed to the hospital and
found the still conscious Pelagio lying on a stretcher.
SPO1 Bautista took the statement of Pelagio in a question and answer method, which he took down on two sheets
of yellow paper. After his statement was taken, Pelagio affixed his thumbmark on both sheets. In his
statement, Pelagio related how accused-appellant inflicted his injuries on him.
The owner of the tricycle, Wilfredo Lampa, after being informed that Pelagio had been shot, proceeded to the
hospital. There, Pelagio told him that it was accused-appellant who shot him and took away his tricycle.
Francisca Pelagio, Jimbo Pelagios mother, also rushed to the hospital. Upon advice of the doctors, Francisca
brought her son to the Jose Reyes Memorial Hospital. On February 6, 1996, Jimbo Pelagio expired. According to
Francisca, she spent P26,000.00 for his medical and funeral expenses.
For his part, accused-appellant claimed that he was in San Isidro, San Luis, Pampanga together with his wife on the
date of the incident. He went into hiding in the house of his uncle, Maximiano Guevarra, for nine (9) months because
he allegedly killed a certain Roger Wininsala. He came to know that he was being accused of the murder of Pelagio,
whom he did not know, only while he was in detention on a drug charge.
Accused-appellants testimony was corroborated by his uncle Maximiano Guevarra.
The trial court was not persuaded. On May 13, 1998, it rendered a decision,[2] the dispositive portion of which
reads:
WHEREFORE, the foregoing considered, this Court hereby finds RAMIL PEA GUILTY beyond reasonable doubt of the
crime of Murder under Article 248 of the Revised Penal Code and sentences him to suffer the penalty
of Reclusion Perpetua and to pay the victims mother, Francisca Pelagio, the amount of P26,000.00 representing actual
damages and the costs of suit.
Hence this appeal.
Accused-appellant claims that the trial court erred in finding that accused-appellant shot Pelagio because there is
no evidence that a bullet was embedded in the skull of the victim.More specifically, the attending physicians were not
presented to testify that the victim died of a gunshot wound in the head.
Accused-appellant next claims that the evidence relied upon by the trial court is hearsay and inadmissible. He
argues that said evidence does not constitute res gestae. Particularly, he emphasizes that it was imperative on the part
of the lower court that it should have appreciated the principle of res gestae on the basis of the contents
of Jimbo Pelagios statement reduced in handwritten form by SPO1 Bautista, and not on the dying declarations made
by Jimbo Pelagio to SPO1 Bautista, Wilfredo Lampa and Francisca Pelagio because these prosecution witnesses had all
the time to contrive and improvise on what was actually told them, allegedly by Jimbo Pelagio.[3]
The pivotal issue is whether the statement of the victim Jimbo Pelagio as well as the testimonies of the
prosecution witnesses on the victims declaration can be considered as part of the res gestae, hence, an exception to
the hearsay rule.
The statement or declaration made by Pelagio, taken by SPO1 Bautista, reads:
T: Alam mo ba ang dahilan kung bakit ka naririto sa Valenzuela Emergency Hospital at kinukunan ka ng salaysay?
S: Opo, dahil pinagpapalo po ako ng baril ni RAMIL PEA sa ulo at kinuha and tricycle kong minamaneho.
T: Taga saan itong si Ramil Pea?
S: Sa Dulong Tangke, Valenzuela, (Malinta), M.M.
T: Saan, kailan at anong oras nangyari ito?
S: Sa Paco, Obando, Bulacan, kaninang ika-8 ng Disyembre 1995 sa ganap na ika-4:15 ng umaga.
T: Sakay mo ba itong si Ramil Pea?
S: Oho, sumakay sa may gasolinahan ng Petron sa Malinta, Valenzuela, M.M.
T: Dati mo bang kilala si Ramil Pea?
S: Opo.
T: Ano ba ang tatak ng tricycle mo?
S: Yamaha RS-100, kulay itim.
T: Sino and may-ari ng tricycle?
S: Si Rey Dagul.
T: Binaril ka ba ni Ramil?
S: Muntik na ho.
T: Bakit sa iyo ginawa ni Ramil and bagay na ito?
S: Ewan ko ho.[4]
The trial court ruled that Pelagios statement was a dying declaration since it was uttered at the point of death and
with consciousness of that fact due to the serious nature of his wounds. Thus, it admitted Pelagios statement in
evidence as an exception to the hearsay rule.
The requisites for the admissibility of dying declarations have already been established in a long line of
cases. An ante-mortem statement or dying declaration is entitled to probative weight if: (1) at the time the declaration
was made, death was imminent and the declarant was conscious of that fact; (2) the declaration refers to the cause and
surrounding circumstances of such death; (3) the declaration relates to facts which the victim was competent to testify
to; (4) the declarant thereafter died; and (5) the declaration is offered in a criminal case wherein the declarants death is
the subject of the inquiry.[5]
The first element is lacking in the case at bar. It was not established with certainty whether Pelagio uttered his
statement with consciousness of his impending death. While he was in pain when he made his statement, he expressly
stated that accused-appellant only pistol-whipped him and almost shot him.[6]
The significance of a victims realization or consciousness that he was on the brink of death cannot be
gainsaid. Such ante mortem statement is evidence of the highest order because at the threshold of death, all thoughts
of fabricating lies are stilled. The utterance of a victim made immediately after sustaining serious injuries may be
considered the incident speaking through the victim. It is entitled to the highest credence. [7]
Granting that Pelagio, after giving his statement, later on realized that he was dying, his statement still can not be
considered a dying declaration. The crucial factor to consider is the contemporaneity of the moment when the
statement was made and the moment of the realization of death. The time the statement was being made must also be
the time the victim was aware that he was dying.
While it may not qualify as a dying declaration, Pelagios statement may nonetheless be admitted in evidence as
part of the res gestae. In People v. Marollano,[8] this Court held:
The requisites for the admissibility of the victims ante mortem statement as part of the res gestae and also as a dying
declaration are present in this case, hence the same should be admitted under both exceptions to the hearsay rule.
(Citation omitted) While the admissibility thereof would naturally not be affected whether viewed under either or both
considerations, the advantage of resting the issue on the aforesaid dual bases is that its admission would be
invulnerable to a theorized absence of an element of one of said exceptions. This is particularly important in this case,
considering that the very identification of the assailant and the accuracy thereof are essentially based on the
declaration of the victim. (Emphasis supplied)
A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (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 concern the occurrence in question and its immediately attending
circumstances.[9]
In People v. Naerta,[10] this Court held that:
The term res gestae comprehends a situation which presents a startling or unusual occurrence sufficient to produce a
spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as
to show lack of forethought or deliberate design in the formulation of their content.
Pelagios declaration is admissible as part of the res gestae since it was made shortly after a startling occurrence
and under the influence thereof. Under the circumstances, the victim evidently had no opportunity to contrive his
statement beforehand.[11]
In People v. Hernandez,[12] the infliction on a person of a gunshot wound on a vital part of the body should qualify
by any standard as a startling occurrence. And the rule is that testimony by a person regarding statements made by
another as that startling occurrence was taking place or immediately prior or subsequent thereto, although essentially
hearsay, is admissible exceptionally, on the theory that said statements are natural and spontaneous, unreflected and
instinctive, made before there had been opportunity to devise or contrive anything contrary to the real fact that
occurred, it being said that in these cases, it is the event speaking through the declarant, not the latter speaking of the
event.
In this case, it is clear that the pistol-whipping and the gunshot on the head of Pelagio qualified as a startling
occurrence. Notably, Pelagio constantly complained of pain in his head while his statement was being taken by SPO1
Bautista, so much so that there was no opportunity for him to be able to devise or contrive anything other than what
really happened.
In People v. Putian,[13] the Court held that although a declaration does not appear to have been made by
the declarant under the expectation of a sure and impending death, and, for that reason, is not admissible as a dying
declaration, yet if such declaration was made at the time of, or immediately after, the commission of the crime, or at a
time when the exciting influence of the startling occurrence still continued in the declarants mind, it is admissible as
part of the res gestae.
Indeed the defense admitted as much when it stated, thus:
We should stress that Jimbo Pelagios handwritten statement, or his declarations therein, were made immediately after
the res gestae or the principal act took place, and he had no time to contrive or devise, while his statements directly
concerned the occurrence in question and its immediate circumstances. We should take note further that the
handwritten statements contents are rather detailed in terms of the specifics of the circumstances before, during and
after the subject incident which elicits guarded conclusion that notwithstanding Jimbo Pelagios physical condition at
the Valenzuela Emergency Hospital, he was conscious and lucid enough to intelligently respond rather spontaneously
on the questions propounded to him by SPO1 Bautista. These acts and statements made by Jimbo Pelagio definitely
constitute part of res gestae and not the testimonies and/or written statements of the three prosecution witnesses in
this case.[14]
By stating, however, that the testimonies or the written statements of the three prosecution witnesses were
taken into consideration by the trial court as part of the res gestae betrays a misapprehension of said principle. This
Court agrees with the Solicitor General when it observed thus:
Since res gestae refers to those exclamations and statements made by either the participants, victims or spectators to a
crime before, during or immediately after the commission of the crime, they should necessarily be the ones who must
not have the opportunity to contrive or devise a falsehood but not the persons to whom they gave their dying
declaration or spontaneous statement. In other words, the witness who merely testifies on a res gestae is not
the declarant referred to in the second requisite whose statements had to be made before he had the time to contrive
or devise a falsehood. (citation omitted)
Thus, even if there were intervening periods between the time the victim gave his account of the incident to the
prosecution witnesses and the time the latter first disclosed what the victim told them, the same will not affect the
admissibility of the victims declaration or statement as part of res gestae since it is sufficient that such declaration or
statement was made by the victim before he had time to contrive or devise a falsehood.[15]
In any case, there is no reason why SPO1 Bautista would contrive or devise a falsehood especially on the matter
that Pelagio was shot on the head and that it was accused-appellant who shot him. As a police officer, he was duty-
bound to investigate and unearth the facts of the case. There is a presumption that as an officer of the law, he sought
only the truth. Besides, no motive was shown as to why he would contrive or devise a falsehood against accused-
appellant.
In his Investigation Report,[16] SPO1 Bautista gathered that accused-appellant shot Pelagio from
the Radiologic Report conducted at the Valenzuela District Hospital wherein the presence of metallic fragments was
discovered. Moreover, the results of the C.T. Scan conducted on the victim showed the presence of metallic fragments
in his skull. In Pelagios Death Certificate,[17] the underlying cause of death was indicated as gunshot wound to the head.
There is, therefore, no merit in accused-appellants contention that there was no evidence that Pelagio was shot in
the head. It should be noted that accused-appellant pistol-whipped Pelagio repeatedly. The Solicitor Generals following
submission would, therefore, make sense:
Given the probability that he was already unconscious or his head had become numb due to severe head injuries when
accused-appellant shot him, it is not unlikely for the victim not to have known or felt being shot and hit by accused-
appellant on the head. This was probably the reason why in his initial declaration, the victim merely stated that he was
nearly shot by accused-appellant.[18]
Regardless, Pelagio categorically declared that it was accused-appellant who caused his head injuries which
eventually led to his death. SPO1 Bautistas testimony as well as WilfredoLampas and Francisca Pelagios merely
corroborated Pelagios statement that it was accused-appellant who caused his head injuries.
The trial court found, thus:
The straightforward and consistent testimonies of the three vital prosecution witnesses bear the earmarks of
credibility. Further, there exists no ill motive on their part to prevaricate. This absence of evidence as to an improper
motive actuating the principal witnesses for the prosecution strongly tends to sustain that no improper motive existed
and their testimony is worthy of full faith and credit (citation omitted), for witnesses do not generally falsely impute to
an accused a serious criminal offense were it not the untarnished truth. (Citation omitted)
Settled is the rule that in the absence of any fact or circumstance of weight and influence which has been
overlooked or the significance of which has been misconstrued to impeach the findings of the trial court, the appellate
courts will not interfere with the trial courts findings on the credibility of the witnesses or set aside its judgment,
considering that the trial court is in a better position to decide the question for it had heard the witnesses themselves
during the trial. The evaluation of the credibility of witnesses is a matter that particularly falls within the authority of
the trial court.[19]
However, this Court cannot agree with the trial court that the crime should be murder. While evident
premeditation and treachery were alleged in the information, the trial court did not state why the killing was qualified
to murder. The prosecution failed to establish the attendance of the qualifying circumstances with concrete proof. The
crime proved was only homicide.
In accordance with Article 249 of the Revised Penal Code, accused-appellant should be sentenced to reclusion
temporal. There being no mitigating or aggravating circumstance, the penalty to be imposed shall be the medium
period of reclusion temporal, ranging from fourteen (14) years, eight (8) months and one (1) day to seventeen (17)
years and four (4) months.Applying the Indeterminate Sentence Law, accused-appellant shall be entitled to a minimum
penalty, to be taken from the penalty next lower in degree or prision mayor, in any or its periods, ranging from six (6)
years and one (1) day to twelve (12) years.
 As to the matter of damages, we hold that the trial court should have awarded civil indemnity in the amount of
P50,000.00 in line with prevailing jurisprudence.[20] The award of P26,000.00 as actual damages is upheld, being duly
proven with receipts.[21]
WHEREFORE, in view of the foregoing, the decision is MODIFIED. Accused-appellant Ramil Pea is found guilty
beyond reasonable doubt of homicide and sentenced to suffer an indeterminate sentence of ten (10) years
of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, and to
pay the heirs of the victim Jimbo Pelagio the amount of P50,000.00 as civil indemnity and P26,000.00 as actual
damages.
Costs against accused-appellant.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Kapunan, JJ., concur.

[1]
Rollo, p. 7.
[2]
Penned by Judge Gregorio S. Sampaga, Branch 78 of the Regional Trial Court of Malolos, Bulacan.
[3]
Rollo, pp. 43-44. [4] Exhibit A, Records, pp. 93-94.
[5]
People v. Templo, G.R. No. 133569, December 1, 2000.
[6]
Exhibit A, Records, pp. 93-94. [7] People v. Lao-as, G.R. No. 126396, June 29, 2001.
[8]
276 SCRA 109 [1997], citing Justice Florenz D. Regalados Separate Opinion in People v. Israel.
[9]
People v. Bituon, G.R. No. 142043, September 13, 2001.
[10]
74 Phil. 8 [1942]. [11] People v. Lao-as, supra. [12] 205 SCRA 213 [1992].
[13]
74 SCRA 139 [1976]. [14] Appellants Brief, Rollo, pp. 28-49.
[15]
Brief for Plaintiff-Appellee, Rollo, pp. 93-94.
[16]
Records, p. 132. [17] Exhibit B, Records, p. 95.
[18]
Rollo, p. 90. [19] People v. Gallo, G.R. No. 133002, October 19, 2001.
[20]
People v. Reyes, G.R. Nos. 137494-95, October 25, 2001.
[21]
People v. Olita, G.R. No. 140347, August 9, 2001.
 FIRST DIVISION
[G.R. No. 129053. January 25, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 AKIB NORRUDIN, accused-appellant.
DECISION
KAPUNAN, J.:
This is an appeal from the Decision, dated January 24, 1997, of the Regional Trial Court of Surigao City, Branch 32,
in Criminal Case No. 4564[1] finding accused-appellant Akib Norrudin guilty beyond reasonable doubt of murder.
The Information charging accused-appellant stated:
That on or about July 8, 1995, in the City of Surigao, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a firearm, with grave abuse of authority he being a member of the Philippine
National Police assigned at Surigao City PNP Station, with intent to kill and by means of treachery, did then and there
wilfully, unlawfully and feloniously attack, assault and attack Vidal Avila, Jr., hitting the latter on the vital part of his
body, thereby inflicting upon him serious gunshot wound which caused his death, to the damage and prejudice of the
heirs of the deceased in such amount as may be allowed them by law.
Contrary to Article 248 of the Revised Penal Code with the qualifying circumstance of treachery. [2]
Upon arraignment, the accused-appellant pleaded Not Guilty. Thereafter, trial ensued.
The prosecution presented nine witnesses: PO2 Eleazar Carias, Dorothy Rivera, Ramil Llorado, PO3 Ruperto
Deguino, Senior Police Inspector Edgardo Leva, PO3 Eutropio Paltinca, Police Inspector Armada, Dr. Audie Relliquete
and Mrs. Florentina Avila.
PO2 Carias testified that in the evening of July 7, 1995, he reported for work at the Surigao City Police Station. He
saw the accused-appellant at the police station although the latter was already off-duty. The accused-appellant was
wearing civilian clothes and had his firearm tucked at the side of his waist. [3]
Sometime later that evening, upon the invitation of Police Inspector Diosdado Morales, Carias, Morales and the
accused-appellant went to Barangay Lipata to inspect the police team assigned there and reached said place at around
9:15 p.m. In Barangay Lipata, they had some drinks with a friend until about 12:30 a.m. of July 8, 1995. Thereafter,
Morales, Carias and the accused-appellant returned to Surigao City.[4]
Upon reaching the city, the accused-appellant, who was already drunk by then, got off in front of Casa Blanca, a
pension house, restaurant and videoke bar located at Narciso Street.He invited his companions to go inside said
establishment for another round of drinks but the latter refused as they were still on duty. Carias and the others then
returned to the police station.[5]
After their return to the police station in Surigao City, SPO3 Antonio Cortes arrived and requested Carias to help
tow their police car which ran out of gas in Barangay Rizal. Since the vehicle used for towing was in the house of SPO3
Ruperto Deguino, Carias and Cortes went to Deguinos house and requested the latter to drive the tow
vehicle.[6] Deguino acceded to their request, but first went to the police station to get the rope used for towing while
Carias and Cortes went ahead to Barangay Rizal.[7]
At around 2:00 a.m., while Deguino was at the police station, he received a radio communication requesting police
officers to proceed to Casa Blanca in connection with a shooting incident which had just occurred therein. [8]
Kit Aguilar, a guest relations officer (GRO) testified that earlier in the evening of July 7, 1995, prior to the
occurrence of the shooting incident at Casa Blanca, she and a certain Maritess, a fellow GRO, were entertaining a
customer named Vidal Avila, Jr.[9]
At around 1:00 a.m. of the following day, July 8, 1995, the accused-appellant arrived at Casa Blanca. Maritess, who
was then with Kit Aguilar and Vidal Avila, Jr., rose to meet him, as he was her live-in boyfriend.[10] Maritess and the
accused-appellant sat at another table and ordered beer. Not long after that, they started arguing and the accused-
appellant began shouting at Maritess. Thereafter, they stood up from their table and went outside the restaurant, and
walked toward the front gate of the restaurant compound where they continued arguing. [11] Later, after Avila, Jr. stood
from his table, paid his bill and went outside the restaurant to ride his motorcycle. Aguilar looked through the
restaurants window and saw that Avila, Jr. turned right to Narciso Street. Shortly afterwards, she heard a
gunshot. Maritess then went back inside the restaurant. Aguilar asked Maritess if she knew anything about the gunshot
which was fired earlier. Maritess replied that it was her boyfriend, the accused-appellant, who fired the shot.
Subsequently, accused-appellant also went back inside Casa Blanca, finished his drink and left the restaurant with
Maritess.[12]
Dorothy Rivera, the owner of Casa Blanca, corroborated Aguilars testimony and stated that in the early morning of
July 8, 1995, while she was supervising the waitresses inside the restaurant, she saw the accused-appellant and
Maritess quarrelling near the front gate of the restaurant compound. [13] Shortly thereafter, Avila, Jr. bade her
goodbye. Rivera knew Avila, Jr. because he was a cousin of her brother-in-law. Avila then rode his motorcycle which
was parked inside the restaurant compound and went on his way home. [14]
As Avila turned his motorcycle to the right side of the gate of Casa Blanca, Rivera heard a gunshot. [15] Thereafter,
Maritess went back inside the restaurant. Rivera then asked her if she knew anything about the gunshot that had just
been fired. Maritess replied that the accused-appellant had fired a warning shot.[16] Later, the accused-appellant also
went back inside the restaurant and finished his beer. Maritess and the accused-appellant talked again for a few
minutes and then they left Casa Blanca.[17]
For his part, Ramil Llorado testified that at about 1:00 a.m. on July 8, 1995, while he was drinking liquor with two
other persons in front of his house in Narciso St., some fifty to sixty meters away from Casa Blanca, he heard a lone
gunshot. Three to four minutes after the said gunshot was fired, a man riding a motorcycle stopped in front of them
and asked for help.Thereafter, the man fell down from his motorcycle. Llorado recognized the man as Vidal Avila, Jr., an
employee in the Office of the City Engineer of Surigao City.[18] Llorado and one of his friends then hailed a tricycle and
rushed to the city police station. They reported the incident to the desk officer and requested for assistance. The police
then sent two policemen in a patrol car to Narciso St. to look into the matter. [19]
Upon returning to Narciso St. with the policemen, Llorado helped carry Avila, Jr. inside the police car to bring him
to the Surigao Provincial Hospital. Llorado cradled Avila, Jr.s head on his lap and asked the latter who shot him. Avila, Jr.
replied in a weak voice that a policeman shot him. Llorado was shocked upon hearing Avila, Jr.s answer, but since they
were inside a police car at that time together with some policemen, he refrained from further asking questions. [20]
Meanwhile, as PO3 Deguino was driving to Casa Blanca in response to the radio communication which he had
earlier received, he saw some men carrying a wounded man inside a police car parked along Narciso St. He learned that
the wounded man was the person shot in front of Casa Blanca earlier that morning.[21] He then proceeded to Casa
Blanca to investigate regarding the incident. He was told by a certain Simon Ferol and a Benhur Turtor who were at
Casa Blanca at the time of the shooting that the assailant was Deguinos fellow police officer. [22] Later, PO2 Carias told
him that the policeman whom they dropped off at Casa Blanca at around 12:45 a.m. of July 8 was the accused-
appellant, and that the latter was already drunk when he got off at said restaurant. [23] Deguino also talked to Kit Aguilar
who confirmed that the accused-appellant was at Casa Blanca with his girlfriend Maritess earlier that morning. [24]
Thereafter, Deguino and PO3 Marcial Tinio proceeded to the hospital where Avila, Jr. was brought to ask the latter
some questions regarding the shooting. Upon arriving there at around 3:00 a.m., they found another policeman
surnamed Cabada trying to interview Avila, Jr.[25] Sensing that Avila, Jr. was dying, Deguino requested Cabada to allow
him to ask the questions as he and the victim were friends.[26]
Deguino then placed his mouth near Avila, Jr.s ear and spoke loudly: Jun, this is your friend Bebot. Avila, Jr.
opened his eyes and raised his head toward Deguino. The latter then asked Avila, Jr., Do you recognize the person who
shot you? After Deguino repeated the question three times, Avila, Jr. replied yes. Deguino then asked: Kinsa
man? (Who) Who, a policeman?Avila, Jr. said yes again. Deguino asked the latter a third question: Was it Akib? Deguino
had to repeat the question several times before Avila finally said yes. [27]
Deguino could not believe what Avila, Jr. had just said that he felt his body hairs stand up. He and Tinio then went
to their vehicle and returned to the police station. Upon reaching the same, he informed Inspector Gregorio Peramide,
the officer of the day, what Avila, Jr. had told him.[28]
Another witness, Senior Inspector Edgar Leva, testified that at around 2:00 a.m. on July 8, 1995 while he was
waiting in Barangay Lipata for the vehicle that would tow the car used by him and some other policemen back to
Surigao City, he monitored a message from their radio equipment that there was a shooting incident in Casa Blanca in
Narciso St., Surigao City.About twenty minutes after he heard said message, he arrived at the Surigao City Police Station
where he met Peramide whom he ordered to follow-up the developments regarding the shooting incident. [29] At
around 3:00 a.m., not long after Leva had returned to his residence, Inspector Morales arrived therein and reported to
him that the accused-appellant was the prime suspect in the shooting of Avila, Jr. [30] Shortly thereafter, Peramide, and
later Tinio and Deguino also arrived at Levas house and made similar reports that the accused-appellant was suspected
of having shot Avila, Jr.[31] As deputy chief of police of Surigao City, Leva directed them to cordon off the house of
Norrudin in Gimena St., Surigao City as there were reports that the accused-appellant was in his home.
Subsequently, Leva received a call that he was needed at the accused-appellants house which was already
surrounded by policemen.[32] When he reached the same, he called out the accused-appellants name and asked the
latter to come out of the house. However, the accused-appellant instead asked Leva to enter the house. Leva and
Deguino went in and the accused-appellant surrendered to them. Leva then brought the accused-appellant to the
police station.[33]
PO3 Eutropio Paltinca, a laboratory technician in the Philippine National Police (PNP) Crime Laboratory in Cagayan
de Oro City who had been temporarily assigned to the forensic processing department in Surigao City, testified that he
conducted a paraffin test on the accused-appellant pursuant to the request of the Chief of Police of Surigao City. He
conducted the test on both hands of the accused-appellant.[34] The following day, he personally brought the test results
to the crime laboratory in Cagayan de Oro City.
Chemistry Report No. C-022-95 dated July 9, 1995 prepared by forensic analyst Senior Inspector Vicente P.
Armada, revealed that the accused-appellants right hand tested positive for gunpowder residue. [35]
Armada also examined the revolver, a caliber .38 Squares Bingham with Serial No. 924673 assigned to the
accused-appellant, to determine if the same had been fired recently before it was confiscated. [36] Chemistry Report No.
C-036-95 prepared by Armada stated that nitrate and gunpowder residue were found on the barrel and cylinder of the
firearm. He concluded that the firearm had been fired recently before it was confiscated.[37]
The physician on duty in Surigao Provincial Hospital on July 8, 1995, Dr. Audie Relliquete, testified that at about
2:35 a.m. on July 8, 1995, a wounded man identified as Vidal Avila, Jr. was brought to the hospital due to a gunshot
wound.[38] Dr. Relliquete examined the victim and noticed that the latter was cyanotic and pale due to loss of
blood.[39] The doctor discovered that the bullet entered the victims body on the right side of the abdomen and exited at
the left side of his navel. The wound of entry was contused and circular and had the characteristics of a bullet
wound. The trajectory of the wound was about level from the points of entry to exit. [40] Dr. Relliquete also stated that
he applied dextrose and other medicines on Avila, Jr. and scheduled him for an exploratory laparotomy, but the victim
died at around 4:10 a.m. even before the operation could be conducted. The cause of death was severe blood loss,
shock and heart failure secondary to the bullet wound.
The victims wife, Florentina Avila (Mrs. Avila), testified that she and Avila, Jr. had four children. Their oldest child
was 11 years old while the youngest was only two years old.[41] At the time of his death, Avila, Jr. was 43 years old and
working as a building inspector at the City Engineers Office with a net take home pay of P1,909.88 per month.[42] Had he
lived until retirement at age 60, he would have about 17 more years in government service and would have earned a
total of P389,615.52 during this period.[43] Mrs. Avila further stated that she spent a total of P113,900.00 in
miscellaneous expenses for the wake and interment of her husband.[44] She also claimed moral damages for the shock,
serious anxiety and worry that she and her children suffered as a result of her husbands death.[45]
The accused-appellant denied the charges against him. While he admitted in his testimony that on the night of
July 7, 1995, after his duty, he went to Barangay Lipata, Surigao City with Police Inspector Morales, PO2 Carias, and PO2
Valeciano Rivas to inspect the police detachment located therein, and thereafter, to have a few drinks, he insisted that
after they returned to Surigao City at about 2:00 a.m. on July 8, 1995, he asked PO3 Pepito Gloria who was driving the
vehicle to drop him off at his house in the PNP Compound in Borromeo St. He said that when he got home, he changed
clothes, ate supper and then went to sleep.[46]
The accused-appellant further stated that at around 6:30 a.m. of July 8, 1995, he was awakened by the arrival of
Senior Inspector Edgar Leva and SPO4 Antonio Cortes at his residence. He was told that they were going to the police
station. Upon their arrival at said place, Leva and Cortes asked the accused-appellant what he did earlier that
morning. The latter replied that he did not do anything. Leva then told him that he (accused-appellant) shot a man dead
at Casa Blanca. The accused-appellant said he was stunned by Levas statement since he had nothing to do with the
incident.[47]
The accused-appellant also denied that Maritess, the GRO from Casa Blanca, is his girlfriend. He maintained that
he does not know the woman and he has not gone inside the said restaurant. [48]
The testimony of Ruperto Deguino was assailed by the accused-appellant on the ground of alleged bias and ill-
will. He said that sometime in August 1993, he and Deguino were assigned to guard the PHILNICO in Barangay Nonoc,
Surigao City. Deguino tried to smuggle out certain jeep parts from the company compound but he was prevented from
doing so by the accused, who reported the incident to the company management, so Deguino threatened to get even
with him someday.[49]
The accused-appellant also explained that the firearm assigned to him had nitrate and gunpowder residue
because he test-fired the same two times in the PNP Compound on July 7, 1995.[50]
PO2 Pepito Gloria corroborated the accused-appellants statement that they went to Barangay Lipata in the
evening of July 7, 1995 and returned to Surigao City at around 1:00 a.m. on July 8, 1995. He said that they dropped off
the accused-appellant at Firma Lodge near the PNP Compound before proceeding to the police station. [51] PO2
Valeriano Rivas likewise gave a similar testimony before the trial court. [52]
On January 24, 1997, the RTC promulgated its Decision finding the accused-appellant guilty beyond reasonable
doubt of the crime of murder and imposing upon him the penalty of reclusion perpetua.
Accused-appellant filed a notice of appeal from the decision of the RTC on February 18, 1997.
In his appeal brief, accused-appellant contends that the trial court erred in finding him guilty of murder based on
the evidence presented by the prosecution. He argues that the alleged dying declaration is inadmissible because it was
not reduced into writing. The victims alleged declaration was testified to only by PO3 Deguino, and such testimony was
not corroborated by any other witness. Accused-appellant further states that even assuming that the victims dying
declaration is admissible on that score, the trial court should not have admitted the same because the prosecution
failed to establish that at the time the victim told Deguino who killed him, he was conscious that he was at the brink of
death. Citing People vs. Lanza[53] and People vs. Elizaga,[54] the accused-appellant argues that such element must be
proven for the dying declaration to be admissible in evidence. [55] Moreover, the accused-appellant contends that the
alleged dying declaration is doubtful, considering that it was Deguino who forced into the mouth of the victim the
identity of the [accused-]appellant as his supposed assailant,[56] and that in other words, it was not the victim who
actually identified the accused-appellant as his killer.[57]
Accused-appellant likewise assails the trial courts findings that it was he who shot Avila, Jr., and maintains that the
owner of Casa Blanca, Dorothy Rivera, as well as Kit Aguilar who was also at said restaurant at the time of the shooting,
testified that at the moment they heard the gunshot, they did not see accused-appellant holding a gun nor shooting the
victim nor posed to shoot the latter.[58]
It is further argued that Maritess statement addressed to Rivera and Aguilar that accused-appellant had fired a
warning shot should not have been admitted by the trial court for being hearsay, as Maritess was never presented in
court.[59]
The Solicitor General on the other hand contends that accused-appellants guilt was proven beyond reasonable
doubt.[60] He maintains that the dying declaration of Vidal Avila, Jr. was made under consciousness of impending death,
and is therefore sufficient to convict accused-appellant of the crime charged.[61]
He further contends that even assuming arguendo that the victims declaration is inadmissible in evidence, still the
accused-appellant can be convicted beyond reasonable doubt on the basis of circumstantial evidence which proves the
accused-appellants guilt beyond reasonable doubt.[62]
The Court affirms the trial courts ruling.
 At the outset, it must be said that the Court finds no reason to deviate from the general rule that factual findings
of the trial court are entitled to respect and shall not be disturbed on appeal, unless some facts or circumstances of
weight and substance have been overlooked or misinterpreted, and would otherwise materially affect the disposition
of the case.[63] In the case at bar, the lower court did not err in ruling that there is direct as well as circumstantial
evidence to prove accused-appellants guilt beyond reasonable doubt.
Anent the issue as to whether the responses uttered by Avila, Jr. shortly before his death identifying accused-
appellant as the one who shot him satisfies the requisites of a dying declaration, the rule is that the following elements
must concur for said declaration to be admissible in evidence: (1) the dying declaration must concern the cause and
surrounding circumstances of the declarants death; (2) at the time it was made, the declarant was under a
consciousness of impending death; (3) the declarant must have been competent to testify as a witness; and (4) the
declaration is offered in a criminal case for homicide, murder or parricide in which the declarant was the victim. [64]
Although Avila, Jr. did not expressly state that he was dying when he made the declaration, the circumstances
surrounding such declaration show that the same was uttered by him under the concsiousness of impending death. It
has been held in a number of cases that even if a declarant did not make a statement that he was on the brink of death,
a dying declaration may be admissible if there are circumstances from which it may be inferred with certainty that such
was his state of mind.[65] Thus, the Court in People vs. Taeza[66] and People vs. Serrano[67] held that the fact that the
victim died shortly after making a declaration as to the identity of his killer, gives rise to the inference that the victim
knew that he was dying at the time such declaration was made.
A dying declaration made in the form of answers to questions put by the person to whom the declaration is made
is admissible in court,[68] and may be proved by the testimony of the witness who heard the same or to whom it was
made.[69] Thus, the trial court did not err in admitting the following testimony of Deguino in whose presence Avila, Jr.
made the dying declaration:
Q: (PROS. MENOR)
Why did you proceed to the Surigao Provincial Hospital?
A: (PO DEGUINO)
To talk if I have to interrogate the person.
Q: Why do you want to talk to the victim?
A: To ask the assailant as he was the victim. To ask the assailant.
Q: When you proceeded what time if you can recall?
A: I reached the hospital about three oclock in the morning.
Q: What did you do after arriving at the hospital?
A: When I reached the hospital I saw Cabada talking to the victim.
Q: What is the condition of the victim at the time questioning the victim?
A: He was dying.
Q: And what did you do?
A: And then I told this is Jun, this is Bebot. I placed my mouth near his ear.
Q: And what did you say?
xxx
A: Jun, this is your friend Bebot, then after that his eyes opened and then demonstrated by raising his hand and then
resuming his former position.
Q: And then after that what happened? If any?
A: And knowing his serious condition I hurriedly asked him, Jun I asked him do you know the person who shot you?
Q: Will you please demonstrate how you asked the victim?
A: I placed my mouth close to his ear and I was practically embracing him.
Q: Was there any answer from the victim?
A: In my third question, he answered yes.
xxx
Q: And after hearing that reply, what did you do next?
A: Then I again asked him, kinsa man? who is he? a policeman?
Q: Will you please demonstrate how did you ask the victim?
A: The same position my mouth in his ear and.
Q: And did you receive the reply?
A: And he answered, yes.
Q: And after that what did you do?
A: He was breathing hard after that I still try to question him and I still ask him, was it Akib?
Q: When you used the word Akib to whom are you referring?
A: A policeman.
Q: How many Akib in the police force and who is this?
A: (Witness referring to the accused).
Q: Did you receive a reply immediately?
A: I kept on repeating the question. About 8 times. He answered yes.
And then I stood up and I was... and my body hair rose as I could not believe it.
x x x[70]
 In addition to the dying declaration of the victim, there are several circumstances which, taken together,
indubitably point to the guilt of accused-appellant: (1) accused-appellant was present at Casa Blanca in the early
morning of July, 8, 1995, the date and approximate time of the murder;[71] (2) accused-appellant and his girlfriend
Maritess were arguing near the gate of Casa Blanca at the time Avila, Jr. was leaving the restaurant;[72] (3) as Avila, Jr.
was turning to the right side of the gate of Casa Blanca to Narciso St., a lone gunshot was fired, and at that time the
accused-appellant was only a few meters away from the victim;[73] (4) shortly after the gunshot was heard, accused-
appellants girlfriend Maritess went back inside Casa Blanca told both Dorothy Rivera and Kit Aguilar that accused-
appellant had fired a warning shot and asked them not to tell anyone about it; [74] (5) accused-appellant had in his
possession a .38 revolver issued to him by the Philippine National Police (PNP); [75] (6) accused-appellants right hand as
well as the aforementioned revolver tested positive for gunpowder residue as found by the forensic analyst of the PNP
Crime Laboratory;[76] and (7) shortly after Avila, Jr. was shot, he confided to witness Ramil Llorado that he was shot by a
policeman.[77]
The Court has previously held that circumstantial evidence will suffice to support a conviction where (1) there is
more than one circumstance, (2) the facts from which the inferences are derived are proven, and (3) the combination
of all the circumstances is sufficient to produce a conviction beyond reasonable doubt.[78] In other words, when the
circumstantial evidence is not only consistent with guilt but also inconsistent with the hypothesis that the accused is
innocent and with every other reasonable hypothesis except guilt. [79]
It must also be pointed out that no error was committed by the trial court in admitting the respective testimonies
of Dorothy Rivera and Kit Aguilar that Maritess told them that accused-appellant had fired a warning shot in the early
morning of July 8, 1995, since the same were offered not to establish the truth of Maritess statement, but only to show
that Maritess uttered the same.[80]
The accused-appellants alibi cannot prevail over the direct and circumstantial evidence against him, especially
considering that it was not physically impossible for him to be at Casa Blanca in the early morning of July 8, 1995. [81] As
was noted by the trial court, Firmas Lodge in Borromeo Street, where accused was allegedly dropped off by his
companions in the early morning of July 8, 1995 after they went to Barangay Lipata, and Casa Blanca in Narciso Street,
where Avila, Jr. was shot, can be negotiated in twenty minutes by foot, and within a shorter time if one takes a short
cut or rides a vehicle.[82]
The Court likewise agrees with the trial courts finding that the killing of Avila, Jr. was qualified by
treachery. Treachery is present where the attack was unexpected and sudden, giving the unarmed victim no chance
whatsoever to defend himself.[83] It was established during the trial that Avila, Jr. was leaving Casa Blanca and turning
right to Narciso St. in the early morning of July 8, 1995 when he was suddenly shot from behind by accused-appellant,
rendering him unable to defend himself. The treacherousness of the shooting of the victim can also be inferred from
the fact that the bullet entered the victims body at the right lumbar area, almost at the back of the victim. The
testimony of Dr. Relliquete, the physician who examined Avila, Jr. shortly after he was shot supports the lower courts
finding:
xxx
Q: And the entry wound as you have pointed out was on the right lumbar area which is almost at the back of the
victim? Correct?
A: Yes.
Q: And with that can you prove can you conclude doctor [that the assailant] possibly was behind the victim when he
shot [the latter]?
A: Possibly.
xxx
Q: How did you conclude the injuries sustained by the victim was the result of the gunshot wound?
A: Well, I have seen for many times of the gunshot is different from the stabbed wound.
Q: What is the characteristics of distinguished or stabbed wound and the wound inflected (sic) other than gunshot or
the firearm?
A: Well, on the gunshot I saw it the wound was contused and unlike stabbed wound they are incised sharp wound.
Q: What was the form of the wound of entry?
A: Circular.[84]
All the foregoing prove beyond reasonable doubt that the accused-appellant is guilty of the crime of murder.
WHEREFORE, the Decision dated January 24, 1997 of the Regional Trial Court of Surigao City, Branch 32 in Criminal
Case No. 4564 is hereby AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

[1]
People of the Philippines, Plaintiff, vs. PO3 Akib Norrudin, Accused.
[2]
Records, p. 1. [3] TSN, October 25, 1995, pp. 23-24.
[4]
Id., at 24-26. [5] Id., at 26-28.
[6]
Id., at 28-29. [7] TSN, September 27, 1995, p. 55.
[8]
Id., at 56. [9] TSN, December 5, 1995, pp. 7-8.
[10]
Id., at 8; see also p. 6.
[11]
Id., at 9-10. [12] Id., at 10-13.
[13]
TSN, October 25, 1995, pp. 40-42.
[14]
Id., at 42-43. [15] Id., at 44.
[16]
Id., at 45-46. [17] Id., at 47.
[18]
TSN, January 30, 1996, p. 12.
[19]
Id., at 5-9. [20] Id., at 9-11.
[21]
TSN, September 27, 1995, pp. 56-57.
[22]
Id., at 58. [23] Id., at 59. [24] Id., at 61. [25] Id., at 62.
[26]
Id. [27] Id., at 64.[28] Id.
[29]
TSN, September 25, 1995, pp. 6-7.
[30]
Id., at 8. [31] Id., at 9-10. [32] Id., at 11 [33] Id., at 11-13.
[34]
TSN, September 26, 1995, pp.15-19.
[35]
Id., at 22; Exhibit C, Records, p. 28.
[36]
Id., at 23, 25. [37] Id., at 25; Exhibit E, Records, p. 56.
[38]
TSN, September 27, 1995, p. 18.
[39]
Id., at 19. [40] Id., at 21-22.
[41]
TSN, September 27, 1995, pp.4-5.
[42]
Exhibit G, Records, p. 57.
[43]
Exhibit H, Id., at 58.
[44]
TSN, September 27, 1995, pp 6-12; Exhibit H, Records, p. 58.
[45]
Exhibit H, Id.
[46]
TSN, July 1, 1996, pp. 7-10.
[47]
Id., at 11-12.[48] Id., at 12. [49] Id., at 16-17. [50] Id., at 19.
[51]
TSN, September 22, 1996, pp. 5-9.
[52]
TSN, September 2, 1996, pp. 29-32.
[53]
94 SCRA 613 (1979).
[54]
167 SCRA 516 (1988).
[55]
Appellants Brief, Rollo, p. 48.
[56]
Id., at 49. [57] Id., at 50-54. [58] Id., at 55-59. [59] Id., at 60.
[60]
Appellees Brief, Rollo, p. 106.
[61]
Id., at 106-1110. [62] Id., at 110-124.
[63]
People vs. Francisco and Mansamad, 333 SCRA 725 (2000).
[64]
People vs. Taeza, 334 SCRA 30 (2000).
[65]
Id.; People vs. Serrano, 58 Phil. 669 (1933); People vs. Chan Lin Wat, 50 Phil. 182 (1927).
[66]
Supra. [67] Supra.
[68]
People vs. Bocatcat, 188 SCRA 175 (1990); People vs. Obngayan, 55 SCRA 466 (1974); see also McKelvey on Evidence, p. 330.
[69]
U.S. vs. Gil, 13 Phil 530 (1909); U.S. vs. Montes, 6 Phil. 443 (1906).
[70]
TSN, September 27, 1995, pp. 61-64.
[71]
TSN, October 25, 1995, pp. 26-28, 40-42; December 5, 1995, pp. 9-13.
[72]
Id., at 41-42; Id., at 9-10. [73] Id., at. 11; Id., at 40-42.
[74]
Id., at 12; Id., at 42-44.
[75]
TSN, October 25, 1995, p. 24.
[76]
TSN, September 26, 1995, pp. 15-25; Exhibit C, Records, p. 28; Exhibit E, Id., at 56.
[77]
TSN, January 30, 1996, pp. 9-11.
[78]
People vs. Santos and Tamayo, 332 SCRA 394 (2000); People vs. Dacibar and Dicon, 325 SCRA 725 (2000).
[79]
Id.; H.C. UNDERHILL, AS TREATISE ON THE LAW OF THE LAW OF CRIMINAL EVIDENCE, 20-21 (5TH REVISED ED., 1956).
[80]
See 29 Am Jur 2d 708, Evidence, 664.
[81]
See People vs. Reanzares, 334 SCRA 624 (2000).
[82]
RTC Decision, p. 12, Rollo, p. 76.
[83]
People vs. Dacibar and Dicon, supra; People vs. Francisco and Mansamad, supra.
[84]
TSN, September 27, 1995, pp. 21-23.
 Republic of the Philippines
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 152364 April 15, 2010
ALEJANDRA S. LAZARO, assisted by her husband, ISAURO M. LAZARO; LEONCIO D. SANTOS; ADOLFO SANTOS;
NENITA S. LACAR; ANGELINA S. SAGLES, assisted by her husband, ALBERTO SANTOS, JR.; REGINA SANTOS and
FABIAN SANTOS, Petitioners,
vs.
MODESTA AGUSTIN, FILEMON AGUSTIN, VENANCIA AGUSTIN, MARCELINA AGUSTIN, PAUL A. DALALO, NOEL A.
DALALO, GREGORIO AGUSTIN and BIENVENIDO AGUSTIN, Respondents.
DECISION
PERALTA, J.:
Assailed in the present petition for review on certiorari is the Decision1 dated February 21, 2002 of the Court of Appeals
(CA) in CA-G.R. SP No. 63321. The CA had affirmed, with modification, the Decision 2 dated February 6, 2001 of the
Regional Trial Court (RTC) of Laoag City, Branch 13, in Civil Case No. 11951-13, which also affirmed, with modification,
the Decision3 dated January 6, 2000 of the Municipal Trial Court in Cities (MTCC) of Laoag City, Branch 1, in Civil Case
No. 2834.
The factual and procedural antecedents of the case are as follows:
On November 4, 1998, herein petitioners filed against herein respondents a Complaint 4 for partition with the MTCC of
Laoag City, alleging as follows:
xxxx
II
That the plaintiffs and the defendants are the descendants of the late Simeon C. Santos, married to Trinidad Duldulao,
who died intestate leaving a parcel of land situated in the Barrio of Natividad Nstra. Sra., Municipality of Laoag,
designated as Lot No. 10675 of the Cadastral Survey of Laoag;
III
That Simeon C. Santos during his lifetime, married to Trinidad Duldulao, begot four (4) legitimate children, namely:
Basilisa D. Santos, Alberto D. Santos, Leoncio D. Santos and Alejandra D. Santos. Basilisa D. Santos, [who] was married
to Petronilo Agustin, is now deceased; Alberto Santos, married to Rizalina Guerrero, is now deceased, while Leoncio D.
Santos, married to Dictinia Tabeta, and Alejandra D. Santos married to Isauro M. Lazaro, are still living;
IV
That in the desire of the children of Simeon C. Santos from whom the parcel of land originated as owner, his children,
namely[:] Alberto, Leoncio and Alejandra, all surnamed Santos, consented that the parcel of land mentioned in
paragraph II of this complaint be titled in the name of Basilisa, the latter being the eldest and so Original Certificate of
Title No. 20742 in the name of Basilisa Santos was obtained although it was agreed among them that it did not and
does not necessarily mean that Basilisa Santos is the sole and exclusive owner of this parcel of land, and as embodied in
the Title obtained in the name of Basilisa Santos, the parcel of land is particularly described as follows:
A parcel of land (Lot No. 10676 of the Cadastral survey of Laoag), with the improvements thereon, situated in the Barrio
of Natividad Nstra. Sra., Municipality of Laoag. Bounded on the NE. by Lot No. 10677; on the SE. by Panganiban Street;
on the SW. by Lot No. 10672; and on NW. by Lot No. 1065, containing an area of three hundred and one (301) square
meters, more or less, covered by Tax Declaration No. 010-00224 for the year 1994 in the names of Modesta Agustin, et
al. with a market value of P96,320.00 and an assessed value of P14,450.00.
V
That there is a residential house constructed on the lot described in paragraph IV of this complaint and in the
construction of which plaintiff Alejandra Santos, then still single, spent the amount of P68,308.60, while Basilisa Santos
and her children spent the amount of P3,495.00. Afterwards, Alejandra Santos got married to Isauro M. Lazaro who was
employed in a private company and when he retired from the service, some additional constructions were made on the
residential house and lot such as a bedroom, azotea, two (2) toilets, two (2) kitchens, a car garage, the money spent for
these additional constructions came from the earnings of the spouses Alejandra Santos-Lazaro and Isauro M. Lazaro.
The said residential house is now covered by Tax Declaration No. 010-00225 in the names of Basilio Agustin (should be
Basilisa Agustin) and Alejandra Santos for the year 1994 with a market value of P93,920.00 and an assessed value of
zero;
VI
That without the knowledge and consent of the plaintiffs, the title of the lot described in paragraph IV of the complaint
was transferred into another title which is now Transfer Certificate of Title No. T-20695 in the names of Modesta
Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Monica Agustin, Gregorio Agustin and Bienvenido
Agustin who are the children of the late Basilisa Santos-Agustin who are herein named as defendants with Monica
Agustin now deceased represented by her children Paul A. Dalalo and Noel A. Dalalo as defendants;
VII
That during the lifetime of Basilisa Santos-Agustin, plaintiff Alejandra Santos-Lazaro informed the former, who are
sisters, that the transfer of the title covering the lot described in paragraph IV of this complaint in the name of Basilisa
Santos into the names of her children would erroneously imply that the lot is solely and exclusively owned by Basilisa
Santos-Agustin's children, but Basilisa Santos-Agustin replied [to] plaintiff Alejandra Santos-Lazaro not to worry because
an affidavit was already executed by her recognizing and specifying that her brothers Alberto Santos and Leoncio
Santos, and her sister Alejandra Santos-Lazaro would each get one fourth () share of the lot;
VIII
That in a move to determine if the children and the heirs of Basilisa Santos-Agustin, namely: Modesta Agustin, Filemon
Agustin, Venancia Agustin, Marcelina Agustin, Paul Dalalo and Noel Dalalo who are the successors of their mother the
late Monica Agustin, Gregorio Agustin and Bienvenido Agustin would follow the line of thinking of their mother and
grandmother of Paul A. Dalalo and Noel A. Dalalo on the shares of the lot and residential house erected on it, the
plaintiffs initiated a partition in the barangay court where the lot is situated described in paragraph IV of this complaint,
but that the children of Basilisa Santos-Agustin and her grandchildren Paul A. Dalalo and Noel A. Dalalo refused and
opposed the partition claiming that they are the sole and exclusive owners of the lot being that the lot is now titled in
their names, and hence there was no settlement as shown by the certification of the barangay court hereto attached as
annex "A";
IX
That plaintiffs now invoke the intervention of the court to partition the lot in accordance with the law on intestate
succession and to partition the residential house as specified below. x x x
x x x x5
Petitioners also prayed for the grant of attorney's fees, moral and exemplary damages, and costs of suit.
Herein respondents filed their Answer with Counterclaim,6 raising the following as their Special/Affirmative Defenses:
1. The subject parcel of land is owned exclusively by the defendants as heirs of the late Basilisa Santos, wife of Petronilo
Agustin, who was the original registered owner of the property evidenced by OCT No. 20742; the plaintiffs never
became owners of said land. There was never any agreement between the ascendants of the plaintiffs and defendants,
neither is there any agreement between the plaintiffs and defendants themselves that in the ownership, the plaintiffs
have a share over the lot;
2. The defendants are the ones paying for the real estate taxes of said land;
3. Some of the plaintiffs were able to stay on the subject house because defendants' mother Basilisa Santos was the
eldest sibling and she had to take care of her brother Leoncio and sister Alejandra when these siblings were not yet
employed and Basilisa allowed them to reside in the house constructed within the lot; Alejandra Santos stayed in the
house up to the present with the agreement that she will spend for the renovation of the house in lieu of monthly
rentals that she has to pay when she already became financially able;
4. Prior to 1962, subject property was mortgaged by Basilisa Santos Agustin to the Philippine National Bank and the
property was foreclosed by PNB when the loan was not paid, hence, TCT No. (T-9522)-4495, under the name of the
Philippine National Bank was issued (Annex "A"). Thereafter, Basilisa Santos-Agustin, purchased it from the PNB and
TCT No. T-5662 was issued under her name (Annex "B"); the property was later on transferred to her direct
descendants, the defendants herein as evidenced by TCT No. T-20695 (Annex "C");
x x x x7
Respondents then prayed that petitioners' complaint be dismissed. In their Counterclaim, respondents asked the court
to direct petitioners to pay reasonable compensation for the latter's use of the disputed property, exemplary and moral
damages, attorney's fees, and costs of suit.
After the issues were joined and the pre-trial was terminated, trial on the merits ensued.
On January 6, 2000, the MTCC rendered its Decision8 dismissing the complaint and denying petitioners' prayer for
partition.
The MTCC ruled, among others, that no evidentiary value could be given to the affidavit allegedly executed by Basilisa,
wherein she purportedly acknowledged her co-ownership of the subject property with her siblings Alberto, Leoncio and
Alejandra, because the affiant was not presented on the witness stand, such that all the statements made in her
affidavit were hearsay. Moreover, the MTCC held that two credible witnesses testified in plain, simple and
straightforward manner that at the time the affidavit was supposed to have been signed and sworn to before the
notary public, Basilisa was already bedridden and an invalid who could not even raise her hand to feed herself. In
addition, the MTCC also gave credence to the testimony of the notary public, before whom the document was
supposedly signed and sworn to, that the said affidavit was already complete and thumbmarked when the same was
presented to him by a person who claimed to be Basilisa.
Petitioners filed an appeal with the RTC of Laoag City.
On February 6, 2001 the RTC issued a Decision9 affirming, with modification, the judgment of the MTCC. The RTC found
that the house erected on the disputed lot was built and renovated by petitioners in good faith. As a consequence, the
RTC held that petitioners were entitled to indemnity representing the costs of the construction and renovation of the
said house. The dispositive portion of the RTC Decision, thus, reads:
WHEREFORE, the decision of the lower court is hereby affirmed with the modification directing the appellees [herein
respondents] to indemnify the appellants [herein petitioners] in the amount of P68,308.60 as proved by them.
Considering the apparent error of the lower court in quoting the questioned lot as Lot No. 10675, the same is hereby
corrected so as to reflect the correct lot number as Lot No. 10676 to conform to the evidence presented.
SO ORDERED.10
Aggrieved by the RTC Decision, petitioners filed a petition for review with the CA.
On February 21, 2002, the CA issued its presently assailed Decision disposing as follows:
WHEREFORE, the decision dated February 6, 2001 rendered in Civil Case No. 11951-13 is hereby AFFIRMED subject to
the MODIFICATION that appellees [herein respondents] pay the amount of P68,308.60 in indemnity solely to appellant
Alejandra Santos-Lazaro.
SO ORDERED.11
Hence, the instant petition based on the following grounds:
I. THE SWORN STATEMENT OF BASILISA S. AGUSTIN IS A DECLARATION AGAINST INTEREST WHICH ESTABLISHES THE
CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG THE PETITIONERS AND RESPONDENTS AS HEIRS OF THE LATE
SIMEON C. SANTOS.12
II. THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG BASILISA S. AGUSTIN, ALBERTO D. SANTOS, ALEJANDRA S.
LAZARO AND LEONCIO D. SANTOS DID NOT TERMINATE AS A RESULT OF THE TRANSFER OF THE LOT'S OWNERSHIP
PRECIPITATED BY ACTS OF BASILISA S. AGUSTIN WITH RESPECT TO THE SUBJECT PROPERTY. 13
III. PETITIONER ALEJANDRA S. LAZARO IS A CO-OWNER OF THE RESIDENTIAL HOUSE ON LOT NO. 10676 NOT MERELY A
BUILDER IN GOOD FAITH WITH RESPECT THERETO AND AS SUCH, IS ENTITLED TO A PARTITION OF THE SUBJECT
HOUSE.14
In their first assigned error, petitioners contend that Basilisa's sworn statement which recognizes her siblings' share in
the disputed property is a declaration against interest which is one of the recognized exceptions to the hearsay rule.
Petitioners argue that since the sworn statement was duly notarized, it should be admitted in court without further
proof of its due execution and authenticity; that the testimonies of Basilisa's nurse and physician cannot qualify as clear
and convincing evidence which could overthrow such notarized document; that the notary public cannot impugn the
same document which he notarized for to do so would render notarized documents worthless and unreliable resulting
in prejudice to the public.
As to the second assigned error, petitioners aver that their co-ownership of the questioned property with Basilisa did
not cease to exist when the Philippine National Bank (PNB) consolidated its ownership over the said parcel of land.
Petitioners assert that they did not lose their share in the property co-owned when their share was mortgaged by
Basilisa without their knowledge and consent; that the mortgage was limited only to the portion that may be allotted to
Basilisa upon termination of their co-ownership; that PNB acquired ownership only of the share pertaining to Basilisa;
that when Basilisa bought back the property from PNB, she simply re-acquired the portion pertaining to her and simply
resumed co-ownership of the property with her siblings. Petitioners also contend that Basilisa's children did not acquire
ownership of the subject lot by prescription, and that neither Basilisa nor respondents repudiated their co-ownership.
Anent the third assignment of error, petitioners argue that Alejandra Lazaro, being a co-owner of the disputed parcel of
land and not simply a builder in good faith, is entitled to a partition of the subject residential house.
At the outset, it bears to point out that it is wrong for petitioners to argue that Basilisa's alleged sworn statement is a
declaration against interest. It is not a declaration against interest. Instead, it is an admission against interest.1avvphi1
Indeed, there is a vital distinction between admissions against interest and declarations against interest. Admissions
against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such
party, and are admissible whether or not the declarant is available as a witness. 15 Declarations against interest are
those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence, and
constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a
witness.16 In the present case, since Basilisa is respondents' predecessor-in-interest and is, thus, in privity with the
latter's legal interest, the former's sworn statement, if proven genuine and duly executed, should be considered as an
admission against interest.
A cursory reading of the subject sworn statement also reveals that it refers to a parcel of land denominated as Lot No.
10678 while the property being disputed is Lot No. 10676. 17 On this basis, it cannot be concluded with certainty that
the property being referred to in the sworn statement is the same property claimed by petitioners.
Having made the foregoing observations and discussions, the question that arises is whether the subject sworn
statement, granting that it refers to the property being disputed in the present case, can be given full faith and
credence in view of the issues raised regarding its genuineness and due execution.
The Court rules in the negative.
Settled is the rule that generally, a notarized document carries the evidentiary weight conferred upon it with respect to
its due execution, and documents acknowledged before a notary public have in their favor the presumption of
regularity.18 However, this presumption is not absolute and may be rebutted by clear and convincing evidence to the
contrary.19
Moreover, not all notarized documents are exempted from the rule on authentication. 20 Thus, an affidavit does not
automatically become a public document just because it contains a notarial jurat. 21 The presumptions that attach to
notarized documents can be affirmed only so long as it is beyond dispute that the notarization was regular. 22
However, a question involving the regularity of notarization as well as the due execution of the subject sworn
statement of Basilisa would require an inquiry into the appreciation of evidence by the trial court. It is not the function
of this Court to review, examine and evaluate or weigh the probative value of the evidence presented. A question of
fact would arise in such event. Settled is the rule that questions of fact cannot be raised in an appeal
via certiorari before the Supreme Court and are not proper for its consideration. 23 The rationale behind this doctrine is
that a review of the findings of fact of the trial courts and the appellate tribunal is not a function this Court normally
undertakes.24 The Court will not weigh the evidence all over again unless there is a showing that the findings of the
lower courts are totally devoid of support or are clearly erroneous so as to constitute serious abuse of
discretion.25 Although there are recognized exceptions26 to this rule, none exists in the present case to justify a
departure therefrom.
Petitioners rely heavily on the presumption of regularity accorded by law to notarized documents. While indeed, a
notarized document enjoys this presumption, the fact that a deed is notarized is not a guarantee of the validity of its
contents.27 As earlier discussed, the presumption is not absolute and may be rebutted by clear and convincing evidence
to the contrary.28 The presumption cannot be made to apply to the present case because the regularity in the execution
of the sworn statement was challenged in the proceedings below where its prima facie validity was overthrown by the
highly questionable circumstances under which it was supposedly executed, as well as the testimonies of witnesses
who testified on the improbability of execution of the sworn statement, as well as on the physical condition of the
signatory, at the time the questioned document was supposedly executed. The trial and appellate courts were
unanimous in giving credence to the testimonies of these witnesses. The Court has repeatedly held that it will not
interfere with the trial court's determination of the credibility of witnesses, unless there appears on record some fact or
circumstance of weight and influence which has been overlooked or the significance of which has been
misinterpreted.29 The reason for this is that the trial court was in a better position to do so, because it heard the
witnesses testify before it and had every opportunity to observe their demeanor and deportment on the witness
stand.30
Considering the foregoing, the Court finds no reason to reverse the rulings of the MTCC, the RTC and the CA. Although
the questioned sworn statement is a public document having in its favor the presumption of regularity, such
presumption was adequately refuted by competent witnesses.
The Court further agrees with the ruling of the RTC that:
The testimony of [the notary public] Atty. Angel Respicio did not suffice to rebut the evidence of the appellees
considering his admission that the affidavit was already thumbmarked when presented to him by one who claimed to
be Basilisa Santos and whom, the witness said he did not know personally. Further, what makes the documents suspect
is the fact that it was subscribed on the same date as the financial statement of Alejandra Santos.
It may not be amiss to point out, at this juncture, that the principal function of a notary public is to authenticate
documents.31 When a notary public certifies to the due execution and delivery of a document under his hand and seal,
he gives the document the force of evidence.32 Indeed, one of the purposes of requiring documents to be
acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery of
documents, is to authorize such documents to be given without further proof of their execution and delivery. 33 A
notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public
at large must be able to rely upon the acknowledgment executed before a notary public and appended to a private
instrument.34 Hence, a notary public must discharge his powers and duties, which are impressed with public interest,
with accuracy and fidelity.35 A notary public should not notarize a document unless the persons who signed the same
are the very same persons who executed and personally appeared before him to attest to the contents and truth of
what are stated therein.36
In the instant case, the notary public should have exercised utmost diligence in ascertaining the true identity of the
person executing the said sworn statement. However, the notary public did not comply with this requirement. He
simply relied on the affirmative answers of the person appearing before him attesting that she was Basilisa Santos; that
the contents of the sworn statement are true; and that the thumbmark appearing on the said document was hers.
However, this would not suffice. He could have further asked the person who appeared before him to produce any
identification to prove that she was indeed Basilisa Santos, considering that the said person was not personally known
to him, and that the thumbmark appearing on the document sought to be notarized was not affixed in his presence. But
he did not. Thus, the lower courts did not commit any error in not giving evidentiary weight to the subject sworn
statement.
The second and third assigned errors proceed on the presumption that petitioners are co-owners of the disputed
property. Since the Court has already ruled that the lower courts did not err in finding that petitioners failed to prove
their claim that they were co-owners of the said property, there is no longer any need to discuss the other assigned
errors.
WHEREFORE, the petition is DENIED. The February 21, 2002 Decision of the Court of Appeals in CA-G.R. SP No. 63321
is AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
Footnotes
1
Penned by Associate Justice Oswaldo D. Agcaoili, with Associate Justices Jose L. Sabio, Jr. and Sergio L. Pestao,
concurring; rollo, pp. 62-72.
2
Records, pp. 301-305.
3
Id. at 266-269.
4
Id. at 1-7.
5
Id. at 2-4.
6
Id. at 20-23.
7
Id. at 21-22.
8
Rollo, pp. 53-56.
9
Id. at 57-61.
10
Id. at 61.
11
Id. at 72.
12
Id. at 21.
13
Id. at 26.
14
Id. at 29.
15
Unchuan v. Lozada, G.R. No. 172671, April 16, 2009, 585 SCRA 421, 435.
16
Id.
17
See Exhibit "C," records, p. 85.
18
De Jesus v. Court of Appeals, G.R. No. 127857, June 20, 2006, 491 SCRA 325, 334; Pan Pacific Industrial Sales Co., Inc.
v. Court of Appeals, G.R. No. 125283, February 10, 2006, 482 SCRA 164, 174.
19
Potenciano v. Reynoso, 449 Phil. 396, 406 (2003).
20
Cequea v. Bolante, 386 Phil. 419, 427 (2000).
21
Id.
22
Dela Rama v. Papa, G.R. No. 142309, January 30, 2009, 577 SCRA 233, 244.
23
Cabang v. Basay, G.R. No. 180587, March 20, 2009, 582 SCRA 172, 186.
24
Id.
25
Id. at 186-187.
26
These recognized exceptions are: (1) when the findings are grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse
of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are
conflicting; (6) when in making its findings, the Court of Appeals went beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the
trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the
evidence on record (Bernaldo v. The Ombudsman and the Department of Public Works and Highways, G.R. No. 156286,
August 13, 2008, 562 SCRA 60); and (11) when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different conclusion (Superlines Transportation
Co., Inc. v. Philippine National Coordinating Council, G.R. No. 169596, March 28, 2007, 519 SCRA 432, 441, citing Insular
Life Assurance Co., Ltd. v. Court of Appeals, 428 SCRA 79, 85-86 [2004]; see also Grand Placement and General Services
Corporation v. Court of Appeals, G.R. No. 142358, January 31, 2006, 481 SCRA 189, 202, citing Mayon Hotel &
Restaurant v. Adana, 458 SCRA 609, 624 [2005]; Castillo v. NLRC, 367 Phil. 603, 619 [1999] and Insular Life Assurance
Co. Ltd. v. CA, supra; Sampayan v. Court of Appeals, G.R. No. 156360, January 14, 2005, 448 SCRA 220, 229, citing
Insular Life Assurance Co. Ltd. v. Court of Appeals,, supra, citing Langkaan Realty Development, Inc. v. United Coconut
Planters Bank, 400 Phil. 1349, 1356 [2000]; Nokom v. National Labor Relations Commission, 390 Phil. 1228, 1242-1243
[2000] and Sta. Maria v. Court of Appeals, 349 Phil. 275, 282-283 [2000]; Aguirre v. Court of Appeals, 421 SCRA 310, 319
[2004]; C & S Fishfarm Corporation v. Court of Appeals, 442 Phil. 279, 288 [2002]).
27
San Juan v. Offril, G.R. No. 154609, April 24, 2009, 586 SCRA 439, 445-446.
28
China Banking Corporation, Inc. v. Court of Appeals, G.R. No. 155299, July 24, 2007, 528 SCRA 103, 110.
29
San Juan v. Offril, supra note 27.
30
Id. at 446-447.
31
Vda. de Bernardo v. Restauro, 452 Phil. 745, 751 (2003).
32
Id.
33
Id.
34
Id.
35
Id.
36
Bautista v. Bernabe, A.C. No. 6963, February 9, 2006, 482 SCRA 1, 6.
 Republic of the Philippines
SUPREME COURT
Baguio City
FIRST DIVISION
G.R. NO. 146556 April 19, 2006
DANILO L. PAREL, Petitioner,
vs.
SIMEON B. PRUDENCIO, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by Danilo Parel (petitioner) which seeks to set aside the
Decision1 dated March 31, 2000 of the Court of Appeals (CA) which reversed the Decision of the Regional Trial Court
(RTC), Branch 60, Baguio, in Civil Case No. 2493-R, a case for recovery of possession and damages. Also assailed is CA
Resolution2 dated November 28, 2000.
On February 27, 1992, Simeon Prudencio (respondent) filed a complaint for recovery of possession and damages
against petitioner with the RTC Baguio alleging that: he is the owner of a two-storey residential house located at No. 61
Forbes Park National Reservation near Department of Public Service (DPS) compound, Baguio City; such property was
constructed solely from his own funds and declared in his name under Tax Declaration No. 47048; he commenced the
construction of said house in 1972 until its completion three years later; when the second floor of said house became
habitable in 1973, he allowed petitioners parents, Florentino (now deceased) and Susan Parel, to move therein and
occupy the second floor while the construction of the ground floor was on-going to supervise the construction and to
safeguard the materials; when the construction of the second floor was finished in 1975, respondent allowed
petitioners parents and children to transfer and temporarily reside thereat; it was done out of sheer magnanimity as
petitioners parents have no house of their own and since respondents wife is the older sister of Florentino,
petitioners father; in November 1985, respondent wrote Florentino a notice for them to vacate the said house as the
former was due for retirement and he needed the place to which petitioners parents heeded when they migrated to
U.S. in 1986; however, without respondents knowledge, petitioner and his family unlawfully entered and took
possession of the ground floor of respondents house; petitioners refusal to vacate the house despite repeated
demands prompted respondent to file the instant action for recovery of possession. Respondent also asked petitioner
for a monthly rental of P3,000.00 from April 1988 and every month thereafter until the latter vacates the said premises
and surrender possession thereof; and for moral and exemplary damages, attorneys fees and cost of suit.
Petitioner filed his Answer with Counterclaim alleging that: his parents are the co-owners of the said residential
house, i.e., the upper story belongs to respondent while the ground floor pertains to petitioners parents; he is
occupying the ground floor upon the instruction of his father, Florentino, with respondents full knowledge; his parents
spent their own resources in improving and constructing the said two-storey house as co-owners thereof; the late
Florentino was an awardee of the land on which the house stands and as a co-owner of the house, he occupied the
ground floor thereof; the demand to vacate was respondents attempt to deprive petitioners parents of their rights as
co-owner of the said house; that respondent had filed ejectment case as well as criminal cases against them involving
the subject house which were all dismissed. Petitioner asked for the dismissal of the complaint and prayed for damages
and attorneys fees.
After trial on the merits, the RTC rendered a Decision3 dated December 15, 1993, the dispositive portion of which
reads:
WHEREFORE, premises considered, the Court hereby declares that the house erected at No. 61 DPS Compound, Baguio
City is owned in common by the late Florentino Parel and herein plaintiff Simeon Prudencio and as such the plaintiff
cannot evict the defendant as heirs of the deceased Florentino Parel from said property, nor to recover said premises
from herein defendant.
Likewise, the plaintiff is ordered to:
(a) pay the defendant in the total sum of P20,000.00 for moral and actual damages;
(b) pay the defendant P20,000.00 in Attorneys fees and P3,300.00 in appearance fees;
(c) pay the costs of this suit.4
The RTC found the following matters as conclusive: that petitioners father was an allocatee of the land on which the
subject house was erected, as one of the lowly-paid government employees at that time when then Mayor Luis
Lardizabal gave them the chance to construct their own house on said reservation; that respondent failed to show
proof of any contract, written or oral, express or implied, that the late Florentino and his family stayed on the house
not as co-owners but as mere lessees, nor any other proof that would clearly establish his sole ownership of the house;
and, that the late Florentino was the one who gathered the laborers for the construction of the house and paid their
salaries. Thus, the RTC ruled that co-ownership existed between respondent and petitioners father, Florentino.
The RTC concluded that respondent and petitioners father agreed to contribute their money to complete the house;
that since the land on which said house was erected has been allocated to petitioners father, the parties had the
understanding that once the house is completed, petitioners father could keep the ground floor while respondent the
second floor; the trial court questioned the fact that it was only after 15 years that respondent asserted his claim of
sole ownership of the subject house; respondent failed to disprove that petitioners father contributed his own funds to
finance the construction of the house; that respondent did not question (1) the fact that it was the deceased Florentino
who administered the construction of the house as well as the one who supplied the materials; and (2) the fact that the
land was in Florentinos possession created the impression that the house indeed is jointly owned by respondent and
Florentino.
The RTC did not give credence to the tax declaration as well as the several documents showing the City Assessors
assessment of the property all in respondents name since tax declarations are not conclusive proof of ownership. It
rejected the affidavit executed by Florentino declaring the house as owned by respondent saying that the affidavit
should be read in its entirety to determine the purpose of its execution; that it was executed because of an advisement
addressed to the late Florentino by the City Treasurer concerning the propertys tax assessment and Florentino,
thought then that it should be the respondent who should pay the taxes; and that the affidavit cannot be accepted for
being hearsay.
Aggrieved by such decision, respondent appealed to the CA. In a Decision dated March 31, 2000, the CA reversed the
trial court and declared respondent as the sole owner of the subject house and ordered petitioner to surrender
possession of the ground floor thereof to respondent immediately. It also ordered petitioner to pay respondent a
monthly rental of P2,000.00 for use or occupancy thereof from April 1988 until the former actually vacates the same
and the sum of P50,000.00 as attorneys fees and cost of suit.
The CA found as meritorious respondents contention that since petitioner failed to formally offer in evidence any
documentary evidence, there is nothing to refute the evidence offered by respondent. It ruled that the trial courts
statement that "defendants occupancy of the house is due to a special power of attorney executed by his parents most
specially the deceased Florentino Parel who is in fact a co-owner of said building" is wanting of any concrete evidence
on record; that said power of attorney was never offered, hence, could not be referred to as petitioners evidence to
support his claim; that except for the bare testimonies of Candelario Regua, the carpenter-foreman, that it was
Florentino who constructed the house and Corazon Garcia, the former barangay captain, who testified that the lot was
allocated to petitioners father, there was no supporting document which would sufficiently establish factual bases for
the trial courts conclusion; and that the rule on offer of evidence is mandatory.
The CA found the affidavit dated September 24, 1973 of Florentino, petitioners father, stating that he is not the owner
of the subject house but respondent, as conclusive proof of respondents sole ownership of the subject house as it is a
declaration made by Florentino against his interest. It also found the tax declarations and official receipts representing
payments of real estate taxes of the questioned property covering the period 1974 to 1992 sufficient to establish
respondents case which constitute at least proof that the holder has a claim of title over the property.
Petitioners motion for reconsideration was denied in a Resolution dated November 28, 2000.1avvphil.net
Hence, the instant petition for review on certiorari with the following Assignment of Errors:
1. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING RESPONDENT AS THE OWNER OF THE BUILDING
AT 61 FORBES PARK NATIONAL RESERVATION, NEAR DPS COMPOUND, BAGUIO CITY, NOTWITHSTANDING THE FINDING
OF THE REGIONAL TRIAL COURT OF CO-OWNERSHIP BETWEEN THE LATE FLORENTINO PAREL AND RESPONDENT;
2. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO SURRENDER POSSESSION OF
THE GROUND FLOOR OF THE SUBJECT BUILDING TO RESPONDENT;
3. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO PAY
RESPONDENT P2,000.00/MONTH FOR USE OR OCCUPANCY OF THE SUBJECT PREMISES FROM APRIL 1988 UNTIL
PETITIONER ACTUALLY VACATES THE SAME;
4. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO PAY TO
RESPONDENT P50,000.00 ATTORNEYS FEES AND COSTS OF SUIT;
5. THE HONORABLE COURT OF APPEALS ERRED IN DENYING PETITIONERS MOTION FOR RECONSIDERATION. 5
Petitioner concedes that while his former counsel failed to make a formal offer of his documentary evidence before the
trial court and that the court shall consider no evidence which has not been formally offered, he maintains that the said
rule is not absolute, citing the case of Bravo, Jr. v. Borja; 6 that his documentary evidence which were not formally
offered in evidence were marked during the presentation of the testimony of petitioners witnesses and were part of
their testimonies; that these evidence were part of the memorandum filed by him before the trial court on July 12,
1993.
Petitioner insists that even in the absence of the documentary evidence, his testimony as well as that of his witnesses
substantiated his claim of co-ownership of the subject house between his late father and respondent as found by the
trial court.
Petitioner argues that the CA erred in finding the affidavit of petitioners father declaring respondent as owner of the
subject house as conclusive proof that respondent is the true and only owner of the house since the affidavit should be
read in its entirety to determine the purpose for which it was executed.
Petitioner further contends that since he had established his fathers co-ownership of the subject house, respondent
has no legal right to eject him from the property; that he could not be compelled to pay rentals for residing in the
ground floor of the subject house; that respondent should bear his own expenses and be adjudged liable for damages
which petitioner sustained for being constrained to litigate.
The principal issue for resolution is whether petitioner was able to prove by preponderance of evidence that his father
was a co-owner of the subject two-storey residential house.
The issue raised by petitioner is mainly factual in nature. In general, only questions of law are appealable to this Court
under Rule 45. However, considering that the findings of the RTC and CA are contradictory, the review of the case is in
order.7
We agree with the CA that respondent had shown sufficient evidence to support his complaint for recovery of
possession of the ground floor of the subject house as the exclusive owner thereof. Respondent presented the affidavit
dated September 24, 1973 executed by Florentino and sworn to before the Assistant City Assessor of Baguio City, G.F.
Lagasca, which reads:
I, FLORENTINO PAREL, 42 years of age, employee, and residing at Forbes Park, Reservation No. 1, after having been
sworn to according to law depose and say:
That he is the occupant of a residential building located at Forbes Park, Reservation No. 1, Baguio City which is the
subject of an advicement addressed to him emanating from the Office of the City Assessor, Baguio City, for assessment
and declaration for taxation purposes;
That I am not the owner of the building in question;
That the building in question is owned by Mr. Simeon B. Prudencio who is presently residing at 55 Hyacinth, Roxas
District, Quezon City.
Further, affiant say not.8 (Underscoring supplied)
Section 38 of Rule 130 of the Rules of Court provides:
SEC. 38. Declaration against interest. The declaration made by a person deceased, or unable to testify, against the
interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the
declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed
it to be true, may be received in evidence against himself or his successors-in-interest and against third persons.
The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that
the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such
declaration asserts facts which are against his own pecuniary or moral interest. 9
The affiant, Florentino, who died in 1989 was petitioners father and had adequate knowledge with respect to the
subject covered by his statement. In said affidavit, Florentino categorically declared that while he is the occupant of the
residential building, he is not the owner of the same as it is owned by respondent who is residing in Quezon City. It is
safe to presume that he would not have made such declaration unless he believed it to be true, as it is prejudicial to
himself as well as to his childrens interests as his heirs.10 A declaration against interest is the best evidence which
affords the greatest certainty of the facts in dispute.11 Notably, during Florentinos lifetime, from 1973, the year he
executed said affidavit until 1989, the year of his death, there is no showing that he had revoked such affidavit even
when a criminal complaint for trespass to dwelling had been filed by respondent against him (Florentino) and petitioner
in 1988 regarding the subject house which the trial court dismissed due to the absence of evidence showing that
petitioner entered the house against the latters will and held that the remedy of respondent was to file an action for
ejectment;12 and even when a complaint for unlawful detainer was filed against petitioner and his wife also in 1988
which was subsequently dismissed on the ground that respondents action should be an accion publiciana which is
beyond the jurisdiction of the Municipal Trial Court.13
Moreover, the building plan of the residential house dated January 16, 1973 was in the name of respondent and his
wife. It was established during petitioners cross-examination that the existing structure of the two-storey house was in
accordance with said building plan.14
Notably, respondent has been religiously paying the real estate property taxes on the house declared under his name
since 1974.15 In fact, petitioner during his cross-examination admitted that there was no occasion that they paid the
real estate taxes nor declared any portion of the house in their name. 16
We agree with the CA that while tax receipts and declarations are not incontrovertible evidence of ownership, they
constitute at least proof that the holder has a claim of title over the property. 17 The house which petitioner claims to be
co-owned by his late father had been consistently declared for taxation purposes in the name of respondent, and this
fact, taken with the other circumstances above-mentioned, inexorably lead to the conclusion that respondent is the
sole owner of the house subject matter of the litigation.
Respondent having established his claim of exclusive ownership of the subject property, it was incumbent upon
petitioner to contravene respondents claim. The burden of evidence shifted to petitioner to prove that his father was a
co-owner of the subject house.
We held in Jison v. Court of Appeals, to wit:18
xxx Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case,
the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie
case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff's prima facie case,
otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof
must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence
and not upon the weakness of the defendants. The concept of "preponderance of evidence" refers to evidence which
is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of
truth.19
In this case, the records show that although petitioners counsel asked that he be allowed to offer his documentary
evidence in writing, he, however, did not file the same. 20 Thus, the CA did not consider the documentary evidence
presented by petitioner. Section 34 of Rule 132 of the Rules of Court provides:
Section 34. Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified.
A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and
strictly upon the evidence offered by the parties to the suit. 21 It is a settled rule that the mere fact that a particular
document is identified and marked as an exhibit does not mean that it has thereby already been offered as part of the
evidence of a party.22
Petitioner insists that although his documentary evidence were not formally offered, the same were marked during the
presentation of the testimonial evidence, thus it can properly be taken cognizance of relying in Bravo, Jr. v. Borja.23
Such reliance is misplaced. In Bravo Jr., we allowed evidence on minority by admitting the certified true copy of the
birth certificate attached to a motion for bail even if it was not formally offered in evidence. This was due to the fact
that the birth certificate was properly filed in support of a motion for bail to prove petitioners minority which was
never challenged by the prosecution and it already formed part of the records of the case. The rule referred to in
the Bravo case was Section 7 of Rule 133 of the Rules of Court which provides:
Section 7. Evidence on motion.- When a motion is based on facts not appearing of record, the court may hear the
matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be
heard wholly or partly on oral testimony or depositions.
and not Section 34 of Rule 132 of the Rules of Court which is the one applicable to the present case.
Even assuming arguendo that the documentary evidence of petitioner should be considered in his favor, the evidence
showing that respondent had filed civil and criminal cases against petitioner which were dismissed as well as the
alleged Special Power of Attorney of petitioners parents whereby they authorized petitioner to stay in the ground floor
of the house, did not establish co-ownership of Florentino and respondent of the subject house.
The testimonies of petitioner and his witnesses failed to show that the subject house is co-owned by petitioners father
and respondent.
Candelario Regua merely testified that he was hired by petitioners father, Florentino, to construct the residential
building in 1972;24 that he listed the materials to be used for the construction which was purchased by
Florentino;25 that he and his men received their salaries every Saturday and Wednesday from Florentino or his wife,
respectively;26 that he had not met nor seen respondent during the whole time the construction was on-going.27 On
cross-examination, however, he admitted that he cannot tell where the money to buy the materials used in the
construction came from.28
Corazon Garcia merely testified that Florentino started building the house when he was allocated a lot at DPS
compound, that she knew Florentino constructed the subject house29 and never knew respondent. 30 The bare
allegation that Florentino was allocated a lot is not sufficient to overcome Florentinos own affidavit naming
respondent as the owner of the subject house.
Petitioner himself testified that it was his father who saw the progress of the construction and purchased the materials
to be used; 31 and as a young boy he would follow-up some deliveries upon order of his father 32 and never saw
respondent in the construction site. The fact that not one of the witnesses saw respondent during the construction of
the said house does not establish that petitioners father and respondent co-owned the house.
We also find that the CA did not err in ordering petitioner to pay respondent being the sole owner of the subject house
a monthly rental of P2,000.00 from April 1988, the date of the extra-judicial demand, until petitioner actually vacates
the subject house. Although the CA made no ratiocination as to how it arrived at the amount of P2,000.00 for the
monthly rental, we find the same to be a reasonable compensation for the use of the ground floor of the subject house
which consists of a living room, a dining room, a kitchen and three bedrooms. The rental value refers to the value as
ascertained by proof of what the property would rent or by evidence of other facts from which the fair rental value may
be determined. 33
We likewise affirm the CAs award of attorneys fees in favor of respondent. Article 2208 of the Civil Code allows the
recovery of attorneys fees in cases when the defendants act or omission has compelled the plaintiff to litigate with
third persons or to incur expenses to protect his interest 34 and in any other case where the court deems it just and
equitable that attorneys fees and expenses of litigation should be recovered 35 which are both shown in the instant
case.
WHEREFORE, the decision of the Court of Appeals dated March 31, 2000 and its Resolution dated November 28, 2000
are AFFIRMED.
Costs against petitioner.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

Footnotes
1
Penned by Associate Justice Corona Ibay-Somera (retired) and concurred in by Associate Justices Portia Alio-
Hormachuelos and Elvi John S. Asuncion; rollo, pp. 32-41.
2
Penned by Associate Justice Portia Alio-Hormachuelos, concurred in by Associate Justices Martin S. Villarama, Jr. and
Elvi John S. Asuncion; Id. at 60-61.
3
Penned by Judge Pastor V. de Guzman, Jr.; Id. at 81-84.
4
Id. at 84.
5
Id. at 15-16.
6
G.R. No. L-65228, February 18, 1985, 134 SCRA 466.
7
Heirs of Miguel Franco v. Court of Appeals, G.R. No. 123924, December 11, 2003, 418 SCRA 60, 67. Among the
exceptional circumstances that would compel the Supreme Court to review the findings of fact of the lower courts is
when the findings of fact are conflicting. See e.g., Sacay v. Sandiganbayan, 226 Phil. Rep. 496, 510 (1986).
8
Records, p. 154.
9
Evidence, Ricardo J. Francisco, Vol. VII, Part I, 1997 edition, p. 554, citing 20 Am. Jur. 468.
10
Del Mundo v. Court of Appeals , G.R. No. L-25788, April 30, 1980, 97 SCRA 373, 380.
11
Supra note 7, citing Noda v. Cruz-Arnaldo, G.R. No. L-57322, June 22, 1987, 151 SCRA 227.
12
Records, p. 199.
13
Id. at pp. 346-347.
14
TSN, March 10, 1993, pp.30-34.
15
Records, p. 167 to 181; Exhibits " N," "N-1" to " N-18".
16
TSN, April 21, 1993, pp. 12-13.
17
Director of Lands v. Intermediate Appellate Court, G.R. No. 68946, May 22, 1992, 209 SCRA 214, 227.
18
350 Phil. 138 (1998).
19
Id. at 173.
20
Records, p. 318.
21
Francisco, Comments on the Rules of Court, Vol. VI, 1980 edition, p. 123, citing U.S . v. Solana, 33 Phil. 582 (1916)
and Dayrit v. Gonzalez, 7 Phil. 182 (1906).
22
People v. Gecomo, 324 Phil. 297, 318 (1996); Tabuena v. Court of Appeals, 274 Phil. 51, 55 (1991).
23
Supra note 6.
24
TSN, February 24, 1993, pp. 9-11.
25
Id. at 11
26
Id. at 12.
27
Id. at 12-14.
28
Id. at 23.
29
TSN, March 10, 1993, pp. 10-11.
30
Id. at 13.
31
Id. at 29.
32
Id.
33
Asian Transmission Corporation v. Canlubang Sugar Estates, G.R. No. 142383, August 29, 2003, 410 SCRA 202, 223
citing Herpolsheimer v. Christopher, 111 N.W. 359 (1907).
34
Art. 2208 (2).
35
Art. 2208 (11).
 THIRD DIVISION

PHILIPPINE FREE PRESS, INC.,

Petitioner, - versus - COURT OF APPEALS (12th Division)
and LIWAYWAY PUBLISHING, INC.,
Respondents.

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

DECISION

GARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Philippine Free Press, Inc. seeks
the reversal of the Decision[1] dated February 25, 1998 of the Court of Appeals (CA) in CA-GR CV No. 52660, affirming,
with modification, an earlier decision of the Regional Trial Court at Makati, Branch 146, in an action for annulment of
deeds of sale thereat instituted by petitioner against the Presidential Commission for Good
Government (PCGG) and the herein private respondent, Liwayway Publishing, Inc.

As found by the appellate court in the decision under review, the facts are:

xxx [Petitioner] . . . is a domestic corporation engaged in the publication of Philippine Free Press Magazine, one
of the . . . widely circulated political magazines in the Philippines. Due to its wide circulation, the publication of
the Free Press magazine enabled [petitioner] to attain considerable prestige prior to the declaration of Martial
Law as well as to achieve a high profit margin. . . .

Sometime in . . . 1963, [petitioner] purchased a parcel of land situated at No. 2249, Pasong Tamo Street,
Makati which had an area of 5,000 square meters as evidenced by . . . (TCT) No. 109767 issued by the Register
of Deeds of Makati (Exh. Z). Upon taking possession of the subject land, [petitioner] constructed an office
building thereon to house its various machineries, equipment, office furniture and fixture. [Petitioner]
thereafter made the subject building its main office . . . .

During the 1965 presidential elections, [petitioner] supported the late President Diosdado Macapagal against
then Senate President Ferdinand Marcos. Upon the election of the late President Ferdinand Marcos in 1965
and prior to the imposition of Martial law on September 21, 1972, [petitioner] printed numerous articles highly
critical of the Marcos administration, exposing the corruption and abuses of the regime. The [petitioner]
likewise ran a series of articles exposing the plan of the Marcoses to impose a dictatorship in the guise of
Martial Law . . . .

In the evening of September 20, 1972, soldiers surrounded the Free Press Building, forced out its employees at
gunpoint and padlocked the said establishment. The soldier in charge of the military contingent then informed
Teodoro Locsin, Jr., the son of Teodoro Locsin, Sr., the President of [petitioner], that Martial Law had been
declared and that they were instructed by the late President Marcos to take over the building and to close the
printing press. xxx.

On September 21, 1972 . . ., Teodoro Locsin, Sr. was arrested [and] . . . . was brought to Camp Crame and was
subsequently transferred to the maximum security bloc at Fort Bonifacio.

Sometime in December, 1972, Locsin, Sr. was informed . . . that no charges were to be filed against him and
that he was to be provisionally released subject to the following conditions, to wit: (1) he remained (sic) under
city arrest; xxx (5) he was not to publish the Philippine Free Press nor was he to do, say or write anything
critical of the Marcos administration . . . .

Consequently, the publication of the Philippine Free Press ceased. The subject building remained padlocked
and under heavy military guard (TSB, 27 May 1993, pp. 51-52; stipulated). The cessation of the publication of
the ... magazine led to the financial ruin of [petitioner] . . . . [Petitioners] situation was further aggravated
when its employees demanded the payment of separation pay as a result of the cessation of its operations.
[Petitioners] minority stockholders, furthermore, made demands that Locsin, Sr. buy out their shares. xxx.
On separate occasions in 1973, Locsin, Sr. was approached by the late Atty. Crispin Baizas with offers from
then President Marcos for the acquisition of the [petitioner]. However, Locsin, Sr. refused the offer stating that
[petitioner] was not for sale (TSN, 2 May 1988, pp. 8-9, 40; 27 May 1993, pp. 66-67).

A few months later, the late Secretary Guillermo De Vega approached Locsin, Sr. reiterating Marcoss offer to
purchase the name and the assets of the [petitioner].xxx

Sometime during the middle of 1973, Locsin, Sr. was contacted by Brig. Gen. Hans Menzi, the former aide-de-
camp of then President Marcos concerning the sale of the [petitioner]. Locsin, Sr. requested that the meeting
be held inside the [petitioner] Building and this was arranged by Menzi (TSN, 27 May 1993, pp. 69-70). During
the said meeting, Menzi once more reiterated Marcoss offer to purchase both the name and the assets of
[petitioner] adding that Marcos cannot be denied (TSN, 27 May 1993, p. 71). Locsin, Sr. refused but Menzi
insisted that he had no choice but to sell. Locsin, Sr. then made a counteroffer that he will sell the land, the
building and all the machineries and equipment therein but he will be allowed to keep the name of the
[petitioner]. Menzi promised to clear the matter with then President Marcos (TSN, 27 May 1993, p. 72). Menzi
thereafter contacted Locsin, Sr. and informed him that President Marcos was amenable to his counteroffer
and is offering the purchase price of Five Million Seven Hundred Fifty Thousand (P5, 750,000.00) Pesos for the
land, the building, the machineries, the office furnishing and the fixtures of the [petitioner] on a take-it-or-
leave-it basis (TSN, 2 May 1988, pp.42-43; 27 May 1993, p. 88).

On August 22, 1973, Menzi tendered to Locsin, Sr. a check for One Million (P1, 000,000.00) Pesos
downpayment for the sale, . . . Locsin, Sr. accepted the check, subject to the condition that he will refund the
same in case the sale will not push through. (Exh. 7).

On August 23, 1973, the Board of Directors of [petitioner] held a meeting and reluctantly passed a resolution
authorizing Locsin, Sr. to sell the assets of the [petitioner] to Menzi minus the name Philippine Free Press
(Exhs. A-1 and 1; TSN, 27 May 1993, pp. 73-76).

On October 23, 1973, the parties [petitioner, as vendor and private respondent, represented by B/Gen. Menzi,
as vendee] met . . . and executed two (2) notarized Deeds of Sale covering the land, building and the
machineries of the [petitioner]. Menzi paid the balance of the purchase price in the amount of . . .
(P4,750,000.00) Pesos (Exhs. A and (; B and 10;TSN, 27 May 1993, pp. 81-82; 3 June 1993, p. 89).

Locsin, Sr. thereafter used the proceeds of the sale to pay the separation pay of [petitioners] employees, buy
out the shares of the minority stockholders as well as to settle all its obligations.

On February 26, 1987, [petitioner] filed a complaint for Annulment of Sale against [respondent] Liwayway and
the PCGG before the Regional Trail Court of Makati, Branch 146 on the grounds of vitiated consent and gross
inadequacy of purchase price. On motion of defendant PCGG, the complaint against it was dismissed on
October 22, 1987. (Words in bracket and underscoring added)

In a decision dated October 31, 1995,[2] the trial court dismissed petitioners complaint and granted private respondents
counterclaim, to wit:

WHEREFORE, in view of all the foregoing premises, the herein complaint for annulment of sales is hereby
dismissed for lack of merit.

On [respondent] counterclaim, the court finds for [respondent] and against [petitioner] for the recovery of
attorneys fees already paid for at P1,945,395.98, plus a further P316,405.00 remaining due and payable.

SO ORDERED. (Words in bracket added)

In time, petitioner appealed to the Court of Appeals (CA) whereat its appellate recourse was docketed as CA-
G.R. C.V. No. 52660.

As stated at the outset hereof, the appellate court, in a decision dated February 25, 1998, affirmed with modification
the appealed decision of the trial court, the modification consisting of the deletion of the award of attorneys fees to
private respondent, thus:

WHEREFORE, with the sole modification that the award of attorneys fees in favor of [respondent] be deleted,
the Decision appealed from is hereby AFFIRMED in all respects.

SO ORDERED.
 Hence, petitioners present recourse, urging the setting aside of the decision under review which, to petitioner,
decided questions of substance in a way not in accord with law and applicable jurisprudence considering that the
appellate court gravely erred:
I

xxx IN ITS MISAPPLICATION OF THE DECISIONS OF THE HONORABLE COURT THAT RESULTED IN ITS
ERRONEOUS CONCLUSION THAT PETITIONER'S CAUSE OF ACTION HAD ALREADY PRESCRIBED.

II

xxx IN CONCLUDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES PRECEDING THE EXECUTION OF THE
CONTRACTS OF SALE FOR THE PETITIONER'S PROPERTIES DID NOT ESTABLISH THE FORCE, INTIMIDATION,
DURESS AND UNDUE INFLUENCE WHICH VITIATED PETITIONER'S CONSENT.

A. xxx IN CONSIDERING AS HEARSAY THE TESTIMONIAL EVIDENCE WHICH CLEARLY ESTABLISHED THE THREATS
MADE UPON PETITIONER AND THAT RESPONDENT LIWAYWAY WILL BE USED AS THE CORPORATE VEHICLE FOR
THE FORCED ACQUISITION OF PETITIONER'S PROPERTIES.

B. xxx IN CONCLUDING THAT THE ACTS OF THEN PRESIDENT MARCOS DURING MARTIAL LAW DID NOT CONSTITUTE
THE FORCE, INTIMIDATION, DURESS AND UNDUE INFLUENCE WHICH VITIATED PETITIONER'S CONSENT.

C. xxx IN RESOLVING THE INSTANT CASE ON THE BASIS OF MERE SURMISES AND SPECULATIONS INSTEAD OF THE
UNDISPUTED EVIDENCE ON RECORD.

III

xxx IN CONCLUDING THAT THE GROSSLY INADEQUATE PURCHASE PRICE FOR PETITIONER'S PROPERTIES DOES
NOT INDICATE THE VITIATION OF PETITIONER'S CONSENT TO THE CONTRACTS OF SALE.

IV

xxx IN CONCLUDING THAT PETITIONER'S USE OF THE PROCEEDS OF THE SALE FOR ITS SURVIVAL CONSTITUTE
AN IMPLIED RATIFICATION [OF] THE CONTRACTS OF SALE.

xxx IN EXCLUDING PETITIONER'S EXHIBITS X-6 TO X-7 AND Y-3 (PROFFER) WHICH ARE ADMISSIBLE EVIDENCE
WHICH COMPETENTLY PROVE THAT THEN PRESIDENT MARCOS OWNED PRIVATE RESPONDENT LIWAYWAY,
WHICH WAS USED AS THE CORPORATE VEHICLE FOR THE ACQUISITION OF PETITIONER'S PROPERTIES.

The petition lacks merit.

Petitioner starts off with its quest for the allowance of the instant recourse on the submission that the martial law
regime tolled the prescriptive period under Article 1391 of the Civil Code, which pertinently reads:

Article 391. The action for annulment shall be brought within four years.

This period shall begin:

In cases of intimidation, violence or undue influence, from the time the defect of the consent ceases.
xxx xxx xxx

It may be recalled that the separate deeds of sale[3] sought to be annulled under petitioners basic complaint were both
executed on October 23, 1973. Per the appellate court, citing Development Bank of the Philippines [DBP] vs.
Pundogar[4], the 4-year prescriptive period for the annulment of the aforesaid deeds ended in late 1977, doubtless
suggesting that petitioners right to seek such annulment accrued four (4) years earlier, a starting time-point
corresponding, more or less, to the date of the conveying deed, i.e., October 23, 1973. Petitioner contends, however,
that the 4-year prescriptive period could not have commenced to run on October 23, 1973, martial law being then in
full swing. Plodding on, petitioner avers that the continuing threats on the life of Mr. Teodoro Locsin, Sr. and his family
and other menacing effects of martial law which should be considered as force majeure - ceased only after the February
25, 1986 People Power uprising.
 Petitioner instituted its complaint for annulment of contracts on February 26, 1987. The question that now
comes to the fore is: Did the 4-year prescriptive period start to run in late October 1973, as postulated in the decision
subject of review, or on February 25, 1986, as petitioner argues, on the theory that martial law has the effects of a force
majeure[5], which, in turn, works to suspend the running of the prescriptive period for the main case filed with the trial
court.

Petitioner presently faults the Court of Appeals for its misapplication of the doctrinal rule laid down in DBP vs.
Pundogar[6] where this Court, citing and quoting excerpts from the ruling in Tan vs. Court of Appeals [7], as reiterated
in National Development Company vs. Court of Appeals, [8] wrote

We can not accept the petitioners contention that the period during which authoritarian rule was in force had
interrupted prescription and that the same began to run only on February 25, 1986, when the Aquino
government took power. It is true that under Article 1154 [of the Civil Code] xxx fortuitous events have the
effect of tolling the period of prescription. However, we can not say, as a universal rule, that the period from
September 21, 1972 through February 25, 1986 involves a force majeure. Plainly, we can not box in the
"dictatorial" period within the term without distinction, and without, by necessity, suspending all liabilities,
however demandable, incurred during that period, including perhaps those ordered by this Court to be
paid. While this Court is cognizant of acts of the last regime, especially political acts, that might have indeed
precluded the enforcement of liability against that regime and/or its minions, the Court is not inclined to make
quite a sweeping pronouncement, . . . . It is our opinion that claims should be taken on a case-to-case basis.
This selective rule is compelled, among others, by the fact that not all those imprisoned or detained by the
past dictatorship were true political oppositionists, or, for that matter, innocent of any crime or wrongdoing.
Indeed, not a few of them were manipulators and scoundrels. [Italization in the original; Underscoring and
words in bracket added]

According to petitioner, the appellate court misappreciated and thus misapplied the correct thrust of the Tan case, as
reiterated in DBP which, per petitioners own formulation, is the following:[9]

The prevailing rule, therefore, is that on a case-to-case basis, the Martial Law regime may be treated as force
majeure that suspends the running of the applicable prescriptive period provided that it is established that the
party invoking the imposition of Martial Law as a force majeure are true oppositionists during the Martial Law
regime and that said party was so circumstanced that is was impossible for said party to commence,
continue or to even resist an action during the dictatorial regime. (Emphasis and underscoring in the original)

We are not persuaded.

It strains credulity to believe that petitioner found it impossible to commence and succeed in an annulment
suit during the entire stretch of the dictatorial regime. The Court can grant that Mr. Locsin, Sr. and petitioner were, in
the context of DBP and Tan, true oppositionists during the period of material law. Petitioner, however, has failed to
convincingly prove that Mr. Locsin, Sr., as its then President, and/or its governing board, were so circumstanced that it
was well-nigh impossible for him/them to successfully institute an action during the martial law years. Petitioner cannot
plausibly feign ignorance of the fact that shortly after his arrest in the evening of September 20, 1972, Mr. Locsin, Sr.,
together with several other journalists[10], dared to file suits against powerful figures of the dictatorial regime and
veritably challenged the legality of the declaration of martial law. Docketed in this Court as GR No. L-35538, the case,
after its consolidation with eight (8) other petitions against the martial law regime, is now memorialized in books of
jurisprudence and cited in legal publications and case studies as Aquino vs. Enrile.[11]

Incidentally, Mr. Locsin Sr., as gathered from the ponencia of then Chief Justice Querube Makalintal in Aquino, was
released from detention notwithstanding his refusal to withdraw from his petition in said case. Judging from the
actuations of Mr. Locsin, Sr. during the onset of martial law regime and immediately thereafter, any suggestion that
intimidation or duress forcibly stayed his hands during the dark days of martial law to seek judicial assistance must be
rejected.[12]

Given the foregoing perspective, the Court is not prepared to disturb the ensuing ruling of the appellate court
on the effects of martial law on petitioners right of action:

In their testimonies before the trial court, both Locsin, Sr. and Locsin, Jr. claimed that they had not filed suit to
recover the properties until 1987 as they could not expect justice to be done because according to them,
Marcos controlled every part of the government, including the courts, (TSN, 2 May 1988, pp. 23-24; 27 May
1993, p. 121). While that situation may have obtained during the early years of the martial law administration,
We could not agree with the proposition that it remained consistently unchanged until 1986, a span of
fourteen (14) years. The unfolding of subsequent events would show that while dissent was momentarily
stifled, it was not totally silenced. On the contrary, it steadily simmered and smoldered beneath the political
surface and culminated in that groundswell of popular protest which swept the dictatorship from power. [13]

The judiciary too, as an institution, was no ivory tower so detached from the ever changing political climate.
While it was not totally impervious to the influence of the dictatorships political power, it was not hamstrung
as to render it inutile to perform its functions normally. To say that the Judiciary was not able to render justice
to the persons who sought redress before it . . . during the Martial Law years is a sweeping and unwarranted
generalization as well as an unfounded indictment. The Judiciary, . . . did not lack in gallant jurists and
magistrates who refused to be cowed into silence by the Marcos administration. Be that as it may, the Locsins
mistrust of the courts and of judicial processes is no excuse for their non-observance of the prescriptive period
set down by law.

Corollary to the presented issue of prescription of action for annulment of contract voidable on account of defect of
consent[14] is the question of whether or not duress, intimidation or undue influence vitiated the petitioners consent to
the subject contracts of sale. Petitioner delves at length on the vitiation issue and, relative thereto, ascribes the
following errors to the appellate court: first, in considering as hearsay the testimonial evidence that may prove the
element of "threat" against petitioner or Mr. Locsin, Sr., and the dictatorial regime's use of private respondent as a
corporate vehicle for forcibly acquiring petitioners properties; second, in concluding that the acts of then President
Marcos during the martial law years did not have a consent-vitiating effect on petitioner; and third, in resolving the case
on the basis of mere surmises and speculations.

The evidence referred to as hearsay pertains mainly to the testimonies of Messrs. Locsin, Sr. and Teodoro Locsin, Jr.
(the Locsins, collectively), which, in gist, established the following facts: 1) the widely circulated Free
Press magazine, which, prior to the declaration of Martial Law, took the strongest critical stand against the Marcos
administration, was closed down on the eve of such declaration, which closure eventually drove petitioner to financial
ruin; 2) upon Marcos orders, Mr. Locsin, Sr. was arrested and detained for over 2 months without charges and, together
with his family, was threatened with execution; 3) Mr. Locsin, Sr. was provisionally released on the condition that he
refrains from reopening Free Press and writing anything critical of the Marcos administration; and 4) Mr. Locsin, Sr. and
his family remained fearful of reprisals from Marcos until the 1986 EDSA Revolution.

Per the Locsins, it was amidst the foregoing circumstances that petitioners property in question was sold to
private respondent, represented by Gen. Menzi, who, before the sale, allegedly applied the squeeze on Mr. Locsin, Sr.
thru the medium of the Marcos cannot be denied and [you] have no choice but to sell line.

The appellate court, in rejecting petitioners above posture of vitiation of consent, observed:

It was under the above-enumerated circumstances that the late Hans Menzi, allegedly acting on behalf of the
late President Marcos, made his offer to purchase the Free Press. It must be noted, however, that the
testimonies of Locsin, Sr. and Locsin, Jr. regarding Menzis alleged implied threat that Marcos cannot be denied
and that [respondent] was to be the corporate vehicle for Marcoss takeover of the Free Press is hearsay as
Menzi already passed away and is no longer in a position to defend himself; the same can be said of the offers
to purchase made by Atty. Crispin Baizas and Secretary Guillermo de Vega who are also both dead. It is clear
from the provisions of Section 36, Rule 130 of the 1989 Revised Rules on Evidence that any evidence, . . . is
hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of
some other person not on the witness stand. Consequently, hearsay evidence, whether objected to or not, has
no probative value unless the proponent can show that the evidence falls within the exceptions to the hearsay
evidence rule (Citations omitted)

The appellate courts disposition on the vitiation-of-consent angle and the ratio therefor commends itself for
concurrence.

Jurisprudence instructs that evidence of statement made or a testimony is hearsay if offered against a party
who has no opportunity to cross-examine the witness. Hearsay evidence is excluded precisely because the party against
whom it is presented is deprived of or is bereft of opportunity to cross-examine the persons to whom the statements or
writings are attributed.[15] And there can be no quibbling that because death has supervened, the late Gen Menzi, like
the other purported Marcos subalterns, Messrs. Baizas and De Vega, cannot cross-examine the Locsins for the
threatening statements allegedly made by them for the late President.
Like the Court of Appeals, we are not unmindful of the exception to the hearsay rule provided in Section 38, Rule 130 of
the Rules of Court, which reads:

SEC. 38. Declaration against interest. The declaration made by a person deceased or unable to testify, against
the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary
to the declarant's own interest, that a reasonable man in his position would not have made the declaration
unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and
against third persons.

However, in assessing the probative value of Gen. Menzis supposed declaration against interest, i.e., that he was acting
for the late President Marcos when he purportedly coerced Mr. Locsin, Sr. to sell the Free Press property, we are
loathed to give it the evidentiary weight petitioner endeavors to impress upon us. For, the Locsins can hardly be
considered as disinterested witnesses. They are likely to gain the most from the annulment of the subject contracts.
Moreover, allegations of duress or coercion should, like fraud, be viewed with utmost caution. They should not be
laid lightly at the door of men whose lips had been sealed by death. [16] Francisco explains why:

[I]t has been said that of all evidence, the narration of a witness of his conversation with a dead person is
esteemed in justice the weakest. One reason for its unreliability is that the alleged declarant can not recall to
the witness the circumstances under which his statement were made. The temptation and opportunity for
fraud in such cases also operate against the testimony. Testimony to statements of a deceased person, at least
where proof of them will prejudice his estate, is regarded as an unsafe foundation for judicial action except in
so far as such evidence is borne out by what is natural and probable under the circumstances taken in
connection with actual known facts. And a court should be very slow to act upon the statement of one of the
parties to a supposed agreement after the death of the other party; such corroborative evidence should be
adduced as to satisfy the court of the truth of the story which is to benefit materially the person telling it. [17]

Excepting, petitioner insists that the testimonies of its witnesses the Locsins - are not hearsay because:

In this regard, hearsay evidence has been defined as the evidence not of what the witness knows himself but
of what he has heard from others. xxx Thus, the mere fact that the other parties to the conversations testified
to by the witness are already deceased does [not] render such testimony inadmissible for being hearsay. [18]

xxx xxx xxx

The testimonies of Teodoro Locsin, Sr. and Teodoro Locsin, Jr. that the late Atty. Baizas, Gen. Menzi and
Secretary de Vega stated that they were representing Marcos, that Marcos cannot be denied, and the fact that
Gen. Menzi stated that private respondent Liwayway was to be the corporate vehicle for the then President
Marcos' take-over of petitioner Free Press are not hearsay. Teodoro Locsin, Sr. and Teodoro Locsin, Jr. were in
fact testifying to matters of their own personal knowledge because they were either parties to the said
conversation or were present at the time the said statements were made. [19]

Again, we disagree.

Even if petitioner succeeds in halving its testimonial evidence, one-half purporting to quote the words of a live
witness and the other half purporting to quote what the live witness heard from one already dead, the other pertaining
to the dead shall nevertheless remain hearsay in character.

The all too familiar rule is that a witness can testify only to those facts which he knows of his own knowledge. [20] There
can be no quibbling that petitioners witnesses cannot testify respecting what President Marcos said to Gen. Menzi
about the acquisition of petitioners newspaper, if any there be, precisely because none of said witnesses ever had an
opportunity to hear what the two talked about.

Neither may petitioner circumvent the hearsay rule by invoking the exception under the declaration-against-interest
rule. In context, the only declaration supposedly made by Gen. Menzi which can conceivably be labeled as adverse to
his interest could be that he was acting in behalf of Marcos in offering to acquire the physical assets of petitioner. Far
from making a statement contrary to his own interest, a declaration conveying the notion that the declarant possessed
the authority to speak and to act for the President of the Republic can hardly be considered as a declaration against
interest.
Petitioner next assails the Court of Appeals on its conclusion that Martial Law is not per se a consent-vitiating
phenomenon. Wrote the appellate court: [21]
In other words, the act of the ruling power, in this case the martial law administration, was not an act of mere
trespass but a trespass in law - not a perturbacion de mero hecho but a pertubacion de derecho - justified as it
is by an act of government in legitimate self-defense (IFC Leasing & Acceptance Corporation v. Sarmiento
Distributors Corporation, , citing Caltex (Phils.) v. Reyes, 84 Phil. 654 [1949]. Consequently, the act of the
Philippine Government in declaring martial law can not be considered as an act of intimidation of a third
person who did not take part in the contract (Article 1336, Civil Code). It is, therefore, incumbent on
[petitioner] to present clear and convincing evidence showing that the late President Marcos, acting through
the late Hans Menzi, abused his martial law powers by forcing plaintiff-appellant to sell its assets. In view of
the largely hearsay nature of appellants evidence on this point, appellants cause must fall.

According to petitioner, the reasoning of the appellate court is "flawed" because:[22]

It is implicit from the foregoing reasoning of the Court of Appeals that it treated the forced closure of the
petitioner's printing press, the arrest and incarceration without charges of Teodoro Locsin, Sr., the threats that
he will be shot and the threats that other members of his family will be arrested as legal acts done by a
dictator under the Martial Law regime. The same flawed reasoning led the Court of Appeals to the erroneous
conclusion that such acts do not constitute force, intimidation, duress and undue influence that vitiated
petitioner's consent to the Contracts of Sale.

The contention is a rehash of petitioners bid to impute on private respondent acts of force and intimidation that were
made to bear on petitioner or Mr. Locsin, Sr. during the early years of martial law. It failed to take stock of a very
plausible situation depicted in the appellate courts decision which supports its case disposition on the issue respecting
vitiation. Wrote that court:

Even assuming that the late president Marcos is indeed the owner of [respondent], it does not necessarily
follow that he, acting through the late Hans Menzi, abused his power by resorting to intimidation and undue
influence to coerce the Locsins into selling the assets of Free Press to them (sic).

It is an equally plausible scenario that Menzi convinced the Locsins to sell the assets of the Free Press without
resorting to threats or moral coercion by simply pointing out to them the hard fact that the Free Press was in
dire financial straits after the declaration of Martial Law and was being sued by its former employees, minority
stockholders and creditors. Given such a state of affairs, the Locsins had no choice but to sell their assets.[23]

Petitioner laments that the scenario depicted in the immediately preceding quotation as a case of a court resorting
to mere surmises and speculations, [24]oblivious that petitioner itself can only offer, as counterpoint, also mere surmises
and speculations, such as its claim about Eugenio Lopez Sr. and Imelda R. Marcos offering enticing amounts to buy Free
Press.[25]

It bears stressing at this point that even after the imposition of martial law, petitioner, represented by Mr. Locsin, Sr.,
appeared to have dared the ire of the powers-that-be. He did not succumb to, but in fact spurned offers to buy, lock-
stock-and-barrel, the Free Press magazine, dispatching Marcos emissaries with what amounts to a curt Free Press is not
for sale. This reality argues against petitioners thesis about vitiation of its contracting mind, and, to be sure, belying the
notion that Martial Law worked as a Sword of Damocles that reduced petitioner or Mr. Locsin, Sr. into being a mere
automaton. The following excerpt from the Court of Appeals decision is self-explanatory: [26]

Noteworthy is the fact that although the threat of arrest hung over his head like the Sword of Damocles, Locsin
Sr. was still able to reject the offers of Atty. Baizas and Secretary De Vega, both of whom were supposedly
acting on behalf of the late President Marcos, without being subjected to reprisals. In fact, the Locsins testified
that the initial offer of Menzi was rejected even though it was supposedly accompanied by the threat that
Marcos cannot be denied. Locsin, Sr. was, moreover, even able to secure a compromise that only the assets of
the Free Press will be sold. It is, therefore, quite possible that plaintiff-appellants financial condition, albeit
caused by the declaration of Martial Law, was a major factor in influencing Locsin, Sr. to accept Menzis offer. It
is not farfetched to consider that Locsin, Sr. would have eventually proceeded with the sale even in the
absence of the alleged intimidation and undue influence because of the absence of other buyers.

Petitioners third assigned error centers on the gross inadequacy of the purchase price, referring to the amount of
P5,775,000.00 private respondent paid for the property in question. To petitioner, the amount thus paid does not even
approximate the actual market value of the assets and properties, [27] and is very much less than the P18 Million offered
by Eugenio Lopez.[28] Accordingly, petitioner urges the striking down, as erroneous, the ruling of the Court of Appeals on
purchase price inadequacy, stating in this regard as follows: [29]
Furthermore, the Court of Appeals in determining the adequacy of the price for the properties and assets of
petitioner Free Press relied heavily on the claim that the audited financial statements for the years 1971 and
1972 stated that the book value of the land is set at Two Hundred Thirty-Seven Thousand Five Hundred Pesos
(P237,500.00). However, the Court of Appeals' reliance on the book value of said assets is clearly misplaced. It
should be noted that the book value of fixed assets bears very little correlation with the actual market value of
an asset. (Emphasis and underscoring in the original).

With the view we take of the matter, the book or actual market value of the property at the time of sale is
presently of little moment. For, petitioner is effectively precluded, by force of the principle
of estoppel ,[30] from cavalierly disregarding with impunity its own books of account in which the property in
question is assigned a value less than what was paid therefor. And, in line with the rule on the quantum of
evidence required in civil cases, neither can we cavalierly brush aside private respondents evidence, cited with
approval by the appellate court, that tends to prove that-[31]

xxx the net book value of the Properties was actually only P994,723.66 as appearing in Free Press's Balance
Sheet as of November 30, 1972 (marked as Exh. 13 and Exh. V), which was duly audited by SyCip, Gorres, and
Velayo, thus clearly showing that Free Press actually realized a hefty profit of P4,755,276.34 from the sale to
Liwayway.

Lest it be overlooked, gross inadequacy of the purchase price does not, as a matter of civil law, per se affect a contract
of sale. Article 1470 of the Civil Code says so. It reads:
Article 1470. Gross inadequacy of price does not affect a contract of sale, except as it may indicate a defect in
the consent, or that the parties really intended a donation or some other act or contract.

Following the aforequoted codal provision, it behooves petitioner to first prove a defect in the consent, failing which its
case for annulment contract of sale on ground gross inadequacy of price must fall. The categorical conclusion of the
Court of Appeals, confirmatory of that of the trial court, is that the price paid for the Free Press office building, and
other physical assets is not unreasonable to justify the nullification of the sale. This factual determination, predicated as
it were on offered evidence, notably petitioners Balance Sheet as of November 30, 1972 (Exh. 13), must be accorded
great weight if not finality.[32]

In the light of the foregoing disquisition, the question of whether or not petitioners undisputed utilization of the
proceeds of the sale constitutes, within the purview of Article 1393 of the Civil Code, [33] implied ratification of the
contracts of sale need not detain us long. Suffice it to state in this regard that the ruling of the Court of Appeals on the
matter is well-taken. Wrote the appellate court: [34]

In the case at bench, Free Presss own witnesses admitted that the proceeds of the 1973 sale were used to
settle the claims of its employees, redeem the shares of its stockholders and finance the companys entry into
money-market shareholdings and fishpond business activities (TSN, 2 May 1988, pp. 16, 42-45). It need not be
overemphasized that by using the proceeds in this manner, Free Press only too clearly confirmed the
voluntaries of its consent and ratified the sale. Needless to state, such ratification cleanses the assailed
contract from any alleged defects from the moment it was constituted (Art. 1396, Civil Code).

Petitioners posture that its use of the proceeds of the sale does not translate to tacit ratification of what it
viewed as voidable contracts of sale, such use being a matter of [its financial] survival, [35] is untenable. As
couched, Article 1393 of the Civil Code is concerned only with the act which passes for ratification of contract, not the
reason which actuated the ratifying person to act the way he did. Ubi lex non distinguit nec nos distinguere debemus.
When the law does not distinguish, neither should we. [36]

Finally, petitioner would fault the Court of Appeals for excluding Exhibits X-6 to X-7 and Y-3 (proffer). These excluded
documents which were apparently found in the presidential palace or turned over by the US Government to the PCGG,
consist of, among others, what appears to be private respondents Certificate of Stock for 24,502 shares in the name of
Gen. Menzi, but endorsed in blank. The proffer was evidently intended to show that then President Marcos owned
private respondent, Liwayway Publishing Inc. Said exhibits are of little relevance to the resolution of the main issue
tendered in this case. Whether or not the contracts of sale in question are voidable is the issue, not the ownership of
Liwayway Publishing, Inc.
WHEREFORE, the petition is DENIED, and the challenged decision of the Court of Appeals AFFIRMED.

Costs against petitioner.

[1]
Penned by then Associate Justice Consuelo Ynares-Santiago (now a member of this Court), with then Associate Justices
Bernardo LL. Salas (ret.) and Demetrio G. Demetria, concurring; Rollo, pp. 149-177.
[2]
Rollo, pp. 194-201. [3] Rollo, p. 178 et seq., and p. 182 et seq. [4] 218 SCRA 118 [1993].
[5]
Art. 1154. The period during which the obligee was prevented by a fortuitous event from enforcing his right is not reckoned
against him.
[6]
See Note #4, supra. [7] 195 SCRA 355 [1991]. [8] 211 SCRA 422, 435 [1992]. [9] Petition, p. 32; Rollo, p- 40.
[10]
Joaquin P. Roces, Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo M. Soliven, Renato Constantino, and Luis R.
Mauricio.
[11]
59 SCRA 183, 184 [1974]. [12] Tan v. Court of Appeals, See Note # 7, supra. [13] Court of Appeals Decision, Rollo, pp. 172-173.
[14]
Art. 1330. A contract where consent is given through mistake, violence, intimidation, undue influence or frauds is voidable.
[15]
Philippine Home Assurance Corp. vs. Court of Appeals, 257 SCRA 468 [1996], citing Baguio v. Court of Appeals, 226 SCRA 366
[1993].
[16]
Rodriguez v. Rodriguez, 20 SCRA 908 [1967]).
[17]
Francisco R. J., BASIC EVIDENCE, 1999 ed., p. 496; citing II Moore on Facts, 1014-1015.
[18]
Petition, p. 83; Rollo, p. 90. [19] Petition, p. 83; Rollo, p. 91.
[20]
Rules on Evidence, Rule 130, Section 36. [21] Court of Appeals Decision; Rollo, pp. 166-167.
[22]
Petition, p. 94; Rollo, p. 102. [23] Court of Appeals Decision; Rollo, pp. 167.
[24]
Petition, pp. 100-105; Rollo, pp. 108-113. [25] Petition, pp. 101; Rollo, p. 109.
[26]
Court of Appeals Decision; Rollo, pp. 168. [27] Petition, p. 109.
[28]
Ibid., p. 107. [29] Petition, p. 108; Rollo, p. 116.
[30]
Civil Code, Article 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it,
and cannot be denied or disproved as against the person relying thereon.
[31]
Memorandum for Liwayway, p. 35; Rollo, p. 880.
[32]
Chan vs. Court of Appeals, 298 SCRA 713; Ibay vs. Court of Appeals, 212 SCRA 160 [1992).
[33]
Article 1393. Ratification may be effected expressly or tacitly. It is understood that there is a tacit ratification if, with
knowledge of the reason which renders the contract voidable and such reason having ceased, the person who has a
right to invoke it should execute an act which necessarily implies an intention to waive his right.
[34]
Court of Appeals Decision; Rollo, p. 174.
[35]
Memorandum for Free Press, p. 146; Rollo, p. 1041.
[36]
Tecson vs. COMELEC, 424 SCRA 277, 439 [2004], separate opinion of Justice Alicia Austria-Martinez.
 FIRST DIVISION
[G.R. No. 148220. June 15, 2005]
ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA, and HON. NIMFA
CUESTA-VILCHES, Presiding Judge, Branch 48, Regional Trial Court, Manila, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review[1] to set aside the Decision[2] dated 29 November 2000 of the Court of Appeals
(appellate court) in CA-G.R. SP No. 59766. The appellate court affirmed two Orders[3] issued by Branch 48 of the
Regional Trial Court of Manila (trial court) in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo
Herrera (petitioner) to submit to deoxyribonucleic acid (DNA) paternity testing, while the Order dated 8 June 2000
denied petitioners motion for reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old Rosendo Alba (respondent), represented by his mother Armi Alba, filed
before the trial court a petition for compulsory recognition, support and damages against petitioner. On 7 August 1998,
petitioner filed his answer with counterclaim where he denied that he is the biological father of respondent. Petitioner
also denied physical contact with respondents mother.
Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings. To support
the motion, respondent presented the testimony of Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an
Associate Professor at De La Salle University where she taught Cell Biology. She was also head of the University of the
Philippines Natural Sciences Research Institute (UP-NSRI), a DNA analysis laboratory. She was a former professor at the
University of the Philippines in Diliman, Quezon City, where she developed the Molecular Biology Program and taught
Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity testing and asserted that the
test had an accuracy rate of 99.9999% in establishing paternity. [4]
Petitioner opposed DNA paternity testing and contended that it has not gained acceptability. Petitioner further
argued that DNA paternity testing violates his right against self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted respondents motion to conduct DNA paternity testing
on petitioner, respondent and Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the
petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a laboratory of their
common choice within a period of thirty (30) days from receipt of the Order, and to submit the results thereof within
a period of ninety (90) days from completion. The parties are further reminded of the hearing set on 24 February
2000 for the reception of other evidence in support of the petition.
IT IS SO ORDERED.[5] (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that under the present
circumstances, the DNA test [he] is compelled to take would be inconclusive, irrelevant and the coercive process to
obtain the requisite specimen, unconstitutional.
In an Order dated 8 June 2000, the trial court denied petitioners motion for reconsideration. [6]
On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure. He asserted that the trial court rendered the Orders dated 3 February 2000 and 8 June 2000 in
excess of, or without jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction.
Petitioner further contended that there is no appeal nor any [other] plain, adequate and speedy remedy in the ordinary
course of law. Petitioner maintained his previous objections to the taking of DNA paternity testing. He submitted the
following grounds to support his objection:
1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions precedent for the
admissibility of DNA testing and ignoring the serious constraints affecting the reliability of the test as admitted by
private respondents expert witness.
3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings and conclusions unfit
for judicial notice and unsupported by experts in the field and scientific treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be inconclusive, irrelevant and
the coercive process to obtain the requisite specimen from the petitioner, unconstitutional. [7]
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a decision denying the petition and affirming the questioned
Orders of the trial court. The appellate court stated that petitioner merely desires to correct the trial courts evaluation
of evidence. Thus, appeal is an available remedy for an error of judgment that the court may commit in the exercise of
its jurisdiction. The appellate court also stated that the proposed DNA paternity testing does not violate his right
against self-incrimination because the right applies only to testimonial compulsion. Finally, the appellate court pointed
 out that petitioner can still refute a possible adverse result of the DNA paternity testing. The dispositive portion of the
appellate courts decision reads:
WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered dismissed,
and the challenged orders of the Trial Court AFFIRMED, with costs to Petitioner.
SO ORDERED.[8]
Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 2001. [9]
Issues
Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determine filiation.
Petitioner asks for the conditions under which DNA technology may be integrated into our judicial system and the
prerequisites for the admissibility of DNA test results in a paternity suit.[10]
Petitioner further submits that the appellate court gravely abused its discretion when it authorized the trial court
to embark in [sic] a new procedure xxx to determine filiation despite the absence of legislation to ensure its reliability
and integrity, want of official recognition as made clear in Lim vs. Court of Appeals and the presence of technical and
legal constraints in respect of [sic] its implementation.[11] Petitioner maintains that the proposed DNA paternity testing
violates his right against self-incrimination.[12]
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity testing, we deem it appropriate to give an overview of a paternity
suit and apply it to the facts of this case. We shall consider the requirements of the Family Code and of the Rules of
Evidence to establish paternity and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated
with paternity, such as citizenship,[13] support (as in the present case), or inheritance. The burden of proving paternity is
on the person who alleges that the putative father is the biological father of the child. There are four significant
procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses,
presumption of legitimacy, and physical resemblance between the putative father and child. [14]
A prima facie case exists if a woman declares that she had sexual relations with the putative father. In our
jurisdiction, corroborative proof is required to carry the burden forward and shift it to the putative father. [15]
There are two affirmative defenses available to the putative father. The putative father may show incapability of
sexual relations with the mother, because of either physical absence or impotency. [16] The putative father may also
show that the mother had sexual relations with other men at the time of conception.
A child born to a husband and wife during a valid marriage is presumed legitimate. [17] The childs legitimacy may be
impugned only under the strict standards provided by law.[18]
Finally, physical resemblance between the putative father and child may be offered as part of evidence of
paternity. Resemblance is a trial technique unique to a paternity proceeding. However, although likeness is a function
of heredity, there is no mathematical formula that could quantify how much a child must or must not look like his
biological father.[19] This kind of evidence appeals to the emotions of the trier of fact.
In the present case, the trial court encountered three of the four aspects. Armi Alba, respondents mother, put
forward a prima facie case when she asserted that petitioner is respondents biological father. Aware that her assertion
is not enough to convince the trial court, she offered corroborative proof in the form of letters and pictures. Petitioner,
on the other hand, denied Armi Albas assertion. He denied ever having sexual relations with Armi Alba and stated that
respondent is Armi Albas child with another man. Armi Alba countered petitioners denial by submitting pictures of
respondent and petitioner side by side, to show how much they resemble each other.
Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, and
governing jurisprudence to help us determine what evidence of incriminating acts on paternity and filiation are allowed
in this jurisdiction.
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.
xxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:
SEC. 39. Act or declaration about pedigree.The act or declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two persons is shown by evidence other than
such act or declaration. The word pedigree includes relationship, family genealogy, birth, marriage, death, the dates
when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.The reputation or tradition existing in a family previous to
the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other
family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.
This Courts rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe
Lim v. CA,[20] a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such
conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of
the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a
court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father
himself and the writing must be the writing of the putative father. [21] A notarial agreement to support a child whose
filiation is admitted by the putative father was considered acceptable evidence. [22] Letters to the mother vowing to be a
good father to the child and pictures of the putative father cuddling the child on various occasions, together with the
certificate of live birth, proved filiation.[23] However, a student permanent record, a written consent to a fathers
operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic
writing.[24] Standing alone, neither a certificate of baptism[25] nor family pictures[26] are sufficient to establish filiation.
So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminating acts
alone. However, advances in science show that sources of evidence of paternity and filiation need not be limited to
incriminating acts. There is now almost universal scientific agreement that blood grouping tests are conclusive on non-
paternity, although inconclusive on paternity.[27]
In Co Tao v. Court of Appeals,[28] the result of the blood grouping test showed that the putative father was a
possible father of the child. Paternity was imputed to the putative father after the possibility of paternity was proven
on presentation during trial of facts and circumstances other than the results of the blood grouping test.
In Jao v. Court of Appeals,[29] the child, the mother, and the putative father agreed to submit themselves to a
blood grouping test. The National Bureau of Investigation (NBI) conducted the test, which indicated that the child could
not have been the possible offspring of the mother and the putative father. We held that the result of the blood
grouping test was conclusive on the non-paternity of the putative father.
The present case asks us to go one step further. We are now asked whether DNA analysis may be admitted as
evidence to prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is
the same in every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine his
identity.[30]
DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is
examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is
taken. This DNA profile is unique for each person, except for identical twins. [31] We quote relevant portions of the trial
courts 3 February 2000 Order with approval:
Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual
(except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging
throughout life. Being a component of every cell in the human body, the DNA of an individuals blood is the very DNA
in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine)
and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her physical
makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-
C or C-G. These are called genes.
Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his
or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known
as polymorphic loci, which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or analysis/DNA
fingerprinting/genetic tests or fingerprinting). In other words, DNA typing simply means determining
the polymorphic loci.
How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to
analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction
fragment length polymorphism); reverse dot blot or HLA DQ a/Pm loci which was used in 287 cases that were
admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR (variable number tandem
repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short tandem
repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of
replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the
so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match
two (2) samples with a reported theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, matches are determined. To illustrate, when DNA or fingerprint tests
are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with
the known print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed
to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come
from the suspect.
As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person
possesses two genetic types called allele, one inherited from each parent. In [a] paternity test, the forensic scientist
looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA
profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the
mother. The other half must have been inherited from the biological father. The alleged fathers profile is then
examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the
mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he
is not excluded as the father.[32] (Emphasis in the original)
Although the term DNA testing was mentioned in the 1995 case of People v. Teehankee, Jr.,[33] it was only in the
2001 case of Tijing v. Court of Appeals[34] that more than a passing mention was given to DNA analysis. In Tijing, we
issued a writ of habeas corpus against respondent who abducted petitioners youngest son. Testimonial and
documentary evidence and physical resemblance were used to establish parentage. However, we observed that:
Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has
now the capability to conduct DNA typing using short tandem repeat (STR) analysis. xxx For it was said, that courts
should apply the results of science when completely obtained in aid of situations presented, since to reject said
result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in [the] future it would be
useful to all concerned in the prompt resolution of parentage and identity issues.
Admissibility of
DNA Analysis as Evidence
The 2002 case of People v. Vallejo[35] discussed DNA analysis as evidence. This may be considered a 180 degree
turn from the Courts wary attitude towards DNA testing in the 1997 Pe Lim case,[36] where we stated that DNA, being a
relatively new science, xxx has not yet been accorded official recognition by our courts. In Vallejo, the DNA profile from
the vaginal swabs taken from the rape victim matched the accuseds DNA profile. We affirmed the accuseds conviction
of rape with homicide and sentenced him to death. We declared:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the
following data: how the samples were collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst who conducted the tests. [37]
Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer any
question on the validity of the use of DNA analysis as evidence. The Court moved from the issue of according official
recognition to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis.
In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: People v.
Yatar[38] and In re: The Writ of Habeas Corpus for Reynaldo de Villa.[39]In Yatar, a match existed between the DNA
profile of the semen found in the victim and the DNA profile of the blood sample given by appellant in open court. The
Court, following Vallejosfootsteps, affirmed the conviction of appellant because the physical evidence, corroborated by
circumstantial evidence, showed appellant guilty of rape with homicide. In De Villa, the convict-petitioner presented
DNA test results to prove that he is not the father of the child conceived at the time of commission of the rape. The
Court ruled that a difference between the DNA profile of the convict-petitioner and the DNA profile of the victims child
does not preclude the convict-petitioners commission of rape.
In the present case, the various pleadings filed by petitioner and respondent refer to two United States cases to
support their respective positions on the admissibility of DNA analysis as evidence: Frye v. U.S.[40] and Daubert v.
Merrell Dow Pharmaceuticals.[41] In Frye v. U.S., the trial court convicted Frye of murder. Frye appealed his conviction
to the Supreme Court of the District of Columbia. During trial, Fryes counsel offered an expert witness to testify on the
result of a systolic blood pressure deception test[42] made on defendant. The state Supreme Court affirmed Fryes
conviction and ruled that the systolic blood pressure deception test has not yet gained such standing and scientific
recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony
deduced from the discovery, development, and experiments thus far made. The Frye standard of general acceptance
states as follows:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is
difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and
while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or
discovery, the thing from which the deduction is made must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.
In 1989, State v. Schwartz[43] modified the Frye standard. Schwartz was charged with stabbing and murder.
Bloodstained articles and blood samples of the accused and the victim were submitted for DNA testing to a government
facility and a private facility. The prosecution introduced the private testing facilitys results over Schwartzs objection.
One of the issues brought before the state Supreme Court included the admissibility of DNA test results in a criminal
proceeding. The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific
community, we hold that admissibility of specific test results in a particular case hinges on the laboratorys
compliance with appropriate standards and controls, and the availability of their testing data and results. [44]
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.[45] further modified the Frye-
Schwartz standard. Daubert was a product liability case where both the trial and appellate courts denied the
admissibility of an experts testimony because it failed to meet the Frye standard of general acceptance. The United
States Supreme Court ruled that in federal trials, the Federal Rules of Evidence have superseded the Frye standard. Rule
401 defines relevant evidence, while Rule 402 provides the foundation for admissibility of evidence. Thus:
Rule 401. Relevant evidence is defined as that which has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be without the
evidence.
Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States,
by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory
authority. Evidence which is not relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
Daubert cautions that departure from the Frye standard of general acceptance does not mean that the Federal
Rules do not place limits on the admissibility of scientific evidence. Rather, the judge must ensure that the testimonys
reasoning or method is scientifically valid and is relevant to the issue. Admissibility would depend on factors such as (1)
whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to
peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards
controlling the techniques operation; and (5) whether the theory or technique is generally accepted in the scientific
community.
Another product liability case, Kumho Tires Co. v. Carmichael,[46] further modified the Daubert standard. This led
to the amendment of Rule 702 in 2000 and which now reads as follows:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the Frye-
Schwartz standard nor the Daubert-Kumho standard is controlling in the Philippines.[47] At best, American
jurisprudence merely has a persuasive effect on our decisions. Here, evidence is admissible when it is relevant to the
fact in issue and is not otherwise excluded by statute or the Rules of Court. [48] Evidence is relevant when it has such a
relation to the fact in issue as to induce belief in its existence or non-existence.[49] Section 49 of Rule 130, which governs
the admissibility of expert testimony, provides as follows:
The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to
possess may be received in evidence.
This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on
collateral matters is allowed when it tends in any reasonable degree to establish the probability or improbability of the
fact in issue.[50]
Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and Yatar to
illustrate that DNA analysis is admissible as evidence. In our jurisdiction, the restrictive tests for admissibility
established by Frye-Schwartz and Daubert-Kumho go into the weight of the evidence.
Probative Value of
DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA
analysis as evidence. We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the
following data: how the samples were collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst who conducted the tests. [51]
We also repeat the trial courts explanation of DNA analysis used in paternity cases:
In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a
DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the
childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The
alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the
paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If
the DNA types match, then he is not excluded as the father.[52]
It is not enough to state that the childs DNA profile matches that of the putative father. A complete match between the
DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this
 reason, following the highest standard adopted in an American jurisdiction, [53] trial courts should require at least 99.9%
as a minimum value of the Probability of Paternity (W) prior to a paternity inclusion. W is a numerical estimate for the
likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals.
An appropriate reference population database, such as the Philippine population database, is required to compute for
W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W
estimates is higher when the putative father, mother and child are subjected to DNA analysis compared to those
conducted between the putative father and child alone.[54]
DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the
value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the
value of W is 99.9% or higher, then there is refutable presumption of paternity.[55] This refutable presumption of
paternity should be subjected to the Vallejo standards.
Right Against
Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that no person shall be compelled to be a witness against
himself. Petitioner asserts that obtaining samples from him for DNA testing violates his right against self-incrimination.
Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial evidence. Again, we
quote relevant portions of the trial courts 3 February 2000 Order with approval:
Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to
the belief of respondent in this action, will not violate the right against self-incrimination. This privilege applies only
to evidence that is communicative in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The
Supreme Court has ruled that the right against self-incrimination is just a prohibition on the use of physical or moral
compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken
from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from
his body (as cited in People vs. Olvis, Supra); the substance emitting from the body of the accused was received as
evidence for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as
proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size was
allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit for
pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction on testimonial
compulsion.[56]
The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children,
especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own
defenses.[57] Where the evidence to aid this investigation is obtainable through the facilities of modern science and
technology, such evidence should be considered subject to the limits established by the law, rules, and jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 November 2000
in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the
Regional Trial Court of Manila in Civil Case No. SP-98-88759.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

[1]
Under Rule 45 of the Rules of Court.
[2]
Penned by Associate Justice Jose L. Sabio, Jr., with Associate Justices Buenaventura J. Guerrero and Eliezer R. De Los Santos,
concurring.
[3]
Penned by Judge Nimfa Cuesta-Vilches.
[4]
Rollo, pp. 318-325, 332-338. [5] Ibid., p. 92. [6] Ibid., p. 93. [7] Ibid., p. 59. [8] Ibid., p. 48.
[9]
Ibid., pp. 51-52. [10] Ibid., p. 22. [11] Ibid., p. 18.
[12]
Ibid., p. 34. [13] See Tecson v. Commission on Elections, G.R. No. 161434, 3 March 2004, 424 SCRA 277; Co v. Electoral Tribunal
of the House of Representatives, G.R. Nos. 92191-92, 30 July 1991, 199 SCRA 692; Board of Commissioners (CID) v. Dela
Rosa, G.R. Nos. 95612-13, 31 May 1991, 197 SCRA 854.
[14]
See E. Donald Shapiro, Stewart Reifler, and Claudia L. Psome, The DNA Paternity Test: Legislating the Future Paternity Action,
7 J.L. & Health 1, 7-19 (1993).
[15]
See Executive Order No. 209, otherwise known as the Family Code of the Philippines (Family Code), Arts. 172-173, 175; Rule
130, Sections 39-40.
[16]
See Family Code, Art. 166.
[17]
See Family Code, Arts. 165, 167.
[18]
See Family Code, Arts. 166-167, 170-171.
[19]
See Cabatania v. Court of Appeals, G.R. No. 124814, 21 October 2004.
[20]
336 Phil. 741 (1997).
[21]
Heirs of Raymundo C. Baas v. Heirs of Bibiano Baas, L-25715, 31 January 1985, 134 SCRA 260.
[22]
Marcayda v. Naz, 210 Phil. 386 (1983).
[23]
Supra note 20.
[24]
Reyes, et al. v. CA, et al., 220 Phil. 116 (1985). [25] Ibid.
[26]
Colorado v. Court of Appeals, No. L-39948, 28 February 1985, 135 SCRA 47.
[27]
Jao v. Court of Appeals, No. L-49162, 28 July 1987, 152 SCRA 359.
[28]
101 Phil. 188 (1957).
[29]
Supra note 27.
[30]
See Maria Corazon A. De Ungria, Ph.D., Forensic DNA Analysis in Criminal and Civil Cases, 1 CONTINUING LEGAL EDUC. L.J. 57
(2001).
[31]
See The UP-NSRI DNA Analysis Laboratory, A Primer on DNA-based Paternity Testing (2001).
[32]
Rollo, pp. 89-90.
[33]
People v. Teehankee, Jr., 319 Phil. 128 (1995).
[34]
G.R. No. 125901, 8 March 2001, 354 SCRA 17.
[35]
431 Phil. 798 (2002). [36] Supra note 20. [37] Supra note 35.
[38]
G.R. No. 150224, 19 May 2004, 428 SCRA 504.
[39]
G.R. No. 158802, 17 November 2004.
[40]
54 App.D.C. 46, 293 F. 1013 (1923).
[41]
509 US 579, 113 S.Ct. 2786 (1993).
[42]
This form of lie detector test asserts that blood pressure is influenced by change in the emotions of the witness, and that the
systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the nervous
system.
[43]
447 N.W.2d 422 (Minn. Sup. Ct. 1989).
[44]
Ibid. [45] Supra note 41.
[46]
526 U.S. 137, 119 S.Ct. 1167 (1999).
[47]
See People v. Joel Yatar, G.R. No. 150224, 19 May 2004, 428 SCRA 504. See also Pacifico Agabin, Integrating DNA Technology
in the Judicial System, 1 CONTINUING LEGAL EDUC. L.J. 27 (2001); Patricia-Ann T. Prodigalidad, Assimilating DNA Testing into
the Philippine Criminal Justice System: Exorcising the Ghost of the Innocent Convict, 79 PHIL. L.J. 930 (2005).
[48]
Rule 128, Section 3.
[49]
Rule 128, Section 4.
[50]
Rule 128, Section 4.
[51]
Supra note 35.
[52]
Rollo, p. 90.
[53]
The State of Louisiana. See Maria Corazon A. De Ungria, Ph.D., Forensic DNA Analysis in Criminal and Civil Cases,
1 CONTINUING LEGAL EDUC. L.J. 57 (2001).
[54]
Ibid. See also Maria Corazon A. De Ungria, Ph.D., Kristina A. Tabada, Frederick C. Delfin, Alma M. Frani, Michelle M.F. Magno,
Gayvelline C. Calacal, and Saturnina C. Halos, Resolving Questioned Paternity Issues Using a Philippine Genetic
Database, 14 SCIENCE DILIMAN 8 (January to June 2002).
[55]
See note 54. [56] Rollo, p. 91.
[57]
See Mendoza v. Court of Appeals, G.R. No. 86302, 24 September 1991, 201 SCRA 675.
 SECOND DIVISION

JENIE SAN JUAN DELA G.R. No. 177728

CRUZ and minor
CHRISTIAN DELA CRUZ AQUINO, Present:
represented by
JENIE SANJUAN DELA CRUZ, QUISUMBING, J., Chairperson,
Petitioners, CARPIO MORALES,
CHICO-NAZARIO,
LEONARDO-DE CASTRO, and
versus PERALTA,* JJ.

RONALD PAUL S. GRACIA, in his

capacity as City Civil Registrar of Promulgated:
Antipolo City, July 31, 2009
Respondent.
x------------------------------------------------x

DECISION
CARPIO MORALES, J.:
For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie) and then 19-year old
Christian Dominique Sto. Tomas Aquino (Dominique) lived together as husband and wife without the benefit of
marriage. They resided in the house of Dominiques parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at
Pulang-lupa, Dulumbayan, Teresa, Rizal.

On September 4, 2005, Dominique died.[1] After almost two months, or on November 2, 2005, Jenie, who
continued to live with Dominiques parents, gave birth to her herein co-petitioner minor child Christian Dela Cruz
Aquino at the Antipolo Doctors Hospital, Antipolo City.

Jenie applied for registration of the childs birth, using Dominiques surname Aquino, with the Office of the City
Civil Registrar, Antipolo City, in support of which she submitted the childs Certificate of Live Birth,[2] Affidavit to Use the
Surname of the Father[3] (AUSF) which she had executed and signed, and Affidavit of Acknowledgmentexecuted by
Dominiques father Domingo Butch Aquino.[4] Both affidavits attested, inter alia, that during the lifetime of Dominique,
he had continuously acknowledged his yet unborn child, and that his paternity had never been questioned. Jenie
attached to the AUSF a document entitled AUTOBIOGRAPHY which Dominique, during his lifetime, wrote in his own
handwriting, the pertinent portions of which read:

AQUINO, CHRISTIAN DOMINIQUE S.T.

AUTOBIOGRAPHY

IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20 THIS COMING
OCTOBER 31, 2005.[5] I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM THE
YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED JOSEPH BUTCH STO. TOMAS AQUINO. MY FATHERS
NAME IS DOMINGO BUTCH AQUINO AND MY MOTHERS NAME IS RAQUEL STO. TOMAS AQUINO. x x x.
xxxx

AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN OUR HOMETOWN,
TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE FELL IN LOVE WITH EACH OTHER, THEN WE
BECAME GOOD COUPLES. AND AS OF NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR
HOUSE NOW. THATS ALL.[6] (Emphasis and underscoring supplied)

By letter dated November 11, 2005,[7] the City Civil Registrar of Antipolo City, Ronald Paul S. Gracia
(respondent), denied Jenies application for registration of the childs name in this wise:

7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and Regulations of Republic Act No.
9255 [An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the Purpose,
Article 176 of Executive Order No. 209, otherwise Known as the Family Code of the Philippines]) provides that:

Rule 7. Requirements for the Child to Use the Surname of the Father
 7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father, either at the
back of the Certificate of Live Birth or in a separate document.
7.1.2 If admission of paternity is made through a private handwritten instrument, the child shall use the surname of the
father, provided the registration is supported by the following documents:

a. AUSF[8]
b. Consent of the child, if 18 years old and over at the time of the filing of the document.
c. Any two of the following documents showing clearly the paternity between the father and the child:

1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)
In summary, the child cannot use the surname of his father because he was born out of wedlock and the father
unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to the child (either
through the back of Municipal Form No. 102 Affidavit of Acknowledgment/Admission of Paternity or the
Authority to Use the Surname of the Father). (Underscoring supplied)

Jenie and the child promptly filed a complaint[9] for injunction/registration of name against respondent before
the Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539, which was raffled to Branch 73 thereof. The
complaint alleged that, inter alia, the denial of registration of the childs name is a violation of his right to use the
surname of his deceased father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No.
9255,[10] which provides:

Article 176. Illegitimate children shall use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may
use the surname of their father if their filiation has been expressly recognized by the father through the record
of birth appearing in the civil register, or when an admission in a public document or private handwritten
instrument is made by the father. Provided, the father has the right to institute an action before the regular
courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half
of the legitime of a legitimate child. (Emphasis and underscoring supplied)

They maintained that the Autobiography executed by Dominique constitutes an admission of paternity in a private
handwritten instrument within the contemplation of the above-quoted provision of law.

For failure to file a responsive pleading or answer despite service of summons, respondent was declared in
default.

Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her common-law
relationship with Dominique and affirmed her declarations in her AUSF that during his lifetime, he had acknowledged
his yet unborn child.[11] She offered Dominiques handwritten Autobiography (Exhibit A) as her documentary evidence-
in-chief.[12] Dominiques lone brother, Joseph Butch S.T. Aquino, also testified, corroborating Jenies declarations.[13]
By Decision[14] of April 25, 2007, the trial court dismissed the complaint for lack of cause of action as the
Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms) of Administrative Order (A.O.) No. 1,
Series of 2004 (the Rules and Regulations Governing the Implementation of R.A. 9255) which defines private
handwritten document through which a father may acknowledge an illegitimate child as follows:

2.2 Private handwritten instrument an instrument executed in the handwriting of the father and duly
signed by him where he expressly recognizes paternity to the child. (Underscoring supplied)

The trial court held that even if Dominique was the author of the handwritten Autobiography, the same does not
contain any express recognition of paternity.
Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely legal issue of:

WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED FATHER OF MINOR
CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A PRIVATE HANDWRITTEN
INSTRUMENT WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS AMENDED BY R.A.
9255, WHICH ENTITLES THE SAID MINOR TO USE HIS FATHERS SURNAME.[15] (Underscoring supplied)
 Petitioners contend that Article 176 of the Family Code, as amended, does not expressly require that the
private handwritten instrument containing the putative fathers admission of paternity must be signed by him. They add
that the deceaseds handwritten Autobiography, though unsigned by him, is sufficient, for the requirement in the
above-quoted paragraph 2.2 of the Administrative Order that the admission/recognition must be duly signed by the
father is void as it unduly expanded the earlier-quoted provision of Article 176 of the Family Code.[16]

Petitioners further contend that the trial court erred in not finding that Dominiques handwritten
Autobiography contains a clear and unmistakable recognition of the childs paternity. [17]

In its Comment, the Office of the Solicitor General (OSG) submits that respondents position, as affirmed by the
trial court, is in consonance with the law and thus prays for the dismissal of the petition. It further submits that
Dominiques Autobiography merely acknowledged Jenies pregnancy but not [his] paternity of the child she was carrying
in her womb.[18]

Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use the surname of
his/her father if the latter had expressly recognized him/her as his offspring through the record of birth appearing in
the civil register, or through an admission made in a public or private handwritten instrument. The recognition made in
any of these documents is, in itself, a consummated act of acknowledgment of the childs paternity; hence, no separate
action for judicial approval is necessary.[19]

Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private handwritten
instrument acknowledging the childs paternity must be signed by the putative father. This provision must, however, be
read in conjunction with related provisions of the Family Code which require that recognition by the father must bear
his signature, thus:

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the
same evidence as legitimate children.

xxxx

Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

x x x x (Emphasis and underscoring supplied)

That a father who acknowledges paternity of a child through a written instrument must affix his signature
thereon is clearly implied in Article 176 of the Family Code.Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely
articulated such requirement; it did not unduly expand the import of Article 176 as claimed by petitioners.

In the present case, however, special circumstances exist to hold that Dominiques Autobiography, though
unsigned by him, substantially satisfies the requirement of the law.

First, Dominique died about two months prior to the childs birth. Second, the relevant matters in the
Autobiography, unquestionably handwritten by Dominique, correspond to the facts culled from the testimonial
evidence Jenie proffered.[20] Third, Jenies testimony is corroborated by the Affidavit of Acknowledgment of Dominiques
father Domingo Aquino and testimony of his brother Joseph Butch Aquino whose hereditary rights could be affected by
the registration of the questioned recognition of the child. These circumstances indicating Dominiques paternity of the
child give life to his statements in his Autobiography that JENIE DELA CRUZ is MY WIFE as WE FELL IN LOVE WITH EACH
OTHER and NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER.

In Herrera v. Alba,[21] the Court summarized the laws, rules, and jurisprudence on establishing filiation,
discoursing in relevant part:

Laws, Rules, and Jurisprudence

Establishing Filiation
 The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the
same evidence as legitimate children.

xxxx

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and
signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or unable to
testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in
evidence where it occurred before the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy,
birth, marriage, death, the dates when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a
family previous to the controversy, in respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity.
Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be
received as evidence of pedigree.

This Court's rulings further specify what incriminating acts are acceptable as evidence to establish
filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be
resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record
of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of
filiation must be made by the putative father himself and the writing must be the writing of the putative
father. A notarial agreement to support a child whose filiation is admitted by the putative father was
considered acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures of
the putative father cuddling the child on various occasions, together with the certificate of live birth, proved
filiation. However, a student permanent record, a written consent to a father's operation, or a marriage
contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither
a certificate of baptism nor family pictures are sufficient to establish filiation. (Emphasis and underscoring
supplied.)

In the case at bar, there is no dispute that the earlier quoted statements in Dominiques Autobiography have been made
and written by him. Taken together with the other relevant facts extant herein that Dominique, during his lifetime, and
Jenie were living together as common-law spouses for several months in 2005 at his parents house in Pulang-lupa,
Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two months after
his death, Jenie gave birth to the child they sufficiently establish that the child of Jenie is Dominiques.

In view of the pronouncements herein made, the Court sees it fit to adopt the following rules respecting the
requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an
admission of filiation of a legitimate or illegitimate child is made:

1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there
should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and
 2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it
suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent
as it is merely corroborative of such other evidence.

Our laws instruct that the welfare of the child shall be the paramount consideration in resolving questions
affecting him.[22] Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is
a signatory is similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration.[23] (Underscoring supplied)

It is thus (t)he policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation
of children, especially of illegitimate children x x x.[24]Too, (t)he State as parens patriae affords special protection to
children from abuse, exploitation and other conditions prejudicial to their development.[25]

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor
childs best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth
certificate.

WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is DIRECTED to
immediately enter the surname of the late Christian Dominique Sto. Tomas Aquino as the surname of petitioner minor
Christian dela Cruz in his Certificate of Live Birth, and record the same in the Register of Births.

SO ORDERED.

*
Additional member per Special Order No. 664 dated July 15, 2009.
[1]
Annex B (Certificate of Death), Petition; rollo, pp. 21-22.
[2]
Annex C, Petition; id. at 23-24. Under the Affidavit of Acknowledgment /Admission of Paternity portion of the childs birth
certificate, only petitioner Jenie signed as the childs mother, leaving blank the space for the fathers signature as the
latter died about two months prior to the childs birth.
[3]
Annex D, Petition; id. at 25.
[4]
Annex E, id. at 26.
[5]
Dominique was born on October 31, 1985 as shown in his Certificate of Live Birth; rollo, p. 27.
[6]
Annex A, Petition; rollo, p. 20.
[7]
Annex F, id. at 28-30.
[8]
This Affidavit to Use Surname of the Father may be executed by the father, mother, child if of age, or the guardian, x x x in
order for the child to use the surname of the father (Rule 3 of Administrative Order No. 1, Series of 2004).
[9]
Rollo, pp. 15-19.
[10]
AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR FATHER, AMENDING FOR THE PURPOSE,
ARTICLE 176 OF EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS THE FAMILY CODE OF THE PHILIPPINES.
[11]
Decision dated April 25, 2007 of the RTC of Antipolo City, Branch 73; rollo, p. 13.
[12]
Ibid. [13] Ibid.
[14]
Id. at 12-14.
[15]
Id. at 6.
[16]
Id. at 7.
[17]
Id. at 8.
[18]
Id. at 55-56.
[19]
De Jesus v. Estate of Decedent Juan Gamboa Dizon, G.R. No. 142877, October 2, 2001, 366 SCRA 499, 503.
[20]
See Reyes v. Court of Appeals, No. L-39537, March 19, 1985, 135 SCRA 439, 450, citing Varela v. Villanueva, 95 Phil. 248
(1954).
[21]
G.R. No. 148220, June 15, 2005, 460 SCRA 197, 206-208.
[22]
Concepcion v. Court of Appeals, G.R. No. 123450, August 31, 2005, 468 SCRA 438, 457, citing Article 8 of Presidential
Decree 603 (The Child and Youth Welfare Code).
[23]
Cited in Concepcion v. Court of Appeals, id.
[24]
Herrera v. Alba, supra note 21 at 219.
[25]
Concepcion v. Court of Appeals, supra note 22.
 EN BANC
[G.R. No. 161434. March 3, 2004]
MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD ALLAN
KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents.
[G.R. No. 161634. March 3, 2004]
ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.
[G. R. No. 161824. March 3, 2004]
VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS
FERNANDO POE JR., respondents.
DECISION
VITUG, J.:
Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a
precious heritage, as well as an inestimable acquisition, [1]that cannot be taken lightly by anyone - either by those
who enjoy it or by those who dispute it.
Before the Court are three consolidated cases, all of which raise a single question of profound importance to the
nation. The issue of citizenship is brought up to challenge the qualifications of a presidential candidate to hold the
highest office of the land. Our people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr.,
the hero of silver screen, and now one of the main contenders for the presidency, a natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the
rich heritage of civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that
could be no less than distinctly Filipino.
Antecedent Case Settings
On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"),
filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng
Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy, FPJ,
representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald
Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon.
Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09
January 2004, a petition docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ
and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material
misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth,
according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan
Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that
Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an
illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two
assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie
Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the
birth of respondent.
In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim,
presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an
affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage
against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an
English translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a
certification issued by the Director of the Records Management and Archives Office, attesting to the fact that there was
no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907,
and 6) a certification from the Officer-In-Charge of the Archives Division of the National Archives to the effect that no
available information could be found in the files of the National Archives regarding the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being -
a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to
be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a
certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available
information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald
Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name
of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo
Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between
Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan,
stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed
during World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January
2004, Fornier filed his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en
banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule
64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise
prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the
finality and/or execution of the COMELEC resolutions.
The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434, entitled "Maria
Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. Fernando
Poe, Jr.), and Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs.
Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that,
under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive
jurisdiction to resolve the basic issue on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course to or cancel FPJs
certificate of candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before
the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code
Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false
in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code -
Section 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred
upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all
laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections -
and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a
verified petition to deny or cancel the certificate of candidacy of any nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 64 [2] in an
action for certiorari under Rule 65[3] of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987
Constitution also reads
"Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty
days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum, required by the rules of the Commission or by
the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt
of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme
Court and in such lower courts as may be established by law which power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and could well be
taken cognizance of by, this Court. A contrary view could be a gross denial to our people of their fundamental right to
be fully informed, and to make a proper choice, on who could or should be elected to occupy the highest government
post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the provisions of Article VII,
Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of
SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may promulgate its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to
designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to
declare, in Lopez vs. Roxas,[4] as not (being) justiciable controversies or disputes involving contests on the elections,
returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June
1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear
and Decide Protests Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and
Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate
Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the
parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793,
the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.
Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of
either an election protest or a quo warranto which, although two distinct remedies, would have one objective in
view, i.e., to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14
of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992,
would support this premise -
 Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President of the Philippines.
Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a petition for quo warranto
against the President or Vice-President. An election protest shall not include a petition for quo warranto. A petition
for quo warranto shall not include an election protest.
Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President of the Philippines who
received the second or third highest number of votes may contest the election of the President or the Vice-President,
as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30)
days after the proclamation of the winner.
The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and
qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-
President. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes
into, or unlawfully holds or exercises a public office. [5] In such context, the election contest can only contemplate a
post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third
highest number of votes could file an election protest. This rule again presupposes a post-election scenario.
It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987
Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the
presidency or vice-presidency before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections et al.," and
G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be
dismissed for want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C.,
described the "citizen" to refer to a man who shared in the administration of justice and in the holding of an
office.[6] Aristotle saw its significance if only to determine the constituency of the "State," which he described as being
composed of such persons who would be adequate in number to achieve a self-sufficient existence.[7] The concept grew
to include one who would both govern and be governed, for which qualifications like autonomy, judgment and loyalty
could be expected. Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant
obligations, on the other.[8] In its ideal setting, a citizen was active in public life and fundamentally willing to submit his
private interests to the general interest of society.
The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was
limited, by and large, to civil citizenship, which established the rights necessary for individual freedom, such as rights to
property, personal liberty and justice.[9] Its meaning expanded during the 19th century to include political citizenship,
which encompassed the right to participate in the exercise of political power. [10] The 20th century saw the next stage of
the development of social citizenship, which laid emphasis on the right of the citizen to economic well-being and social
security.[11] The idea of citizenship has gained expression in the modern welfare state as it so developed in Western
Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might well be
the internationalization of citizenship.[12]
The Local Setting - from Spanish
Times to the Present
There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish
subjects."[13] In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the
archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it
difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to
the Philippine Islands except for those explicitly extended by Royal Decrees. [14]
Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805
but as to whether the law was extended to the Philippines remained to be the subject of differing views among
experts;[15] however, three royal decrees were undisputably made applicable to Spaniards in the Philippines - the Order
de la Regencia of 14 August 1841,[16] the Royal Decree of 23 August 1868 specifically defining the political status of
children born in the Philippine Islands,[17] and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was
expressly made applicable to the Philippines by the Royal Decree of 13 July 1870. [18]
The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of
its Article 89, according to which the provisions of the Ultramaramong which this country was included, would be
governed by special laws.[19]
It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with
the first categorical enumeration of who were Spanish citizens. -
(a) Persons born in Spanish territory,
(b) Children of a Spanish father or mother, even if they were born outside of Spain,
(c) Foreigners who have obtained naturalization papers,
(d) Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy. [20]
The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower,
Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted
principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws
then in force, would have no effect on civil laws, which would remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States. [21] Under Article
IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States
would be determined by its Congress -
"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes
or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights
of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right
to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to
foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making,
before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their
decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have
adopted the nationality of the territory in which they reside.
Thus
"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be
determined by the Congress."[22]
Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native
inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they,
however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens
of the Philippines entitled to the protection of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also
commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the
United States on the Philippines -
".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day
of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held
to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall
have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace
between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight." [23]
Under the organic act, a citizen of the Philippines was one who was an inhabitant of the Philippines, and a Spanish
subject on the 11th day of April 1899. The term inhabitant was taken to include 1) a native-born inhabitant, 2) an
inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11
April 1899.[24]
Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during
which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in
jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of
territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that
period.[25] More about this later.
In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902
-
"Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine
citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of
other insular possession of the United States, and such other persons residing in the Philippine Islands who would
become citizens of the United States, under the laws of the United States, if residing therein." [26]
With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time
crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he
initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also
known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of
Congress in 1912 -
That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen
hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be
deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance
to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain,
signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become
citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to
provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within
the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in
the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under
the laws of the United States, if residing therein."
Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as
of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since
that date, not a citizen of some other country.
 While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship,
the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus
sanguinis or blood relationship as being the basis of Filipino citizenship -
Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -
(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution
(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been
elected to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine
citizenship.
(5) Those who are naturalized in accordance with law.
Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time,
which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign
husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino
citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino
citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly
found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the
new Constitution on citizenship to reflect such concerns -
Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.
(2) Those whose fathers or mothers are citizens of the Philippines.
(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-
five.
(4) Those who are naturalized in accordance with law.
For good measure, Section 2 of the same article also further provided that
"A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission
she is deemed, under the law to have renounced her citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof
that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.
(2) Those whose fathers or mothers are citizens of the Philippines.
(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of
majority; and
(4) Those who are naturalized in accordance with law.
The Case Of FPJ
Section 2, Article VII, of the 1987 Constitution expresses:
"No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to
read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten
years immediately preceding such election."
The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship."[27]
The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935
Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus
sanguinis[28] had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a natural-born
citizen of the Philippines.Jus soli, per Roa vs. Collector of Customs[29] (1912), did not last long. With the adoption of the
1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor[30] (1947), jus sanguinis or blood
relationship would now become the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct
ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While
the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to
be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The
certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father,
Lorenzo Pou, and a mestiza Espaol mother, Marta Reyes. Introduced by petitioner was an uncertified copy of a
supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate
of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same
certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be
twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born
on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen,
twenty-one years old and married.
 Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of
respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of
certainty from the documents would be that -
1. The parents of FPJ were Allan F. Poe and Bessie Kelley;
2. FPJ was born to them on 20 August 1939;
3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe; and
5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.
Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino
citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate
of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted
in evidence by both contending parties during the proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage
certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of
Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last two documents were submitted in evidence
for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the
marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative
to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had
utilized those material statements in his argument. All three documents were certified true copies of the originals.
Section 3, Rule 130, Rules of Court states that -
Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself, except in the following cases:
xxxxxxxxx
(d) When the original is a public record in the custody of a public office or is recorded in a public office.
Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly,
and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court
provides:
Entries in official records. Entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated.
The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1)
the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of
that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes
more likely the prior exposure of such errors as might have occurred. [31]
The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in
San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the
Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the
crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records
Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place
during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos,
Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that
the place of residence of a person at the time of his death was also his residence before death. It would be extremely
doubtful if the Records Management and Archives Office would have had complete records of all residents of the
Philippines from 1898 to 1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or
mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being
an illegitimate son according to petitioner, the mandatory rules under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior
to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish
filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory
acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could
only be had in a record of birth, a will, or a public document. [32] Complementary to the new code was Act No. 3753 or
the Civil Registry Law expressing in Section 5 thereof, that -
In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or
only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document
the name of the father who refuses to acknowledge the child, or to give therein any information by which such father
could be identified.
In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the
certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same
useless as being an authoritative document of recognition.[33] In Mendoza vs. Mella,[34] the Court ruled -
"Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth
certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of
his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the
names of both parents, there is no showing that they signed the original, let alone swore to its contents as required in
Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the
data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public
document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True
enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his
or her own."
In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature
of Allan F. Poe found. There being no will apparently executed, or at least shown to have been executed, by decedent
Allan F. Poe, the only other proof of voluntary recognition remained to be "some other public document." In Pareja vs.
Pareja,[35] this Court defined what could constitute such a document as proof of voluntary acknowledgment:
"Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which
must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public
document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or
compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before
a court of record or in any authentic writing. Legal acknowledgment took place in favor of full blood brothers and
sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could
be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim
legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an
action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic
writing for purposes of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term
would include a public instrument (one duly acknowledged before a notary public or other competent official) or a
private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide:
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the
parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted
to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of
five years within which to institute the action.
The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.
x x x x x x x x x.
Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as
legitimate children.
The action must be brought within the same period specified in Article 173, except when the action is based on the
second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.
The provisions of the Family Code are retroactively applied; Article 256 of the code reads:
"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.
Thus, in Vda. de Sy-Quia vs. Court of Appeals,[36] the Court has ruled:
"We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil
Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take
place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30,
1950. Hence, Article 278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the acknowledgment or recognition of illegitimate
children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate
relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to
merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or
illegitimate civil status of the individual would also affect his political rights or, in general, his relationship to the
State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in the
context of private relations, the domain of civil law; particularly -
"Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of
property. It has thus [been] defined as the mass of precepts which determine and regulate the relations of assistance,
 authority and obedience among members of a family, and those which exist among members of a society for the
protection of private interests."[37]
In Yaez de Barnuevo vs. Fuster,[38] the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights and duties, or to the
status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in
consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond,
the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules
governing property, marital authority, division of conjugal property, the classification of their property, legal causes for
divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce
upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the
husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating
that -
"Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad" -
that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly,
citizenship is significant in civil relationships found in different parts of the Civil Code, [39] such as on successional rights
and family relations.[40] In adoption, for instance, an adopted child would be considered the child of his adoptive
parents and accorded the same rights as their legitimate child but such legal fiction extended only to define his rights
under civil law[41] and not his political status.
Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the
Spanish family and property laws, which, while defining proprietary and successional rights of members of the family,
provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the
distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these
bloodlines uncontaminated by foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious
discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction,
however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of
political law.
The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed
independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code
provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to
personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter
about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions.
Section 39, Rule 130, of the Rules of Court provides -
Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the
pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before
the controversy, and the relationship between the two persons is shown by evidence other than such act or
declaration. The word `pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately
connected with pedigree.
For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b)
the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in
question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the
declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as
Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal
relationship with FPJ, i.e, living together with Bessie Kelley and his children (including respondent FPJ) in one house,
and as one family -
"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being
sworn in accordance with law do hereby declare that:
1. I am the sister of the late Bessie Kelley Poe.
2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.
3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as `Fernando
Poe, Jr., or `FPJ.
4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila.
xxxxxxxxx
7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the
Philippines in 1936. I was also introduced to Fernando Poe, Sr., by my sister that same year.
8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.
9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived
together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of
Manila in 1945, except for some months between 1943-1944.
10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe.
xxxxxxxxx
18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he
is the legitimate child of Fernando Poe, Sr.
Done in City of Stockton, California, U.S.A., this 12th day of January 2004.
Ruby Kelley Mangahas
Declarant
DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain,
DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue
of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of
Appeals,[42] this Court has acknowledged the strong weight of DNA testing -
"Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now
the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the
DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the
mother, the alleged father and the child are analyzed to establish parentage. Of course, being a novel scientific
technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of
science when competently obtained in aid of situations presented, since to reject said result is to deny progress."
Petitioners Argument For
Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his
citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to
Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent
marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of
marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence
introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate
of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an American mother who were
married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate
child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an
American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo,[43] citing Chiongbian vs. de
Leon[44] and Serra vs. Republic.[45]
On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states -
"We must analyze these cases and ask what the lis mota was in each of them. If the pronouncement of the Court on jus
sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare
decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a
mere obiter dictum which did not establish doctrine. I therefore invite the Court to look closely into these cases.
First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a
Filipino, a stepson who was the child of a Chinese mother and a Chinese father. The issue was whether the stepson
followed the naturalization of the stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of
the naturalized stepfather.
Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a
legitimate son of a father who had become Filipino by election to public office before the 1935 Constitution pursuant to
Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here.
Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child
of a Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother
who still needed to be naturalized. There is nothing there about invidious jus sanguinis.
Finally, Paa vs. Chan.[46] This is a more complicated case. The case was about the citizenship of Quintin Chan who was
the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and
a Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court
said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded
that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was not only
not a natural-born Filipino but was not even a Filipino.
The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiter that even if
Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement
about Quintin, based on a contrary to fact assumption, was absolutely unnecessary for the case. x x x It was obiter
dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo.
xxxxxxxxx
"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also
violate the equal protection clause of the Constitution not once but twice. First, it would make an illegitimate
distinction between a legitimate child and an illegitimate child, and second, it would make an illegitimate distinction
between the illegitimate child of a Filipino father and the illegitimate child of a Filipino mother.
The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat. [47] I would grant
that the distinction between legitimate children and illegitimate children rests on real differences. x x x But real
differences alone do not justify invidious distinction. Real differences may justify distinction for one purpose but not for
another purpose.
x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible state interest can there
be for disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents
had illicit liaison. Why deprive the child of the fullness of political rights for no fault of his own? To disqualify an
illegitimate child from holding an important public office is to punish him for the indiscretion of his parents. There is
neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction
transgresses the equal protection clause and must be reprobated.
The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and
Dean Martin Magallona, at bottom, have expressed similar views.The thesis of petitioner, unfortunately hinging solely
on pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the
benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the
assumption that the mother had custody, would exercise parental authority and had the duty to support her
illegitimate child. It was to help the child, not to prejudice or discriminate against him.
The fact of the matter perhaps the most significant consideration is that the 1935 Constitution, the fundamental
law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing
neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are those whose
fathers are citizens of the Philippines. There utterly is no cogent justification to prescribe conditions or distinctions
where there clearly are none provided.
In Sum
(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G. R. No.
161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the
resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No.
04-003 which has prayed for the disqualification of respondent FPJ from running for the position of President in the
10th May 2004 national elections on the contention that FPJ has committed material representation in his certificate of
candidacy by representing himself to be a natural-born citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and No.
161634 both having been directly elevated to this Court in the latters capacity as the only tribunal to resolve a
presidential and vice-presidential election contest under the Constitution. Evidently, the primary jurisdiction of the
Court can directly be invoked only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it
is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended
on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the
affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship
of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the
presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when
the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954,
in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou
would have benefited from the en masse Filipinization that the Philippine Bill had effected in 1902. That citizenship (of
Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935
Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers
are Filipino citizens regardless of whether such children are legitimate or illegitimate.
(4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born
citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be
held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in
relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the
Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove
whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs.
COMELEC,[48] must not only be material, but also deliberate and willful.
WHEREFORE, the Court RESOLVES to DISMISS
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission
on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No.
161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent,"
for want of jurisdiction.
2. G. R. No. 161824, entitled Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald
Allan Kelley Poe, also known as Fernando Poe, Jr., for failure to show grave abuse of discretion on the part of
respondent Commission on Elections in dismissing the petition in SPA No. 04-003.
No Costs.
 SO ORDERED.
Davide, Jr., C.J., see separate opinion, concurring.
Puno, J., on leave but was allowed to vote; see separate opinion.
Panganiban, J., on official leave; allowed to vote but did not send his vote on the matter.
Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have been remanded.
Ynares-Santiago, J., concurs and also with J. Punos separate opinion.
Sandoval-Gutierrez, J., concurs, please see separate opinion.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., concurs, please see separate opinion.
Corona, J., joins the dissenting opinion of Justice Morales.
Carpio-Morales, J., see dissenting opinion.
Callejo, Sr., J., please see concurring opinion.
Azcuna, J., concurs in a separate opinion.
Tinga, J., dissents per separate opinion.

[1]
Tan Chong vs. The Secretary of Labor, 45 O.G. No. 31, 1269.
[2]
Sec. 2. Mode of review. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit
may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter
provided. (Rule 64)
[3]
Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided
in the third paragraph of section 3, Rule 46. (Rule 65)
[4]
17 SCRA 761.
[5]
See Rule 66, Revised Rules of Civil Procedure.
[6]
The Politics of Aristotle, edited and translated by Ernest Barker, Oxford University Press, London, 1946. at p. 93.
[7]
Id., at 95.
[8]
Introduction, The Conditions of Citizenship, edited by Bart Van Steenbergen, Sage Publications, London, Thousand Oaks, New
Delhi (1994).
[9]
Ibid.
[10]
Ibid.
[11]
Ibid.
[12]
Ibid.
[13]
Under the codified Novisima Recopilacion promulgated in Spain in 1805, the following were considered denizens (vecinos) "
all foreigners who obtained the privilege of naturalization, those who were born in these kingdoms, those who residing
therein may be converted to the holy Catholic faith; those, being self-supporting, established their domicile therein;
and in the case of a foreign woman who married a native man, she thereby becomes subject to the same laws and
acquires the same domicile as her husband; those who establish themselves in the country by acquiring real property;
those who have trade or profession and go there to practice the same; also those who practice some mechanical trade
therein or keep a retail store;....those who reside for a period of ten years in a home of his own; and also those
foreigners who, in accordance with the common law, royal orders and other laws of the kingdoms, may have become
naturalized or acquired residence therein. (Leon T. Garcia, The Problems of Citizenship in the Philippines, Rex
Bookstore, 1949, at p. 4)
[14]
Garcia, supra., at p. 3.
[15]
Justices Malcolm, Recto and Florentino Torres believed that the law was effective in the Philippines. Those who entertained
the contrary view were Justices Imperial and Villareal. (Garcia, supra., at 4.).
[16]
Garcia, supra., pp. 5-6.
[17]
Under the Royal Decree of August 23, 1868, the following were considered foreigners --- (1) The legitimate and recognized
natural children of a father who belongs to another independent state, and the unrecognized and natural and other
illegitimate children of a mother belonging to another State born outside of the Spanish dominions, (2) The children
specified in the preceding paragraph, born in the Spanish dominions or on board Spanish vessels on the high seas if
they do not, on attaining the age of majority fixed in the laws of the Kingdom, elect Spanish nationality, (3) Those being
Spaniards, acquire another nationality, as well by renouncing the first as by accepting employment, from another
government without the authority of the sovereign and (4) The woman who contracts marriage with a subject of
another State. (Garcia, supra., pp. 6-7)
[18]
Under the law, the following were foreigners (a) All persons born of foreign parents outside of the Spanish territory; (b)
Those born outside of the Spanish territory of foreign fathers and Spanish mothers while they do not claim Spanish
nationality, (3) Those born in Spanish territory of foreign parents or foreign fathers and Spanish mothers while they do
not make that claim, (4) Spaniards who may have lost their nationality, (5) Those born outside of the Spanish territory
of parents who may have lost their Spanish nationality; and (6), the Spanish woman married to a
foreigner. (Garcia, supra., p. 7)
[19]
Velayo, infra., p. 11.
[20]
Article 17, The Civil Code of Spain.
[21]
Garcia, supra, pp. 6-7.
[22]
Ramon M. Velayo, Philippine Citizenship And Naturalization, Central Book Supply, Manila (1965), pp. 22-23.
[23]
Ibid., p. 30.
[24]
Garcia, supra, at pp. 31-32.
[25]
Garcia, supra, pp. 23-26.
[26]
Velayo, supra, p. 31
[27]
Section 2, Article IV, 1987 Constitution.
[28]
Per amicus curiae Joaquin G. Bernas, SJ.
[29]
23 Phil 315 (1912).
[30]
Supra., which held that jus soli was never applied in the Philippines.
[31]
Antillon vs. Barcelon, 37 Phil 148.
[32]
Article 131 Old Civil Code.
[33]
Dayrit vs. Piccio, 92 Phil 729.
[34]
17 SCRA 788.
[35]
95 Phil 167.
[36]
125 SCRA 835.
[37]
Vicente J. Fransisco, Civil Code of the Philippines, Bk I, 1953 at p. 5
[38]
29 Phil 606.
[39]
Article 16. Real property as well as personal property is subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever may be the nature of the property and regardless of the
country wherein said property may be found.
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the
country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and
good customs, shall not be rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of
the country in which he may be. Such will may be probated in the Philippines.
Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the
law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those
which this Code prescribes.
Article 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the
law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own
country, shall have the same effect as if executed according to the laws of the Philippines.
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the
Philippines, even though authorized by the laws of the country where they may have been executed.
Article 1039. Capacity to succeed is governed by the law of the nation of the decedent.
[40]
Article 10. Marriages between Filipino citizens abroad may be solemnized by a consul general, consul or vice-consul of the
Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the
solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.
Article 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a
marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their
respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an
affidavit stating the circumstances showing such capacity to contract marriage.
Article 26. x x x
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under
Philippine law.
Article 80. In the absence of a contrary stipulation in the marriage settlements, the property relations of the spouses shall be
governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule
shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the
country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign
country whose laws require different formalities for their extrinsic validity.
[41]
See Ching Leng vs. Galang, L-11931, October 1958, unreported.
[42]
354 SCRA 17.
[43]
20 SCRA 562, Paa vs. Chan 21 SCRA 753.
[44]
82 Phil. 771.
[45]
91 Phil. 914, unreported.
[46]
21 SCRA 753.
[47]
68 Phil 12.
[48]
248 SCRA 300 (1995)
 FIRST DIVISION
G.R. No. 184762, February 25, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DOMINGO GALLANO y JARANILLA, Accused-Appellant.
DECISION
BERSAMIN, J.:
To convict an accused charged with qualified rape instead of rape in its simple form not only condemns him to a more
serious offense but also exposes him to an even greater liability. As such, the State is mandated to sufficiently allege in
the information and to competently prove during trial the qualifying circumstances of minority and relationship with
the same certainty as the crime itself.chanroblesvirtuallawlibrary
The Case

This appeal assails the decision promulgated on December 14, 2007, 1 whereby the Court of Appeals (CA) affirmed with
modification the judgment2 rendered on March 22, 2004 by the Regional Trial Court (RTC), Branch 69, in Silay City,
Negros Occidental finding appellant Domingo Gallano y Jaranilla guilty of the crime of rape, qualified by minority and
relationship, and sentencing him to the supreme penalty of death therefor.chanroblesvirtuallawlibrary
Antecedents

Gallano was arraigned and tried under the following information, viz:chanRoblesvirtualLawlibrary
That on or about 2 January 2003, in Silay City, Philippines and within the jurisdiction of this Honorable Court, the herein
accused, with lewd design, and with force and intimidation, did then and there wilfully, unlawfully and feloniously have
carnal knowledge with his niece, AAA,3 a 12-year-old minor, against the latter's will.

The aggravating circumstance of minority and relationship is present, the victim being 12 years old, and the accused
being the victim's relative by affinity within the third civil degree.

ACTS CONTRARY TO LAW.4cralawred

cralawlawlibrary

The facts presented by the Prosecution were summed up thusly:chanRoblesvirtualLawlibrary

Private complainant, AAA, and her brother lived with their maternal aunt, BBB, BBB's husband, herein appellant, their
children and BBB's brother in Baranggay Guimbala-on, Silay City (TSN, October 6, 2003, pp. 3-4).

On January 2, 2003, BBB went to the hospital to take care of her father and stayed there for days. AAA was home and
was about to make her brother go to sleep. She went inside the bedroom to a mat when appellant took her aside,
undressed her and laid her down on the bed. Standing over her, appellant pointed his penis at her and warned her not
to tell her mother, otherwise, he would kill her. When appellant's penis touched AAA's vagina, she felt pain and
instinctively kicked him away. Feeling distraught, AAA ran outside and cried (TSN, October 20, 2003, pp. 5-7).

On January 8, 2003, BBB's brother went to the hospital, he told BBB that he saw AAA and appellant inside the room,
standing and facing each other. This prompted BBB to ask AAA about the incident. At first, AAA hesitated and refused
to talk but later admitted that she was raped. BBB brought AAA to the city health officer for examination on January 9,
2003 (TSN, October 6, 2003, pp. 4-5).5cralawlawlibrary

The City Health Officer who examined AAA found hymenal lacerations on AAA's private part.6cralawred

Gallano denied the charge, and asserted alibi, insisting that on the day the rape was committed he had been working in
the sugarcane field, having left home for that purpose at 5:00 a.m. and returning only at 5:00 p.m.; that he had brought
his lunch then because he would take an hour to walk from the sugarcane field to his house; and that he had learned of
the charge of rape against him only after his arrest and detention. 7cralawred
Decision of the RTC

In its judgment, the RTC convicted Gallano of rape, qualified by minority and relationship,
disposing:chanRoblesvirtualLawlibrary
WHEREFORE, PREMISES CONSIDERED, this Court finds accused DOMINGO GALLANO Y JARANILLA, Guilty (sic.) of the
crime of Rape, defined in Article 266-A in relation to Article 266-B, paragraph 5, sub-paragraph 1, of Republic Act No.
8353, as his guilt had been established by the prosecution beyond any reasonable doubt.

Accordingly, this Court sentences accused, DOMINGO GALLANO y JARANILLA, to suffer the Supreme Penalty of Death
(sic.)

Accused, Domingo Gallano y Jaranilla, is, further, ordered by this Court to pay minor, [AAA], the sum of FIFTY
THOUSAND PESOS (P50,000.00) as Moral Damages, and the sum of FIFTY THOUSAND PESOS (P50,000.00), all in
Philippine Currency, as Exemplary Damages.
Accused, Domingo Gallano y Jaranilla, is ordered remitted to the National Penitentiary, Muntinlupa City, Rizal.

NO COSTS.

SO ORDERED.8cralawred
cralawlawlibrary

The RTC found AAA's testimony as credible, observing as follows:chanRoblesvirtualLawlibrary

Though a child, [AAA], demonstrated to this Court her capacity of observation, recollection and communication. She
showed that she can perceive and perceiving, can make known her perception to this Court as she clearly and capably
related the details of her sad and horrible experience at the hands of the accused. She withstood a thorough and
exhaustive cross-examination, x x x It was a positive and credible account she presented before this Court. There was
not a motive ascribed and/or, in the very least, suggested by the defense that might have raised doubt on her
credibility and the credibility of the statements she made before this Court. 9cralawlawlibrary

Anent Gallano's alibi, the RTC stated:chanRoblesvirtualLawlibrary

The sugarcane field where accused, Domingo Gallano y Jaranilla, claimed he was at the time of the occurrence of the
incident subject of the present criminal action was, likewise, located at Hda. Bias, Barangay Guimbala-on, a submitted
distance of only four (4) kilometers away from the house where the submitted offense was committed easily accessible
to the accused even by foot. Accused's statement was not corroborated nor substantiated by other evidence, oral or
otherwise. Under the given circumstances, the physical impossibility of his presence at the scene of the crime, had not
been established sufficiently and convincingly. The burden of proof in setting in evidence the factual
circumstance/circumstances of the defense of alibi lies on the one who claims said defense, the accused in the present
criminal action, which failed to do miserably.10cralawred
cralawlawlibrary

In characterizing the offense as qualified rape, the RTC ruled that AAA was definitely below 18 years old on January 2,
2003; and that such fact was not contested by Gallano.11 As to the fact that AAA was Gallano's relative by affinity within
the third civil degree, the RTC declared that such relationship had been sufficiently established. 12cralawred
Judgment of the CA

On appeal, Gallano challenged his conviction, contending that the RTC committed the following errors, to
wit:chanRoblesvirtualLawlibrary
I.

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF RAPE
II.

GRANTING ARGUENDO THAT ACCUSED-APPELLANT WAS GUILTY OF RAPING [AAA], THE COURT A QUO GRAVELY ERRED
IN IMPOSING THE DEATH PENALTY.13cralawred
cralawlawlibrary

The CA affirmed Gallano's conviction for rape nonetheless because the State had established all the elements of rape,
including the force and intimidation employed by Gallano.14 It opined that there was no reason advanced by Gallano to
warrant disturbing the RTC's appreciation of AAA's testimony; and agreed with the RTC that his alibi and denial were
worthless. Anent the second error, the CA said that the records were "bereft of any independent evidence which would
accurately show AAA's age,"15 pointing out that even AAA had been uncertain about her own age; 16 and that contrary
to the State's theory, as advanced by the Office of the Solicitor General (OSG), AAA's testimony to prove her age had
been insufficient because Gallano's admission of it had not been express and clear. 17Prescinding from these
observations, the CA sustained the RTC's finding of AAA's minority because:chanRoblesvirtualLawlibrary
Be that as it may, the minority age of the victim was not questioned by the defense. Although this Court held that the
age of the victim is not certain, her still being a minor below eighteen (18) years old is not contested. This Court has to
rely on the observation as stated in the assailed decision that the Court a quo is quite certain that the victim is
definitely below 18 years of age on January 2, 2003.18cralawlawlibrary

The CA modified the penalty because of the intervening passage of Republic Act No. 9346,19 whereby the death penalty
was prohibited from being imposed in case of conviction, and instead imposed reclusion perpetua on Gallano.20 The CA
awarded civil indemnity of P75,000.00, moral damages awarded to P75,000.00, and exemplary damages to
P25,000.00.21cralawred
Issues
Hence, this appeal, with Gallano reiterating the alleged errors by the CA, arguing that he should not be convicted of
rape upon the sole testimony of AAA that had been tainted with improbabilities and contrariness to human experience.
Hence, his guilt had not been established beyond reasonable doubt. 22cralawred
Ruling

The conviction of Gallano is affirmed, but the characterization of the crime as qualified rape is set aside. He could be
held guilty only of simple rape.

Rape is a crime that is almost always committed in isolation or in secret, usually leaving only the victim to testify about
the commission of the crime.23 As such, the accused may be convicted of rape on the basis of the victim's sole
testimony provided such testimony is logical, credible, consistent and convincing. 24 Moreover, the testimony of a young
rape victim is given full weight and credence considering that her denunciation against him for rape would necessarily
expose herself and her family to shame and perhaps ridicule.25 Indeed, it is more consistent with human experience to
hold that a rape victim of tender age will truthfully testify as to all matters necessary to show that she was
raped.26cralawred

After reviewing the records, the Court concludes that the trial court was not arbitrary in its appreciation of the proof of
rape, and, therefore, the CA correctly ruled that the crime of rape was established beyond reasonable doubt even upon
the lone testimony of the victim herself. With the lower courts not being shown by Gallano to have overlooked any
matter or circumstance of weight that could alter the result in his favour, their appreciation must be viewed with
respect. It is settled that the findings of fact by the trial court are accorded great weight, and are even held to be
conclusive and binding unless they were tainted with arbitrariness or oversight. 27 This respect is but a recognition that
the trial court is better situated to assess the testimonies and evidence laid out before it during the trial.28cralawred

Nonetheless, Gallano was guilty only of simple rape, not of qualified rape. In order that the accused is convicted of
qualified rape under Article 266-B (1) of the Revised Penal Code, two requisites must be met, namely: (1) the victim
must be a less than 18 years old; and (2) the offender must either be related to the victim by consanguinity of by
affinity within the third civil degree, or is the common-law spouse of the parent of the victim. These two requisites
must be both alleged and proved with absolute certainty.29 Otherwise, the accused could only be held guilty of simple
rape. The qualifying circumstances of relationship and minority remain to be relevant in the crime of rape despite the
abolition of the death penalty under R.A. No. 9346. The accused's civil liability depends on the mode of rape he
committed.30cralawred

Although Gallano's relationship with AAA went uncontroverted because both he and BBB had testified that they were
legally married,31 AAA's minority was not thereby competently established.

People v. Pruna32 states the controlling guidelines in evaluating evidence presented to prove a rape victim's minority, to
wit:chanRoblesvirtualLawlibrary
xxx [W]e hereby set the following guidelines in appreciating age, either as an element of the crime or as a qualifying
circumstance.

1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live
birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school
records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity
or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of
the offended party pursuant to Section 40, Rule 130 of the
Rules on Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years
old;ChanRoblesVirtualawlibrary

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years
old;ChanRoblesVirtualawlibrary

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years
old.
 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's
mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly
and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to
object to the testimonial evidence regarding age shall not be taken against him. (Emphasis
supplied)"33cralawlawlibrary

The testimonies relevant to AAA's age were given as follows:chanRoblesvirtualLawlibrary

1. BBB testified that AAA was 13 years old at the time when her testimony was taken but there was no birth certificate to
prove AAA's age.34cralawred
2. BBB declared that she took AAA when the latter was only nine months old. 35cralawred
3. AAA attested that she was 13 years old at the time of the taking of her testimony but she did not know when she was
born.36cralawred
4. AAA said that she had been staying with BBB for about four years prior to the time her testimony was taken. 37cralawred
5. Gallano mentioned that he did not know AAA's age, 38 but he answered on cross-examination that AAA was from 12 to 13
years old when asked if he knew AAA's age in 2003.39cralawred
6. Gallano stated on cross-examination that AAA had been living with them since she was seven years old. 40
cralawlawlibrary

It is clear that the Prosecution failed to adduce AAA's certificate of live birth, the best evidence to prove AAA's age in
the context of Pruna. The Prosecution did not also present any acceptable substitutionary documentary evidence to
prove the same. Instead, the Prosecution relied on the testimonies of AAA and BBB to establish AAA's minority.

Did the testimonies of AAA and BBB suffice to prove AAA's minority even if coupled with Gallano's supposed admission
of the same?

We answer in the negative.

BBB, who was AAA's aunt, was qualified to testify on AAA's pedigree, like her age and her date of birth. Section 40, Rule
130 of the Rules of Court expressly stated so. 41 Conformably with Pruna,42BBB's testimony would have sufficed
considering that the information alleged that AAA was 12 years old at the time of the commission of the crime, and the
Prosecution was trying to prove that AAA was below 18 years old for the purpose of qualifying the rape committed by
the accused. Yet, Pruna dictated that BBB's testimony must be clear and credible. 43 BBB's testimony failed this test.
Although BBB recalled that she had taken AAA under her wing when the latter had been nine months old, 44BBB was
apparently contradicted by AAA's declaration that she had been staying with BBB and her family for about four years
reckoned from the time she gave her testimony in court.45 Gallano complicated the contradiction between BBB and
AAA by attesting that AAA had started staying with them when she had been only seven years old. 46 The effect of the
contradictions was to cast doubt on BBB's personal knowledge of AAA's age and date of birth, rendering BBB's
testimony on AAA's minority unreliable.

Nevertheless, the OSG submits that AAA's testimony was enough to prove her age because Gallano admitted to the
same during cross-examination.47cralawred

We disagree with the State. The guidelines under Pruna require that the accused's admission of the age of the victim
must be express and clear.48 That was not the case herein, for not only did Gallano declare that he did not know how
old AAA was at the time of the commission of the crime, but also that he had been vague and indefinite on the matter
as borne out by his tentative response of "12 or 13 years old" when asked during cross-examination if he knew AAA's
age in 2003.49 In other words, Gallano's admission was not express and clear enough to establish AAA's minority
beyond moral certainty.

With the State not having established AAA's minority with absolute certainty, the Court rules out qualified rape as the
crime committed by Gallano. We reiterate that in the prosecution of rape in its qualified form, the victim's minority
must be averred and established "with equal certainty and clearness as the crime itself." 50 As a consequence, Gallano
committed only simple rape, thus precluding the application of R.A. No. 9346. Pursuant to Article 266-A of the Revised
Penal Code, the proper penalty is reclusion perpetua.

It further appears that despite already entertaining doubt about AAA's minority, the CA still affirmed Gallano's
conviction for qualified rape by depending on the "certainty" of the RTC's findings on AAA's minority. 51 Such affirmance
by the CA was unwarranted because it was contrary to the guidelines defined by the Court in Pruna.52 The affirmance
should be treated as another reversible error on the part of the CA, considering that all doubts in a criminal prosecution
should be resolved in favor of the accused.
The modification of Gallano's civil liabilities is another consequence of the Prosecution's failure to establish AAA's
minority. To conform to prevailing jurisprudence, the award of civil indemnity must be reduced to P50,000.00. 53 The
award of moral damages is similarly reduced to P50,000.00 in view of prevailing jurisprudence. 54 Meanwhile, the award
for exemplary damages is increased to P30,000.00 to conform to recent jurisprudence.55 The amounts of damages
awarded should earn interest at the rate of 6% per annum from the finality of this judgment until said amounts are fully
paid.56

WHEREFORE, the Court AFFIRMS the decision promulgated on December 14, 2007 with the MODIFICATION that
appellant DOMINGO GALLANO y JARANILLA is pronounced GUILTY beyond reasonable doubt of SIMPLE RAPE and is
sentenced to suffer reclusion perpetua, and to pay the victim AAA P50,000 as civil indemnity, P50,000 as moral
damages, and P30,000 as exemplary damages, with all such amounts to earn interest of 6% per annum from the finality
of this decision until full payment. The petitioner shall pay the costs of suit.

SO ORDERED.chanroblesvirtuallawlibrary

Sereno, C.J., Leonardo-De Castro, Bersamin, Perez, and Perlas-Bernabe, JJ., concur.
Endnotes:

1
Rollo, pp. 4-20; penned by Associate Justice Franchito N. Diamante and concurred in by Associate Justice Isaias P.
Dicdican and Associate Justice Priscilla Baltazar-Padilla.

2
CA rollo, pp. 14-18; penned by Judge Felipe G. Banzon.

3
Pursuant to Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004), and its
implementing rules, the real names of the victim and of the members of her immediate family or household are
withheld, and fictitious initials are used instead to represent them in order to protect their privacy. See People v.
Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 422.

4
Records, p. 1.5 CA rollo, pp. 77-78.
6
Id. at 79.7Rollo, pp. 7-8. 8 CA rollo, p. 18.
9
Id. at 17.10 Id.11 Id. at 1812 Id.
13
Id. at 4414 Supra note 1.
15
Id. at 16.16 Id.17 Id. at 17.
18
Id.
19
An Act Prohibiting the Imposition of Death Penalty in the Philippines.
20
Rollo, p. 18.
21
Id. at 19.
22
CA Rollo, pp. 49-55.
23
People v. Manalili, G.R. No. 184598, June 23, 2009, 590 SCRA 695, 706.
24
People v. Ortega, G.R. No. 1 86235, January 25, 2012, 664 SCRA 273, 282.
25
People v. Dela Cruz, G.R. No. 177572, February 26, 2008, 546 SCRA 703, 718.
26
Id.
27
People v. Pandapatan, G.R. No. 173050, April 13, 2007, 521 SCRA 304, 324.
28
Id.
29
People v. Velasco, G.R. Nos. 135231-33, February 28, 2001, 353 SCRA 138, 152-153.
30
See Sierra v. People, G.R. No. 182941, July 3, 2009, 591 SCRA 666, 691.
31
TSN, October 6, 2003, p. 6; TSN, February 16, 2004, p. 3.
32
G.R. No. 138471, October 10, 2002, 390 SCRA 577. 33 Id. at 603-604.
34
TSN, October 6, 2003, p 3
35
Id.36 TSN, October 20, 2003, p. 4.
37
Id.38 TSN, February 16, 2004, p. 4.
39
Id. at 10.
40
Id.
41
Section 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family
previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the
witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or
other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree.
42
Supra note 32.
43
Supra note 33, at 603.
44
Supra note 35.
45
Supra note 37.
46
Supra note 40.
47
CA Rollo, p. 89.
48
Supra note 33, at 604.
49
Supra notes 38 and 39.
50
People v. Villanueva, G.R. No. 138364, October 15, 2003, 413 SCRA 43 1, 444.
51
Supra note 16.
52
Supra note 32.
53
People v. Roxas, G.R. No. 200793, June 4, 2014.
54
People v. Gahi, G.R. No. 202976, February 19, 2014.
55
People v. Bacatan, G.R. No. 203315, September 18, 2013.

56
People v. Viltero, G.R. No. 175327, April 3, 2013, 695 SCRA 54, 69.
 EN BANC
[G.R. No. 132164. October 19, 2004]
CIVIL SERVICE COMMISSION, petitioner, vs. ALLYSON BELAGAN, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
When the credibility of a witness is sought to be impeached by proof of his reputation, it is necessary that the
reputation shown should be that which existed before the occurrence of the circumstances out of which the litigation
arose,[1] or at the time of the trial and prior thereto, but not at a period remote from the commencement of the
suit.[2] This is because a person of derogatory character or reputation can still change or reform himself.
For our resolution is the petition for review on certiorari of the Court of Appeals Decision [3] dated January 8, 1998,
in CA-G.R. SP. No. 44180, the dispositive portion of which reads:
WHEREFORE, Resolution No. 966213 dated September 23, 1996 and Resolution No. 972423 dated April 11, 1997 of the
respondent Civil Service Commission are hereby set aside. The complaint against petitioner Allyson Belagan filed by
Magdalena Gapuz is hereby DISMISSED.
The dismissal of petitioner Belagan is lifted and he is hereby ordered to be immediately reinstated to his position
without loss of seniority, retirement, backwages and other rights and benefits.
SO ORDERED.
The instant case stemmed from two (2) separate complaints filed respectively by Magdalena Gapuz,
founder/directress of the Mother and Child Learning Center, and Ligaya Annawi, a public school teacher at Fort Del Pilar
Elementary School, against respondent Dr. Allyson Belagan, Superintendent of the Department of Education, Culture
and Sports (DECS), all from Baguio City. Magdalena charged respondent with sexual indignities and harassment, while
Ligaya accused him of sexual harassment and various malfeasances.
Magdalenas sworn complaint alleges that sometime in March 1994, she filed an application with the DECS Office
in Baguio City for a permit to operate a pre-school. One of the requisites for the issuance of the permit was the
inspection of the school premises by the DECS Division Office. Since the officer assigned to conduct the inspection was
not present, respondent volunteered his services. Sometime in June 1994, respondent and complainant visited the
school. In the course of the inspection, while both were descending the stairs of the second floor, respondent suddenly
placed his arms around her shoulders and kissed her cheek. Dumbfounded, she muttered, Sir, is this part of the
inspection? Pati ba naman kayo sa DECS wala ng values? Respondent merely sheepishly smiled. At that time, there
were no other people in the area.
Fearful that her application might be jeopardized and that her husband might harm respondent, Magdalena just
kept quiet.
Several days later, Magdalena went to the DECS Division Office and asked respondent, Sir, kumusta yung
application ko? His reply was Mag-date muna tayo. She declined, explaining that she is married. She then left and
reported the matter to DECS Assistant Superintendent Peter Ngabit.
Magdalena never returned to the DECS Division Office to follow up her application. However, she was forced to
reveal the incidents to her husband when he asked why the permit has not yet been released. Thereupon, they went to
the office of the respondent. He merely denied having a personal relationship with Magdalena.
Thereafter, respondent forwarded to the DECS Regional Director his recommendation to approve Magdalenas
application for a permit to operate a pre-school.
Sometime in September 1994, Magdalena read from a local newspaper that certain female employees of the DECS
in Baguio City were charging a high-ranking DECS official with sexual harassment. Upon inquiry, she learned that the
official being complained of was respondent. She then wrote a letter-complaint for sexual indignities and harassment to
former DECS Secretary Ricardo Gloria.
On October 4, 1994, respondent was placed under suspension.
On the part of Ligaya Annawi, she alleged in her complaint that on four separate occasions, respondent touched
her breasts, kissed her cheek, touched her groins, embraced her from behind and pulled her close to him, his organ
pressing the lower part of her back.
Ligaya also charged respondent with: (1) delaying the payment of the teachers salaries; (2) failing to release the
pay differentials of substitute teachers; (3) willfully refusing to release the teachers uniforms, proportionate allowances
and productivity pay; and (4) failing to constitute the Selection and Promotion Board, as required by the DECS rules and
regulations.
The DECS conducted a joint investigation of the complaints of Magdalena and Ligaya. In his defense, respondent
denied their charge of sexual harassment. However, he presented evidence to disprove Ligayas imputation of
dereliction of duty.
On January 9, 1995, the DECS Secretary rendered a Joint Decision[4] finding respondent guilty of four (4) counts of
sexual indignities or harassments committed against Ligaya; and two (2) counts of sexual advances or indignities against
Magdalena. He was ordered dismissed from the service. The dispositive portion of the Joint Decision reads:
WHEREFORE, foregoing disquisitions duly considered, decision is hereby rendered in the two above-entitled cases,
finding:
a) Respondent Dr. Allyson Belagan, Superintendent of the DECS Baguio City Schools Division GUILTY of the four
counts of sexual indignities or harassments committed against the person and honor of complainant Miss Ligaya
Annawi, a Baguio City public school teacher, while in the performance of his official duties and taking advantage of
 his office. He is, however, ABSOLVED of all the other charges of administrative malfeasance or dereliction of
duty.
b) Respondent Baguio City Superintendent Allyson Belagan likewise GUILTY of the two counts of sexual advances or
indignities committed against the person and honor of complainant Mrs. Magdalena Gapuz, a private school
teacher of Baguio City, while in the performance of his official duties and taking advantage of his office.
Consequently, respondent Allyson Belagan is HEREBY ORDERED DISMISSED from the government service, with
prejudice to reinstatement and all his retirement benefits and other remunerations due him are HEREBY DECLARED
FORFEITED in favor of the government.
SO ORDERED.[5]
Upon appeal, the Civil Service Commission (CSC), on September 23, 1996, promulgated Resolution No.
966213[6] affirming the Decision of the DECS Secretary in the case filed by Magdalena but dismissing the complaint of
Ligaya. The CSC ruled that respondents transgression against Magdalena constitutes grave misconduct. Thus:
The acts of Belagan are serious breach of good conduct since he was holding a position which requires the incumbent
thereof to maintain a high degree of moral uprightness. As Division Superintendent, Belagan represents an institution
tasked to mold the character of children. Furthermore, one of his duties is to ensure that teachers in his division
conduct themselves properly and observe the proper discipline. Any improper behavior on his part will seriously impair
his moral ascendancy over the teachers and students which can not be tolerated. Therefore, his misconduct towards
an applicant for a permit to operate a private pre-school cannot be treated lightly and constitutes the offense of
grave misconduct.
WHEREFORE, respondent Allyson Belagan is hereby found guilty of grave misconduct and imposed the penalty
of DISMISSAL from the service with all the accessory penalties. The decision of the DECS Secretary is modified
accordingly.[7]
On October 29, 1996, respondent seasonably filed a motion for reconsideration, contending that he has never
been charged of any offense in his thirty-seven (37) years of service. By contrast, Magdalena was charged with several
offenses before the Municipal
Trial Court (MTC) of Baguio City, thus:
1. Criminal Case No. 43416 for LIGHT ORAL DEFAMATION (December 3, 1980)
2. Criminal Case No. 45629 for SLIGHT PHYSICAL INJURIES (May 13, 1982)
3. Criminal Case No. 45630 for GRAVE THREATS (May 13, 1982)
4. Criminal Case No. 45914 for GRAVE THREATS (June 24, 1982)
5. Criminal Case No. 51532 for MALICIOUS MISCHIEF (January 25, 1985)
6. Criminal Case No. 51533 for LIGHT THREATS (January 25, 1985)
7. Criminal Case No. 51556 for GRAVE ORAL DEFAMATION (January 30, 1985)
8. Criminal Case No. 51818 for LIGHT ORAL DEFAMATION (March 18, 1985)
9. Criminal Case No. 51819 for GRAVE ORAL DEFAMATION (March 18, 1985)
10. Criminal Case No. 51820 for MALICIOUS MISCHIEF (March 18, 1985)
11. Criminal Case No. 51821 for UNJUST VEXATION (March 18, 1985)
12. Criminal Case No. 62173 for UNJUST VEXATION (May 29, 1991)
13. Criminal Case No. 62172 for GRAVE ORAL DEFAMATION (May 29, 1991)
14. Criminal Case No. 62754 for GRAVE ORAL DEFAMATION (December 2, 1986)
15. Criminal Case No. 55642 for GRAVE ORAL DEFAMATION (December 2, 1986)
16. Criminal Case No. 55423 for GRAVE ORAL DEFAMATION (October 24, 1986)
17. Criminal Case No. 55846 for GRAVE ORAL DEFAMATION (November 4, 1986)
18. Criminal Case No. 55800 for GRAVE ORAL DEFAMATION (January 7, 1987)
19. Criminal Case No. 57312 for UNJUST VEXATION (November 29, 1987)
20. Criminal Case No. 55643 for SLIGHT PHYSICAL INJURIES (December 13, 1985)
21. Criminal Case No. 53404 for UNJUST VEXATION (December 13, 1985)
22. Criminal Case No. 55422 for UNJUST VEXATION (October 24, 1986) [8]
In addition, the following complaints against Magdalena were filed with the Barangay Chairmen of Barangay
Gabriela Silang and Barangay Hillside, both in Baguio City:
1. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for GRAVE THREATS, UNJUST VEXATION, RUMOR MONGERING
2. Teresita De Los Santos vs. Gapuz (Brgy. Case No. 86-8-26-8) for GRAVE THREATS & ORAL DEFAMATION
3. Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case No. 029) for ORAL DEFAMATION and FALSE ACCUSATION
4. Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030) for HARASSMENT and THREATS
5. GABRIELA SILANG TANOD FORCES vs. Gapuz (Case No. 031) for HABITUAL TROUBLE MAKER
6. Pablo Ortiz vs. Gapuz (November 1, 1979) for ORAL DEFAMATION
7. C. Ballesteros vs. Gapuz (September 11, 1978) for ORAL DEFAMATION
8. Mrs. Liza Ancheta vs. Gapuz (September 27, 1978) for RUMOR MONGERING
9. Mr. Pananin (Beneco Personnel) (October 8, 1978) for ORAL DEFAMATION
10. Mrs. Minda Valdez vs. Gapuz (November 6, 1978) for ORAL DEFAMATION
11. WOMENS CLUB vs. GAPUZ (February 9, 1979) for ORAL DEFAMATION
12. Vistro Salcedo case (May 8, 1979)
Where Mrs. Gapuz was spreading rumors against Barangay Captain and Police Chief
13. Demolition Scandal (May 10, 1979)
Where she called all the residents of their Barangay for an emergency meeting and where she shouted invectives
against the residents
14. Incident of June 13, 1979
Mrs. Gapuz shouted invectives against the Barangay Sanitary Inspector
15. Incident of August 25, 1979
Mrs. Gapuz shouted invectives against the servants of Mr. De Leon
16. Incident of August 26, 1979
Mrs. Gapuz terrorized the council meeting
17. Incident of September 2, 1978
Mrs. Clara Baoas was harassed by Mrs. Gapuz
18. Incident of September 9, 1979
Mrs. Gapuz quarreled with Mrs. C. Ballesteros during the council meeting
19. Incident of September 10, 1979
Mrs. Gapuz was hurling invectives along her alley in the early morning
20. Incident of September 13, 1979
Mrs. Gapuz tapped electric wire from Mrs. Tessie de los Santos with the latters consent
21. Incident of September 21, 1979
Mrs. Gapuz was shouting and hurling invectives scandalously around her residence
22. Incident of September 21, 1979
Mrs. Gapuz was shouting, complaining about alleged poisoned sardines near the premises of her residence which
killed her hen.
23. Incident of September 23, 1979
Mrs. Gapuz was shouting unpleasant words around the neighborhood. She did not like the actuations of a
bayanihan group near the waiting shed.[9]
Respondent claimed that the numerous cases filed against Magdalena cast doubt on her character, integrity, and
credibility.
In its Resolution No. 972423[10] dated April 11, 1997, the CSC denied respondents motion for reconsideration,
holding that:
The character of a woman who was the subject of a sexual assault is of minor significance in the determination of the
guilt or innocence of the person accused of having committed the offense. This is so because even a prostitute or a
woman of ill repute may become a victim of said offense.
As such, the fact that complainant Magdalena Gapuz is shown to have had cases before the regular courts for various
offenses and was condemned by her community for wrongful behavior does not discount the possibility that she was in
fact telling the truth when she cried about the lecherous advances made to her by the respondent. x x x
Respondent then filed with the Court of Appeals a petition for review. As stated earlier, it reversed the CSC
Resolutions and dismissed Magdalenas complaint.
The Appellate Court held that Magdalena is an unreliable witness, her character being questionable. Given her
aggressiveness and propensity for trouble, she is not one whom any male would attempt to steal a kiss. In fact, her
record immediately raises an alarm in any one who may cross her path. [11] In absolving respondent from the charges,
the Appellate Court considered his unblemished service record for 37 years.
Unsatisfied, the CSC, through the Solicitor General, filed the instant petition raising the following assignments of
error:
I. The Supreme Court may rule on factual issues raised on appeal where the Court of Appeals misappreciated the
facts. Furthermore, where the findings of the Court of Appeals and the trial court are contrary to each other,
the Supreme Court may review the record and evidence. The Court of Appeals erred in not giving credence to
the testimony of complainant Magdalena Gapuz despite convincing and overwhelming signs of its truthfulness.
II. The Court of Appeals committed reversible error when it failed to give due weight to the findings of the DECS,
which conducted the administrative investigation, specifically with respect to the credibility of the witnesses
presented.
III. The Court of Appeals erred in ruling that respondent should be penalized under Sec. 22 (o) of the Omnibus Rules
Implementing Book V and not Sec. 22 (e) of said rules.[12]
In his comment, respondent maintains that Magdalenas derogatory record undermines the verity of her charge
and that the Court of Appeals is correct in dismissing it.
The petition is impressed with merit.
The pivotal issue before us is whether complaining witness, Magdalena Gapuz, is credible. This is a question of fact
which, as a general rule, is not subject to this Courts review.
It is a rule of long standing that factual findings of the Court of Appeals, if supported by substantial evidence, are
conclusive and binding on the parties and are not reviewable by this Court. [13] This Court is, after all, not a trier of facts.
One of the exceptions, however, is when the findings of the Court of Appeals are contrary to those of the trial court or
a quasi-judicial body, like petitioner herein.[14]
Here, the Court of Appeals and the CSC are poles apart in their appreciation of Magdalenas derogatory record.
While the former considered it of vital and paramount importance in determining the truth of her charge, the latter
dismissed it as of minor significance. This contrariety propels us to the elusive area of character and reputation
evidence.
Generally, the character of a party is regarded as legally irrelevant in determining a controversy. [15] One statutory
exception is that relied upon by respondent, i.e., Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence, which we
quote here:
SEC. 51. Character evidence not generally admissible; exceptions.
(a) In Criminal Cases:
xxxxxx
(3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable
degree the probability or improbability of the offense charged.
It will be readily observed that the above provision pertains only to criminal cases, not to administrative offenses.
And even assuming that this technical rule of evidence can be applied here, still, we cannot sustain respondents
posture.
Not every good or bad moral character of the offended party may be proved under this provision. Only those
which would establish the probability or improbability of the offense charged. This means that the character evidence
must be limited to the traits and characteristics involved in the type of offense charged. [16] Thus, on a charge of rape -
character for chastity, on a charge of assault - character for peaceableness or violence, and on a charge of
embezzlement - character for honesty.[17] In one rape case, where it was established that the alleged victim was morally
loose and apparently uncaring about her chastity, we found the conviction of the accused doubtful. [18]
In the present administrative case for sexual harassment, respondent did not offer evidence that has a bearing on
Magdalenas chastity. What he presented are charges for grave oral defamation, grave threats, unjust vexation, physical
injuries, malicious mischief, etc. filed against her. Certainly, these pieces of evidence are inadmissible under the above
provision because they do not establish the probability or improbability of the offense charged.
Obviously, in invoking the above provision, what respondent was trying to establish is Magdalenas lack of
credibility and not the probability or the improbability of the charge. In this regard, a different provision applies.
Credibility means the disposition and intention to tell the truth in the testimony given. It refers to a persons
integrity, and to the fact that he is worthy of belief.[19] A witness may be discredited by evidence attacking his general
reputation for truth,[20] honesty[21] or integrity.[22] Section 11, Rule 132 of the same Revised Rules on Evidence reads:
SEC. 11. Impeachment of adverse partys witness. A witness may be impeached by the party against whom he was
called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by
evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of
particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the
judgment, that he has been convicted of an offense.
Although she is the offended party, Magdalena, by testifying in her own behalf, opened herself to character or
reputation attack pursuant to the principle that a party who becomes a witness in his own behalf places himself in the
same position as any other witness, and may be impeached by an attack on his character or reputation. [23]
With the foregoing disquisition, the Court of Appeals is correct in holding that the character or reputation of a
complaining witness in a sexual charge is a proper subject of inquiry. This leads us to the ultimate question is
Magdalenas derogatory record sufficient to discredit her credibility?
A careful review of the record yields a negative answer.
First, most of the twenty-two (22) cases filed with the MTC of Baguio City relate to acts committed in the 80s,
particularly, 1985 and 1986. With respect to the complaints filed with the Chairmen of Barangay Gabriela Silang and
Barangay Hillside, the acts complained of took place in 1978 to 1979. In the instant administrative case, the offense was
committed in 1994. Surely, those cases and complaints are no longer reliable proofs of Magdalenas character or
reputation. The Court of Appeals, therefore, erred in according much weight to such evidence. Settled is the principle
that evidence of ones character or reputation must be confined to a time not too remote from the time in
question.[24] In other words, what is to be determined is the character or reputation of the person at the time of the
trial and prior thereto, but not at a period remote from the commencement of the suit. [25] Hence, to say that
Magdalenas credibility is diminished by proofs of tarnished reputation existing almost a decade ago is unreasonable. It
is unfair to presume that a person who has wandered from the path of moral righteousness can never retrace his steps
again. Certainly, every person is capable to change or reform.
Second, respondent failed to prove that Magdalena was convicted in any of the criminal cases specified by
respondent. The general rule prevailing in a great majority of jurisdictions is that it is not permissible to show that a
witness has been arrested or that he has been charged with or prosecuted for a criminal offense, or confined in
jail for the purpose of impairing his credibility.[26] This view has usually been based upon one or more of the following
grounds or theories: (a) that a mere unproven charge against the witness does not logically tend to affect his
credibility, (b) that innocent persons are often arrested or accused of a crime, (c) that one accused of a crime is
presumed to be innocent until his guilt is legally established, and (d) that a witness may not be impeached or
discredited by evidence of particular acts of misconduct. [27] Significantly, the same Section 11, Rule 132 of our Revised
Rules on Evidence provides that a witness may not be impeached by evidence of particular wrongful acts. Such
evidence is rejected because of the confusion of issues and the waste of time that would be involved, and because the
witness may not be prepared to expose the falsity of such wrongful acts. [28] As it happened in this case, Magdalena was
not able to explain or rebut each of the charges against her listed by respondent.
 But more than anything else, what convinces us to sustain the Resolution of the CSC is the fact that it is supported
by substantial evidence. As aptly pointed out by the Solicitor General, Magdalena testified in a straightforward, candid
and spontaneous manner. Her testimony is replete with details, such as the number of times she and respondent
inspected the pre-school, the specific part of the stairs where respondent kissed her, and the matter about her
transient boarders during summer. Magdalena would not have normally thought about these details if she were not
telling the truth. We quote her testimony during the cross-examination conducted by DECS Assistant Secretary Romeo
Capinpin and Undersecretary Antonio Nachura, thus:
Q Was there any conversation between you and Dr. Belagan during the inspection on the first floor and the second
floor?
A There was, sir. It was a casual conversation that we had with regard to my family, background, how the school came
about, how I started with the project. That was all, sir.
Q Nothing about any form of sexual harassment, in words or in deeds?
A Sir, because he inspected the second floor twice, sir. We went up to the stairs twice, sir.
Q Why?
A I really dont know what was the reason behind, sir. But on the second inspection, sir, I told him that as of that time I
had some transients with me. I was making use of the premises for transients because that was summer then, sir.
And I already started paying the place so I said, Sir, I have some transients with me in the evening and he said, You
know Mrs. Gapuz, I am interested to stay in one of the rooms as one your boarders. But I respectfully declined
saying, Sir, I think for delicadeza I cannot accept you. Not that I dont want you to be here but people might think
that I am keeping you here and that would prejudice my permit, sir.
ASEC R. CAPINPIN:
Q When did the alleged kissing occur? Was it during the first time that you went up with him or the second time?
A No, sir, on the second time, sir.
Q Second time?
A Yes, sir. We were going down, sir.
Q And you were going down?
A Yes, sir.
Q Do you recall what portion of the stairs where you were during the alleged kissing?
A Sir, on the topmost of the stairs.
Q Before you went down?
A Yes, sir. At the topmost because there is a base floor going up to the stairs and it has 16 steps.
Q So, it was not on the 16th step but still on the topmost?
A Yes sir.
Q Part of the floor of the building?
A Yes, sir. Topmost, sir?
ASEC R. CAPINPIN:
Q Will you kindly tell us your relative position at that time?
A Sir, on the second time that we went up and I mentioned about these transients that I had then and he wanted to
stay in the place in one of the rooms and then I declined and I was still showing the rooms simultaneously. On
the last, the biggest room that I had, he said, No. Never mind, I am not going to see that anymore. So he waited
for me there and upon reaching the place, as I was to step down on the first step going down, he placed his arm
and held me tightly and planted the kiss on my cheek, sir.
Q You said that he wanted to stay in one of the rooms?
A Yes, sir, as a boarder.
Q Is that room used for transients?
A During that time, sir, during the summertime, I made use of the time to get some transients.
Q And he was telling you that he wanted to occupy one of the rooms?
A Yes, but I declined, sir for delicadeza.
Q At that time, there were no transients yet.
A When he came over for the inspection sir, nobody was there. [29]
The above testimony does not stand in isolation. It is corroborated by Peter Ngabit, DECS Assistant Division
Superintendent. Ngabit testified that Magdalena reported to him that respondent kissed her and asked her for a date.
Q I would like to call your attention to Exhibit A which is the affidavit of Mrs. Magdalena B. Gapuz, particularly item no.
8, and may I read for your information That the Monday after the incident, I went to the DECS Division Office
expecting to get favorable recommendation from the DECS Regional Office for the issuance of my permit. That I
proceeded to the Superintendent and asked him, Sir, kumusta yung application ko and he said, mag date muna
tayo but I refused and explained that I am married, after which I proceeded to the Office of Asst. Superintendent
Peter Ngabit to relate the incident and then left the Division Office. Do you remember if Mrs. Gapuz went to your
Office on the particular day?
A Yes, sir.
Q What time was that?
A I cannot remember, sir.
Q Was it morning, afternoon?
A I think it was in the morning, sir.
Q Morning.
A Yes, sir.
Q Early morning?
A About noon, sir.
Q What transpired between you and Mrs. Gapuz in your office?
A When she came to my Office, she was relating about that and she was even insulting me saying among others that I
was a useless fixture in that Office because I cannot do anything with the processing of her paper or application.
Q It says here that she would relate the incident to you. Did she relate any incident?
A Yes, she did sir.
Q What was that incident all about?
A She was saying that when Mr. Belagan went to visit her school, he stole a kiss from her and that she was saying
that when she asked Supt. Belagan for her papers, she was asked for a date before the Indorsement. After that,
she left.[30]
With Magdalenas positive testimony and that of Ngabit, how can we disregard the findings of the DECS and the
CSC? Surely, we cannot debunk it simply because of the Court of Appeals outdated characterization of Magdalena as a
woman of bad reputation. There are a number of cases where the triers of fact believe the testimony of a witness of
bad character[31]and refuse to believe one of good character.[32] As a matter of fact, even a witness who has been
convicted a number of times is worthy of belief, when he testified in a straightforward and convincing manner. [33]
At this juncture, it bears stressing that more than anybody else, it is the DECS investigating officials who are in a
better position to determine whether Magdalena is telling the truth considering that they were able to hear and
observe her deportment and manner of testifying.[34]
In reversing the CSCs Resolutions, the Court of Appeals ruled that there is ample evidence to show that
Magdalena had a motive in accusing respondent, i.e., to pressure him to issue a permit. This is unconvincing. The record
shows that respondent had already issued the permit when Magdalena filed her letter-complaint. Indeed, she had no
more reason to charge respondent administratively, except of course to vindicate her honor.
Petitioner prays that we sustain its ruling penalizing respondent for grave misconduct and not merely for
disgraceful or immoral conduct which is punishable by suspension for six (6) months and one (1) day to one (1) year for
the first offense.[35] Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of
behavior, especially by a government official.[36] To constitute an administrative offense, misconduct should relate to or
be connected with the performance of the official functions and duties of a public officer.[37] In grave misconduct as
distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard
of established rule, must be manifest.[38]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. [39] This is apparently present in respondents case as it
concerns not only a stolen kiss but also a demand for a date, an unlawful consideration for the issuance of a permit to
operate a pre-school. Respondents act clearly constitutes grave misconduct, punishable by dismissal. [40]
We are, however, not inclined to impose the penalty of dismissal from the service. Respondent has served the
government for a period of 37 years, during which, he made a steady ascent from an Elementary Grade School Teacher
to Schools Division Superintendent. In devoting the best years of his life to the education department, he received
numerous awards.[41]This is the first time he is being administratively charged. He is in the edge of retirement. In fact,
he had filed his application for retirement when Magdalena filed her complaint. Section 16, Rule XIV, of the Rules
Implementing Book V of Executive Order No. 292 provides:
SEC. 16. In the determination of penalties to be imposed, mitigating and aggravating circumstances may be
considered. x x x.
The mitigating circumstances are enumerated in Section 53, Rule IV, of the Uniform Rules on Administrative Cases
in the Civil Service,[42] which reads in part:
SEC. 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. In the determination of the penalties to be
imposed, mitigating, aggravating and alternative circumstances attendant to the commission of the offense shall be
considered.
The following circumstances shall be appreciated:
xxxxxx
j. length of service
xxxxxx
l. and other analogous cases.
Conformably with our ruling in a similar case of sexual harassment, [43] and respondents length of service,
unblemished record in the past and numerous awards,[44] the penalty of suspension from office without pay for one (1)
year is in order.
While we will not condone the wrongdoing of public officers and employees, however, neither will we negate any
move to recognize and remunerate their lengthy service in the government.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated January 8, 1998 in CA-G.R. SP
No. 44180 is REVERSED. The CSC Resolution Nos. 966213 and 972423 are AFFIRMED, subject to the modification that
 respondent ALLYSON BELAGAN is SUSPENDED from office without pay for ONE (1) YEAR, with full credit of his
preventive suspension.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-
Morales, Callejo, Sr., Tinga, Chico-Nazario, and Garcia, JJ., concur.
Azcuna, J., on leave.

[1]
32 C.J.S. 434, citing In re Darrow, 92 N.E. 369, 175 Ind. 44.
[2]
81 Am Jur 897, citing Carter vs. State, 226 Ala 96, 145 So. 814; State vs. Potts, 78 Iowa 656, 43 NW 534; State vs. Crockett, 161
Wash 262, 296 P 1041.
[3]
Rollo, pp. 42-56. Penned by former Associate Justice Demetrio G. Demetria and concurred in by Justices Minerva P. Gonzaga-
Reyes (retired Justice of this Court), and Ramon A. Barcelona, retired.
[4]
Rollo at 52-59.
[5]
CA Rollo at 39.
[6]
Id. at 61-71.
[7]
Id. at 71.
[8]
Id. at 79-80.
[9]
Id. at 80-81.
[10]
Id. at 73-75.
[11]
Rollo at 53.
[12]
Id. at 24.
[13]
Bank of the Philippine Islands vs. Leobrera, G.R. No. 137147, January 29, 2002, 375 SCRA 81 and cases cited therein.
[14]
Villanueva vs. Court of Appeals, 355 Phil. 520 (1998); Reyes vs. Court of Appeals, 328 Phil. 171 (1996).
[15]
29 Am Jur 2d 363.
[16]
Francisco, Basic Evidence, Second Edition, 1999 at 168, citing 22A C.J.S., Criminal Law, Sec. 667(5).
[17]
Id. at 168, citing Wigmore on Evidence (Student Text), 62.
[18]
People vs. Tempongko, Jr., G.R. No. 69668, October 2, 1986, 144 SCRA 583.
[19]
Francisco, Basic Evidence, Second Edition, 1999 at 502.
[20]
Truth means conformity to fact or reality, exact accordance with that which is, or has been or shall be.
[21]
Honesty signifies the quality or state of being straight, forwardness of conduct, thought, speech etc.
[22]
Integrity has been defined as moral soundness; honesty; freedom from corrupting influence or practice, especially strictness
in the fulfillment of contracts, the discharge of agencies, trusts, and the like; uprightness, rectitude. (Francisco, Basic
Evidence, Second Edition, 1999 at 471, citing Section 11, Rule 132, Rules of Court, as amended).
There is a distinction between evidence as to the character of a party to a litigation and evidence as to the character of a
witness; in the former case character is a fact in issue or an evidentiary fact affecting a fact in issue, while the character
of the witness is collateral matter which does not pertain to the fact in issue but merely to the weight of the evidence
of such witness. (Francisco, Basic Evidence, Second Edition, 1999 at 474, citing 70 C.J.S. 821).
[23]
98 C.J.S. 494.
[24]
Francisco, Basic Evidence, Second Edition, 1999 at 170, citing 29 Am Jur 2d, Evidence, 341; 22A C.J.S., Criminal Law, 677 (2);
32 C.J.S., Evidence, 434 (b).
[25]
81 Am Jur 2d 897, supra FN 2.
Evidence of the reputation of a witness for truth and veracity twelve years prior to the trial will be excluded as too remote.
(Hapton vs. State, 78 Tex. Crim. Rep. 639, 183 S.W. 887).
Section 41, Rule 130 reads:
SEC. 41. Common reputation. Common reputation existing previous to the controversy, respecting facts of public or general
interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. x x x.
[26]
81 Am Jur 2d 905, citing United States vs. Dilts, (CA7 Ill) 501 F2d 531; Stephens vs. State, 252 Ala 183, 40 So 2d 90; Woodard
vs. State, (Ala App) 489 So 2d 1; State vs. Johnson, 106 Ariz 539, 479 P2d 424; Judy vs. Mcdaniel, 247 Ark 409, 445 SW2d
722.
[27]
81 Am Jur 2d 905.
[28]
81 Am Jur 2d, 901, citing Miller vs. Journal Co., 246 Mo 722, 152 SW 40; People vs. Brown, 72 NY 571.
[29]
Rollo at 154-156.
[30]
Id. at 161-162.
[31]
98 C.J.S. 496, citing People vs. Matson, 158 P 335, 30 C.A. 288; People vs. Strope, 272 N.Y. S. 268, 151 Misc. 580.
[32]
Id., citing State vs. Little, 94 S.E. 1, 174 N.C. 800.
[33]
People vs. Strope, supra.
[34]
Chase vs. Buencamino, Sr., L-20395, May 13, 1985, 136 SCRA 365.
[35]
Section 22 (o), Rule XIV of the Rules Implementing Book V of Executive Order No. 292.
[36]
Maguad vs. De Guzman, A.M. No. P-94-1015, March 29, 1999, 305 SCRA 469.
[37]
Lacson vs. Roque, 92 Phil. 456 (1953).
[38]
Civil Service Commission vs. Lucas, 361 Phil. 486 (1999).
[39]
Blacks Law Dictionary, p. 345.
[40]
Section 22, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides:
SEC. 22. Administrative offenses with its corresponding penalties are classified into grave, less grave, and light, depending on the
gravity of its nature and effects of said acts on the government service.
The following are grave offenses with its corresponding penalties.
(c) Grave misconduct: 1st Offense Dismissal.
[41]
CA Rollo at 78.
[42]
Resolution No. 99-1936. This Resolution was published in the September 11, 1999 issue of the Manila Standard.
[43]
Vedaa vs. Judge Valencia, 356 Phil. 317 (1998).
[44]
Judge Agcaoili vs. Judge Ramos, 311 Phil. 238 (1995).
 Republic of the Philippines
Supreme Court
Manila

FIRST DIVISION

DBP POOL OF ACCREDITED G.R. NO. 147039

INSURANCE COMPANIES,
Petitioner, Present:

PANGANIBAN, C.J.
(Chairman)
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

RADIO MINDANAO NETWORK,

INC., Promulgated:
Respondent. January 27, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

AUSTRIA-MARTINEZ, J.:

This refers to the petition for certiorari under Rule 45 of the Rules of Court seeking the review of the
Decision[1] dated November 16, 2000 of the Court of Appeals (CA) in CA-G.R. CV No. 56351, the dispositive portion of
which reads:

Wherefore, premises considered, the appealed Decision of the Regional Trial Court of Makati City,
Branch 138 in Civil Case No. 90-602 is hereby AFFIRMED with MODIFICATION in that the interest rate is hereby
reduced to 6% per annum.

Costs against the defendants-appellants.

SO ORDERED.[2]

The assailed decision originated from Civil Case No. 90-602 filed by Radio Mindanao Network, Inc. (respondent) against
DBP Pool of Accredited Insurance Companies (petitioner) and Provident Insurance Corporation (Provident) for recovery
of insurance benefits. Respondent owns several broadcasting stations all over the country. Provident covered
respondents transmitter equipment and generating set for the amount of P13,550,000.00 under Fire Insurance Policy
No. 30354, while petitioner covered respondents transmitter, furniture, fixture and other transmitter facilities for the
amount of P5,883,650.00 under Fire Insurance Policy No. F-66860.

In the evening of July 27, 1988, respondents radio station located in SSS Building, Bacolod City, was razed by fire
causing damage in the amount of P1,044,040.00. Respondent sought recovery under the two insurance policies but the
claims were denied on the ground that the cause of loss was an excepted risk excluded under condition no. 6 (c) and
(d), to wit:

6. This insurance does not cover any loss or damage occasioned by or through or in consequence, directly or
indirectly, of any of the following consequences, namely:

(c) War, invasion, act of foreign enemy, hostilities, or warlike operations (whether war be declared or not), civil
war.

(d) Mutiny, riot, military or popular rising, insurrection, rebellion, revolution, military or usurped power. [3]
The insurance companies maintained that the evidence showed that the fire was caused by members of the Communist
Party of the Philippines/New Peoples Army (CPP/NPA); and consequently, denied the claims. Hence, respondent was
constrained to file Civil Case No. 90-602 against petitioner and Provident.
After trial on the merits, the Regional Trial Court of Makati, Branch 138, rendered a decision in favor of respondent. The
dispositive portion of the decision reads:

IN VIEW THEREOF, judgment is rendered in favor of plaintiff. Defendant Provident Insurance Corporation is
directed to pay plaintiff the amount of P450,000.00 representing the value of the destroyed property insured
under its Fire Insurance Policy plus 12% legal interest from March 2, 1990 the date of the filing of the
Complaint. Defendant DBP Pool Accredited Insurance Companies is likewise ordered to pay plaintiff the sum
of P602,600.00 representing the value of the destroyed property under its Fire Insurance Policy plus 12% legal
interest from March 2, 1990.

SO ORDERED.[4]

Both insurance companies appealed from the trial courts decision but the CA affirmed the decision, with the
modification that the applicable interest rate was reduced to 6% per annum. A motion for reconsideration was filed by
petitioner DBP which was denied by the CA per its Resolution dated January 30, 2001.[5]
Hence, herein petition by DBP Pool of Accredited Insurance Companies, [6] with the following assignment of errors:

Assignment of Errors

THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT THERE WERE NO SUFFICIENT EVIDENCE
SHOWING THAT THE APPROXIMATELY TENTY [sic] (20) ARMED MEN WHO CUSED [sic] THE FIRE AT
RESPONDENTS RMN PROPERTY AT BACOLOD CITY WERE MEMBERS OF THE CPP-NPA.

THE HONORABLE COURT OF APPEALS ERRED WHEN IT ADJUDGED THAT RESPONDENT RMN CANNOT BEHELD
[sic] FOR DAMAGES AND ATTORNEYS FEES FOR INSTITUTING THE PRESENT ACTION AGAINST THE PETITIONER
UNDER ARTICLES 21, 2208, 2229 AND 2232 OF THE CIVIL CODE OF THE PHILIPPINES.[7]
Petitioner assails the factual finding of both the trial court and the CA that its evidence failed to support its allegation
that the loss was caused by an excepted risk, i.e., members of the CPP/NPA caused the fire. In upholding respondents
claim for indemnity, the trial court found that:

The only evidence which the Court can consider to determine if the fire was due to the intentional act
committed by the members of the New Peoples Army (NPA), are the testimony [sic] of witnesses Lt. Col.
Nicolas Torres and SPO3 Leonardo Rochar who were admittedly not present when the fire occurred. Their
testimony [sic] was [sic] limited to the fact that an investigation was conducted and in the course of the
investigation they were informed by bystanders that heavily armed men entered the transmitter house,
poured gasoline in (sic) it and then lighted it. After that, they went out shouting Mabuhay ang NPA (TSN, p. 12.,
August 2, 1995). The persons whom they investigated and actually saw the burning of the station were not
presented as witnesses.The documentary evidence particularly Exhibits 5 and 5-C do not satisfactorily prove
that the author of the burning were members of the NPA. Exhibit 5-B which is a letter released by the NPA
merely mentions some dissatisfaction with the activities of some people in the media in Bacolod. There was no
mention there of any threat on media facilities.[8]

The CA went over the evidence on record and sustained the findings of the trial court, to wit:

To recapitulate, defendants-appellants presented the following to support its claim, to wit: police blotter of
the burning of DYHB, certification of the Negros Occidental Integrated National Police, Bacolod City regarding
the incident, letter of alleged NPA members Celso Magsilang claiming responsibility for the burning of DYHB,
fire investigation report dated July 29, 1988, and the testimonies of Lt. Col. Nicolas Torres and SFO III
Leonardo Rochas. We examined carefully the report on the police blotter of the burning of DYHB, the
certification issued by the Integrated National Police of Bacolod City and the fire investigation report prepared
by SFO III Rochas and there We found that none of them categorically stated that the twenty (20) armed men
which burned DYHB were members of the CPP/NPA. The said documents simply stated that the said armed
men were believed to be or suspected of being members of the said group.Even SFO III Rochas admitted that
he was not sure that the said armed men were members of the CPP-NPA, thus:

In fact the only person who seems to be so sure that that the CPP-NPA had a hand in the burning of
DYHB was Lt. Col. Nicolas Torres. However, though We found him to be persuasive in his testimony regarding
how he came to arrive at his opinion, We cannot nevertheless admit his testimony as conclusive proof that the
CPP-NPA was really involved in the incident considering that he admitted that he did not personally see the
armed men even as he tried to pursue them. Note that when Lt. Col. Torres was presented as witness, he was
presented as an ordinary witness only and not an expert witness. Hence, his opinion on the identity or
membership of the armed men with the CPP-NPA is not admissible in evidence.

Anent the letter of a certain Celso Magsilang, who claims to be a member of NPA-NIROC, being an admission
of person which is not a party to the present action, is likewise inadmissible in evidence under Section 22, Rule
130 of the Rules of Court. The reason being that an admission is competent only when the declarant, or
someone identified in legal interest with him, is a party to the action. [9]

The Court will not disturb these factual findings absent compelling or exceptional reasons. It should be
stressed that a review by certiorari under Rule 45 is a matter of discretion. Under this mode of review, the jurisdiction
of the Court is limited to reviewing only errors of law, not of fact. [10]

Moreover, when supported by substantial evidence, findings of fact of the trial court as affirmed by the CA are
conclusive and binding on the parties,[11] which this Court will not review unless there are exceptional circumstances.
There are no exceptional circumstances in this case that would have impelled the Court to depart from the factual
findings of both the trial court and the CA.

Both the trial court and the CA were correct in ruling that petitioner failed to prove that the loss was caused by
an excepted risk.

Petitioner argues that private respondent is responsible for proving that the cause of the damage/loss is
covered by the insurance policy, as stipulated in the insurance policy, to wit:

Any loss or damage happening during the existence of abnormal conditions (whether physical or
otherwise) which are occasioned by or through in consequence directly or indirectly, of any of the said
occurrences shall be deemed to be loss or damage which is not covered by the insurance, except to the extent
that the Insured shall prove that such loss or damage happened independently of the existence of such
abnormal conditions.

In any action, suit or other proceeding where the Companies allege that by reason of the provisions of
this condition any loss or damage is not covered by this insurance, the burden of proving that such loss or
damage is covered shall be upon the Insured.[12]

An insurance contract, being a contract of adhesion, should be so interpreted as to carry out the purpose for
which the parties entered into the contract which is to insure against risks of loss or damage to the goods. Limitations
of liability should be regarded with extreme jealousy and must be construed in such a way as to preclude the insurer
from noncompliance with its obligations.[13]

The burden of proof contemplated by the aforesaid provision actually refers to the burden of evidence
(burden of going forward).[14] As applied in this case, it refers to the duty of the insured to show that the loss or damage
is covered by the policy. The foregoing clause notwithstanding, the burden of proof still rests upon petitioner to prove
that the damage or loss was caused by an excepted risk in order to escape any liability under the contract.

Burden of proof is the duty of any party to present evidence to establish his claim or defense by the amount of
evidence required by law, which is preponderance of evidence in civil cases. The party, whether plaintiff or defendant,
who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment. For the plaintiff, the
burden of proof never parts.[15] For the defendant, an affirmative defense is one which is not a denial of an essential
ingredient in the plaintiffs cause of action, but one which, if established, will be a good defense i.e. an avoidance of the
claim.[16]

Particularly, in insurance cases, where a risk is excepted by the terms of a policy which insures against other
perils or hazards, loss from such a risk constitutes a defense which the insurer may urge, since it has not assumed that
risk, and from this it follows that an insurer seeking to defeat a claim because of an exception or limitation in the
policy has the burden of proving that the loss comes within the purview of the exception or limitation set up. If a
proof is made of a loss apparently within a contract of insurance, the burden is upon the insurer to prove that the loss
arose from a cause of loss which is excepted or for which it is not liable, or from a cause which limits its liability. [17]

Consequently, it is sufficient for private respondent to prove the fact of damage or loss. Once respondent
makes out a prima facie case in its favor, the duty or the burden of evidence shifts to petitioner to controvert
respondents prima facie case.[18] In this case, since petitioner alleged an excepted risk, then the burden of evidence
shifted to petitioner to prove such exception. It is only when petitioner has sufficiently proven that the damage or loss
was caused by an excepted risk does the burden of evidence shift back to respondent who is then under a duty of
producing evidence to show why such excepted risk does not release petitioner from any liability. Unfortunately for
petitioner, it failed to discharge its primordial burden of proving that the damage or loss was caused by an excepted
risk.

Petitioner however, insists that the evidence on record established the identity of the author of the damage. It
argues that the trial court and the CA erred in not appreciating the reports of witnesses Lt. Col Torres and SFO II Rochar
that the bystanders they interviewed claimed that the perpetrators were members of the CPP/NPA as an exception to
the hearsay rule as part of res gestae.

A witness can testify only to those facts which he knows of his personal knowledge, which means those facts
which are derived from his perception.[19] A witness may not testify as to what he merely learned from others either
because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof
of the truth of what he has learned. The hearsay rule is based upon serious concerns about the trustworthiness and
reliability of hearsay evidence inasmuch as such evidence are not given under oath or solemn affirmation and, more
importantly, have not been subjected to cross-examination by opposing counsel to test the perception, memory,
veracity and articulateness of the out-of-court declarant or actor upon whose reliability on which the worth of the out-
of-court statement depends.[20]

Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements made by either
the participants, victims, or spectators to a crime immediately before, during, or after the commission of the crime,
when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by
the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false
statement. The rule in res gestae applies when the declarant himself did not testify and provided that the testimony of
the witness who heard the declarant complies with the following requisites: (1) that the principal act, the res gestae, be
a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a
falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending
circumstances.[21]

The Court is not convinced to accept the declarations as part of res gestae. While it may concede that these
statements were made by the bystanders during a startling occurrence, it cannot be said however, that these
utterances were made spontaneously by the bystanders and before they had the time to contrive or devise a
falsehood. Both SFO III Rochar and Lt. Col. Torres received the bystanders statements while they were making their
investigations during and after the fire. It is reasonable to assume that when these statements were noted down, the
bystanders already had enough time and opportunity to mill around, talk to one another and exchange information, not
to mention theories and speculations, as is the usual experience in disquieting situations where hysteria is likely to take
place. It cannot therefore be ascertained whether these utterances were the products of truth. That the utterances
may be mere idle talk is not remote.

At best, the testimonies of SFO III Rochar and Lt. Col. Torres that these statements were made may be
considered as independently relevant statements gathered in the course of their investigation, and are admissible not
as to the veracity thereof but to the fact that they had been thus uttered. [22]

Furthermore, admissibility of evidence should not be equated with its weight and sufficiency. [23] Admissibility
of evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already
admitted and its tendency to convince and persuade.[24] Even assuming that the declaration of the bystanders that it
was the members of the CPP/NPA who caused the fire may be admitted as evidence, it does not follow that such
declarations are sufficient proof. These declarations should be calibrated vis--vis the other evidence on record. And the
trial court aptly noted that there is a need for additional convincing proof, viz.:

The Court finds the foregoing to be insufficient to establish that the cause of the fire was the intentional
burning of the radio facilities by the rebels or an act of insurrection, rebellion or usurped power. Evidence that
persons who burned the radio facilities shouted Mabuhay ang NPA does not furnish logical conclusion that
they are member [sic] of the NPA or that their act was an act of rebellion or insurrection. Additional convincing
proof need be submitted. Defendants failed to discharge their responsibility to present adequate proof that
the loss was due to a risk excluded.[25]

While the documentary evidence presented by petitioner, i.e., (1) the police blotter; (2) the certification from
the Bacolod Police Station; and (3) the Fire Investigation Report may be considered exceptions to the hearsay rule,
being entries in official records, nevertheless, as noted by the CA, none of these documents categorically stated that
the perpetrators were members of the CPP/NPA.[26] Rather, it was stated in the police blotter that: a group of persons
accompanied by one (1) woman all believed to be CPP/NPA more or less 20 persons suspected to be CPP/NPA, [27] while
the certification from the Bacolod Police station stated that some 20 or more armed men believed to be members of
the New Peoples Army NPA,[28] and the fire investigation report concluded that (I)t is therefore believed by this
 Investigating Team that the cause of the fire is intentional, and the armed men suspected to be members of the
CPP/NPA where (sic) the ones responsible [29] All these documents show that indeed, the suspected executor of the fire
were believed to be members of the CPP/NPA. But suspicion alone is not sufficient, preponderance of evidence being
the quantum of proof.

All told, the Court finds no reason to grant the present petition.

WHEREFORE, the petition is DISMISSED. The Court of Appeals Decision dated November 16, 2000 and Resolution
dated January 30, 2001 rendered in CA-G.R. CV No. 56351 are AFFIRMED in toto.

SO ORDERED.

[1]
Penned by Associate Justice Martin S. Villarama, Jr., with Associate Justices Romeo J. Callejo, Sr. (now a Member of this Court)
and Juan Q. Enriquez, concurring.
[2]
CA rollo, p. 214.
[3]
Records, p. 135.
[4]
Id., pp. 758-759.
[5]
CA rollo, p. 231.
[6]
Provident did not file a motion for reconsideration with the CA or a petition for review on certiorari with this Court.
[7]
Rollo, p. 12.
[8]
Records, p. 758.
[9]
CA rollo, pp. 213-214.
[10]
Salvador vs. Court of Appeals, G.R. No. 124899, March 30, 2004, 426 SCRA 433, 443.
[11]
Agas vs. Sabico, G.R. No. 156447, April 26, 2005, 457 SCRA 263, 273.
[12]
Records, p. 135.
[13]
Malayan Insurance Corporation vs. Court of Appeals, 336 Phil. 977, 989 (1997).
[14]
Taada vs. Angara, 338 Phil. 546, 597 (1997).
[15]
Jison vs. Court of Appeals, 350 Phil. 138, 173 (1998).
[16]
Supreme Transliner Inc. vs. Court of Appeals, 421 Phil. 692, 698 (2001).
[17]
Country Bankers Insurance Corp. vs. Lianga Bay and Community Multi-Purpose Cooperative, Inc., 425 Phil. 511, 519 (2002).
[18]
Jison vs. Court of Appeals, supra.
[19]
Rules of Court, Rule 130, Section 36.
[20]
Country Bankers Insurance Corp. v. Lianga Bay and Community Multi-Purpose Cooperative, supra.
[21]
People vs. Mansueto, 391 Phil. 611, 630 (2000).
[22]
Peole vs. Velasquez, G.R. Nos. 132635 & 14387275, February 21, 2001, 352 SCRA 455, 476.
[23]
People vs. Manhuyod, Jr., 352 Phil. 866, 885 (1998).
[24]
People vs. Navarro, 357 Phil. 1010, 1031 (1998).
[25]
Records, p. 758.
[26]
CA rollo, p. 213.
[27]
Records, p. 451.
[28]
Id., p. 452.
[29]
Id., p. 461.
 FIRST DIVISION
[G.R. No. 147649. December 17, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANK LOBRIGAS, MARLITO LOBRIGAS (At Large) and TEODORICO MANTE
(acquitted), accused.
FRANK LOBRIGAS, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the decision[1] of the Regional Trial Court of Bohol, Branch 3, in Criminal Case No. 9694,
convicting accused-appellant Frank Lobrigas of the crime of Murder, sentencing him to suffer the penalty of reclusion
perpetua and ordering him to indemnify the heirs of the victim the amount of P50,000.00 as actual, exemplary and
moral damages.
Frank Lobrigas, Marlito Lobrigas and Teodorico Mante were charged under an information which reads:[2]
That on or about the 19th day of February, 1996 in the municipality of Loon, province of Bohol, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one
another, with intent to kill and without justifiable cause, with treachery by attacking the victim without affording the
latter an opportunity to defend himself and with abuse or taking advantage of superior strength, did then and there
willfully, unlawfully and feloniously attack, assault and box one Felix Taylaran who was already 76 years old and could
no longer put up an effective defense, thereby inflicting injuries on the vital parts of the body of the said victim which
resulted in his death; to the damage and prejudice of the heirs of the victim.
Acts committed contrary to the provisions of Article 248 of the Revised Penal Code as amended by Rep. Act. No. 7659.
Accused-appellant Frank Lobrigas and accused Teodorico Mante were arrested while Marlito Lobrigas, the brother
of accused-appellant, remains at large. Thereafter, accused-appellant escaped while under detention in the Municipal
Jail of Loon INP. Thus, trial proceeded only as against accused Teodorico Mante. Shortly after the prosecution rested its
case, herein accused-appellant was re-arrested.
Upon arraignment on October 10, 1997, accused-appellant duly assisted by counsel, pleaded not
guilty. Thereafter, separate trial was conducted against him.
The antecedent facts, as culled from the records, are as follows:
The victim Felix Taylaran was a regular farmhand of Castor Guden. On February 19, 1996, he asked for permission
not to work for it was raining and he had to go to the store of Teodorico Mante. At 4:00 p.m., Felix returned to Castor
Gudens house with bruises on his face and injuries all over his body. He told Castor that he was mauled by accused-
appellant Frank Lobrigas, accused Marlito Lobrigas and Teodorico Mante at the store. Felix spent the night in Castors
house and left the following morning to go to the seaside house of Lorie Aguilar, his cousin, to heal his wounds in the
saltwater. However, the next day, Felix Taylaran died.
Rosa Taylaran Solarte, daughter of the victim, testified that a day after the mauling, her father came to her house
and told her that he was beaten up by Frank Lobrigas, Marlito Lobrigas and Teodorico Mante. He told her that he was in
pain and felt weak. He then went to the house of Lorie Aguilar apparently to recuperate.
Dr. Tito Miranda of the Municipal Health unit of Loon, Bohol conducted an autopsy on the body of the victim and
concluded that the immediate cause of death was internal hemorrhage caused by the severe beating and mauling on
the chest portion of the victims body.
On the other hand, accused-appellant had a different version of the events. He denied the accusation and alleged
that he was asleep at the time the incident took place. He admitted that he was at the store of Teodorico Mante having
a drinking spree with his companions, Dennis Palma, Mario Granderos, Marlito Lobrigas and Rufo Creta, Jr. They were
later joined by the victim, Felix Taylaran. When Felix had too much to drink, he became rowdy and drew his knife. This
was snatched from him by Mario Granderos and turned over to Mante, who was a barangay councilman. Mante
admonished Felix and accused-appellant told him to go home. When Felix left, Mante and Marlito Lobrigas followed
him. Accused-appellant stayed behind and lay down on a bench outside the store until he fell asleep. He only learned
about the mauling incident later from Mario Granderos.
Accused-appellant likewise denied that he left his house to evade arrest. He claimed that he did not know about
the charge against him. He did not leave his house for one month after the incident upon his fathers advice, for he
might be investigated by the police. He went to Cebu City on March 10, 1996 to work at Southern Island Hospital. When
he came home months later to attend the fiesta celebration on May 15, 1996, it was then that he came to know of the
case filed against him. Then on May 18, 1996, he was arrested and detained at the Municipal Jail of Loon. Two months
and four days later, he left his cell as the door was opened by a co-prisoner and nobody was guarding them at that
time.
After trial, the court a quo rendered judgment, the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the Court is morally convinced and so finds herein accused Frank Lobrigas
GUILTY beyond reasonable doubt of the crime of MURDER, as charged, qualified by the circumstance of abuse of
superior strength as the victim was an old man of seventy six years of age. Thus, he is hereby sentenced to suffer
imprisonment of Reclusion Perpetua in accordance with Art. 248 of the Revised Penal Code under which the instant
case falls. He is further ordered to indemnify the heirs of the victim the amount of P50,000.00 as actual, exemplary and
moral damages put in one.
SO ORDERED.[3]
Hence, this appeal based on the following assigned errors:
 I
THE TRIAL COURT GRAVELY ERRED WHEN IT CONVICTED THE ACCUSED ANCHORING MAINLY ON THE EVIDENCE OF
FLIGHT;
II
THE TRIAL COURT ERRED WHEN IT SEEKED (sic) ACCUSED CONVICTION ABSENT OF ANY EVIDENCE TAGGING THE
ACCUSED FRANK LOBRIGAS;
III
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE THAT POINTS THE
ACCUSED FIST BLOW THAT PROXIMATELY CAUSED THE VICTIMS DEATH.
The issue to be resolved is whether the testimonies of the prosecution witnesses and the evidence of flight are
sufficient to establish the guilt of accused-appellant beyond reasonable doubt.
Accused-appellant contends that there was no direct evidence linking him as one of the assailants. He claims that
while there were ante-mortem declarations made by the victim to the two prosecution witnesses pointing to him as
one of the maulers, the trial court, nevertheless, dismissed them as invalid dying declaration since they were uttered by
the victim not under a consciousness of an impending death. Neither should such declarations be considered as part
of res gestae since the victim was drunk and very mad at Teodorico Mante for confiscating his knife while he was being
attacked by his assailants. Lastly, the evidence of flight is not sufficient to overcome the constitutional presumption of
innocence.
On the other hand, the prosecution argues that: (1) the victims declarations naming accused-appellant as one of
the assailants are admissible in evidence as part of the res gestaesince they were made immediately after a startling
occurrence; (2) the flight of accused-appellant after the incident and his subsequent escape from custody were
indicative of his guilt; and (3) there was no improper motive on the part of the prosecution witnesses when they
testified against accused-appellant.
In order to warrant a conviction, direct evidence is not always required. Conviction can be had on the basis of
circumstantial evidence if the established circumstances constitute an unbroken chain leading to a fair and reasonable
conclusion proving that the appellant is the author of the crime to the exclusion of all others. [4] The rules on evidence
and jurisprudence sustain the conviction of an accused through circumstantial evidence when the following requisites
concur: (1) there is more than one circumstance; (2) the inference must be based on proven facts; and (3) the
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. [5]
The circumstances proved by the prosecution and relied upon by the trial court to convict accused-appellant
clearly satisfied the foregoing requirements. First, the victim, accused appellant and others were together having a
drinking spree on the day the mauling happened. Second, the victim declared to Castor Guden immediately after the
incident that accused-appellant and two others mauled him can be considered as part of the res gestae. Third, the
victim told his daughter immediately after the incident, that accused-appellant was one of the persons who mauled
him. Fourth, Dr. Tito L. Miranda found that the victim died due to massive hemorrhage in his thoracic cavity caused by
severe beating of his breast. Lastly, accused-appellant evaded arrest and subsequently escaped from detention. The
foregoing circumstances knitted together proved accused-appellants culpability beyond reasonable doubt.
Accused-appellant insists that the statements made by the victim to Castor Guden and Rosa Solarte cannot be
considered dying declarations for they were made not under the consciousness of an impending death. Neither can
they be deemed part of the res gestae because the victim was drunk and mad at Teodorico Mante for taking away his
knife.
We agree in part with accused-appellant. Prosecution witness Castor Guden testified on what the victim told him
after the mauling incident, thus:
FISCAL:
xxxxxxxxx
Q. What time did you arrive at your house coming from your farm that afternoon?
A. 4:00 p.m. more or less.
Q. Upon arrival, what did you see?
A. I saw Felix Taylaran whose face was swollen.
Q. Seeing Felix Taylarans face swollen, what did you ask him?
A. I asked him and he told me that he was beaten by three persons.
Q. Did he mention the names of that three persons?
A. Yes, Teodorico Mante, Frank Lobrigas and Marlito Lobrigas.
xxxxxxxxx
FISCAL:
Q. You mentioned about Frank Lobrigas, Marlito Lobrigas and Teodorico Mante, as the names given to you by Felix
Taylaran, are these the same persons whom you identified a while ago?
A. Yes.
Q. What else did you ask of Felix Taylaran?
A. I asked him what was his offense committed why he was beaten?
Q. What was his answer?
A. He said, I did not know what was the cause but I saw when I passed by the store, they were drinking and they told
me to join them and even bought biscuit and cigarettes.
Q. Did Felix Taylaran tell you how he was mauled?
xxxxxxxxx
A. By boxing and kicking.
Q. What else, if any, you can remember your topic that afternoon?
A. That was all, but I told him to stay because it was getting dark.
The above testimony of Castor Guden was corroborated by Rosa Solarte, the daughter of the victim, who testified
in this wise:
Prosecutor Ligason:
xxxxxxxxx
Q. Now, do you remember having met your father on February 20, 1996?
A. Yes, Sir.
Q. Where did you meet?
A. In our house, he came to me.
xxxxxxxxx
Q. What was the purpose of your father in going to your house on February 20, 1996?
A. He reported to me about his bruises.
Q. What time was that, in the morning or in the afternoon?
A. In the afternoon.
Q. Did you see also bruises in the part of his body?
A. Yes, Sir.
Q. Where?
A. At his face and body.
Q. Did he tell you also who cause the bruises?
A. Yes, Sir.
Q. What did he tell you?
A. Frank Lobrigas, Marlito Lobrigas and Teodorico Mante.
The trial court held that although the foregoing declarations cannot be deemed a dying declaration since they do
not appear to have been made by the declarant under the expectation of a sure and impending death, the same are
nonetheless part of the res gestae. However, only the declaration made to Castor Guden are admissible in evidence as
such.
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.[6] All these requisites concur in the case at bar. The principal act,
the mauling of the victim, was a startling occurrence. The declarations were made shortly after the mauling incident
while the victim was still under the exciting influence of the startling occurrence, without any prior opportunity to
contrive a story implicating accused-appellant. The declaration concerns the circumstances surrounding the mauling of
Felix Taylaran. However, the declaration made by the victim to his daughter does not satisfy the second requirement of
spontaneity because they were made a day after the incident and the exciting influence of the startling occurrence was
no longer present. Nevertheless, we hold that Rosa Solartes testimony on what her father told her constitutes
independent relevant statements distinct from hearsay, and are thus admissible not as to the veracity thereof, but as
proof of the fact that they had been uttered.
Under the doctrine of independently relevant statements, only the fact that such statements were made is
relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply, hence, the statements are
admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement
itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. [7]
Finally, accused-appellants argument that the trial courts reliance solely on the evidence of flight cannot
overcome the constitutional presumption of innocence is not well-taken. In criminal law, flight means an act of evading
the course of justice by voluntarily withdrawing oneself to avoid arrest or detention or the institution or continuance of
criminal proceedings. The unexplained flight of the accused person may, as a general rule, be taken as evidence having
tendency to establish his guilt.[8]
In the case at bar, not only did accused-appellant evade arrest when he went to Cebu under the pretext that he
was going to work at Southern Island Hospital, but justice was further frustrated when he escaped from detention with
the flimsy excuse that no one was guarding them. These two instances of flight by accused-appellant, taken together
with the other circumstances established by the prosecution, support the trial courts finding of accused-appellants guilt
beyond reasonable doubt. Courts go by the biblical truism that the wicked flee when no man pursueth but the righteous
are as bold as a lion.[9]
However, we do not agree with the trial court that the crime committed was murder qualified by the aggravating
circumstance of abuse of superior strength. To appreciate abuse of superior strength, there must be a deliberate intent
on the part of the malefactors to take advantage of their greater number. They must have notoriously selected and
made use of superior strength in the commission of the crime. To take advantage of superior strength is to use
excessive force that is out of proportion to the means for self-defense available to the person attacked; thus, the
prosecution must clearly show the offenders deliberate intent to do so. [10]
 There was no clear indication in this case that the accused-appellant and his companions purposely used their
joint efforts to consummate the crime. Consequently, the crime committed by accused-appellant was only homicide.
The penalty for homicide is reclusion temporal. There being no aggravating or mitigating circumstance, the same
shall be imposed in its medium period from fourteen (14) years, eight (8) months and one (1) day to seventeen (17)
years and four (4) months. Applying the Indeterminate Sentence Law, accused-appellant shall be entitled to a minimum
term to be taken from the penalty next lower, prision mayor from six (6) years and one (1) day to twelve (12) years.[11]
The trial court awarded P50,000.00 as cumulated actual, exemplary and moral damages. We cannot award actual
damages considering that the expenses which the heirs allegedly incurred were not substantiated by evidence other
than the sole testimony of the Rosa Solarte. The award of actual damages cannot rest on the bare allegation of the
heirs of the victim.Failure to substantiate such claim negates the award for actual damage.[12] The award of exemplary
damages must likewise be deleted considering the absence of any aggravating circumstance. Thus, the heirs of Felix
Taylaran are only entitled to P50,000.00 as moral damages, which needs no proof other than the fact of death of the
victim.[13]
WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of Bohol, Branch 3, in Criminal
Case No. 9694, is MODIFIED. Accused-appellant Frank Lobrigas is found GUILTY beyond reasonable doubt of Homicide
for the death of Felix Taylaran and is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day
of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as
maximum. Accused-appellant is ORDERED to pay the heirs of the victim moral damages in the amount of P50,000.00
and to pay the cost. The awards of actual and exemplary damages are DELETED for lack of factual and legal basis.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.

[1]
Penned by Judge Venancio J. Amila.
[2]
Rollo, p. 9.
[3]
Rollo, p. 23.
[4]
People v. Bulan, G.R. No. 133224, January 25, 2002.
[5]
People v. Baniega, G.R. No. 139578, February 15, 2002.
[6]
People v. Cantonjos, G.R. No. 136748, November 21, 2001.
[7]
People v. Velasquez, 352 SCRA 455, 476 [2001].
[8]
People v. Dumalahay, G.R. Nos. 131837-38, April 2, 2002, citing People v. Cirilo, 346 SCRA 648, 660 [2000].
[9]
People v. Licayan, G.R. No. 144422, February 28, 2002.
[10]
People v. Beruega, G.R. No. 142931, April 11, 2002.
[11]
Supra, note 8.
[12]
People v. Nacario, 346 SCRA 478, 484 [2000].
[13]
People v. Labitad, G.R. No. 132793, May 7, 2002.
SECOND DIVISION

PEPITO CAPILA Y YRUMA, G.R. No. 146161

Petitioner,
Present:

PUNO, J., Chairperson,

SANDOVAL-GUTIERREZ,
- versus - CORONA,
AZCUNA, and
GARCIA, JJ.

THE PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent.
July 17, 2006

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

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the Petition for Review on Certiorari of the Decision [1] dated November 10, 2000 of the Court of
Appeals in CA-G.R. CR No. 18903, entitled The People of the Philippines v. Pepito Capila y Yruma.
On August 24, 1993, an Information for robbery was filed with the Regional Trial Court, Branch 148, Makati City,
against Pepito Capila y Yruma, herein petitioner, his brother Bonifacio Capila y Yruma, Deogenio Caparoso y Porfero,
and Dimas dela Cruz y Lorena.
The Information, docketed as Criminal Case No. 93-7117, is quoted as follows:
That on or about the 9th day of August 1993, in the Municipality of Makati, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with alias Jose and alias Gil, whose true identities and present whereabouts are still unknown and all
of them mutually helping and aiding one another, with intent to gain and by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously take, steal and carry away cash money
amounting to P1.3 million and three (3) caliber paltik firearms in the total amount of P18,000.00, belonging
to Pilipinas Bank represented by Juan Iglesia y Orgil and Lanting Security Agency represented by Edgar Lucero
y Iribayen, respectively, to the damage and prejudice of the complainants in the aforementioned amount
of P1.3 million and P18,000.00, respectively.

Upon being arraigned, all the accused, assisted by counsel, pleaded not guilty. Trial commenced thereafter.
The evidence for the prosecution, as culled from the testimonies of Edgardo Irigayen, Ariel Arellano,
SPO2 Dioscorro Asinas, Jr., and SPO4 Romualdo Maximo, is summarized as follows:[2]
Petitioner Pepito Capila was a security guard of the Lanting Security and Watchman Agency assigned in
the Meralco Collection Office on J.P. Rizal Street, Makati City.
On May 9, 1992, Ariel Arellano and Lani Imperio, both employees of the Pilipinas Bank, Libertad Branch in Pasay City,
went to the Meralco Collection Office to receive and deposit cash collections from Meralcos 27 collectors. The total
collection for that day amounted to P1,292,991.12. They then placed the money inside a duffle bag table and had it
padlocked. Then they waited for the Pilipinas Banks armored car to arrive. The security guard posted at
the Meralco Collection Office at the time was Dimas dela Cruz, also from the Lanting Security and Watchman Agency.
Before the armored car could arrive, two armed men suddenly entered the Meralco Collection Office. They
hit Dimas on the nape with a handgun. Then they ordered Ariel and Lani to lie on the floor face down and immediately
took the duffle bag containing Meralcos cash collections. They also seized three .38 caliber revolvers, valued
at P6,000.00 each, owned by the Lanting Security and Watchman Agency, including the service handgun issued
to Dimas.
After the malefactors fled, Dimas told Ariel that petitioner was one of those who robbed the office. Then Dimas called
the Makati Police Sub-Station 9, the Meralco Security Division, and the Lanting Security and Watchman Agency to
report the incident. The Makati Police dispatched SPO4 Romualdo Maximo to investigate the robbery, while
the Lanting Security and Watchman Agency instructed its intelligence officer, Edgardo Irigayen, to talk to the guard on
duty.
 SPO4 Maximo, accompanied by a police photographer, a fingerprint technician, and another policeman, arrived within
ten minutes at the Meralco Collection Office. He questioned Ariel and Lani, but they could not identify the robbers as
they were lying face down on the floor. Upon inquiry by SPO4 Maximo, Dimas told him that one of the robbers is
petitioner, also a security guard of the Lanting Security and Watchman Agency assigned in the Meralco Collection
Office. Thereafter, SPO4 Maximo invited Dimas, Lani and Ariel to the police station for the purpose of taking their
sworn statements.
Irigayen, the intelligence officer of the Lanting Security and Watchman Agency, also questioned Dimas. The latter
reported that Pepito Capila is one of the robbers.
After the incident, petitioner fled to his hometown in Palapag, Northern Samar. The Lanting Security and Watchman
Agency then requested SPO4 Maximo and his team to go to Northern Samar to apprehend Capila.
In Northern Samar, the police operatives, with the assistance of the Citizens Armed Forces Geographical Unit, arrested
petitioner, his brother Bonifacio Capila, and DeogenioCaparoso. The police found P5,000.00 in possession of petitioner
allegedly part of the loot. All the suspects were arrested without warrants.
SPO4 Maximo interrogated petitioner who admitted that he participated in the commission of the crime; that his share
of the loot is P45,000.00; and that Dimas is the mastermind.
After the prosecution had rested its case, all the accused, through counsel, filed a Demurrer to Evidence but it was
denied by the trial court.
When the case was called for the continuation of the hearing on November 15, 1994, the accused waived their right to
present their evidence, opting to submit their respective memoranda instead.
On January 3, 1995, the trial court rendered its Decision acquitting all the accused, except petitioner, thus:
WHEREFORE, premises considered:
1. And finding that the prosecution failed to prove the guilt of accused Bonifacio Capila, Deogenes Caparoso,
and Dimas dela Cruz beyond reasonable doubt, they are hereby acquitted.
2. And finding Pepito Capila guilty beyond reasonable doubt of the crime of Robbery defined under Article 293
and penalized under Article 294 par. 5 of the Revised Penal Code, with the presence of the aggravating
circumstance of abuse of confidence, use of a firearm, and betrayal of trust, he is hereby sentenced to an
indeterminate prision term of from EIGHT (8) years as minimum to TEN (10) years as maximum.
Pepito Capila is also ordered to pay:
1. Lanting Security Agency the sum of P18,000 for the value of the three firearms not recovered and belonging
to said agency;
2. The sum of P1,292,991.12 to Pilipinas Bank, the amount taken and not recovered.
With costs against accused Pepito Capila.

In his appeal to the Court of Appeals, petitioner alleged that the trial court erred in admitting in evidence the
statement of Dimas that he (petitioner) is one of the robbers.He was denied due process because he was not able to
cross-examine Dimas as the latter did not testify.
On November 10, 2000, the Court of Appeals promulgated its Decision affirming the assailed judgment of the
trial court, thus:

WHEREFORE, premises considered, the appealed decision (dated January 3, 1995) of the Regional
Trial Court (Branch 148) in Makati, Metro Manila in Criminal Case No. 93-7217 is hereby AFFIRMED with costs
against the accused-appellant.
SO ORDERED.

Hence, the instant petition for Review on Certiorari.

The fundamental issue for our resolution is whether the prosecution was able to prove the guilt of herein
petitioner beyond reasonable doubt.
A careful scrutiny of the records shows that the prosecution relied heavily on the testimony of
SPO4 Maximo that immediately after the incident, Dimas reported to him that one of the robbers is petitioner. The
Court of Appeals, in affirming the court a quos judgment convicting petitioner, ruled that Dimas statement is part of
the res gestae.
In the appellees brief, the Solicitor General reiterated the appellate courts ruling.
Res gestae is a Latin phrase which literally means things done. As an exception to the hearsay rule, it refers to
those exclamations and statements by either the participants, victims, or spectators to a crime immediately before,
during or immediately after the commission of the crime, when the circumstances are such that the statements were
made as spontaneous reactions or utterances inspired by the excitement of the occasion, and there was no opportunity
for the declarant to deliberate
and fabricate a false statement.[3] The reason for the rule is human experience. It has been shown that under certain
external circumstances of physical or mental shock, the state of nervous excitement which occurs in a spectator may
produce a spontaneous and sincere response to the actual sensations and perceptions produced by the external
shock. As the statements or utterances are made under the immediate and uncontrolled domination of the senses,
rather than reason and reflection, such statements or utterances may be taken as expressing the real belief of the
speaker as to the facts he just observed. The spontaneity of the declaration is such that the declaration itself may be
regarded as the event speaking through the declarant rather than the declarant speaking for himself.[4]
The rule on res gestae is provided under Section 42, Rule 130 of the Revised Rules of Court, thus:
SEC. 42. Part of the res gestae. Statements made by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also statements accompanying an equivocal act material to the issue,
and giving it a legal significance, may be received as part of the res gestae.

For the admission of the res gestae in evidence, the following requisites must be met: (1) that the principal act
or the res gestae be a startling occurrence; (2) the statement is spontaneous or was made before the declarant had
time to contrive or devise, and the statement is made during the occurrence or immediately or subsequent thereto;
and (3) the statement made must concern the occurrence in question and its immediately attending circumstances. [5]
The Court of Appeals found that all the above requisites are present, thus:
First. The principal act is a startling occurrence which is the robbery in question.
Second. Dimas Dela Cruz informed the investigating officers that it was appellant who robbed
the Meralco office immediately after the incident occurred and before he had the time to contrive a story.
The robbery happened at around eight oclock in the evening of August 9, 1993 (p. 4, TSN, February
24, 1994). Immediately after the incident, dela Cruz called up the police station (p. 17, TSN, January 31,
1994). In ten minutes, SPO4 Maximo and his companion were in the Meralco office where they immediately
conducted an investigation (pp. 3-9, TSN, February 24, 1994). During this investigation, DELA Cruz pointed to
appellant as one of the perpetrators of the crime.
Further, immediately after the robbers fled, dela Cruz informed Ariel Arellano (the bank
representative detailed at the Meralco office) that appellant was one of those who robbed the office (pp. 15-
17, TSN, January 31, 1994).
In other words, statement of dela Cruz was spontaneous as correctly observed by the trial court.
Third. The statement of dela Cruz refers to the robbery or incident subject matter of this case.
We are in accord with the Court of Appeals in its conclusion that all the requisites of the rule on res gestae are
present. The principal act, which by any measure is undoubtedly a startling occurrence, is the robbery of which
petitioner is being charged. Immediately after the robbery, Dimas dela Cruz, the security guard then on duty, informed
Ariel that one of the perpetrators is herein petitioner. Dimas likewise reported at once the incident to the police and to
the security agency. When questioned by SPO4 Maximo, Dimas, who was still shocked, named petitioner herein as one
of the robbers. His statements to Ariel and SPO4 Maximo were made before he had the time and opportunity to
concoct and contrive a false story. We note that Dimas personally knows petitioner considering that both worked in the
same security agency and assigned in the same office.
Petitioner contends that since Dimas dela Cruz did not take the witness stand, he (petitioner) was deprived of
his right to cross-examine him. Thus, the Court of Appeals should not have considered Dimas statement as part of
the res gestae. Our ruling in Ilocos Norte Electric Company v. Court of Appeals[6] is relevant.
In this case, it appears that in the evening of June 28 until the early morning of June 29, 1967, a strong
typhoon (Gening) occurred in Ilocos Norte, bringing heavy rains and consequent flooding. While one Isabel Lao Juan
was wading in waist-deep flood along Guerrero Street, Laoag City, suddenly she screamed, Ay and quickly sank into the
water. Her two companions, Aida Bulong and Linda Estavillo, shouted for help. Ernesto dela Cruz arrived and tried to
approach Isabel who was electrocuted. But at four meters away from her, Ernesto turned back shouting, the water is
grounded. This Court ruled that the Court of Appeals properly applied the principle of res gestae. The testimonies of
Aida and Linda that Ernesto dela Cruz tried to approach the victim, but he turned back and shouted, the water is
grounded, are not hearsay although he (Ernesto) was not presented as a witness. His declaration is part of
the res gestae.
Applying the above ruling on the instant case, we cannot consider the testimony of SPO4 Maximo as hearsay
since the statement of Dimas that petitioner is one of the robbers is part of the res gestae.
Moreover, despite the damaging testimonies of the witnesses for the prosecution, petitioner did not testify to
rebut them. Such posture is admission in silence.
Section 32, Rule 130 of the New Rules on Evidence provides:
Sec. 32. Admission by silence . An act or declaration made in the presence and within the hearing or
observation of a party who does or says nothing when the act or declaration is such as naturally to call for
action or comment if not true, and when proper and possible for him to do so, may be given in evidence
against him.
Another factor that militates against petitioners innocence is his flight to Samar after the commission of the
crime. Obviously, such flight is an indication of guilt.
Verily, we hold that the prosecution, by its evidence, has established the guilt of petitioner beyond reasonable
doubt.
WHEREFORE, we DENY the petition. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 18903
finding petitioner PEPITO CAPILA y YRUMA guilty beyond reasonable doubt of the crime of robbery is AFFIRMED.
With costs de oficio.
SO ORDERED.
[1]
Rollo, pp. 33-55. Penned by Associate Justice Ramon Mabutas, Jr.,(retired), and concurred in by Associate Justice Roberto A.
Barrios and Associate Justice Eriberto U. Rosario, Jr. (retired).
[2]
Based on the findings of the trial court and adopted by the Court of Appeals.
[3]
People v. Sanchez, G.R. No. 74740, August 28, 1992, 213 SCRA 70, 78, citing Underhills Criminal Evidence, 5th ed., Vol. I, Section
266, p. 664; Whartons Criminal Evidence, 12th ed., Vol. I, Section 279, p. 624; Keefe v. State, 50 Ariz, 293, 72 Pac 2d ed.
425, cited in Wigmore on Evidence, 3rd ed., Vol. VI, Section 1745, pp. 132-133; Wharton, op. cit., Section 280, p. 632.

[4]
People v. Sanchez, id., citing Wharton, op. cit., Section 280, p. 632.
[5]
People v. Queliza, G.R. No. 124135, September 15, 1997, 279 SCRA 145, 158, citing People v. Equilona, 249 SCRA 139
(1995), Anciro v. People, 228 SCRA 629 (1993), Pantranco North Express, Inc. v. Court of Appeals, 224 SCRA 477
(1993), People v. Tolentino, 218 SCRA 337 (1993).
[6]
G.R. No. 53401, November 6, 1989, 179 SCRA 5.
 FIRST DIVISION
G.R. No. 214453, June 17, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BERNABE P. PALANAS ALIAS "ABE", Accused-Appellant.
DECISION
PERLAS-BERNABE, J.:
Before the Court is an ordinary appeal1 filed by accused-appellant Bernabe P. Palanas alias "Abe" (Palanas) assailing the
Decision2 dated January 16, 2014 of the Court of Appeals (CA) in CA-G.R. CR HC No. 04925, which affirmed the
Decision3 dated October 20, 2010, of the Regional Trial Court of Pasig City, Branch 157 (RTC) in Criminal Case No.
133352-H finding Palanas guilty beyond reasonable doubt of the crime of Murder under the Revised Penal Code
(RPC).chanRoblesvirtualLawlibrary
The Facts

An Information4 was filed before the RTC charging Palanas of the murder of SPO2 Ramon Borre y Orio (SPO2
Borre), viz.:

On or about March 26, 2006, in Pasig City, and within the jurisdiction of this Honorable Court, the accused [Palanas],
acting in conspiracy with one male person who is at-large, whose true identity and whereabout[s] are still unknown
acted as co-principal in the killing of one SPO2 Ramon Borre y Orio, committed as follows: said male person, armed with
a gun, with intent to kill and with the qualifying circumstances of treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault, and shot one SPO2 Ramon Borre y Orio on his head and
different parts of his body which directly caused his death, and thereafter, took the firearm of the said victim, boarded
a motorcycle driven by the accused who thereafter, drove the motorcycle away from the scene of the crime.

Contrary to Law.5

The prosecution presents the following version of the facts:

At around 6:40 in the morning of March 26, 2006, SPO2 Borre took his five (5)-month-old grandson outside his
residence at Block 14, Kenneth Street corner Eusebio Avenue, Pasig City. PO3 Leopoldo Zapanta (PO3 Zapanta), who
slept at SPO2 Borre's residence, was watching television when four (4) successive gunshots rang out. PO3 Zapanta
looked through the open door of SPO2 Borre's house and saw two (2) men armed with .38 caliber revolvers standing a
meter away from SPO2 Borre. He saw Palanas deliver the fourth shot to SPO2 Borre, but he could not identify the other
shooter. Thereafter, the two (2) assailants fled on a motorcycle.6

PO3 Zapanta, together with SPO2 Borre's stepson Ramil Ranola (Ramil), brought SPO2 Borre to the Pasig City General
Hospital. On the way to the hospital, SPO2 Borre told Ramil and PO3 Zapanta that it was "Abe," "Aspog," or "Abe
Palanas" - referring to his neighbor, Palanas -who shot him. This statement was repeated to his wife, Resurreccion
Borre (Resurreccion), who followed him at the hospital. At around 11 o'clock in the morning of even date, SPO2 Borre
died due to gunshot wounds on his head and trunk. 7

For his part, Palanas interposed the defense of denial and alibi. He claimed that on March 25, 2006 he was in
Parafiaque City attending to the needs of his sick father. The next day, he went to a baptism in Tondo, Manila and
stayed there from morning until 9 o'clock in the evening, after which he returned to his father in Parafiaque City. He
maintained that he was not aware of the death of SPO2 Borre until he was informed by a neighbor that Resurreccion
was accusing him of killing her husband. He also denied any knowledge why Resurreccion would blame him for SPO2
Borre's death.8
The RTC Ruling

In a Decision9 dated October 20, 2010, the RTC convicted Palanas of the crime of Murder and sentenced him to suffer
the penalty of reclusion perpetua, and ordered him to pay the heirs of SPO2 Borre the amounts of: (a) f50,000.00 as
civil indemnity; (b) P25,000.00 as exemplary damages; (c) P50,000.00 as moral damages; and (d) P2,464,865.07 10 as
actual damages.11

The RTC found that the prosecution had established beyond reasonable doubt that Palanas and his companion were
the ones who killed SPO2 Borre through the positive identification of the eyewitnesses to the incident. Moreover, SPO2
Borre's statements that Palanas shot him constituted an ante mortem statement and formed part of the res gestae,
and, thus, admissible as evidence against Palanas. It further opined that treachery attended SPO2 Borre's killing as he
had no inkling that the attack would take place, and that he was in no position to mount any feasible defense. 12 The
RTC, however, did not appreciate evident premeditation because of the absence of the following elements: (a) the time
when the offender determined to commit the crime; (b) an act manifestly indicating that the accused clung to his
determination; and (c) a sufficient lapse of time between determination and execution to allow himself time to reflect
upon the consequences of his act.13
On the other hand, the RTC gave no credence to Palanas's defense of alibi. It observed that it was not physically
impossible for Palanas to be at the locus criminis as his own witness even stated that the distance between Pasig City
and Paranaque City could be traversed in less than one (1) hour.14

Dissatisfied, Palanas appealed his conviction to the CA. 15

The CA Ruling

In a Decision16 dated January 16, 2014, the CA affirmed the RTC's ruling with modification increasing the amounts
awarded to the heirs of SPO2 Borre to F75,000.00 as civil indemnity, and P30,000.00 as exemplary damages.

The C A found all the elements of the crime of Murder to be present, giving probative weight to the dying declaration of
SPO2 Borre that it was Palanas who shot him. It also found the presence of treachery as SPO2 Borre was in no position
to defend himself when he was successively shot. 17

Aggrieved, Palanas filed the instant appeal.18

The Issue Before the Court

The issue for the Court's resolution is whether or not Palanas's conviction for the crime of Murder should be
upheld.chanRoblesvirtualLawlibrary
The Court's Ruling

The appeal is bereft of merit.

Murder is defined and penalized under Article 248 of the RPC, as amended by Republic Act No. (RA) 7659, 19 as
follows:chanroblesvirtuallawlibrary
Art. 248. Murder. Any person who, not falling within the provisions of Article 246, shall kill another, shall be guilty of
murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant
circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken
the defense, or of means or persons to insure or afford impunity.

xxxx
Treachery is a well-established concept in criminal law. "There is treachery when the offender commits any of the
crimes against a person, employing means, methods or forms in the execution thereof which tend directly and specially
to insure its execution, without risk to himself arising from the defense which the offended party might make."20 There
are two (2) conditions therefore that must be met for treachery to be appreciated: (a) the employment of means of
execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) the means of
execution was deliberately or consciously adopted.21

The essence of treachery is that the attack comes without warning in a swift, deliberate, and unexpected manner,
granting the victim no chance to resist or escape. The attack must be sudden and unexpected rendering the victim
unable and unprepared to put up a defense. 22

With the foregoing in mind, the Court agrees with the findings of the RTC and the CA that Pal anas killed SPO2 Borre,
and that the qualifying circumstance of treachery attended the same. The records show that SPO2 Borre was outside
carrying his grandson when two (2) assailants shot him. During the attack, SPO2 Borre had no opportunity to raise any
meaningful defense against his assailants; and consequently, he suffered multiple gunshot wounds on his head and
trunk, causing his death.23

The CA is also correct in admitting SPO2 Borre's statements on his way to the hospital as evidence, both as a dying
declaration and as part of the res gestae.

For a dying declaration24 to constitute an exception to the hearsay evidence rule,25 four (4) conditions must concur: (a)
the declaration must concern the cause and surrounding circumstances of the declarant's death; (b) that at the time
the declaration was made, the declarant is conscious of his impending death; (c) the declarant was competent as a
witness; and (d) the declaration is offered in a criminal case for Homicide, Murder, or Parricide where the declarant is
the victim.26 On the other hand, a statement to be deemed to form part of the res gestae,27 and thus, constitute
another exception to the rule on hearsay evidence, requires the concurrence of the following requisites: (a) the
principal act, the res gestae, is a startling occurrence; (b) the statements were made before the declarant had time to
contrive or devise; and (c) the statements must concern the occurrence in question and its immediately attending
circumstances.28
In the case at bar, SPO2 Borre's statements constitute a dying declaration, given that they pertained to the cause and
circumstances of his death and taking into consideration the number and severity of his wounds, it may be reasonably
presumed that he uttered the same under a fixed belief that his own death was already imminent. 29 This declaration is
considered evidence of the highest order and is entitled to utmost credence since no person aware of his impending
death would make a careless and false accusation. 30 Verily, because the declaration was made in extremity, when the
party is at the point of death and when every motive of falsehood is silenced and the mind is induced by the most
powerful considerations to speak the truth, the law deems this as a situation so solemn and awful as creating an
obligation equal to that which is imposed by an oath administered in court. 31

In the same vein, SPO2 Borre's statements may likewise be deemed to form part of the res gestae. "Res gestae refers to
the circumstances, facts, and declarations that grow out of the main fact and serve to illustrate its character and are so
spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation and fabrication. The test
of admissibility of evidence as a part of the res gestae is, therefore, whether the act, declaration, or exclamation is so
intimately interwoven or connected with the principal fact or event that it characterizes as to be regarded as a part of
the transaction itself, and also whether it clearly negates any premeditation or purpose to manufacture testimony." 32 In
this case, SPO2 Borre's statements refer to a startling occurrence, i. e., him being shot by Palanas and his companion.
While on his way to the hospital, SPO2 Borre had no time to contrive the identification of his assailants. Hence, his
utterance was made in spontaneity and only in reaction to the startling occurrence. Definitely, such statement is
relevant because it identified Palanas as one of the authors of the crime. Therefore, the killing of SPO2 Borre,
perpetrated by Palanas, is adequately proven by the prosecution. 33

On the other hand, the Court does not find credence in Palanas's defense of alibi. It is axiomatic that alibi is an
inherently weak defense,34 and may only be considered if the following circumstances are shown: (a) he was
somewhere else when the crime occurred; and (b) it would be physically impossible for him to be at the locus
criminis at the time of the alleged crime.35 In this case, the RTC correctly observed that aside from the admission that
travel from Paranaque City to Pasig City only takes about one (1) hour, the incident occurred on a Sunday when traffic is
not usually heavy. Moreover, Palanas had access to a motorcycle that allowed him to travel faster on the date and time
of the incident.36 Under the circumstances, there is the possibility that Palanas could have been present at the locus
criminis at the time of the shooting. Accordingly, his defense of alibi must fall.

Anent the proper penalty to be imposed upon Palanas, Section 3 of RA 9346 37 provides that "[p]ersons 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." Pursuant thereto, Palanas should be sentenced to suffer the penalty of reclusion perpetua, without
eligibility for parole.38

Finally, to conform with prevailing jurisprudence, the Court increases the amounts of damages awarded to the heirs of
SPO2 Borre, as follows: (a) P75,000.00 as civil indemnity; (b) P75,000.00 as moral damages; and (c) P30,000.00 as
exemplary damages,39 all with interest at the rate of six percent (6%) per annum from the date of finality of judgment
until the same are fully paid.40

WHEREFORE, the appeal is DENIED. The Decision dated January 16, 2014 of the Court of Appeals in CA-G.R. CR HC No.
04925 finding accused-appellant Bernabe P. Palanas alias "Abe", GUILTY beyond reasonable doubt of the crime of
Murder as defined and punished under Article 248 of the Revised Penal Code is hereby AFFIRMED WITH
MODIFICATION, in that he is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole, and
ordered to pay the heirs of SPO2 Ramon Borre y Orio the amounts of P75,000.00 as civil indemnity, P75,000.00 as
moral damages, P30,000.00 as exemplary damages, and P2,464,865.07 as actual damages, all with legal interest at the
rate of six percent (6%) per annum from the finality of judgment until full payment.

SO ORDERED.chanroblesvirtuallawlibrary

Sereno, C. J., (Chairperson), Leonardo-De Castro, Bersamin, and Perez, JJ., concur.
Endnotes:

1
See Notice of Appeal dated January 30, 2014; rollo, pp. 19-21.

2
Id. at 2-18. Penned by Associate Justice Elihu A. Ybanez with Associate Justices Japar B. Dimaampao and Melchor
Quirino C. Sadang concurring.

3
CA rollo, pp. 27-41. Penned by Pairing Judge Nicanor A. Manalo, Jr.

4
Id. at 11-12.
5
Id.
6
Rolo, p. 3
7
Id. at 3-4.
8
CA rollo, pp. 31-32.

9
Id. at 27-41.

10
Id. at 41. The RTC provided a breakdown of the amount awarded as actual damages:chanroblesvirtuallawlibrary
Medical Expenses P4,968.50
Funeral Expenses P64,000.00
Attorney's Fees:
Acceptance
P15,000.00
Fee
Total
Appearance P27,500.00
Fee
Unrealized Earnings
P2,353,396.57
and Income
TOTAL: P2,464,865.07
11
Id.

12
See id. at 36-39.

13
Id. at 36.

14
Id. at 38-39.

15
See Notice of Appeal dated February 18,2011; id. at 42.

16
Rollo, pp. 2-18.17 See id. at 11-16.
18
See Notice of Appeal dated January 30, 2014; id. at 19-21.
19
Entitled "AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE
THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES" (approved on
December 13, 1993).

20
Item 16, Article 14 of the RPC.
21
See People v. Umawid, G.R. No. 208719, June 9, 2014. citing People v. Lacaden, 620 Phil. 807, 824 (2009).
22
See People v. Warriner, G.R. No. 208678, June 16, 2014.
23
Rollo, pp. 3-5.

24
Section 37, Rule 130 of the Rules of Court provides:chanroblesvirtuallawlibrary
Section 37. Dying declaration. The declaration of a dying person, made under the consciousness of an impending
death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.
25
"Evidence is hearsay when its probative force depends in whole or in part on the competency and credibility of some
persons other than the witness by whom it is sought to produce." (See Espineli v. People, G.R. No. 179535, June 9,
2014.) See also Section 36, Rule 130 of the Rules of Court.

26
People v. Salafranca, G.R. No. 173476, February 22, 2012, 666 SCRA 501, 512.

27
Section 42, Rule 130 of the Rules of Court provides:chanroblesvirtuallawlibrary
Section 42. Part of res gestae. Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of
the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.
28
People v. Villarico, Sr., 662 Phil. 399, 418 (2011).

29
People v. Cerilla, 564 Phil. 230, 240 (2007).
30
Id., citing People v. Cortezano, 425 Phil. 696, 715 (2002).
31
Id. at 241, citing United States v. Gil, 13 Phil. 530, 549 (1909); People v. Saliling, 161 Phil. 559, 572- 573 (1976).
32
See People v. Gatarin, G.R. No. 198022, April 7, 2014, citing People v. Salafranca, G.R. No. 173476, February 22, 2012,
666 SCRA 501, 514.
33
See id.
34
People v. Arnistoso, G.R. No. 201447, January 9, 2013, 688 SCRA 376, 394, citing People v. Abulon, 557 Phil. 428, 447
(2007).
35
People v. Agcanas, G.R. No. 174476, October 11, 2011, 658 SCRA 842, 847.
36
CA rollo, pp. 38-39.
37
Entitled "AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES" (approved on June 24,
2006).

38
See People v. Arguta, G.R. No. 213216, April 22, 2015. See also People v. Gani, G.R. No. 195523, June 5, 2013, 697
SCRA 530, 540.

39
People v. Serenas, 636 Phil. 495, 512-513 (2010).

40
See People v. Balute, G.R. No. 212932, January 21, 2015.
 THIRD DIVISION
[G.R. No. 136303. July 18, 2000]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTHONY MELCHOR PALMONES, ANTHONY BALTAZAR
PALMONES, accused-appellants.
DECISION
GONZAGA-REYES, J.:
This is an appeal by accused-appellants Anthony Melchor Palmones and Anthony Baltazar Palmones from the
decision[1] of Branch 17 of the Regional Trial Court of Kidapawan, Cotabato, 12th Judicial Region, convicting them of the
crime of murder[2]
The information[3]dated June 4, 1997 charging accused-appellants of the crime of murder reads as follows:
That in the evening of April 27, 1997 at Barangay Magsaysay, Municipality of Kidapawan, Province of Cotabato,
Philippines, the above-named accused, with intent to kill, armed with a gun, did then and there, willfully, conspiring,
confederating and mutually helping one another, unlawfully, feloniously and with treachery, attack, assault, and shot
the person of SPO2 ASIM MAMANSAL, thereby hitting and inflicting upon the latter gunshot wounds on the vital parts
of his body which is the cause of the death thereafter.
CONTRARY TO LAW.
Both accused were arraigned on July 15, 1997 and both pleaded not guilty to the charge against them. Thereafter,
trial on the merits commenced.
The prosecution first presented Sonny Boy Redovan, a 28 year-old farmer who was the nephew of the victim. He
testified that at around 10:00 in the evening of April 27, 1997, his mother and elder brother informed him that
something had happened to his uncle SP02 Asim Mamansal. They then rushed to the Kidapawan Doctors Hospital and
proceeded to the emergency room. Upon seeing his uncle, the witness went near him and asked him what had
happened to him. His uncle answered that he had been waylaid. The witness then asked the victim who the
perpetrators were and the victim answered that it was Juany and Tony Palmones which were the nicknames of the two
accused-appellants.[4] He claimed that while he was talking with his uncle, there were attendants, nurses, and other
bystanders whom he did not know present inside the emergency room. A few minutes after he talked with the victim, a
certain Dr. Aguayo arrived and examined the wounds of his uncle. About and hour later, he saw Police Inspector
Alexander Tagum arrive and he heard him ask his uncle who had shot him.The witness then heard his uncle positively
answer the policeman that his assailants were Juany and Tony Palmones. [5]
On cross-examination, he testified that he was able to talk with his uncle for about one hour and that the most
important part of their conversation was the identification of his uncles assailants. [6] He stated that it did not occur to
his mind to immediately report to the police what his uncle had told him as his mind was troubled at that time. It was
only after the burial of his uncle on April 28, 1997 that he told Insp. Tagum that it was Tony and Juany Palmores who
had shot his uncle.[7]
The prosecution next presented Dr. Hazel Mark Aguayo who testified that he was the surgeon-on-duty on the day
that SP02 Mamansal was shot. He stated that before he operated on the victim, he interviewed Mamansal and one of
the questions he asked is whether the victim had known who had shot him. He claimed that Mamansal told him that he
did not know who had shot him.[8] He did not pursue this line of questioning further as he was told by a companion of
the victim that the area where the victim was shot was dark. [9] He testified that he operated on the victim at around
12:00 in the evening. He operated for around four (4) hours but the victim developed cardio respiratory arrest at
around 8:30 the following morning and thereafter, the victim died in the ward.[10]
On cross-examination, he stated that it was Sonny Boy Redovan who was with SP02 Mamansal at the time that he
was interviewing the victim and that it was Redovan who told him that the assailant could not be identified because the
area where the shooting happened was dark.[11] He likewise claimed that before he arrived at the hospital, a certain Dr.
Caridad Jalipa was already attending to the victim and that she told him that the victim remained silent when she asked
him about the person who shot him.[12]
The third witness for the prosecution was Police Inspector Alexander Camilon-Tagum. He testified that on the
night of April 27, 1997, he was at the Kidapawan, Cotabato Police Outpost. After receiving a radio report, he proceeded
to Brgy. Magsaysay, Kidapawan where he discovered that one of his men, SP02 Mamansal, was shot. [13] After
conducting an initial investigation of the crime scene, he sent his men towards different directions to look for
suspects. He then proceeded to the hospital together with another witness, Alice Villamor. On the way to the hospital,
Alice Villamor pointed to a passing motorcycle and told him that it was the motorcycle the assailants were riding. He
chased the motorcycle but he was not able to catch up with them as his car ran out of gas. [14] He was able to borrow a
motorcycle and he proceeded to chase the other motorcycle again. While riding on the borrowed motorcycle, a certain
PO3 Aniceta called him on the radio and told him that the assailants were Juany and Tony Palmones. [15] He and his men
proceeded to the residence of the suspects where the brother of the accused-appellants, Triny Palmones, met them. He
asked Triny Palmones where his brothers were and the latter responded that he didnt know. He then asked Triny
Palmones whether his brothers owned a motorcycle and the latter admitted that they owned a Kawasaki motorcycle
which matched the description of the motorcycle he had been chasing.[16] He then told his men to continue pursuing
the assailants and after exhausting all efforts, he proceeded to the Kidapawan Doctors Hospital. He confronted the
victim in the emergency room and asked him about his assailants. The victim answered that it was Juany and Tony
Palmones.[17] At that time, he claimed that Dr. Aguayo and two other medical ladies were inside the room.
 On cross-examination, he testified that he was able to speak with Alice Villamor about the incident but that she
told him that she was not able to identify the assailant even though she was right beside the victim because of
darkness.[18] He admitted that when he went to the hospital, he was already entertaining the idea that the suspects
were Juany and Tony Palmones because of the radio call he received earlier. He likewise admitted that the only
question which he asked the victim was who shot you? and that he was not able to reduce his findings to writing. [19]
The next witness for the prosecution was Mila Arimao Mamansal, the wife of the victim, who testified mainly on
the expenses she incurred because of the death of her husband. She also stated that she was able to talk with witness
Sonny Boy Redovan at the hospital but the latter did not tell her anything about the alleged assailants of her husband. It
was only on April 29, 1997 that she heard Redovan tell the Chief of Police of Kidapawan that Juany and Tony Palmones
were the ones who had shot her husband.[20]
The prosecution next presented Asmyra Mamansal, the daughter of the victim. She testified that on the night of
the incident, she was at her aunts house where she was informed about the shooting of her father. She immediately
proceeded to the hospital where she saw her father lying on a bed calling her name. Her father then told her to take
down the name Alice Villamor whom she knew as the name of her fathers mistress. [21] She was able to talk with her
father for about thirty minutes.
On cross-examination, she testified that in the course of her conversation with her father, her father did not tell
her the reason why he mentioned the name of Alice Villamor nor did he tell her about the persons who had shot
him.[22]
The other two witnesses of the prosecution identified the death certificate [23] of SPO2 Mamansal and the extract
of the police blotter[24] where the shooting incident was recorded.
For their part, accused-appellants presented ten (10) witnesses to support their case.
The first witness, Alex Siago, a barangay kagawad, testified that he was one of the first persons to go to the victim
after the latter was shot.[25] He stated that a certain Patricio Fuertes and Samuel Angelio then brought the victim to the
Kidapawan Doctors Hospital. Thereafter, another kagawad, a certain Gregorio Lonzaga called up the police to report
the incident.[26] A few minutes later, Inspector Tagum arrived and proceeded to make an investigation of the
incident. He also claimed that he was the one who lent Insp. Tagum his motorcycle when the latter gave chase to
another motorcycle bearing two passengers.[27] Considering that he was only five (5) meters away from the motorcycle
when it passed by, he was able to see the faces of the passengers and he was certain that they were not the two
accused-appellants.[28]
The next witness, Patricio Fuertes, testified that he was person who brought the victim to the hospital.[29] At the
hospital, he saw three policemen, whom he did not recognize, talking with the victim. He was about a meter away from
the bed of the victim when he heard a policeman, ask Mamansal whether he had recognized who had shot him. He
then heard the victim reply that he did not recognize his assailants. [30] He likewise told the court that while he was
bringing the victim to the hospital, he was not able to talk with Mamansal and neither did the victim identify his
assailants.[31]
The next witness for the defense was Alicia Villamor, the alleged girlfriend of the victim and his companion at the
time he was shot. She testified that in the evening of April 27, 1997, she was in her store together with the victim. At
around 10:00 p.m., she closed shop and went home together with Mamansal and her two helpers. [32] While they were
already near her house in Magsaysay, someone suddenly shot Mamansal. She was just at the side of Mamansal when
the shooting happened but she claimed that she was not able to identify the assailants as it was dark. [33] Patricio
Fuertes then brought the victim to the hospital but she did not accompany him as her clothes were stained with
blood. After changing her clothes, a group of policemen arrived at the crime scene. After conferring with the
policemen, she then rode with Insp. Tagum in going to the hospital.[34] On the way, Insp. Tagum tried to halt a passing
motorcycle. When the passengers of the motorcycle kept on going, Insp. Tagum fired warning shots and gave chase but
the car they were riding in ran out of gas. He then saw Alex Siago provide Tagum with a motorcycle and again the latter
gave chase.[35] She claimed that she was not able to see the persons riding the motorcycle as it was moving quite
fast. When she finally arrived at the hospital, she saw that Insp. Tagum was already there. She was then able to talk
with the victim who told her that he did not see the person who had shot him. [36]
The next witness, Rommel Arambala, a 27 year old neighbor of Alive Villamor, corroborated the testimonies the
three previous witnesses.
The defense also called the two accused-appellants to support their defense of alibi.
Accused-appellant Anthony Melchor Palmones testified that at the time of the incident, he was in his house in
Kisulan, Sultan Kudarat, having a drinking session with friends. He estimated that Kisulan, Sultan Kudarat was at least
two hours away from the scene of the crime.[37] Their group started drinking at around 8:00 in the evening and they
only finished drinking at around 11:00 p.m. By 11:30, their group had already dispersed. [38] He admitted knowing the
victim as a policeman in Kidapawan but he denied having a quarrel or a grudge against him. [39]
The testimony of accused-appellant Anthony Melchor Palmones was corroborated by witnesses SPO1 Ramil
Bahian and Jolito Silva.
For his part, accused-appellant Anthony Baltazar Palmones claimed that at the time of the shooting of Mamansal,
he was at his house in Datu Piang St., Kidapawan, Cotabato, having a drink with a few friends. He stated that on the day
of the incident, at around 5:00 p.m. of April 27, 1997, he was resting inside his home as he had just come from
work. While in his house, Rodolfo Barrientos arrived to borrow some money from him. [40] After giving him the money,
the accused asked Rodolfo Barrientos to stay for dinner and to have some drinks. While they were drinking tuba, Jerry
Barrientos arrived and joined them. They only stopped drinking at around 11:00 p.m.[41] The accused likewise testified
that he only knew the victims surname and that he did not have any quarrel with or grudge against the victim in the
past.[42]
On cross-examination, he denied that he drove a motorcycle to work. He admitted however, that during the
drinking spree, he went out of his house to buy tuba from a nearby store. [43]On re-direct, he stated that the store was
only 10 to 15 meters away from his home and that he was only gone for 2 to 5 minutes.[44]
Accused-appellant Anthony Baltazar Palmoness testimony was corroborated by Rodolfo Barrientos and Jerry
Barrientos who both claimed that they were drinking with accused-appellant at the latters home at the time of the
incident.
On May 8, 1998, the trial court rendered its questioned decision finding accused-appellants guilty of the crime of
murder. The dispositive portion of the decision reads, as follows:
WHEREFORE, prescinding (sic) from the foregoing facts and considerations, the Court finds both accused Anthony
Melchor Palmones and Anthony Baltazar Palmones guilty beyond reasonable doubt, as principal of the crime of
Murder, hereby sentenced (sic) both accused each to suffer the penalty of Reclusion Perpetua and to indemnify the
heirs of Asim Mamansal, the sum of P50,000.00 and to pay the costs.
Accused-appellants filed a Motion for Reconsideration[45] of this decision but the trial court, in an Order dated 26
October 1998[46], denied the same for lack of merit. Hence, this appeal where accused-appellants raise the following
assignment of errors:
I.
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO
PROVE THEIR GUILT BEYOND REASONABLE DOUBT.
II.
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANTS BASED ON THE WEAKNESS OF THEIR DEFENSE.
III.
THE FACTS, AS ESTABLISHED BY ALL THE EVIDENCE PRESENTED DO NOT SUPPORT THE LOWER COURTS FINDING OF
GUILT.
IV.
THE COURT A QUO COMMITTED A PALPABLE ERROR AND HAD DEMONSTRATED CLEAR BIAS AND PREJUDICE IN FAVOR
OF THE PROSECUTION AND AGAINST THE ACCUSED.
V.
THE COURT A QUO ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONY OF SONNY BOY REDOVAN AND
INSPECTOR ALEXANDER TAGUM.
VI.
THE COURT A QUO ERRED IN FINDING THAT THE VICTIM, ASIM MAMANSAL WAS ABLE TO IDENTIFY HIS ASSAILANTS
BEFORE HE DIED.
VII.
THE COURT A QUO ERRED IN CONSIDERING THE ALLEGED DYING DECLARATION OF ASIM MAMANSAL AS AN EXCEPTION
TO THE HEARSAY RULE.
VIII.
THE COURT A QUO ERRED IN CONSIDERING THE ALLEGED DYING DECLARATION OF ASIM MAMANSAL AS PART OF THE
RES GESTAE RULE.
The Office of the Solicitor General (OSG), for its part, filed a Manifestation in Lieu of Brief [47] where it
recommended that the accused-appellants be acquitted of the crime charged against them. In this Manifestation, the
OSG reasoned that the identity of the assailants was not sufficiently established by the evidence of the prosecution and
that the trial court erred in admitting the alleged dying declaration of the victim as an exception to the hearsay rule.
From the records of the case, the conviction of the two accused-appellants was based largely on the alleged dying
declaration of the victim made to two witnesses of the prosecution and the apparent weakness of their defense of
alibi. It behooves us therefore to determine the admissibility of the alleged oral dying declaration of the deceased Asim
Mamanal as testified to by prosecution witnesses Sonny Boy Redovan and Police Investigator Alexander Tagum.
As a rule, a dying declaration is hearsay, and is inadmissible as evidence. [48] This is pursuant to Rule 130, section 30
of the Rules of Court which states:
Sec. 30. Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those
facts which he knows of his own knowledge; that is, which are derived from his own perception, except as otherwise
provided in these rules.
There are several exceptions however to the rule of inadmissibility of hearsay evidence, the first one of which is
the admissibility of dying declarations given under the circumstances specified in Section 31, Rule 130 of the Rules of
Court, to wit:
Sec. 31. Dying declaration. The declaration of a dying person, made under a consciousness of an impending death, may
be received in a criminal case wherein his death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death
As such, the requirements for the admissibility of an ante mortem statement are: (a) it must concern the crime
and the surrounding circumstances of the declarants death; (b) at the time it was made, the declarant was under a
 consciousness of impending death; (c) the declarant was competent as a witness; and (d) the declaration was offered in
a criminal case for murder, murder or parricide win which the decedent was the victim.[49]
As testified to by prosecution witness Sonny Boy Redovan, the supposed dying declaration of the victim was made
as follows:
PROS. DE GUZMAN:
Q: Did you reach the Kidapawan Doctors Hospital, Inc.?
A: Yes, sir.
Q: What did you discover?
A: Upon arrival, I immediately proceeded to the emergency room.
Q: What did you do in the emergency room?
A: I saw my uncle there lying.
Q: Are you referring to SPO2 Asim Mamansal?
A: Yes, sir.
Q: What did you do after that?
A: Upon seeing his condition I went near him and whispered Ano ba ang nangyari sa yo? meaning What happened to you?
Q: What was the answer, if any?
A: His answer (sic) that he was waylaid.
Q: What else did he tell you?
A: I was worried after saying those words, I asked him who are the perpetrators.
Q: What was the answer?
A: And he said Its Juany and Tony Palmones.
Q: When those words uttered to you (sic) where there other persons inside the room?
A: Attendants, nurses, ususero, I do not know the others. [50]
In a similar vein, Police Investigator Alexander Tagum likewise testified that the victim named the two accused as
his assailants prior to the victims death. Thus:
Q: What did you do at the Kidapawan Doctors Hospital?
A: I immediately went to the room wherein SPO1 Mamansal was lying.
Q: What did you do while you were inside the room where SPO1 Mamansal was lying?
A: I immediately confronted him sir and immediately asked the question: Who shot you?
Q: What was the answer?
A: SPO1 Mamansal answered sir, it is Juany and Tony Palmones.
XXX
Q: Can you remember who were your companions (sic) inside the room where SPO2 Mamansal was lying?
A: I noticed two (2) ladies medical orderly (sic) and Dr. Aguayo.[51]
In cases where an alleged dying declaration is sought to be admitted, it must be proven that that the declaration
was made under a consciousness of impending death which means simply that the declarant is fully aware that he is
dying or going to die from his wounds or injuries soon or imminently, or shall have a complete conviction that death is
at hand, or there must be a settled hopeless expectation.[52]
In the instant case, it was not established by the prosecution that the statements of the declarant concerning the
cause and surrounding circumstances of his death were made under the consciousness of impending death. No proof to
this effect was ever presented by the prosecution. It was not shown whether Sonny Boy Redovan or Inspector
Alexander Tagum ever asked the victim whether he believed that he was going to die out of his injuries or any other
similar question. Sonny Boy Redovan claimed that he was able to talk with the victim for around an hour but the only
thing he revealed of their conversation was the alleged identification of the victim of his two assailants. [53] For his part,
Inspector Tagum admitted that the only question he asked of the victim was if the victim knew who had shot him.[54]
While it is true that the law does not require that the declarant explicitly state his perception that he has given up
the hope of life[55], the circumstances surrounding his declaration must justify the conclusion that he was conscious of
his impending death.[56] In the instant case, it was not proven that the victim was ever aware of the seriousness of his
condition. As testified to by Dr. Mark Aguayo, the vital signs of the victim, prior to his operation, were quite
stable.[57] Moreover, from the time the victim was brought to the hospital at 10:30 p.m. until his operation at 12:00
midnight, he was still able to talk intelligently with at least four (4) other persons on various matters. The fact that his
vital signs were strong and that he still had strength to converse with these four (4) witnesses belie the conclusion that
the victim was under the consciousness of death by reason of the gravity of his wounds.
Neither may the alleged statements attributed to the victim be admissible as part of the res gestae. Res
gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a crime
immediately before, during, or immediately after the commission of a crime, when the circumstances are such that the
statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there
was no opportunity for the declarant to deliberate and to fabricate a false statement. [58]
In order to admit statements as evidence part of the res gestae, the element of spontaneity is critical. The
following factors have generally been considered in determining whether statements offered in evidence as part of
the res gestae have been made spontaneously: (1) the time that lapsed between the occurrence of the act or
transaction and the making of the statement; (2) the place where the statement was made; (3) the condition of the
declarant when he made the statement; (4) the presence or absence of intervening events between the occurrence and
the statement relative thereto; and (5) the nature and circumstances of the statement itself. [59]
Tested against these factors to test the spontaneity of the statements attributed to the victim, we rule that these
statements fail to qualify as part of the res gestae. When Mamansal allegedly uttered the statements attributed to him,
an appreciable amount of time had already elapsed from the time that he was shot as the victim was shot at around
10:00 p.m. but he only uttered the statements attributed to him about 30 minutes to an hour later. Moreover, he
allegedly made these statements not at the scene of the crime but at the hospital where he was brought for
treatment. Likewise, the trip from the scene of the crime to the hospital constituted an intervening event that could
have afforded the victim opportunity for deliberation. These circumstances, taken together, indubitably show that the
statements allegedly uttered by Mamansal lack the requisite spontaneity in order for these to be admitted as part of
the res gestae.
Finally, after a thorough reading of the testimonies presented by both sides, it is even doubtful that the victim
ever uttered these alleged ante mortem statements in the first place. We note that the testimonies of Sonny Boy
Redovan and Investigator Alexander Tagum are contradicted not only by the witnesses for the defense but also by the
prosecutions own witnesses.
Dr. Mark Aguayo, the doctor who performed the operation on the victim and who is an impartial and disinterested
witness, categorically stated that the victim told him that he did not recognize those who had shot him. [60] He likewise
testified that witness Sonny Boy Redovan told him in the emergency room that the victim was not able to recognize his
assailants because of darkness.[61] Similarly, the wife and the daughter of Asim Mamansal, who were also able to talk
with the victim prior to his death, likewise denied that the victim ever told them the identity of his assailants. We fail to
see why the victim should choose to tell some people the identity of his assailants and deny his knowledge of the same
to others.
With respect to the witnesses for the defense, Alex Siago and Patricio Fuertes, who were both present at the site
of the shooting immediately after the incident, testified that they did not hear the victim identify his assailants. Patricio
Fuertes even stated that at the hospital, he heard Mamansal tell the police officers present that he did not recognize
those who had shot him.Most importantly, Alice Villamor, who was the lover of the victim and who was with him during
the shooting, categorically stated that it was not possible to recognize the assailants as the area where the shooting
happened was dark. Moreover, she was able to talk with Mamansal at the hospital where he told her that he did not
see the persons who had shot him. This testimony of Villamor is quite significant and we fail to see why the trial court
failed to consider the same in its decision. Alice Villamor, as the lover of the victim, had no motive to lie for the defense
and had all the reason to speak the truth in order to seek justice for the death of her lover.
As previously stated, the trial court based its judgment of conviction on the alleged ante mortem statements of
the victim and the apparent weakness of the defense put up by the two accused-appellants. As it now stands however,
the weakness of the alibi of the two accused-appellants cannot be held against them in view of the absence of a clear
and positive identification of them as the perpetrators of the crime. And while their alibi may not have been proven so
satisfactorily as to leave no room for doubt, such an infirmity can not strengthen the weakness of the prosecutions
evidence, the reason being that in a criminal prosecution, the State must rely on the strength of its own evidence and
not on the weakness of the defense.[62]
WHEREFORE, premises considered, the judgment dated 8 May 1998 of Branch 17 of the Regional Trial Court of
Kidapawan, Cotabato is hereby REVERSED and SET ASIDE.Accused-appellants Anthony Melchor Palmones and Anthony
Baltazar Palmones are ACQUITTED and ordered RELEASED from confinement unless they are being held for some other
legal grounds.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

[1]
Rollo, pp. 17-34.
[2]
In Criminal Case No. 65-97 penned by Judge Rodolfo M. Serrano.
[3]
Rollo, pp. 6-7.
[4]
T.S.N., July 29, 1997, pp. 4-5.
[5]
Ibid, pp. 5-6.
[6]
Ibid, p. 19.
[7]
Ibid, p. 34.
[8]
Ibid, pp. 42-44.
[9]
Ibid, p. 44.
[10]
Ibid, pp. 49-57.
[11]
Ibid, pp. 63-64.
[12]
Ibid, pp. 84-86.
[13]
Ibid, pp. 96-98.
[14]
Ibid, pp. 102-106.
[15]
Ibid, pp. 108-110.
[16]
Ibid, pp. 110-113.
[17]
Ibid, pp. 114-115.
[18]
Ibid, pp. 125-127.
[19]
Ibid, pp. 134-135.
[20]
T.S.N., July 31, 1997, pp. 14-15.
[21]
Ibid, pp. 74-77.
[22]
Ibid, pp. 83-87.
[23]
Exhibit G.
[24]
Exhibit H.
[25]
T.S.N., September 2, 1997, pp. 7-8.
[26]
Ibid, pp. 10-12.
[27]
Ibid, p. 207
[28]
Ibid,pp. 20-22.
[29]
Ibid, p. 35.
[30]
Ibid, pp. 41-42.
[31]
Ibid, p. 43.
[32]
Ibid, pp. 58-59.
[33]
Ibid, p. 61.
[34]
Ibid, pp. 66-67.
[35]
Ibid, pp 67-69.
[36]
Ibid, pp. 62-63.
[37]
T.S.N., September 30, 1997, p. 19.
[38]
Ibid, p. 18.
[39]
Ibid, p. 20.
[40]
Ibid, pp. 27-29.
[41]
Ibid, pp. 29-33.
[42]
Ibid, p. 33.
[43]
Ibid, pp. 34-35.
[44]
Ibid, p. 37.
[45]
Records, pp. 859-879.
[46]
Records, pp. 903-906.
[47]
Rollo, pp. 213-227.
[48]
People vs. Gado, 298 SCRA 466.
[49]
People vs. Viovicente, 286 SCRA 1; People vs. Bergante, 286 SCRA 629.
[50]
T.S.N., July 29, 1997, pp. 4-5.
[51]
Ibid, pp. 114-117.
[52]
People vs. Lazarte, 200 SCRA 361.
[53]
T.S.N., July 29, 1997, p. 19.
[54]
Ibid, p. 135.
[55]
People vs. Bautista, 271 SCRA 613.
[56]
People vs. Narca, 275 SCRA 696.
[57]
T.S.N., July 29, 1997, p.81.
[58]
People vs. Sanchez, 213 SCRA 70.
[59]
People vs. Manhuyod, Jr., 290 SCRA 257.
[60]
T.S.N., July 29, 1997, pp. 42-44.
[61]
Ibid, pp. 63-64.
[62]
People vs. Lazart, supra; People vs. Somontano, 128 SCRA 415.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172031 July 14, 2008
JUANITO TALIDANO, Respondents.
vs.
FALCON MARITIME & ALLIED SERVICES, INC., SPECIAL EIGHTH DIVISION OF THE COURT OF APPEALS, AND LABOR
ARBITER ERMITA C. CUYUGA, Petitioner,
DECISION
TINGA, J.:
This Petition for Certiorari1 under Rule 65 of the Rules of Court seeks to annul the Decision 2 and Resolution3 of the
Court of Appeals, dated 16 November 2005 and 2 February 2006, respectively, which upheld the validity of the
dismissal of Juanito Talidano (petitioner). The challenged decision reversed and set aside the Decision 4 of the National
Labor Relations Commission (NLRC) and reinstated that of the Labor Arbiter.5
Petitioner was employed as a second marine officer by Falcon Maritime and Allied Services, Inc. (private respondent)
and was assigned to M/V Phoenix Seven, a vessel owned and operated by Hansu Corporation (Hansu) which is based in
Korea. His one (1)-year contract of employment commenced on 15 October 1996 and stipulated the monthly wage at
$900.00 with a fixed overtime pay of $270.00 and leave pay of $75.00.6
Petitioner claimed that his chief officer, a Korean, always discriminated against and maltreated the vessels Filipino
crew. This prompted him to send a letter-complaint to the officer-in-charge of the International Transport Federation
(ITF) in London, a measure that allegedly was resented by the chief officer. Consequently, petitioner was dismissed on
21 January 1997. He filed a complaint for illegal dismissal on 27 October 1999. 7
Private respondent countered that petitioner had voluntarily disembarked the vessel after having been warned several
times of dismissal from service for his incompetence, insubordination, disrespect and insulting attitude toward his
superiors. It cited an incident involving petitioners incompetence wherein the vessel invaded a different route at the
Osaka Port in Japan due to the absence of petitioner who was then supposed to be on watch duty. As proof, it
presented a copy of a fax message, sent to it on the date of incident, reporting the vessels deviation from its course
due to petitioners neglect of duty at the bridge,8 as well as a copy of the report of crew discharge issued by the master
of M/V Phoenix Seven two days after the incident. 9
Private respondent stated that since petitioner lodged the complaint before the Labor Arbiter two (2) years and nine (9)
months after his repatriation, prescription had already set in by virtue of Revised POEA Memorandum Circular No. 55,
series of 1996 which provides for a one-year prescriptive period for the institution of seafarers claims arising from
employment contract.10
On 5 November 2001, the Labor Arbiter rendered judgment dismissing petitioners complaint, holding that he was
validly dismissed for gross neglect of duties. The Labor Arbiter relied on the fax messages presented by private
respondent to prove petitioners neglect of his duties, thus:
x x x The fax message said that the Master of M/V Phoenix Seven received an emergency warning call from Japan Sisan
Sebo Naika Radio Authority calling attention to the Master of the vessel M/V Phoenix Seven that his vessel is invading
other route [sic]. When the Master checked the Bridge, he found out that the Second Officer (complainant) did not
carry out his duty wathch. There was a confrontation between the Master and the Complainant but the latter insisted
that he was right. The argument of the Complainant asserting that he was right cannot be sustained by this Arbitration
Branch. The fact that there was an emergency call from the Japanese port authority that M/V Phoenix Seven was
invading other route simply means that Complainant neglected his duty. The fax message stating that Complainant was
not at the bridge at the time of the emergency call was likewise not denied nor refuted by the Complainant. Under our
jurisprudence, any material allegation and/or document which is not denied specifically is deemed admitted. If not of
the timely call [sic] from the port authority that M/V Phoenix Seven invaded other route, the safety of the vessel, her
crew and cargo may be endangered. She could have collided with other vessels because of complainants failure to
render watch duty.11
On appeal, the NLRC reversed the ruling of the Labor Arbiter and declared the dismissal as illegal. The dispositive
portion of the NLRCs decision reads:
WHEREFORE, premises considered, the decision appealed from is hereby reversed and set aside and a new one entered
declaring the dismissal of the complainant as illegal. Respondents Falcon Maritime & Allied Services, Inc. and Hansu
Corporation are hereby ordered to jointly and severally pay complainant the amount equivalent to his three (3) months
salary as a result thereof.12
The NLRC held that the fax messages in support of the alleged misbehavior and neglect of duty by petitioner have no
probative value and are self-serving. It added that the ships logbook should have been submitted in evidence as it is
the repository of all the activities on board the vessel, especially those affecting the performance or attitude of the
officers and crew members, and, more importantly, the procedures preparatory to the discharge of a crew member.
The NLRC also noted that private respondent failed to comply with due process in terminating petitioners
employment.13
Private respondent moved for reconsideration,14 claiming that the complaint was filed beyond the one-year prescriptive
period. The NLRC, however, denied reconsideration in a Resolution dated 30 August 2002.15Rejecting the argument that
the complaint had already prescribed, it ruled:
Records show that respondent in this case had filed a motion to dismiss on the ground of prescription before the Labor
Arbiter a quo who denied the same in an Order dated August 1, 2000. Such an Order being unappealable, the said issue
of prescription cannot be raised anew specially in a motion for reconsideration. (Citations omitted) 16
It appears that respondent received a copy of the NLRC Resolution 17 on 24 September 2002 and that said resolution
became final and executory on 7 October 2002. 18
Private respondent brought the case to the Court of Appeals via a Petition for Certiorari19 on 8 October 2002. The
petition, docketed as CA-G.R. Sp. No. 73521, was dismissed on technicality in a Resolution dated 29 October 2002. The
pertinent portion of the resolution reads:
(1) [T]he VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING was signed by one Florida Z. Jose, President of
petitioner Falcon Maritime and Allied Services, Inc., without proof that she is the duly authorized representative of
petitioner-corporation;
(2) [T]here is no affidavit of service of the petition to the National Labor Relations Commission and to the adverse party;
(3) [T]here is no explanation to justify service by mail in lieu of the required personal service. (Citations omitted) 20
An entry of judgment was issued by the clerk of court on 23 November 2002 stating that the 29 October 2002
Resolution had already become final and executory.21 Meanwhile, on 12 November 2002, private respondent filed
another petition before the Court of Appeals,22 docketed as CA G.R. SP No. 73790. This is the subject of the present
petition.
Petitioner dispensed with the filing of a comment. 23 In his Memorandum,24 however, he argued that an entry of
judgment having been issued in CA-G.R. SP No. 73521, the filing of the second petition hinging on the same cause of
action after the first petition had been dismissed violates not only the rule on forum shopping but also the principle of
res judicata. He highlighted the fact that the decision subject of the second petition before the Court of Appeals had
twice become final and executory, with entries of judgment made first by the NLRC and then by the Court of Appeals.
The appellate court ultimately settled the issue of prescription, categorically declaring that the one-year prescriptive
period applies only to employment contracts entered into as of 1 January 1997 and not those entered prior thereto,
thus:
x x x The question of prescription is untenable. Admittedly, POEA Memorandum Circular [No.] 55 prescribing the
standard terms of an employment contract of a seafarer was in effect when the respondent was repatriated on January
21, 1997. This administrative issuance was released in accordance with Department Order [No.] 33 of the Secretary of
Labor directing the revision of the existing Standard Employment Contract to be effective by January 1, 1997. Section
28 of this revised contract states: all claims arising therefrom shall be made within one year from the date of the
seafarers return to the point of hire.
It is crystal clear that the one-year period of prescription of claims in the revised standard contract applies only to
employment contracts entered into as of January 1, 1997. If there is still any doubt about this, it should be removed by
the provision of Circular [No.] 55 which says that the new schedule of benefits to be embodied in the standard contract
will apply to any Filipino seafarer that will be deployed on or after the effectivity of the circular.
The respondent was deployed before January 1, 1997. As acknowledged by the petitioners, the rule prior to Circular
[No.] 55 provided for a prescriptive period of three years. We cannot avoid the ineluctable conclusion that the claim of
the respondent was filed within the prescriptive period. 25
Despite ruling that prescription had not set in, the appellate court nonetheless declared petitioners dismissal from
employment as valid and reinstated the Labor Arbiters decision.
The appellate court relied on the fax messages issued by the ship master shortly after petitioner had committed a
serious neglect of his duties. It noted that the said fax messages constitute the res gestae. In defending the non-
presentation of the logbook, it stated that three years had already passed since the incident and Hansu was no longer
the principal of private respondent.
Petitioners motion for reconsideration was denied. Hence he filed this instant petition.
Citing grave abuse of discretion on the part of the Court of Appeals, petitioner reiterates his argument that the
appellate court should not have accepted the second petition in view of the fact that a corresponding entry of
judgment already has been issued. By filing the second petition, petitioner believes that private respondent has
engaged in forum shopping.26
Private respondent, for its part, defends the appellate court in taking cognizance of the second petition by stressing
that there is no law, rule or decision that prohibits the filing of a new petition for certiorari within the reglementary
period after the dismissal of the first petition due to technicality. 27 It rebuts petitioners charge of forum shopping by
pointing out that the dismissal of the first petition due to technicality has not ripened into res judicata, which is an
essential element of forum shopping.28
In determining whether a party has violated the rule against forum shopping, the test to be applied is whether the
elements of litis pendentia are present or whether a final judgment in one case will amount to res judicata in the
other.29 This issue has been thoroughly and extensively discussed and correctly resolved by the Court of Appeals in this
wise:
The respondents two arguments essay on certain developments in the case after the NLRC rendered its decision. He
points out with alacrity that an entry of judgment was issued twice first by the NLRC with respect to its decision and
then by the Ninth Division of the Court of Appeals after it dismissed on technical grounds the first petition for certiorari
filed by the petitioner. Neither event, for sure, militates against the institution of a second petition for certiorari. A
decision of the NLRC is never final for as long as it is the subject of a petition for certiorari that is pending with a
superior court. A contrary view only demeans our certiorari jurisdiction and will never gain currency under our system
of appellate court review. It is more to the point to ask if a second petition can stand after the first is dismissed, but
under the particular circumstances in which the second was brought, we hold that it can. The theory of res judicata
invoked by the respondent to bar the filing of the second petition does not apply. The judgment or final resolution in
the first petition must be on the merits for res judicata to inhere, and it will not be on the merits if it is founded on a
consideration of only technical or collateral points. Yet this was exactly how the first petition was disposed of. SP 73521
was dismissed as a result of the failure of the petitioner to comply with the procedural requirements of a petition for
certiorari. The case never touched base. There was no occasion for the determination of the substantive rights of the
parties and, in this sense, the merits of the case were not involved. The petitioner had actually the option of either
refilling [sic] the case or seeking reconsideration in the original action. It chose to file SP 73790 after realizing that it still
had enough time left of the original period of 60 days under Rule 65 to do so.
Since the dismissal of the first petition did not ripen into res judicata, it may not be said that there was forum shopping
with the filing of the second. The accepted test for determining whether a party violated the rule against forum
shopping insofar as it is applicable to this setting is whether the judgment or final resolution in the first case amounts to
res judicata in the second. Res judicata is central to the idea of forum shopping. Without it, forum shopping is non-
existent. The dismissal of the first petition, moreover, if it does not amount to res judicata, need not be mentioned in
the certification of non-forum shopping accompanying the second action. The omission will not be fatal to the viability
of the second case. (Citations omitted)30
Private respondent, in turn, questions the propriety of the instant certiorari petition and avers that the issues raised by
petitioner can only be dealt with under Rule 45 of the Rules of Court. 31 Against this thesis, petitioner submits that the
acceptance of the petition is addressed to the sound discretion of this Court. 32
The proper remedy to assail decisions of the Court of Appeals involving final disposition of a case is through a petition
for review under Rule 45. In this case, petitioner filed instead a certiorari petition under Rule 65. Notwithstanding this
procedural lapse, this Court resolves to rule on the merits of the petition in the interest of substantial justice, 33 the
underlying consideration in this petition being the arbitrary dismissal of petitioner from employment.
Petitioner submits that the Court of Appeals erred in relying merely on fax messages to support the validity of his
dismissal from employment. He maintains that the first fax message containing the information that the vessel
encroached on a different route was a mere personal observation of the ship master and should have thus been
corroborated by evidence, and that these fax messages cannot be considered as res gestae because the statement of
the ship master embodied therein is just a report. He also contends that he has not caused any immediate danger to
the vessel and that if he did commit any wrongdoing, the incident would have been recorded in the logbook. Thus, he
posits that the failure to produce the logbook reinforces the theory that the fax messages have been concocted to
justify his unceremonious dismissal from employment. Hence, he believes that his dismissal from employment
stemmed from his filing of the complaint with the ITF which his superiors resented. 34
Private respondent insists that the appellate court is correct in considering the fax messages as res gestae statements.
It likewise emphasizes that non-presentment of the logbook is justified as the same could no longer be retrieved
because Hansu has already ceased to be its principal. Furthermore, it refutes the allegation of petitioner that he was
dismissed because he filed a complaint with the ITF in behalf of his fellow crew members. It claims that petitioners
allegation is a hoax because there is no showing that the alleged complaint has been received by the ITF and that no
action thereon was ever taken by the ITF.35
Private respondent also asserts that petitioner was not dismissed but that he voluntarily asked for his repatriation. This
assertion, however, deserves scant consideration. It is highly illogical for an employee to voluntarily request for
repatriation and then file a suit for illegal dismissal. As voluntary repatriation is synonymous to resignation, it is proper
to conclude that repatriation is inconsistent with the filing of a complaint for illegal dismissal. 36
The paramount issue therefore boils down to the validity of petitioners dismissal, the determination of which generally
involves a question of fact. It is not the function of this Court to assess and evaluate the facts and the evidence again,
our jurisdiction being generally limited to reviewing errors of law that might have been committed by the trial court or
administrative agency. Nevertheless, since the factual findings of the Court of Appeals and the Labor Arbiter are at
variance with those of the NLRC, we resolve to evaluate the records and the evidence presented by the parties.37
The validity of an employee's dismissal hinges on the satisfaction of two substantive requirements, to wit: (1) the
dismissal must be for any of the causes provided for in Article 282 of the Labor Code; and (2) the employee was
accorded due process, basic of which is the opportunity to be heard and to defend himself. 38
The Labor Arbiter held that petitioners absence during his watch duty when an emergency call was received from the
Japanese port authority that M/V Phoenix Seven was "invading other route" constituted neglect of duty, a just cause
for terminating an employee. Records reveal that this information was related to private respondent via two fax
messages sent by the captain of M/V Phoenix Seven. The first fax message dated 18 January 1997 is reproduced below:
JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER THAT THEY DECIDED TO DISCHARGE 2/OFFICER AT OSAKA
PORT.
DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL ORDER.
CAPT. HAD RECEIVED EMERGENCY WARNING CALL FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY THAT SHIP IS
INVADING OTHER ROUTE.
SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O NOT CARRY OUT HIS WATCH DUTY.
MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR BUT HE RESIST [SIC] THAT HE IS RIGHT AND THEN SAID THAT
HE WILL COME BACK HOME.
FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE SCALE.
MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION WITH I.E.U.
PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.39
The second fax message dated 20 January 1997 pertained to a report of crew discharge essentially containing the same
information as the first fax message. The Court of Appeals treated these fax messages as part of the res gestae proving
neglect of duty on the part of petitioner.
Section 42 of Rule 13040 of the Rules of Court mentions two acts which form part of the res gestae, namely:
spontaneous statements and verbal acts. In spontaneous exclamations, the res gestae is the startling occurrence,
whereas in verbal acts, the res gestae are the statements accompanying the equivocal act. 41 We find that the fax
messages cannot be deemed part of the res gestae.
To be admissible under the first class of res gestae, it is required that: (1) the principal act be a startling occurrence; (2)
the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the
statements must concern the occurrence in question and its immediate attending circumstances. 42
Assuming that petitioners negligencewhich allegedly caused the ship to deviate from its courseis the startling
occurrence, there is no showing that the statements contained in the fax messages were made immediately after the
alleged incident. In addition, no dates have been mentioned to determine if these utterances were made
spontaneously or with careful deliberation. Absent the critical element of spontaneity, the fax messages cannot be
admitted as part of the res gestae of the first kind.
Neither will the second kind of res gestae apply. The requisites for its admissibility are: (1) the principal act to be
characterized must be equivocal; (2) the equivocal act must be material to the issue; (3) the statement must
accompany the equivocal act; and (4) the statements give a legal significance to the equivocal act.43
Petitioners alleged absence from watch duty is simply an innocuous act or at least proved to be one. Assuming
arguendo that such absence was the equivocal act, it is nevertheless not accompanied by any statement more so by the
fax statements adverted to as parts of the res gestae. No date or time has been mentioned to determine whether the
fax messages were made simultaneously with the purported equivocal act.
Furthermore, the material contents of the fax messages are unclear. The matter of route encroachment or invasion is
questionable. The ship master, who is the author of the fax messages, did not witness the incident. He obtained such
information only from the Japanese port authorities. Verily, the messages can be characterized as double hearsay.
In any event, under Article 282 of the Labor Code,44 an employer may terminate an employee for gross and habitual
neglect of duties. Neglect of duty, to be a ground for dismissal, must be both gross and habitual. Gross negligence
connotes want of care in the performance of ones duties. Habitual neglect implies repeated failure to perform ones
duties for a period of time, depending upon the circumstances. A single or isolated act of negligence does not
constitute a just cause for the dismissal of the employee.45
Petitioners supposed absence from watch duty in a single isolated instance is neither gross nor habitual negligence.
Without question, the alleged lapse did not result in any untoward incident. If there was any serious aftermath, the
incident should have been recorded in the ships logbook and presented by private respondent to substantiate its claim.
Instead, private respondent belittled the probative value of the logbook and dismissed it as self-serving. Quite the
contrary, the ships logbook is the repository of all activities and transactions on board a vessel. Had the route invasion
been so serious as to merit petitioners dismissal, then it would have been recorded in the logbook. Private respondent
would have then had all the more reason to preserve it considering that vital pieces of information are contained
therein.
In Haverton Shipping Ltd. v. NLRC,46 the Court held that the vessels logbook is an official record of entries made by a
person in the performance of a duty required by law.47 In Abacast Shipping and Management Agency, Inc. v. NLRC,48 a
case cited by petitioner, the logbook is a respectable record that can be relied upon to authenticate the charges filed
and the procedure taken against the employees prior to their dismissal. 49 In Wallem Maritime Services, Inc. v.
NLRC,50 the logbook is a vital evidence as Article 612 of the Code of Commerce requires the ship captain to keep a
record of the decisions he had adopted as the vessel's head.51 Therefore, the non-presentation of the logbook raises
serious doubts as to whether the incident did happen at all.
In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the
employer.52 Private respondent miserably failed to discharge this burden. Consequently, the petitioners dismissal is
illegal.
We also note that private respondent failed to comply with the procedural due process requirement for terminating an
employee. Such requirement is not a mere formality that may be dispensed with at will. Its disregard is a matter of
serious concern since it constitutes a safeguard of the highest order in response to man's innate sense of justice. The
Labor Code does not, of course, require a formal or trial type proceeding before an erring employee may be dismissed.
This is especially true in the case of a vessel on the ocean or in a foreign port. The minimum requirement of due process
in termination proceedings, which must be complied with even with respect to seamen on board a vessel, consists of
notice to the employees intended to be dismissed and the grant to them of an opportunity to present their own side of
the alleged offense or misconduct, which led to the management's decision to terminate. To meet the requirements of
due process, the employer must furnish the worker sought to be dismissed with two written notices before termination
of employment can be legally effected, i.e., (1) a notice which apprises the employee of the particular acts or omissions
for which his dismissal is sought; and (2) the subsequent notice after due hearing which informs the employee of the
employers decision to dismiss him.531avvphi1
Private respondents sole reliance on the fax messages in dismissing petitioner is clearly insufficient as these messages
were addressed only to itself. No notice was ever given to petitioner apprising him in writing of the particular acts
showing neglect of duty. Neither was he informed of his dismissal from employment. Petitioner was never given an
opportunity to present his side. The failure to comply with the two-notice rule only aggravated respondents liability on
top of dismissing petitioner without a valid cause.
Pursuant to Section 10 of Republic Act No. 804254 or the Migrant Workers Act, employees who are unjustly dismissed
from work are entitled to an amount representing their three (3) months salary considering that their employment
contract has a term of exactly one (1) year plus a full refund of his placement fee, with interest at 12% per annum. 55
IN LIGHT OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET
ASIDE. The Decision of the NLRC is REINSTATED with the MODIFICATION that in addition to the payment of the sum
equivalent to petitioners three (3) months salary, the full amount of placement fee with 12% legal interest must be
refunded.
SO ORDERED.
DANTE O. TINGA
Associate Justice

Footnotes
1
Rollo, pp. 3-24.
2
Penned by Associate Justice Mario L. Guarina, III and concurred in by Associate Justices Roberto A. Barrios and
Mariflor Punzalan Castillo.
3
Id. at 122.
4
Id. at 129-133; penned by Commissioner Ireneo B. Bernardo and concurred in by Commissioners Lourdes C. Javier and
Tito Genilo; Third Division.
5
Id. at 54-59; penned by Labor Arbiter Ermita T. Abrasaldo C. Cuyuca.
6
CA rollo, p. 38.7 Rollo, p. 55. CA rollo, p. 75.9 Id. at 76.
10
Rollo, p. 56.11 Id. at 58-59.12 Id. at 133.13 Id. at 132.
14
CA rollo, pp. 25-31.15 Rollo, pp. 65-67.
16
Id. at 66.17 Id. at 60-64; 31 March 2002, Third Division.
18
CA rollo, p. 85.
19
Id. at 87-99.
20
Rollo, p. 69.
21
Rollo, p. 70.
22
CA rollo, pp. 2-18.
23
CA rollo, p. 79.
24
Id. at 80-84.
25
Rollo, p. 30.
26
Id. at 13.
27
Id. at 144.
28
Id.
29
Sps. Tirona v. Hon. Alejo, 419 Phil. 285, 305 (2001).
30
Rollo, pp. 28-29.
31
Id. at 141.
32
Id. at 153.
33
Hanjin Engineering & Construction Co., Ltd.. v. Court of Appeals, G.R. No. 165910, 10 April 2006, 487 SCRA 78, 96;
Capitol Medical Center, Inc. v. Meris, G.R. No. 155098, 16 September 2005, 470 SCRA 125, 134; Pobre v. Court of
Appeals, G.R. No. 141805, 8 July 2005, 463 SCRA 50, 59; Caraan v. Court of Appeals, 352 Phil. 417, 421 (1998).
34
Rollo, pp. 15-20.
35
Id. at 148.
36
Oriental Shipmanagement Co., Inc. v. Court of Appeals, G.R. No. 153750, 25 January 2006, 480 SCRA 100, 110.
37
Philemploy Services and Resources, Inc. v. Rodriguez, G.R. No. 152616, 31 March 2006, 486 SCRA 302, 314-315;
Molina v. Pacific Plans, Inc., G.R. No. 165476, 10 March 2006, 484 SCRA 498.
38
Petron Corporation v. National Labor Relations Commission, G.R. No. 154532, 27 October 2006, 505 SCRA 596, 609.
39
CA rollo, p. 75.
40
SEC. 42. Part of the res gestae. Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of
the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal
significance may be received as part of the res gestae.
41
Francisco, Vicente, Jr., The Revised Rules of Court in the Philippines, Vol. VII, Part 1, 1997 Ed., p. 609.
42
Digital Pool of Accredited Insurance Companies v. Radio Mindanao Network, G.R. No. 147039, 27 January 2006, 480
SCRA 314, 324-325.
43
Regalado, Florenz, D., Remedial Law Compendium, 9th Revised Edition, p. 651.
44
ART. 282. An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in
connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of
his family or his duly authorized representative;
(e) Other causes analogous to the foregoing.
45
Id.
46
G.R. No. L-65442, 15 April 1985, 135 SCRA 685.
47
Id. at 690.
48
G.R. Nos. L-81124-26, 23 June 1988, 162 SCRA 541.
49
Id. at 544.
50
331 Phil. 476 (1996).
51
Id. at 182.
52
Dusit Hotel Nikko v. Gatbonton, G.R. No. 161654, 5 May 2006, 489 SCRA 671, 676.
53
Skippers United Pacific, Inc. v. Maguad, G.R. No. 166363, 15 August 2006, 498 SCRA 639, 663.
54
Section 10. Money Claims
xxx
In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract,
the worker shall be entitled to the full reimbursement of his placement fee with interest at twelve percent (12%) per
annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of
the unexpired term, whichever is less.
55
Asian Intl Manpower Services, Inc. v. Court of Appeals, G.R. No. 169652, 9 October 2006, 504 SCRA 103, 113-114; JSS
Indochina Corp. v. Ferrer, G.R. No. 156381, 14 October 2005, 473 SCRA 120, 128.
 SECOND DIVISION
[G.R. No. 122934. January 5, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGEL PRECIADOS (At Large), ARTURO ENAD, EMIGDIO VILLAMOR,
LEONCIO ALGABRE and FLORIANO ALGABRE @ LOLOY, accused.
ARTURO ENAD, accused-appellant.
DECISION
QUISUMBING, J.:
Accused-appellant Arturo Enad[1] assails the decision rendered by the Regional Trial Court of Tagbilaran City,
Branch 1, in two consolidated cases, Criminal Case No. 7887 for murder and Criminal Case No. 7888 for frustrated
murder. It convicted and sentenced him to reclusion perpetua in the first case and to a prison terms of six (6) years and
one (1) day of prision mayor, as minimum to twelve (12) years and one (1) day of reclusion temporal, as maximum, in
the second case.
In Criminal Case No. 7887, the Office of the Provincial Prosecutor of Bohol charged Angel Preciados, Arturo Enad,
Emigdio Villamor, Leoncio Algabre, and Floriano Algabre alias Loloy with murder allegedly committed as follows:
That on or about the 12th to the 13th day of May 1992, in the municipality of Sagbayan, province of Bohol, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually
helping with (sic) one another, with intent to kill and without justifiable cause, did then and there, willfully, unlawfully,
and feloniously pour poison into the mouth of one Primo Hilbero whereby causing the victims untimely death; to the
damage and prejudice of the heirs of the deceased in the amount to be proved during the trial.
Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, as amended, with the aggravating
circumstances of (1) treachery, the victim being unaware and unsuspecting and (2) abuse of superior strength, two of
the accused being armed with deadly weapons which they used in intimidating, threatening and forcing the victim to
drink the poison.[2]
In Criminal Case No. 7888, the same persons were charged with frustrated murder. The charge sheet reads:
That on or about the 12th to the 13th day of May, 1992, in the municipality of Sagbayan, province of Bohol, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually
helping with (sic) one another, with intent to kill and without justifiable cause, did then and there willfully, unlawfully
and feloniously pour poison into the mouth of one Antonio Hilbero thereby inflicting serious injuries on the victims
body; thus, the accused having performed in said manner all the acts of execution which would have produced the
crime of Murder as a consequence, but which nevertheless did not produce it by reason of a cause independent of their
will, that is, by the timely medical attendance and treatment rendered the damage and prejudice of the said offended
party in the amount to be proved during the trial (sic).
Acts committed contrary to the provisions of Article 248 in relation to Articles 6 and 50 of the Revised Penal Code, as
amended, with the aggravating circumstances of (1) treachery, the victim being unaware and unsuspecting and (2)
abuse of superior of strength two of the accused being armed with deadly weapon which they to used in intimidating,
threatening and forcing the victim to drink the poison.[3]
The informations were both dated July 20, 1992 but the cases were tried before different salas. Branch 4 of the
Regional Trial Court of Tagbilaran City, tried Criminal Case No. 7887, while Branch 3 tried Criminal Case No. 7888.
On August 26, 1992, the accused in Criminal Case No. 7888 were ordered arrested. But the police failed to
apprehend any of the accused. Preciados and the Algebres were reported to have gone into hiding in Mindanao, while
Enad and Villamor went to Cebu City. It was only on July 20, 1993, when appellant Arturo Enad was arrested. Arraigned
in Criminal Case No. 7887, he pleaded not guilty. He waived pre-trial and the case was set for trial.
On September 13, 1993, Judge Achilles L. Melicor of Branch 4, RTC of Tagbilaran City, inhibited himself from
Criminal Case No. 7887, since the accused were the political leaders of Mayor Arthur Melicor-Aana, his cousin, while
the victims were supporters of the mayors political rival, Narzal B. Ermac.
On February 14, 1994, Criminal Case No. 7888 was revived and jointly tried with Criminal Case No. 7887 in Branch
1, RTC of Tagbilaran City. Arraigned in Criminal Case No. 7888 on February 15, 1994, appellant entered a plea of not
guilty. Thereafter, Criminal Cases Nos. 7887 and 7888 were jointly tried, without prejudice to the separate arraignment
and trial of the other accused who continued to evade arrest.
The facts of the case, culled from the prosecutions presentation, are as follows:
Appellant and Antonio Hilbero,[4] the victim in Criminal Case No. 7888, are second cousins. Both are residents of
Ubujan, Sagbayan, Bohol. Appellant is also a cousin of Primo Hilberos mother-in-law.Primo Hilbero is the victim in
Criminal Case No. 7887.
During the May 11, 1992 elections, appellant and Antonio supported rival mayoralty candidates of
Sagbayan. Appellant was a supporter and poll watcher of Arthur Aana, while Antonio, a barangay councilman of
Ubujan, was a partisan of Narzal Ermac. Appellants co-accused were also identified with Aana who won.
At around 11:00 p.m. of May 12, 1992, Antonio with his common law wife and their two children, his brother,
Primo and his wife, Helen with their three children, Antonios mother, Dominga, and another brother, Severino were at
the second floor of the old rice mill at Ubujan. Except for Helen, the clan had retired for the night. She was about to go
to sleep when she noticed Antonio go downstairs. Minutes later, her husband Primo, followed him. Then she heard
someone utter, Dont move. Alarmed, she rose from her mat and peeped through a two-inch hole in the floor.[5] The
ground floor was illuminated by moonlight. She saw appellant holding a hand grenade while his other arm was locked
in a stranglehold around the neck of Antonio who knelt on the floor. [6] Nearby stood Angel Preciados with a gun pointed
at Antonio.[7] She then heard Emigdio Villamor say Dont move so that your family will not die. She saw the latter forcing
Primo to swallow an object.[8] The other accused held her husband to prevent him from struggling. Shocked, Helen then
soundlessly cried and embraced her children. Shortly afterwards, Helens mother-in-law, Dominga, was awakened by
the barking of the family dog. Dominga went downstairs where she saw Primo lifeless on the floor, reeking of
poison.[9] Antonio was nowhere to be found. Dominga rushed upstairs and woke up Severino, all the while shouting for
help. Minutes later, the barangay captain and some neighbors responded to her shouts for assistance. They found
Primo dead on the floor. Informed that Antonio was missing, they searched the immediate surroundings for him but to
no avail.[10]
Early in the morning of May 13, 1992, the search for Antonio was resumed. He was finally found by his uncle,
Simeon Degamo, holding on to rock in a natural well, some 300 meters away from the rice mill. A rope was thrown to
him and he was pulled out from the well. Noticing that he smelled of some poisonous chemical, his rescuers made him
drink coconut milk.[11] He was weak and appeared on the verge of death and brought to the hospital at Clarin, Bohol for
emergency treatment.
The next day, prosecution witness Zosimo Viva, [12] a defeated municipal councilor candidate in the same slate of
Ermac, Antonios common law wife, and two police investigators transferred Antonio to the Gov. Celestino Gallares
Memorial Hospital in Tagbilaran City.[13] According to prosecution witness Dr. Mayda[14] Reyes who admitted Antonio to
the hospital, Antonio told her that the latter was forced to drink a certain liquid, which smelled like
insecticide.[15] Another physician, Dr. Maria Luisa Tage, who attended to Antonio diagnosed, Poisoning, Etiology not
determined, Brief reactive psychosis.[16]
Since Antonio appeared to be dying, prosecution witness PO3 Leonardo Inoc, a police investigator, took his ante-
mortem statement[17] in which he named the aforementioned accused as the persons responsible for poisoning him and
dropping him in the well.[18]
Meanwhile, Ermac asked the National Bureau of Investigation (NBI) to conduct an investigation. [19] The
toxicological examination of Primos body revealed the presence of methamidophos, the active ingredient of the
insecticide Tamaron in Primos organs.[20] The NBI also recovered two empty bottles, at the scene of the
incident. Chemistry tests on them revealed that the Hoechst bottle was positive for deltamethrine, an insecticide, while
the other bottle revealed traces of methamidophos.[21]
Appellant denied any involvement in the poisoning incident. He claimed an alibi. He said he spent the whole night
of May 11, 1992, in the municipal hall of Sagbayan, as a watcher for the party of Mayor Aana. He went home early
morning of May 12, 1992 and spent the whole day repairing his pigpens even if he had not slept the previous night. At
around seven oclock P.M. his wife and he went to the house of his co-accused Angel Preciados to attend the birthday
party of the latters son.[22] Afterwards, they returned home and went to sleep. [23] He woke up at around 9:00 A.M. and
learned about the incident. He went to the old rice mill to find out more about the poisoning incident and saw the
Hilberos. When he asked Helen what happened, she said she knew nothing about the death of her husband. [24] Later
that day, he returned to Cebu City where he worked as a crane operator. He could not think of any reason why he
would be suspected for committing a crime, as he was on good terms with the victims. [25]
The defense offered a different version of the poisoning incident. According to the defense, Antonio and Primo
agreed to commit suicide by taking poison.[26] It presented Antonios affidavit dated February 28, 1994, [27] where he
recanted his story in his affidavit of May 22, 1992.[28] Antonio testified that he and Primo decided to commit suicide by
drinking poison to prevent defeated candidates Ermac and Viva from harming their families. Antonio refused to follow
the orders of Viva to kill the political leaders of Mayor Aana, including the appellant. Thus, Antonio said, he and Primo
feared for the lives of their relatives. After Primo and he drank poison, Primo immediately died. When he did not
succumb right away, Antonio wrote a suicide note and tried to drown himself in the well. [29] After his rescue, Ermac and
Viva took him into custody and bought him to Mindanao, allegedly for his safety. [30] The two, however, threatened to
kill him and made him falsely charge the appellant with murder and frustrated murder. [31] Antonio totally repudiated
his ante-mortem statement and his earlier affidavit charging the accused with murder and frustrated murder.
Testifying for the defense, P/Col. Benjamin Absalon, of the Bohol Provincial Command of the Philippine National
Police, testified that the police investigation revealed that Primos death by poison was not due to foul play. He declared
that they did not finish their investigation because Antonio disappeared from the hospital before they could interview
him.[32]
To rebut Antonios testimony, Dr. Mayda Reyes was called anew to confirm what Antonio had told her, that he was
forced to drink poison by several men.[33] SPO1 Leonardo Inoc testified again that he took Antonios ante-
mortem statement.[34] Apolinario Libranza, barangay captain of Ubujan, Sagbayan was presented to refute Antonios
claims regarding Zosimo Viva.[35] Antonios mother, Dominga, testified that her son was not afraid of either Viva or
Ermac[36]and affirmed the truthfulness of Helens testimony.[37]
In sur-rebuttal, Antonio maintained the veracity of his suicide account.
Finding the prosecutions version more credible, the trial court on January 2, 1995, convicted appellant of the
crimes charged in Criminal Cases Nos. 7887 and 7888. It concluded:
PREMISES CONSIDERED, in Criminal Case No. 7887 the Court finds the accused Arturo Enad GUILTY of the crime of
Murder punished under Article 248 of the Revised Penal Code and hereby sentences him to suffer an imprisonment
of RECLUSION PERPETUA with the accessories of the law and to pay the costs.
The accused Arturo Enad is further ordered to indemnify the surviving spouse of the deceased Primo Hilbiro (sic) in the
amount of P50,000.00 representing indemnity and P50,000.00 representing moral and exemplary damages. In both
instances without subsidiary imprisonment in case of insolvency.
In Criminal Case No. 7888, the Court finds the accused Arturo Enad GUILTY of the crime of Frustrated Murder under
Article 248 in relation with (sic) Articles 6 and 50 of the Revised Penal Code, as amended and hereby sentences him to
suffer an Indeterminate Sentence from SIX (6) YEARS and ONE (1) DAY, the Minimum of the Minimum Period of Prision
Mayor, as Minimum, to TWELVE (12) YEARS and ONE (1) DAY, the Minimum of the Minimum Period of Reclusion
Temporal, as Maximum, with the accessories of the law and to pay the cost.
The Court makes no pronouncement as to indemnity and damages for the Court viewed the retraction of the
complainant Antonio Hilbiro (sic) of his previous testimony, as a waiver of indemnity.
It appearing that the accused Arturo Enad has undergone preventive imprisonment in Criminal Cases Nos. 7887 and
7888 he is entitled to the full time of his preventive imprisonment to be deducted from his term of sentences (sic) if he
has executed a waiver otherwise he will only be entitled to 4/5 of the time of his preventive imprisonment to be
deducted from his term of sentence (sic) if he has not executed a waiver.
SO ORDERED.[38]
On July 25, 1995, appellant filed his notice of appeal to this Court. On November 20, 1996, the Office of Legal Aid
of the U.P. College of Law entered its appearance as counsel.
Before us, appellant poses the following questions for resolution:
1. WHETHER OR NOT THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE CONTRADICTORY AND
IMPROBABLE TESTIMONIES OF THE WITNESSES OF THE PROSECUTION.
2. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING AND GIVING WEIGHT TO THE DOCUMENTARY EVIDENCE
PRESENTED BY THE PROSECUTION.
3. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT HOLDING THAT THE PROSECUTION FAILED TO PROVE THE GUILT
OF THE ACCUSED BEYOND REASONABLE DOUBT AND IN DISMISSING THE DEFENSE OF THE ACCUSED.
In sum, appellant raises the following issues: First, Did the trial court err in giving credence to the testimony of
alleged eyewitness Helen Hilbero? Second, Did the lower court err in relying on dying statement of Antonio
Hilbero? Third, Did the prosecution evidence successfully overcome the presumption of innocence in favor of the
accused?
The first issue deals with the credibility of prosecution witness Helen Hilbero. Appellant argues that the testimony
of the sole prosecution eyewitness, Helen Hilbero, is doubtful. He points out that it was odd that despite witnessing her
husband murdered and her brother-in-law poisoned, Helen did not make a statement to the police on what she
witnessed; that while the police took the sworn statement of Dominga, the mother of Primo and Antonio, they did not
take the statement of the widow, who allegedly saw everything; and that even after meeting appellant face to face on
the morning of May 13, 1992, no confrontation occurred between appellant and her. Furthermore, the prosecution did
not rebut appellants testimony that Helen admitted to appellant that she did not know what happened to her husband
and brother-in-law. The prosecution suggests that Helens testimony was a mere concoction of the political opponents
of Mayor Aana and that Helen was coached on her testimony when it became apparent to Ermac and Viva that Antonio
would not testify the way they wanted.
The Office of the Solicitor General, for its part, contends that there is nothing unnatural in Helens failure to
immediately disclose what she knew. The failure to reveal the identities of the perpetrators should not impair her
credibility since there is no set standards of human behavior when one is confronted with a strange, striking, or frightful
experience. Moreover, she had her reasons to keep what she knew to herself. The accused were her neighbors and
they could easily cause her and her family harm. Thus, the trial court, the OSG said, committed no error in relying on
her testimony to convict appellant.
Where the credibility of a witness is an issue, the established rule is that great respect is accorded to the
evaluation of the credibility of witnesses by the trial court. It is in the best position to determine the issue of credibility
of a witness, having heard his testimony and observed his deportment and manner of testifying. [39] But, where there is
a showing that the trial court overlooked material and relevant facts, which could affect the outcome of a case, [40] the
Court will not hesitate to set aside the lower courts findings and assessments regarding the credibility of witnesses.
In giving full faith and credence to the testimonies of the prosecution witnesses, the trial court explained:
The findings of the court relative to the credibility of the witnesses militate in favor of the prosecution witnesses
(citations omitted). The court took into considerationthe most important factor(s) (of) each witness, his manner and
behavior on the witness stand and the general characteristics, tone, tenor and inherent probability of his statement
(citations omitted) for in most instancesthe demeanor of a witness on the witness stand is often a better evidence of
his veracity than the answer he gives (citations omitted) andit is perfectly reasonable to believe the testimony of a
witness with respect to other parts. Everytime when witnesses are found to have deliberately falsified some material
particulars it is not required that the whole of their uncorroborated testimony be rejected but some portions thereof
deemed worthy of belief may be credited. (emphasis ours).[41]
On record the lower court heavily relied on the testimony of Helen. However, it did not make any categorical
finding as to her credibility or the veracity of her account.
We find Helens testimony riddled with inconsistencies and improbabilities which could affect the outcome of this
case. Helen testified that upon hearing a different voice downstairs, she peeped through a two-inch hole in the floor
and saw, with the moonlight cascading through the windows of the old mill, the accused forcibly make her husband,
Primo, swallow poison.[42] On direct examination, she stated, she heard the words Dont move. [43] Under cross-
examination, she said what she heard was Dont move so that the grenade will not be exploded. As the cross-
examination progressed, however, she declared that what she actually heard was Dont move otherwise your family will
be included. She initially admitted that the first words were uttered by a voice unknown to her. On further grilling by
the defense, she claimed she recognized the voice as appellants. Relentless cross-examination, however, yielded an
admission that it was the voice of accused Villamor she heard first. [44] The identification of an accused through his voice
is acceptable, particularly if the witness knows the accused personally. [45] But the identification must be categorical and
certain. We observed that the witness changed her version a number of times. A startling or frightful experience
creates an indelible impression in the mind such that the experience can be recalled vividly. [46] Where the witness,
however, fails to remain consistent on important details, such as the identity of the person whose voice she heard, a
suspicion is created that material particulars in her testimony had indeed been altered. If an eyewitness contradicts
himself on a vital question, the element of reasonable doubt is injected and cannot be lightly disregarded.[47]
Helens testimony contained contradictory statements. In one instance she said she witnessed the fatal poisoning
of her husband by the accused because the mill was lit by moonlight. In another instance she said the mill was dark and
unlit.[48] On further cross-examination she claimed that she witnessed the events because of the bright
moonlight.[49] First, she said the moonlight was very bright[50] then later she said the moon was not very full. [51] The
defense showed that during that night, five nights before its fullness, the moon was in its first quarter[52] and it was not
as bright as a full moon. Note also that Helens view of the event was limited because she was only peeping through a
small hole. Under these conditions, Helens flip-flopping testimony created serious doubts regarding its veracity and
credibility.Thus her testimony concerning the destruction of the bamboo slats in one window of the mill invites serious
doubt. The mill had two windows covered with bamboo slats. To enter the mill through the windows, the bamboo slats
must be destroyed. Yet, Helen did not hear the sound of the bamboo slats being destroyed, which was the only way the
intruders could have entered.
Her testimony regarding the murder of her husband, Primo, is less than credible. She said that while Primo
struggled not to imbibe the poison, he did not utter a sound. According to her, Primo could not utter a sound as his
neck was clipped, or headlocked as the trial court puts it.[53] There was no showing, however, that the victims mouth
was muffled to prevent him from shouting for help. From her testimony, she could have easily asked for help. It will be
recalled that barangay captain and their neighbors quickly responded to her mother-in-laws shout for help after seeing
Primos corpse.[54] Helens account, that her husband violently struggled against his murderers yet soundlessly gulped
down the poison they made him drink, is unnatural. It evokes disbelief. Evidence to be believed must not only proceed
from the mouth of a credible witness but it must also be credible by itself, and must conform to the common
experience and observation of mankind.[55]
As a rule, an eyewitness testimony cannot be disregarded on account of the delay in reporting the event, so long
as the delay is justified.[56] In this case, Helen kept silent for almost two years. She had no affidavit during the
preliminary investigation.[57] It was only at the trial that she came out to say she witnessed her husbands murder. She
did not explain why. Her long silence is out of character and appears inconsistent with her behavior in immediately
reporting to the police and the barangay captain an incident when an unidentified man accosted her on the
whereabouts of Antonio.[58]
Additionally, on direct testimony, she declared that she knew that Antonio was found in a hole filled with water on
the morning of May 13, 1992.[59] Yet, on cross-examination, she declared that she did not know where his rescuers
found Antonio that morning.[60] Such contradictory statements tend to erode Helens credibility as a prosecution witness
and raise serious doubt concerning the prosecutions evidence.
On the second issue, appellant submits that the trial court erred when it admitted and gave much weight to the
probative value of the ante mortem statement of Antonio.[61] Appellant contends that the statement can neither be
considered as dying declaration under Rule 130, Sec. 37[62] nor part of the res gestae under Rule 130, Section 42[63] of
the Rules of Court. It is inadmissible for being hearsay.Furthermore, he avers it was error for the trial court to give
weight to the first affidavit of Antonio,[64] since Antonio repudiated the same, stating that its contents were
false. According to appellant, Antonio claimed said affidavit was given under duress.
The Solicitor General, for its part, argues that Antonios actions during and immediately after the incident were
completely inconsistent with those of a person who allegedly wanted to commit suicide.Hence, his retraction should be
looked at with jaundiced eye, following our ruling in People v. Junio, 237 SCRA 826 (1994), where we held that
retractions are generally unreliable and looked upon with considerable disfavor.
A dying declaration is the statement which refers to the cause and surrounding circumstances of the declarants
death, made under the consciousness of an impending death. [65] It is admissible in evidence as an exception to the
hearsay rule[66] because of necessity and trustworthiness. Necessity, because the declarants death makes it impossible
for him to take the witness stand[67] and trustworthiness, for when a person is at the point of death, every motive for
falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. [68] The requisites
for the admissibility of a dying declaration are: (1) the death is imminent and the declarant is conscious of that fact; (2)
the declaration refers to the cause and surrounding circumstances of such death; (3) the declaration relates to facts
which the victim is competent to testify; (4) the declarant thereafter dies; and (5) the declaration is offered in a criminal
case wherein the declarants death is the subject of inquiry.[69]
In the present case, the foregoing requisites were not met. A dying declaration is essentially hearsay, because one
person is testifying on what another person stated. This is because the declarant can no longer be presented in court to
identify the document or confirm the statement, but more important, to be confronted with said statement by the
accused and be cross-examined on its contents.[70] It was patently incorrect for the trial court to have allowed
prosecution witness PO3 Leonardo Inoc to testify on Antonios so-called dying declaration because Antonio was alive
and later even testified in court.
But was the purported ante-mortem statement part of the res gestae? Where a victims statement may not be
admissible as an ante mortem declaration, it may nonetheless be considered as part of the res gestae, if made
immediately after a startling occurrence in relation to the circumstances thereof and when the victim did not have time
to contrive a falsehood.[71] For res gestae to be allowed as an exception to the hearsay rule, the following requisites
must be satisfied: (1) that the principal act or res gestae be a startling occurrence; (2) the statement is spontaneous or
was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or
immediately prior or subsequent thereto; and (3) the statement made must concern the occurrence in question and its
immediately attending circumstances.[72]
In this case, the element of spontaneity is lacking in the alleged ante-mortem statement. Antonios statement was
taken by PO3 Inoc at around 3:00 oclock P.M., May 14, 1992 or some thirty-nine (39) hours after the incident. Thirty-
nine hours is too long a time to be considered subsequent immediately (stress supplied) to the startling
occurrence. Even as contemplated by the rules, statements given a day after the incident in answer to questions
propounded by an investigator cannot be considered part of the res gestae.[73] Furthermore, the testimony of the
declarant, that the statement was made under threats and with coaching from losing candidates Ermac and Viva in
order to get even with the winning candidate, Mayor Aana, is uncontroverted.[74]
Dying declarations and statements which form part of the res gestae are exceptions to the hearsay rule, thus they
must be strictly but reasonably construed and must extend only insofar as their language fairly warrants. [75] Thus,
doubts should be resolved in favor of applying the hearsay rule, rather than the exceptions. Under said rule, Antonios
so-called ante-mortem statement should not have been admitted in evidence, for it is neither a dying declaration nor a
part of res gestae.
Next we consider whether the trial court could properly rely on Antonios affidavit dated May 22, 1994 naming the
persons responsible for the poisoning incident, notwithstanding his subsequent repudiation of said affidavit. As a rule,
retractions are generally unreliable and are looked upon with considerable disfavor by the courts[76]because of the
probability that recantation may later on be itself repudiated. [77] Furthermore, retractions can easily be obtained from
witnesses through intimidation or for monetary consideration, [78] and a mere retraction does not necessarily negate an
earlier declaration.[79] When faced with a situation where a witness recants an earlier statement, courts do not
automatically exclude the original testimony. The original declaration is compared with the new statement, to
determine which should be believed.[80]
In this case, the trial court rejected Antonios retraction of his affidavit dated May 22, 1992, for being contrary to
human experience and inherently unworthy of belief. The trial court cited, by way of illustration, the portion of the
affidavit where Antonio claimed that after he and Primo agreed to commit suicide and drinking a bottle of insecticide,
Antonio wrote a farewell letter to his barangay-mates. We note, however, that Antonios second affidavit should have
been rejected together with the first affidavit. Unless an affiant himself takes the witness stand to affirm the averments
in his affidavit, the affidavit must be excluded from the judicial proceeding for being inadmissible hearsay. [81] In this
case the affiant expressly refused to confirm the contents of his first affidavit. Instead, he testified that said affidavit,
Exhibit E was prepared under grave threats and severe pressure from Ermac and Viva. [82] His earlier affidavits contents
were hearsay, hence inadmissible in evidence.
Noted further that Exhibit E and its sub-markings were offered, to prove that Antonio testified in detail before NBI
Agent Atty. Amador Robeniol about what happened to him and his brother Primo in the hands of the five
accused.[83] Even if said Exhibit was admissible, all that it proves is that Antonio testified and executed an affidavit
before the NBI. It does not prove the truthfulness of the allegations made and contained therein.
Coming now to the third issue: has the prosecution succeeded in proving appellants guilt beyond reasonable
doubt?
The records show that the only direct evidence linking appellant to the crimes charged and for which he was
convicted are the direct testimony of eyewitness Helen Hilbero and the contents of Exhibit E. But as discussed earlier,
neither can be given much probative value. As to the testimonies of the other prosecution witnesses, we find them
insufficient to convict appellant as none of them had any personal knowledge of facts that would directly link appellant
to the offenses charged. Even if these witnesses testified in a straightforward and categorical manner, their testimonies
contained insufficient evidence to establish appellants guilt beyond reasonable doubt.
Appellants defense of denial in the present case is inherently weak.[84] Denial, if unsubstantiated by clear and
convincing evidence, is a negative and self-serving evidence undeserving of any weight in law.[85] But such weakness
does not excuse the prosecution from presenting the adequate quantum of proof of the crime charged. The guilt of the
accused must be proved beyond reasonable doubt. And the prosecutions evidence must stand or fall on its own
weight. It cannot rely on the weakness of the defense. In the instant case, the prosecution failed to prove the guilt of
appellant with moral certainty. The testimony of its single purported eyewitness, while positive, was less than
credible. It did not meet the test such testimony of a lone witness to sustain a judgment of conviction, must
be both positive and credible.[86] In our view, the burden of proof required for conviction of appellant has not been
adequately discharged by the prosecution.
 WHEREFORE, the decision of the Regional Trial Court of Tagbilaran City, Branch 1, in Criminal Cases Nos. 7887 and
7888, finding appellant Arturo Enad guilty of murder and frustrated murder is hereby REVERSED and SET ASIDE for
insufficiency of the evidence to convict him beyond reasonable doubt. Appellant is ACQUITTED and ordered RELEASED
from confinement immediately unless he is held for another lawful cause.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[1]
Sometimes spelled Inad in the records. Cases against his co-accused who are at large are still pending trial.1
[2]
Records, Criminal Case No. 7887, p. 1.
[3]
Records, Criminal Case No. 7888, pp. 1-2.
[4]
Also spelled as Hilbiro, Helbiro or Helbero in the records.
[5]
TSN, March 3, 1994, pp. 7-9.
[6]
TSN, March 4, 1994, pp. 9-10.
[7]
TSN, March 7, 1994, p. 20.
[8]
TSN, April 26, 1994, p. 3-11; TSN, March 7, 1994, p. 20.
[9]
TSN, May 16, 1994, p. 4; TSN, March 7, 1994, pp. 7-9; TSN, March 3, 1994, pp. 12-14.
[10]
TSN, March 3, 1994, pp. 13-14.
[11]
TSN, May 18, 1994, pp. 7-9; TSN, May 16, 1994, pp. 5-6.
[12]
Also referred to as Semmie or Simmy Viva in the records.
[13]
TSN, March 11, 1994, p. 7.
[14]
Also spelled as Maida or Mayida in the records.
[15]
TSN, February 24, 1994, pp. 7-8.
[16]
Records, Criminal Case No. 7887, p. 20.
[17]
TSN, February 23, 1994, pp. 3-7.
[18]
Exhibit J, Folder of Exhibits, p. 9.
[19]
TSN, April 26, 1994, p. 7; TSN, March 1, 1994, pp. 4-5, 11-12.
[20]
Exhibit A, Folder of Exhibits, p.1; TSN, February 15, 1994, pp. 7-8.
[21]
Exhibit B, Folder of Exhibits, p. 2.
[22]
TSN, August 25, 1994, pp. 4-6; See also TSN, August 31, 1994, p.2; See also Exhibits 7 & 8, Folder of Exhibits, p. 37.
[23]
TSN, August 25, 1994, p. 6 only.
[24]
TSN, August 26, 1994, p.4.
[25]
TSN, August 25, 1994, pp. 8-10.
[26]
TSN, February 24, 1994, p. 19.
[27]
Exhibit 5, Records, Criminal Case No. 7887, p. 95.
[28]
Exhibit E, Records, Criminal Case No. 7887, pp. 16-18.
[29]
TSN, June 20, 1994, pp. 11-24.
[30]
TSN, June 22, 1994, pp. 15-16.
[31]
TSN, June 22, 1994, pp. 8-9.
[32]
TSN, September 19, 1994, pp. 10-11; Folder of Exhibits, p. 48.
[33]
TSN, October 27, 1994, p.7.
[34]
TSN, October 28, 1994, p 3.
[35]
TSN, November 7, 1994, pp. 6-7, 11.
[36]
TSN, November 11, 1994, p. 3
[37]
TSN, November 11, 1994, p. 3, 10.
[38]
Rollo, p. 55.
[39]
People v. Castillo, et al., G.R. No. 130188, April 27, 2000, p. 11 citing People v. Lapay, 298 SCRA 62 (1998); People v.
Pantorilla and Dahan, G.R. No. 122739, January 19, 2000, p. 7; People v. Magpantay, 284 SCRA 96 (1998); and People v.
Erese, 281 SCRA 316 (1997).
[40]
People v. Tanoy, G.R. No. 115692, May 12, 2000, p. 6.
[41]
Rollo, p. 155.
[42]
TSN, March 7, 1994, p. 20.
[43]
TSN, March 3, 1994, p. 9. See also TSN, March 4, 1994, p. 27.
[44]
TSN, March 7, 1994, pp. 16-23.
[45]
People v. Avillano, 269 SCRA 553, 561 (1997).
[46]
People v. De Guia, 280 SCRA 141, 155 (1997).
[47]
People v. Manambit, 271 SCRA 344, 379 (1997).
[48]
TSN, March 4, 1994, p. 17.
[49]
TSN, March 7, 1994, p. 11.
[50]
TSN, March 4, 1994, p. 17.
[51]
TSN, March 7, 1994, pp. 11-12.
[52]
Exhibit 1, Folder of Exhibits, p. 30.
[53]
TSN, March 7, 1994, pp. 14-22.
[54]
TSN, March 7, 1994, p. 34.
[55]
People v. Parazo, 272 SCRA 512, 521 (1997); People v. Manambit, 271 SCRA 344, 376 (1997).
[56]
People v. Lusa, 288 SCRA 296, 305 (1998); People v. Viovicente, 286 SCRA 1, 8 (1998); People v. Villamor, 284 SCRA
184, 193 (1998).
[57]
TSN, March 4, 1994. p. 5-7.
[58]
TSN, March 7, 1994, pp. 37-42.
[59]
TSN, March 3, 1994, p. 14-16.
[60]
TSN, March 7, 1994, p. 36.
[61]
Folder of Exhibits, p. 9.
[62]
SEC. 37. Dying Declaration. The declaration of a dying person, made under the consciousness of an impending death,
may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death.
[63]
SEC. 42. Part of the res gestae. Statements made a person while a startling occurrence is taking place or immediately
prior or subsequent thereto with respect to the circumstances thereof may be given in evidence as part of the res
gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance may
be received as part of the res gestae.
[64]
Records, Criminal Case No. 1887, pp. 16-18.
[65]
F. B. Moreno, Phil. Law Dictionary (3rd Ed. 1988) 300, citing People v. Lugtu, 108 SCRA 89 (1981).
[66]
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.
[67]
People v. Bautista, 278 SCRA 613, 623 (1997); People v. Sion, 277 SCRA 127 (1997).
[68]
People v. Amaca, 277 SCRA 215, 223 (1997).
[69]
People v. Bergante, 286 SCRA 629, 638 (1998); People v. Viovicente, supra; People v. Bautista, 278 SCRA 613 (1997);
People v. Amaca, 277 SCRA 215 (1997); People v. Padao, 267 SCRA 64 (1997).
[70]
RULES OF COURT, RULE 115, Sec. 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be
entitled:
xxx
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence
the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable
or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties
and subject matter; the adverse party having had the opportunity to cross-examine him.
[71]
People v. Bocatcat, Sr., 188 SCRA 175, 185 (1990).
[72]
People v. Cariquez and Franco, 315 SCRA 247, 261 (1999); People v. Queliza, 279 SCRA 145 (1997);
People v. Esquilona, 248 SCRA 139 (1995); People v. Peralta, 237 SCRA 218 (1994); People v. Tolentino, 218 SCRA 337
(1993); People v. Sanchez, 213 SCRA 70 (1992).
[73]
People v. Navarro, 297 SCRA 331, 350 (1998).
[74]
TSN, June 22, 1994, pp. 7-12.
[75]
RUBEN E. AGPALO, STATUTORY CONSTRUCTION (2nd Ed. 1990) 222.
[76]
People v. Junio, 237 SCRA 826, 834 (1994); People v. Logronio, 214 SCRA 519, 531 (1992) citing People v. del Pilar,
188 SCRA 37 (1990), People v. Aldaguer, 184 SCRA 1 (1990); People v. Navasca, 76 SCRA 70 (1977), and People v.
Domenden, 6 SCRA 343 (1962).
[77]
People v. Navarro, supra, at 348, citing People v. Soria, 262 SCRA 739 (1996), People v. De Leon, 245 SCRA 538
(1995), and People v. Liwag, 225 SCRA 46 (1993).
[78]
People v. Bibat, 290 SCRA 27, 39 (1998) citing People v. de Leon, 245 SCRA 538 (1995).
[79]
People v. Ballabare, 264 SCRA 350, 361 (1996).
[80]
People v. Peralta, 237 SCRA 218, 224 (1994); People v. Mindac, 216 SCRA 558 (1992); People v. Clamor, 198 SCRA
642 (1991); Reano v. Court of Appeals, 165 SCRA 525 (1988).
[81]
People v. Crispin, G.R. No. 128360, March 2, 2000, p. 10 citing People v. Silvestre, 307 SCRA 68 (1999); People v.
Manhayod, Jr., 290 SCRA 257 (1998).
[82]
TSN, June 22, 1994, pp. 13-15.
[83]
TSN, June 20, 1994, p. 3.
[84]
People v. Juan and Juan, G.R. Nos. 100718-19, January 20, 2000, p. 19.
[85]
People v. Fajardo, et al., 315 SCRA 283, 293 (1999).
[86]
People v. Reola, 308 SCRA 145, 152 (1998).
 SECOND DIVISION

BERNARDO B. JOSE, JR., G.R. No. 169606

Petitioner,
Present:

MICHAELMAR PHILS., INC.

and MICHAELMAR SHIPPING Promulgated:
SERVICES, INC.,
Respondents. November 27, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:

The Case

This is a petition[1] for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 11 May
2005 Decision[2] and 5 August 2005 Resolution[3] of the Court of Appeals in CA-G.R. SP No. 83272. The Court of
Appeals set aside the 19 January[4] and 22 March[5] 2004 Resolutions of the National Labor Relations Commission
(NLRC) in NLRC NCR CA No. 036666-03 and reinstated the 18 June 2003 Decision [6] of the Labor Arbiter in NLRC NCR
OFW Case No. (M)02-12-3137-00.

The Facts

Michaelmar Philippines, Inc. (MPI) is the Philippine agent of Michaelmar Shipping Services, Inc. (MSSI). In an
undertaking[7] dated 2 July 2002 and an employment contract[8]dated 4 July 2002, MSSI through MPI engaged the
services of Bernardo B. Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The employment contract stated:

That the employee shall be employed on board under the following terms and conditions:

1.1 Duration of Contract EIGHT (8) MONTHS

Position OILER
Basic Monthly Salary US$ 450.00 & US$ 39.00 TANKER ALLOWANCE
Hours of Work 48 HOURS/WEEK
Overtime US$ 386.00 FIXED OT. 105 HRS/ MOS.
Vacation Leave with Pay US$ 190.00 & US$ 150 OWNERS BONUS
Point of Hire MANILA, PHILIPPINES[9]

In connection with the employment contract, Jose, Jr. signed a declaration [10] dated 10 June 2002 stating that:

In order to implement the Drug and Alcohol Policy on board the managed vessels the following with [sic] apply:

All alcoholic beverages, banned substances and unprescribed drugs including but not limited to the following:
Marijuana Cocaine Phencyclidine Amphetamines Heroin Opiates are banned from Stelmar Tankers
(Management) Ltd. managed vessels.
Disciplinary action up to and including dismissal will be taken against any employee found to be in possession of or
impaired by the use of any of the above mentioned substances.

A system of random testing for any of the above banned substances will be used to enforce this policy. Any refusal to
submit to such tests shall be deemed as a serious breach of the employment contract and shall result to the seamans
dismissal due to his own offense.

Therefore any seaman will be instantly dismissed if:

xxx
They are found to have positive trace of alcohol or any of the banned substances in any random testing sample.
Jose, Jr. began performing his duties on board the M/T Limar on 21 August 2002. On 8 October 2002, a random drug
test was conducted on all officers and crew members of M/T Limar at the port of Curacao. Jose, Jr. was found positive
for marijuana. Jose, Jr. was informed about the result of his drug test and was asked if he was taking any
medication. Jose, Jr. said that he was taking Centrum vitamins.

Jose, Jr. was allowed to continue performing his duties on board the M/T Limar from 8 October to 29 November
2002. In the Sea Going Staff Appraisal Report[11] on Jose Jr.s work performance for the period of 1 August to 28
November 2002, Jose, Jr. received a 96% total rating and was described as very hardworking, trustworthy, and reliable.

On 29 December 2002, M/T Limar reached the next port after the random drug test and Jose, Jr. was repatriated to the
Philippines. When Jose, Jr. arrived in the Philippines, he asked MPI that a drug test be conducted on him. MPI ignored
his request. On his own, Jose, Jr. procured drug tests from Manila Doctors Hospital, [12] S.M. Lazo Medical Clinic,
Inc.,[13] and Maritime Clinic for International Services, Inc.[14] He was found negative for marijuana.

Jose, Jr. filed with the NLRC a complaint against MPI and MSSI for illegal dismissal with claim for his salaries for the
unexpired portion of the employment contract.

The Labor Arbiters Ruling

In her 18 June 2003 Decision, the Labor Arbiter dismissed the complaint for lack of merit. The Labor Arbiter held that:

Based from the facts and evidence, this office inclined [sic] to rule in favor of the respondents: we find that
complainants termination from employment was valid and lawful. It is established that complainant, after
an unannounced drug test conducted by the respondent principal on the officers and crew on board the
vessel, was found positive of marijuana, a prohibited drug. It is a universally known fact the menace that
drugs bring on the user as well as to others who may have got on his way. It is noted too that complainant
worked on board a tanker vessel which carries toxic materials such as fuels, gasoline and other combustible
materials which require delicate and careful handling and being an oiler, complainant is expected to be in a
proper disposition.Thus, we agree with respondents that immediate repatriation of complainant is
warranted for the safety of the vessel as well as to complainants co-workers on board. It is therefore a risk
that should be avoided at all cost. Moreover, under the POEA Standard Employment Contract as cited by the
respondents (supra), violation of the drug and alcohol policy of the company carries with it the penalty of
dismissal to be effected by the master of the vessel. It is also noted that complainant was made aware of the
results of the drug test as per Drug Test Certificate dated October 29, 2002. He was not dismissed right there
and then but it was only on December 29, 2002 that he was repatriated for cause.

As to the complainants contention that the ship doctors report can not be relied upon in the absence of other evidence
supporting the doctors findings for the simple reason that the ship doctor is under the control of the principal
employer, the same is untenable. On the contrary, the findings of the doctor on board should be given credence as he
would not make a false clarification. Dr. A.R.A Heath could not be said to have outrageously contrived the results of the
complainants drug test. We are therefore more inclined to believe the original results of the unannounced drug test as
it was officially conducted on board the vessel rather than the subsequent testing procured by complainant on his own
initiative. The result of the original drug test is evidence in itself and does not require additional supporting evidence
except if it was shown that the drug test was conducted not in accordance with the drug testing procedure which is not
obtaining in this particular case. [H]ence, the first test prevails.

We can not also say that respondents were motivated by ill will against the complainant considering that he was
appraised to be a good worker. For this reason that respondents would not terminate [sic] the services of complainant
were it not for the fact that he violated the drug and alcohol policy of the company. [T]hus, we find that just cause exist
[sic] to justify the termination of complainant.[15]

Jose, Jr. appealed the Labor Arbiters 18 June 2003 Decision to the NLRC. Jose, Jr. claimed that the Labor Arbiter
committed grave abuse of discretion in ruling that he was dismissed for just cause.

The NLRCs Ruling

In its 19 January 2004 Resolution, the NLRC set aside the Labor Arbiters 18 June 2003 Decision. The NLRC held that
Jose, Jr.s dismissal was illegal and ordered MPI and MSSI to pay Jose, Jr. his salaries for the unexpired portion of the
employment contract. The NLRC held that:
Here, a copy of the purported drug test result for Complainant indicates, among others, the following
typewritten words Hoofd: Drs. R.R.L. Petronia Apotheker and THC-COOH POS.; the handwritten word
Marihuana; and the stamped words Dr. A.R.A. Heath, MD, SHIPS DOCTOR and 29 OKT. 2002.However, said
test result does not contain any signature, much less the signature of any of the doctors whose names were
printed therein (Page 45, Records). Verily, the veracity of this purported drug test result is questionable,
hence, it cannot be deemed as substantial proof that Complainant violated his employers no alcohol, no
drug policy. In fact, in his November 14, 2002 message to Stelmar Tanker Group, the Master of the vessel
where Complainant worked, suggested that another drug test for complainant should be taken when the
vessel arrived [sic] in Curacao next call for final findings (Page 33, Records), which is an indication that the
Master, himself, was in doubt with the purported drug test result. Indeed there is reason for the Master of
the vessel to doubt that Complainant was taking in the prohibited drug marihuana. The Sea Going Staff
Appraisal Report signed by Appraiser David A. Amaro, Jr. and reviewed by the Master of the vessel himself
on complainants work performance as Wiper from August 1, 2002 to November 28, 2002 which included a
two-month period after the purported drug test, indicates that out of a total score of 100% on Safety
Consciousness (30%), Ability (30%), Reliability (20%) and Behavior & Attitude (20%), Complainant was
assessed a score of 96% (Pages 30-31, Records). Truly, a worker who had been taking in prohibited drug
could not have given such an excellent job performance. Significantly, under the category Behavior &
Attitude (20%), referring to his personal relationship and his interactions with the rest of the ships staff and
his attitude towards his job and how the rest of the crew regard him, Complainant was assessed the full
score of 20% (Page 31, Records), which belies Respondents insinuation that his alleged offense directly
affected the safety of the vessel, its officers and crew members. Indeed, if Complainant had been a threat to
the safety of the vessel, officers and crew members, he would not be been [sic] allowed to continue working
almost three (3) months after his alleged offense until his repatriation on December 29, 2002. Clearly,
Respondents failed to present substantial proof that Complainants dismissal was with just or authorized
cause.

Moreover, Respondents failed to accord Complainant due process prior to his dismissal. There is no showing that
Complainants employer furnished him with a written notice apprising him of the particular act or omission for which his
dismissal was sought and a subsequent written notice informing him of the decision to dismiss him, much less any
proof that Complainant was given an opportunity to answer and rebut the charges against him prior to his
dismissal. Worse, Respondents invoke the provision in the employment contract which allows summary dismissal for
cases provided therein. Consequently, Respondents argue that there was no need for him to be notified of his
dismissal. Such blatant violation of basic labor law principles cannot be permitted by this Office. Although a contract is
law between the parties, the provisions of positive law which regulate such contracts are deemed included and shall
limit and govern the relations between the parties (Asia World Recruitment, Inc. vs. NLRC, G.R. No. 113363, August 24,
1999).

Relative thereto, it is worth noting Section 10 of Republic Act No. 8042, which provides that In cases of termination of
overseas employment without just, valid or authorized cause as defined by law or contract, the worker shall be entitled
to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for
the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term,
whichever is less.[16]

MPI and MSSI filed a motion for reconsideration. In its 22 March 2004 Resolution, the NLRC denied the motion for
lack of merit. MPI and MSSI filed with the Court of Appeals a petition [17] for certiorari under Rule 65 of the Rules of
Court. MPI and MSSI claimed that the NLRC gravely abused its discretion when it (1) reversed the Labor Arbiters
factual finding that Jose, Jr. was legally dismissed; (2) awarded Jose, Jr. his salaries for the unexpired portion of the
employment contract; (3) awarded Jose, Jr. $386 overtime pay; and (4) ruled that Jose, Jr. perfected his appeal within
the reglementary period.

The Court of Appeals Ruling

In its 11 May 2005 Decision, the Court of Appeals set aside the 19 January and 22 March 2004 Resolutions of the NLRC
and reinstated the 18 June 2003 Decision of the Labor Arbiter. The Court of Appeals held that:

The POEA standard employment contract adverted to in the labor arbiters decision to which all seamens
contracts must adhere explicitly provides that the failure of a seaman to obey the policy warrants a penalty of
dismissal which may be carried out by the master even without a notice of dismissal if there is a clear and
existing danger to the safety of the vessel or the crew. That the petitioners were implementing a no-alcohol,
no drug policy that was communicated to the respondent when he embarked is not in question. He had signed
a document entitled Drug and Alcohol Declaration in which he acknowledged that alcohol beverages and
unprescribed drugs such as marijuana were banned on the vessel and that any employee found possessing or
using these substances would be subject to instant dismissal. He undertook to comply with the policy and
abide by all the relevant rules and guidelines, including the system of random testing that would be employed
to enforce it.

We can hardly belabor the reasons and justification for this policy. The safety of the vessel on the high seas is a
matter of supreme and unavoidable concern to all the owners, the crew and the riding public. In the ultimate
analysis, a vessel is only as seaworthy as the men who sail it, so that it is necessary to maintain at every
moment the efficiency and competence of the crew.Without an effective no alcohol, no drug policy on board
the ship, the vessels safety will be seriously compromised. The policy is, therefore, a reasonable and lawful
order or regulation that, once made known to the employee, must be observed by him, and the failure or
refusal of a seaman to comply with it should constitute serious misconduct or willful disobedience that is a just
cause for the termination of employment under the Labor Code (Aparente vs. National Labor Relations
Commission, 331 SCRA 82). As the labor arbiter has discerned, the seriousness and earnestness in the
enforcement of the ban is highlighted by the provision of the POEA Standard Employment Contract allowing
the ship master to forego the notice of dismissal requirement in effecting the repatriation of the seaman
violating it.
xxxx

Under legal rules of evidence, not all unsigned documents or papers fail the test of admissibility. There are
kinds of evidence known as exceptions to the hearsay rule which need not be invariably signed by the author if
it is clear that it issues from him because of necessity and under circumstances that safeguard the
trustworthiness of the paper. A number of evidence of this sort are called entries in the course of business,
which are transactions made by persons in the regular course of their duty or business. We agree with the
labor arbiter that the drug test result constitutes entries made in the ordinary or regular course of duty of a
responsible officer of the vessel. The tests administered to the crew were routine measures of the vessel
conducted to enforce its stated policy, and it was a matter of course for medical reports to be issued and
released by the medical officer. The ships physician at Curacao under whom the tests were conducted was
admittedly Dr. Heath. It was under his name and with his handwritten comments that the report on the
respondent came out, and there is no basis to suspect that these results were issued other than in the ordinary
course of his duty. As the labor arbiter points out, the drug test report is evidence in itself and does not require
additional supporting evidence except if it appears that the drug test was conducted not in accordance with
drug testing procedures. Nothing of the sort, he says, has even been suggested in this particular case.

The regularity of the procedure observed in the administration and reporting of the tests is the very assurance of the
reports admissibility and credibility under the laws of the evidence. We see no reason why it cannot be considered
substantial evidence, which, parenthetically, is the lowest rung in the ladder of evidence. It is from the fact that a report
or entry is a part of the regular routine work of a business or profession that it derives its value as legal evidence.

Then the respondent was notified of the results and allowed to explain himself. He could not show any history of
medication that could account for the traces of drugs in his system. Despite his lack of plausible excuses, the ship
captain came out in support of him and asked his superiors to give him another chance. These developments prove that
the respondent was afforded due process consistent with the exigencies of his service at sea. For the NLRC to annul the
process because he was somehow not furnished with written notice is already being pedantic. What is the importance
to the respondent of the difference between a written and verbal notice when he was actually given the opportunity to
be heard? x x x

The working environment in a seagoing vessel is sui generis which amply justifies the difference in treatment of seamen
found guilty of serious infractions at sea. The POEA Standard Employment Contract allows the ship master to
implement a repatriation for just cause without a notice of dismissal if this is necessary to avoid a clear and existing
danger to the vessel. The petitioners have explained that that [sic] it is usually at the next port of call where the
offending crewman is made to disembark. In this case, a month had passed by after the date of the medical report
before they reached the next port. We may not second-guess the judgment of the master in allowing him to remain at
his post in the meantime. It is still reasonable to believe that the proper safeguards were taken and proper limitations
observed during the period when the respondent remained on board.

Finally, the fact that the respondent obtained negative results in subsequent drug tests in the Philippines does not
negate the findings made of his condition on board the vessel. A drug test can be negative if the user undergoes a
sufficient period of abstinence before taking the test. Unlike the tests made at his instance, the drug test on the vessel
was unannounced. The credibility of the first test is, therefore, greater than the subsequent ones. [18]
Jose, Jr. filed a motion[19] for reconsideration. In its 5 August 2005 Resolution, the Court of Appeals denied the motion
for lack of merit. Hence, the present petition.

In a motion[20] dated 1 August 2007, MPI and MSSI prayed that they be substituted by OSG Ship Management Manila,
Inc. as respondent in the present case. In a Resolution[21]dated 14 November 2007, the Court noted the motion.

The Issues

In his petition dated 13 September 2005, Jose, Jr. claims that he was illegally dismissed from employment for two
reasons: (1) there is no just cause for his dismissal because the drug test result is unsigned by the doctor, and (2) he was
not afforded due process. He stated that:

2. The purported drug test result conducted to petitioner indicates, among others, the following: [sic]
typwritten words Hool: Drs. R.R.L.. [sic] Petronia Apotheker [sic] and :THC-COOH POS. [sic]; the handwritten
word Marihuana; and the stamped words Dr. A.R.A Heath, MD, SHIPS DOCTOR and 29 OKT. 2002. However,
said test result does not contain any signature, much less the signature of any of the doctors whose name [sic]
were printed therein. This omission is fatal as it goes to the veracity of the said purported drug test
result. Consequently, the purported drug test result cannot be deemed as substantial proof that petitioner
violated his employers no alcohol, no drug policy [sic].

xxxx

Even assuming arguendo that there was just cause, respondents miserably failed to show that the presence
of the petitioner in the vessel constitutes a clear and existing danger to the safety of the crew or the
vessel. x x x

xxxx

It is a basic principle in Labor Law that in termination disputes, the burden is on the employer to show that the
dismissal was for a just and valid cause. x x x

xxxx

x x x [T]he Honorable Labor Arbiter as well as the Honorable Court of Appeals clearly erred in ruling that there was just
cause for the termination of petitioners employment. Petitioners employment was terminated on the basis only of a
mere allegation that is unsubstantiated, unfounded and on the basis of the drug test report that was not even signed by
the doctor who purportedly conducted such test.

5. Moreover, respondents failed to observe due process in terminating petitioners employment. There is no evidence
on record that petitioner was furnished by his employer with a written notice apprising him of the particular act or
omission which is the basis for his dismissal. Furthermore, there is also no evidence on record that the second notice,
informing petitioner of the decision to dismiss, was served to the petitioner. There is also no proof on record that
petitioner was given an opportunity to answer and rebut the charges against him prior to the dismissal. [22]

The Courts Ruling

In its 11 May 2005 Decision, the Court of Appeals held that there was just cause for Jose, Jr.s dismissal. The Court of
Appeals gave credence to the drug test result showing that Jose, Jr. was positive for marijuana. The Court of Appeals
considered the drug test result as part of entries in the course of business. The Court of Appeals held that:

Under legal rules of evidence, not all unsigned documents or papers fail the test of admissibility. There are
kinds of evidence known as exceptions to the hearsay rule which need not be invariably signed by the author if
it is clear that it issues from him because of necessity and under circumstances that safeguard the
trustworthiness of the paper. A number of evidence of this sort are called entries in the course of business,
which are transactions made by persons in the regular course of their duty or business. We agree with the
labor arbiter that the drug test result constitutes entries made in the ordinary or regular course of duty of a
responsible officer of the vessel. The tests administered to the crew were routine measures of the vessel
conducted to enforce its stated policy, and it was a matter of course for medical reports to be issued and
released by the medical officer. The ships physician at Curacao under whom the tests were conducted was
admittedly Dr. Heath. It was under his name and with his handwritten comments that the report on the
respondent came out, and there is no basis to suspect that these results were issued other than in the
ordinary course of his duty. As the labor arbiter points out, the drug test report is evidence in itself and does
not require additional supporting evidence except if it appears that the drug test was conducted not in
accordance with drug testing procedures. Nothing of the sort, he says, has even been suggested in this
particular case.[23] (Emphasis supplied)

Jose, Jr. claims that the Court of Appeals erred when it ruled that there was just cause for his dismissal. The Court is not
impressed. In a petition for review on certiorari under Rule 45 of the Rules of Court, a mere statement that the Court of
Appeals erred is insufficient. The petition must state the law or jurisprudence and the particular ruling of the appellate
court violative of such law or jurisprudence. In Encarnacion v. Court of Appeals,[24] the Court held that:

Petitioner asserts that there is a question of law involved in this appeal. We do not think so. The appeal
involves an appreciation of facts, i.e., whether the questioned decision is supported by the evidence and the
records of the case. In other words, did the Court of Appeals commit a reversible error in considering the
trouble record of the subject telephone? Or is this within the province of the appellate court to
consider? Absent grave abuse of discretion, this Court will not reverse the appellate courts findings of fact.

In a petition for review under Rule 45, Rules of Court, invoking the usual reason, i.e., that the Court of
Appeals has decided a question of substance not in accord with law or with applicable decisions of the
Supreme Court, a mere statement of the ceremonial phrase is not sufficient to confer merit on the
petition. The petition must specify the law or prevailing jurisprudence on the matter and the particular
ruling of the appellate court violative of such law or previous doctrine laid down by the Supreme
Court. (Emphasis supplied)

In the present case, Jose, Jr. did not show that the Court of Appeals ruling is violative of any law or
jurisprudence. Section 43, Rule 130, of the Rules of Court states:

SEC. 43. Entries in the course of business. Entries made at, or near the time of the transactions to which they
refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may
be received as prima facie evidence, if such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of business or duty.

In Canque v. Court of Appeals,[25] the Court laid down the requisites for admission in evidence of entries in the course of
business: (1) the person who made the entry is dead, outside the country, or unable to testify; (2) the entries were
made at or near the time of the transactions to which they refer; (3) the person who made the entry was in a position
to know the facts stated in the entries; (4) the entries were made in a professional capacity or in the performance of a
duty; and (5) the entries were made in the ordinary or regular course of business or duty.

Here, all the requisites are present: (1) Dr. Heath is outside the country; (2) the entries were made near the time the
random drug test was conducted; (3) Dr. Heath was in a position to know the facts made in the entries; (4) Dr. Heath
made the entries in his professional capacity and in the performance of his duty; and (5) the entries were made in the
ordinary or regular course of business or duty.

The fact that the drug test result is unsigned does not necessarily lead to the conclusion that Jose, Jr. was not found
positive for marijuana. In KAR ASIA, Inc. v. Corona,[26] the Court admitted in evidence unsigned payrolls. In that case, the
Court held that:

Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity under Rule
130, Section 43 of the Rules of Court. It is therefore incumbent upon the respondents to adduce clear and
convincing evidence in support of their claim. Unfortunately, respondents naked assertions without proof in
corroboration will not suffice to overcome the disputable presumption.

In disputing the probative value of the payrolls for December 1994, the appellate court observed that the same contain
only the signatures of Ermina Daray and Celestino Barreto, the paymaster and the president, respectively. It further
opined that the payrolls presented were only copies of the approved payment, and not copies disclosing actual
payment.

The December 1994 payrolls contain a computation of the amounts payable to the employees for the given period,
including a breakdown of the allowances and deductions on the amount due, but the signatures of the respondents
are conspicuously missing. Ideally, the signatures of the respondents should appear in the payroll as evidence of
actual payment. However, the absence of such signatures does not necessarily lead to the conclusion that the
December 1994 COLA was not received. (Emphasis supplied)

In the present case, the following facts are established (1) random drug tests are regularly conducted on all officers and
crew members of M/T Limar; (2) a random drug test was conducted at the port of Curacao on 8 October 2002; (3) Dr.
Heath was the authorized physician of M/T Limar; (4) the drug test result of Jose, Jr. showed that he was positive for
marijuana; (5) the drug test result was issued under Dr. Heaths name and contained his handwritten comments. The
Court of Appeals found that:

The tests administered to the crew were routine measures of the vessel conducted to enforce its stated policy,
and it was a matter of course for medical reports to be issued and released by the medical officer. The ships
physician at Curacao under whom the tests were conducted was admittedly Dr. Heath. It was under his name
and with his handwritten comments that the report on the respondent came out, and there is no basis to
suspect that these results were issued other than in the ordinary course of his duty. As the labor arbiter points
out, the drug test report is evidence in itself and does not require additional supporting evidence except if it
appears that the drug test was conducted not in accordance with drug testing procedures. Nothing of the sort,
he says, has even been suggested in this particular case.[27]

Factual findings of the Court of Appeals are binding on the Court. Absent grave abuse of discretion, the Court will not
disturb the Court of Appeals factual findings.[28] In Encarnacion,[29] the Court held that, unless there is a clearly grave or
whimsical abuse on its part, findings of fact of the appellate court will not be disturbed. The Supreme Court will only
exercise its power of review in known exceptions such as gross misappreciation of evidence or a total void of
evidence. Jose, Jr. failed to show that the Court of Appeals gravely abused its discretion.

Article 282(a) of the Labor Code states that the employer may terminate an employment for serious misconduct. Drug
use in the premises of the employer constitutes serious misconduct. In Bughaw, Jr. v. Treasure Island Industrial
Corporation,[30] the Court held that:

The charge of drug use inside the companys premises and during working hours against petitioner
constitutes serious misconduct, which is one of the just causes for termination. Misconduct is improper or
wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and implies wrongful intent and not merely an error in judgment. The
misconduct to be serious within the meaning of the Act must be of such a grave and aggravated character and
not merely trivial or unimportant. Such misconduct, however serious, must nevertheless, in connection with
the work of the employee, constitute just cause for his separation. This Court took judicial notice of scientific
findings that drug abuse can damage the mental faculties of the user. It is beyond question therefore that
any employee under the influence of drugs cannot possibly continue doing his duties without posing a
serious threat to the lives and property of his co-workers and even his employer. (Emphasis supplied)

Jose, Jr. claims that he was not afforded due process. The Court agrees. There are two requisites for a valid dismissal:
(1) there must be just cause, and (2) the employee must be afforded due process. [31] To meet the requirements of due
process, the employer must furnish the employee with two written notices a notice apprising the employee of the
particular act or omission for which the dismissal is sought and another notice informing the employee of the
employers decision to dismiss. In Talidano v. Falcon Maritime & Allied Services, Inc.,[32] the Court held that:

[R]espondent failed to comply with the procedural due process required for terminating the employment of
the employee. Such requirement is not a mere formality that may be dispensed with at will. Its disregard is a
matter of serious concern since it constitutes a safeguard of the highest order in response to mans innate
sense of justice. The Labor Code does not, of course, require a formal or trial type proceeding before an erring
employee may be dismissed. This is especially true in the case of a vessel on the ocean or in a foreign port. The
minimum requirement of due process termination proceedings, which must be complied with even with
respect to seamen on board a vessel, consists of notice to the employees intended to be dismissed and the
grant to them of an opportunity to present their own side of the alleged offense or misconduct, which led to
the managements decision to terminate. To meet the requirements of due process, the employer must
furnish the worker sought to be dismissed with two written notices before termination of employment can
be legally effected, i.e., (1) a notice which apprises the employee of the particular acts or omissions for
which his dismissal is sought; and (2) the subsequent notice after due hearing which informs the employee
of the employers decision to dismiss him. (Emphasis supplied)
In the present case, Jose, Jr. was not given any written notice about his dismissal. However, the propriety of Jose, Jr.s
dismissal is not affected by the lack of written notices.When the dismissal is for just cause, the lack of due process does
not render the dismissal ineffectual but merely gives rise to the payment of P30,000 in nominal damages.[33]

WHEREFORE, the petition is DENIED. The 11 May 2005 Decision and 5 August 2005 Resolution of the Court of Appeals
in CA-G.R. SP No. 83272 are AFFIRMED with the MODIFICATION that OSG Ship Management Manila, Inc. is ordered to
pay Bernardo B. Jose, Jr. P30,000 in nominal damages.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

*
Designated additional member per Special Order No. 776.
[1]
Rollo, pp. 9-24.
[2]
Id. at 30-38. Penned by Associate Justice Mario L. Guaria III, with Associate Justices Rebecca de Guia-Salvador and
Santiago Javier Ranada, concurring.
[3]
Id. at 40.
[4]
Id. at 49-60. Penned by Commissioner Victoriano R. Calaycay, with Presiding Commissioner Raul T. Aquino and
Commissioner Angelita A. Gacutan, concurring.
[5]
Id. at 62-63.
[6]
Id. at 42-48. Penned by Labor Arbiter Roma C. Asinas.
[7]
Id. at 65.
[8]
Id. at 66.
[9]
Id.
[10]
CA rollo, p. 75.
[11]
Rollo, pp. 67-68.
[12]
Id. at 69-70.
[13]
Id. at 71.
[14]
Id. at 72.
[15]
Id. at 46-47.
[16]
Id. at 56-58.
[17]
CA rollo, pp. 2-13.
[18]
Rollo, pp. 33-37.
[19]
CA rollo, pp. 125-130.
[20]
Rollo, pp. 154-156.
[21]
Id. at 159.
[22]
Id. at 16-20.
[23]
Id. at 35.
[24]
G.R. No. 101292, 8 June 1993, 223 SCRA 279, 282-283.
[25]
365 Phil. 124, 131 (1999).
[26]
480 Phil. 627, 636 (2004).
[27]
Rollo, p. 35.
[28]
Encarnacion v. Court of Appeals, supra note 24, at 282.
[29]
Id. at 284.
[30]
G.R. No. 173151, 28 March 2008, 550 SCRA 307, 319.
[31]
Talidano v. Falcon Maritime & Allied Services, Inc., G.R. No. 172031, 14 July 2008, 558 SCRA 279, 293.
[32]
Id. at 297-298.
[33]
Merin v. National Labor Relations Commission, G.R. No. 171790, 17 October 2008, 569 SCRA 576, 582-583.
 SECOND DIVISION
G.R. No. 150464 June 27, 2006
SECURITY BANK AND TRUST COMPANY, Petitioner,
vs.
ERIC GAN, Respondent.
DECISION
CORONA, J.:
This petition for review on certiorari1 seeks the reversal of the decision 2 of the Court of Appeals (CA) dated October 18,
2001 in CA-G.R. CV No. 45701, the dispositive portion of which read:
WHEREFORE, finding no reversible error therefrom, the Decision now on appeal is hereby AFFIRMED in toto.
SO ORDERED.3
The factual antecedents follow.
Petitioner Security Bank and Trust Company is a banking institution duly organized and existing under the laws of the
Philippines. In 1981, respondent Eric Gan opened a current account with petitioner at its Soler Branch in Santa Cruz,
Manila. Petitioner alleged that it had an agreement with respondent wherein the latter would deposit an initial amount
in his current account and he could draw checks on said account provided there were sufficient funds to cover them.
Furthermore, under a special arrangement with petitioners branch manager then, Mr. Qui, 4respondent was allowed to
transfer funds from his account to another persons account also within the same branch. 5 Respondent availed of such
arrangement several times by depositing checks in his account and even before they cleared, he withdrew the proceeds
thereof and transferred them to the other account. These transactions were covered by what were known as "debit
memos" since respondent had no sufficient funds to cover the amounts he transferred. 6
Later on, respondent purportedly incurred an overdraft or negative balance in his account. As of December 14, 1982,
the overdraft balance came up to P153,757.78. According to petitioner, respondent refused to heed petitioners
repeated demands for payment. For the period December 14, 1982 to September 15, 1990, the total obligation of
respondent reached P297,060.01, inclusive of interest.7
Thus, in 1991, petitioner filed a complaint for sum of money against respondent to recover the P297,060.01 with 12%
interest per annum from September 16, 1990 until fully paid, attorneys fees, litigation expenses and costs of suit. The
case was docketed as Civil Case No. 91-55605 with the Regional Trial Court of Manila, Branch 13.8
Respondent denied liability to petitioner for the said amount. He contended that the alleged overdraft resulted from
transactions done without his knowledge and consent.
In a decision dated March 31, 1993, the trial court dismissed the complaint. It held that petitioner was not able to prove
that respondent owed it the amount claimed considering that the ledger cards it presented were merely hearsay
evidence. On petitioners appeal, the CA affirmed the trial courts decision.
Hence, this petition anchored on the following grounds:
I. The honorable Court of Appeals erred in not ruling that petitioner has sufficiently proved its cause of action against
respondent; and that the ledger cards and the testimony of Mr. Patricio Mercado constituted the best evidence of the
transactions made by the respondent relative to his account.
II. The honorable Court of Appeals erred in not applying the principle of estoppel against respondent who has benefited
from the special arrangement accorded to him by petitioner which resulted in an overdraft / negative balance.
III. The honorable Court of Appeals erred in affirming the decision of the trial court. 9
We deny the petition for lack of merit.
It is well established that under Rule 45 of the Rules of Court, only questions of law, not of fact, may be raised before
the Supreme Court. It must be stressed that this Court is not a trier of facts and it is not its function to re-examine and
weigh anew the respective evidence of the parties. Factual findings of the trial court, especially those affirmed by the
CA, are conclusive on this Court when supported by the evidence on record. 10
Here, both the trial court and the CA found that petitioner failed to substantiate its claim that respondent knowingly
incurred an overdraft against his account. We see no reason to disturb this finding.
To prove its claim, petitioner presented Patricio Mercado who was the bookkeeper who handled the account of
respondent and recorded his transactions in a ledger. Based on this ledger, respondent allegedly had a negative balance
of P153,757.78. This resulted from transfers of funds from respondents current account to another persons account.
These transfers were made under the authority of Qui.11 Respondent categorically denied that he ever authorized these
"funds transfers."12
The entries in the ledger, as testified to by Mercado, were not competent evidence to prove that respondent consented
to the transfers of funds. These entries merely showed that the transfers were indeed made and that Qui approved
them. Petitioners claim that respondent availed of a special arrangement to transfer funds from his account to another
persons account was a bare allegation that was never substantiated. Admittedly, Mercado had no personal knowledge
of this arrangement.13 In fact, when asked about the details of the alleged consent given by respondent to the transfers,
he stated that he could not remember because respondent talked to Qui and not to him.14 Petitioner could have
presented Qui whom they alleged allowed the special arrangement with respondent. But it did not.
Neither can we accept petitioners argument that the entries made by Mercado in the ledger were competent evidence
to prove how and when the negative balance was incurred. Petitioner invokes Section 43 of Rule 130:
Entries in the course of business. Entries made at, or near the time of the transactions to which they refer, by a
person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the
ordinary or regular course of business or duty.
Under this exception to the hearsay rule, the admission in evidence of entries in corporate books required the
satisfaction of the following conditions:
1. the person who made the entry must be dead, or unable to testify;
2. the entries were made at or near the time of the transactions to which they refer;
3. the entrant was in a position to know the facts stated in the entries;
4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral
or religious; and
5. the entries were made in the ordinary or regular course of business or duty. 15
The ledger entries did not meet the first and third requisites.
Mercado, petitioners bookkeeper who prepared the entries, was presented to testify on the transactions pertaining to
the account of respondent. It was in the course of his testimony that the ledger entries were presented. There was,
therefore, neither justification nor necessity for the presentation of the entries as the person who made them was
available to testify in court.16
Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly those entries which
resulted in the negative balance. He had no knowledge of the truth or falsity of these entries. We agree entirely with
the following discussion of the trial court which was affirmed by the CA:
The plaintiff submits that the ledger cards constituted the best evidence of the transactions made by the defendant
with the bank relative to his account, pursuant to Section 43 of Rule 130 of the Revised Rules on Evidence. There is no
question that the entries in the ledgers were made by one whose duty it was to record transactions in the ordinary or
regular course of the business. But for the entries to be prima facie evidence of the facts recorded, the Rule
interpose[s] a very important condition, one which we think is truly indispensable to the probative worth of the entries
as an exception to the hearsay rule, and that is that the entrant must be "in a position to know the facts therein
stated." Undeniably, Mr. Mercado was in a position to know the facts of the check deposits and withdrawals. But the
transfers of funds through the debit memos in question?
Let us be clear, at the outset, what the transactions covered by the debit memos are. They are, at bottom, credit
accommodations said to have been granted by the banks branch manager Mr. [Q]ui to the defendant, and they are,
therefore loans, to prove which competent testimonial or documentary evidence must be presented. In the fac[e] of
the denial by the defendant of the existence of any such agreement, and the absence of any document reflecting it, the
testimony of a party to the transaction, i.e., Mr. [Q]ui, or of any witness to the same, would be necessary. The plaintiff
failed to explain why it did not or could not present any party or witness to the transactions, but even if it had a reason
why it could not, it is clear that the existence of the agreements cannot be established through the testimony of Mr.
Mercado, for he was [not in] a position to [know] those facts. As a subordinate, he could not have done more than
record what was reported to him by his superior the branch manager, and unless he was allowed to be privy to the
latters dealings with the defendant, the information that he received and entered in the ledgers was incapable of being
confirmed by him.
There is good reason why evidence of this nature is incorrigibly hearsay. Entries in business records which spring from
the duty of other employees to communicate facts occurring in the ordinary course of business are prima facie
admissible, the duty to communicate being itself a badge of trustworthiness of the entries, but not when they purport
to record what were independent agreements arrived at by some bank officials and a client. In this case, the entries
become mere casual or voluntary reports of the official concerned. To permit the ledgers, prepared by the bank at its
own instance, to substitute the contract as proof of the agreements with third parties, is to set a dangerous precedent.
Business entries are allowed as an exception to the hearsay rule only under certain conditions specified in Section 43,
which must be scrupulously observed to prevent them from being used as a source of undue advantage for the party
preparing them.17 (citations omitted)
Thus, petitioner did not prove that respondent had incurred a negative balance in his account. Consequently, there was
nothing to show that respondent was indebted to it in the amount claimed.lavvphil.net
Petitioners next argument is that respondent was estopped from denying the claim of petitioner since he benefited
from the special arrangement accorded to him resulting in the negative balance. This must likewise fail. The so-called
special arrangement was never established. In addition, there was no evidence that respondent benefited from it. As
held by the CA:
The trial court satisfactorily explained the reason for not applying the principle of estoppel against defendant-appellee.
As held by the trial court:
"There is no scope here for the application of estoppel against the defendant-appellee, since it was not established that
he had ever received copies of the ledgers, and therefore given the opportunity to review the correctness of the
entries. As we see it, the case of the [plaintiff suffers from its failure to document its] transactions with its clients, and it
is hardly right to close our eyes to that infirmity at the expense of the defendant-appellee."
The temporary overdraft allegedly accorded by plaintiff-appellant to defendant-appellee has not benefited the
defendant-appellee in any manner. The 3 debit memos amounting to P150,000.00 appearing on defendant-appellees
ledger consisted of fund transfers from and not to defendant-appellees account. The transfers resulted [in] the benefit
of other accounts, not that of defendant-appellee.18
In view of the foregoing, the CA did not err in affirming the decision of the trial court.
WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of Appeals dated October 18, 2001 in
CA-G.R. CV No. 45701 is AFFIRMED in toto.
Costs against petitioner.
SO ORDERED.
RENATO C. CORONA
Associate Justice
Footnotes
1
Under Rule 45 of the Rules of Court.
2
Penned by Associate Justice Bernardo P. Abesamis and concurred in by Associate Justices Godardo A. Jacinto and
Eliezer R. De Los Santos of the 17th Division; rollo, pp. 26-35.
3
Rollo, p. 354 The first name of Mr. Qui was not specified in the records.
5
One of the transfers was made to a certain Mr. Sy Cho Song; rollo, p. 32; records, p. 170.
6
Petitioners Petition, rollo, p. 12. 7 Id., p. 13; CA Decision, rollo, p. 27.8 Penned by Judge Mario Guaria III.
9
Rollo, p. 14.10 Pleyto v. Lomboy, G.R. No. 148737, 16 June 2004, 432 SCRA 329, 336, citations omitted.
11
Trial Court Decision, Records, p. 170; rollo, p. 32. The entries state:
Date Check Particular Approved by Amount
5-1 DM* Transfer E. Qui P50,000
C/A 125-63
5-13 DM transfer E. Qui 50,000
5-19 DM transfer 50,000
* Debit memo12 CA Decision, rollo, p. 34.13 Trial Court Decision, records, p. 170. The trial court stated:
xxx Asked whether the defendant had consented to the transfer of the funds, he said:
"[I]t was the manager to whom (sic) Eric Gan ha[d] talked "
(tsn, July 21, 1992, at 12). xxx
14
TSN, p. 12.15 Canque v. Court of Appeals, 365 Phil. 124, 131 (1999), citing Regalado, Remedial Law Compendium, Vol.
II, p. 616, 1995.
16
Id.17 Records, pp. 170-171.18 Rollo, p. 33; records, p. 171.
G.R. No. 198627
DST MOVERS CORPORATION, Petitioner,
vs.
PEOPLE'S GENERAL INSURANCE CORPORATION, Respondent.
DECISION
LEONEN, J.:
A determination of where the preponderance of evidence lies is a factual issue which, as a rule, cannot be entertained
in a Rule 45 petition. When, however, the sole basis of the trial court for ruling on this issue is evidence that should not
have been admitted for being hearsay, this court will embark on its own factual analysis and will, if necessary, reverse
the rulings of the lower courts. A traffic accident investigation report prepared by a police officer relying solely on the
account of a supposed eyewitness and not on his or her personal knowledge is not evidence that is admissible as an
exception to the Hearsay Rule.
This resolves a Petition for Review on Certiorari 1 under Rule 45 of the 1997 Rules of Civil Procedure praying that the
assailed May 11, 2011 Decision2 and September 8, 2011 Resolution3 of the Court of Appeals Former Twelfth Division in
CA-G.R. SP No. 109163 be reversed and set aside, and that a new one be entered dismissing respondent Peoples
General Insurance Corporations (PGIC) Complaint for Sum of Money. 4
In its assailed May 11, 2011 Decision, the Court of Appeals affirmed with modification the ruling of Branch 47 of the
Regional Trial Court of Manila in Civil Case No. 07-118093 which, in turn, affirmed in toto the ruling of Branch 22 of the
Metropolitan Trial Court of Manila in Civil Case No. 181900. In its assailed September 8, 2011 Resolution, the Court of
Appeals denied petitioner DST Movers Corporations (DST Movers) Motion for Reconsideration. 5
The Metropolitan Trial Court of Manila found DST Movers liable to pay PGIC the amount of P90,000.00 by way of actual
damages plus interest as well as P10,000.00 for attorneys fees and costs of suit.6 The Court of Appeals ordered DST
Movers to pay PGIC the amount of P25,000.00 as temperate damages in lieu of the original award of P90,000.00 as
actual damages.7
In a Complaint for Sum of Money filed before the Metropolitan Trial Court of Manila, PGIC alleged that at about 10:30
p.m. on February 28, 2002, along the South Luzon Expressway and in the area of Bilibid, Muntinlupa City, a Honda Civic
sedan with plate number URZ-976 (sedan) was hit on the rear by an Isuzu Elf truck with plate number UAL-295 (truck).
PGIC underscored that the sedan was on a stop position when it was hit. The sedan was then allegedly pushed forward,
thereby hitting a Mitsubishi Lancer. The driver of the truck then allegedly escaped.8
In support of its recollection of the events of February 28, 2002, PGIC relied on a Traffic Accident Investigation Report
(Report) prepared by PO2 Cecilio Grospe Tomas (PO2 Tomas) of the Muntinlupa City Traffic Enforcement Unit of the
Philippine National Police. This was attached as Annex "E" 9 of PGICs Complaint and also as Annex "E"10 of its Position
Paper. It stated:
TRAFFIC ACCIDENT INVESTIGATION REPORT
(Entry No. 805-285-0202)
Time and date : At about 10:30 p.m. February 28, 2002
Place : along SLEX, Bilibid N/B, Muntinlupa City
Weather con : Fair
Nature : RIR/DTP/PI (hit and run)
Inv vehicle (3)
Vehicle-1 : Honda civic
Plate no. : URZ-976
Driver : MA. ADELINE YUBOCO Y DELA CRUZ
(injured)
Lic. no. : N03-96-213671
Address : 24 Hernandez st., BF Homes Paranaque City
Reg. Owner : Fidel Yuboco
Address : same as driver
Damage : rear & front portion, whole right side portion
Vehicle-2 : Mits. Lancer
Plate no. : CMM-373
Driver : HARRISON TUQUERO Y VALDEZ
Lic. no. : 014-02-032855
Address : 13-16 Carolina st., Villasol Subd., Angeles City
Reg. Owner : Edgardo Tuquero
Address : 518 Obio st., Villasol Subd., Angeles City
Damage : left side rear portion
 Vehicle-3 : Truck
Plate no. : UAL-295
Driver : Unidentified
Damage : Undetermine [sic]
Reportee : G. Simbahon of PNCC/SLEX
F A C T S:
It appears that while V1 was on stop position facing north at the aforesaid place of occurrence when the rear portion of
the same was allegedly hit/bumped by V3 which was moving same direction on the same place due to strong impact V1
pushed forward and hit the left side rear portion of V2 causing damages and injuries thereon. After the impact, V3
escaped towards undisclosed direction and left V1 & V2 at the place of accident. During investigation V1 & V2 driver
gave voluntary handwritten statement and they were advised to submit medical certificate, estimate/photos of
damages as annexes.
Status of the case: For follow-up. . . . . . . . . . . . . .
(sgd.)
PO2 Cecilio Grospe Tomas PNP
- on case -11
The truck was supposedly subsequently discovered to be owned by DST Movers. 12 The sedan was covered by PGICs
insurance under Policy No. HAL-PC-1314.13 As a result of the February 28, 2002 incident, the sedans owner, Fidel
Yuboco, filed a total loss claim with PGIC in the amount of P320,000.00. PGIC paid Fidel Yuboco the entire amount of
P320,000.00.14
Asserting that it was subrogated to Fidel Yubocos rights and that the proximate cause of the mishap was the
negligence of the driver of the truck, PGIC, through counsel, sent DST Movers demand letters. PGIC demanded from
DST Movers the amount of P90,000.00, which represented the difference between the P320,000.00 paid by PGIC to
Yuboco and the salvage price of P230,000.00, at which PGIC was supposedly able to sell what remained of the sedan. 15
Its demands not having been satisfied, PGIC proceeded to file its Complaint 16 for Sum of Money before the
Metropolitan Trial Court of Manila. This case was docketed as Civil Case No. 181900.17
In its Answer,18 DST Movers acknowledged that it was the owner of the truck. However, it claimed that the truck did not
make any trips on February 28, 2002 as it was undergoing repairs and maintenance. 19 In support of this affirmative
defense, DST Movers attached as Annexes "1" to "1-F"20 copies of invoices, receipts, and cash vouchers relating to
repairs and maintenance procedures that were undertaken on the truck on specific dates, which included February 28,
2002.
Following the submission of the parties position papers, Branch 22 of the Metropolitan Trial Court Manila rendered its
Decision21 favoring PGICs version of events and finding DST Movers liable. The dispositive portion of this Decision
reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant ordering to pay the latter
to pay the [sic] of Php90,000.00 as actual damages plus interest of 12% per annum from the date of filing of the
complaint and the sum of Php10,000.00 as and for attorneys fees and the costs of suit.
SO ORDERED.22
On appeal, the ruling of the Metropolitan Trial Court was affirmed in toto by Branch 47 of the Regional Trial Court of
Manila.23
DST Movers then filed before the Court of Appeals a Petition for Review under Rule 42 of the 1997 Rules of Civil
Procedure.
In its assailed May 11, 2011 Decision, the Court of Appeals affirmed the rulings of the Regional Trial Court and the
Metropolitan Trial Court. However, it noted that PGIC failed to prove actual loss with reasonable certainty. As such, the
Court of Appeals deleted the award of P90,000.00 in actual damages and replaced it with an award of P25,000.00 in
temperate damages.
In its assailed September 8, 2011 Resolution,24 the Court of Appeals denied DST Movers Motion for Reconsideration.
Hence, DST Movers filed the present Petition insisting that its liability was not established by a preponderance of
evidence. Specifically, it faults the Metropolitan Trial Court for ruling in favor of PGIC despite how its version of events
was supported by nothing more the Traffic Accident Investigation Report. It asserts that reliance on this Report was
misplaced as it was supposedly "improperly identified [and] uncorroborated."25
For resolution is the issue of whether petitioner DST Movers Corporations liability was established by a preponderance
of evidence. Subsumed in this is whether it was an error for the Metropolitan Trial Court to admit and lend evidentiary
weight to the piece of evidence chiefly relied upon by respondent Peoples General Insurance Corporation: the Traffic
Accident Investigation Report prepared by PO2 Tomas.
I
Petitioner comes to this court through a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure. It invites this court to reconsider the consistent rulings of the Court of Appeals, the Regional Trial Court, and
the Metropolitan Trial Court that petitioners liability arising from the February 28, 2002 incident was established by a
preponderance of evidence.
A Rule 45 petition pertains to questions of law and not to factual issues. Rule 45, Section 1 of the 1997 Rules of Civil
Procedure is unequivocal:
SECTION 1. Filing of Petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final
order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever
authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise
only questions of law which must be distinctly set forth.
This courts Decision in Cheesman v. Intermediate Appellate Court26 distinguished questions of law from questions of
fact:
As distinguished from a question of law which exists "when the doubt or difference arises as to what the law is on a
certain state of facts" "there is a question of fact when the doubt or difference arises as to the truth or the falsehood
of alleged facts;" or when the "query necessarily invites calibration of the whole evidence considering mainly the
credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other and
to the whole and the probabilities of the situation."27 (Citations omitted)
Seeking recourse from this court through a petition for review on certiorari under Rule 45 bears significantly on the
manner by which this court shall treat findings of fact and evidentiary matters. As a general rule, it becomes improper
for this court to consider factual issues: the findings of fact of the trial court, as affirmed on appeal by the Court of
Appeals, are conclusive on this court. "The reason behind the rule is that [this] Court is not a trier of facts and it is not
its duty to review, evaluate, and weigh the probative value of the evidence adduced before the lower courts." 28
A determination of whether a matter has been established by a preponderance of evidence is, by definition, a question
of fact. It entails an appreciation of the relative weight of the competing parties evidence. Rule 133, Section 1 of the
Revised Rules on Evidence provides a guide on what courts may consider in determining where the preponderance of
evidence lies:
SECTION 1. Preponderance of evidence, how determined. In civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses'
manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying,
the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may
also consider the number of witnesses, though the preponderance is not necessarily with the greater number.
Consistent with Cheesman, such determination is a "query [that] necessarily invites calibration of the whole evidence
considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their
relation to each other and to the whole and the probabilities of the situation." 29
On point as regards civil liability for damages, this court in Caina v. People of the Philippines30 explained:
Questions on whether or not there was a preponderance of evidence to justify the award of damages or whether or not
there was a causal connection between the given set of facts and the damage suffered by the private complainant or
whether or not the act from which civil liability might arise exists are questions of fact. 31
Equally on point, this court has explained in many instances that a determination of the causes of and circumstances
relating to vehicular accidents is a factual matter that this court may not revisit when the findings of the trial court and
the Court of Appeals are completely in accord.
In Industrial Insurance Co. v. Bondad:32
Questions regarding the cause of the accident and the persons responsible for it are factual issues which we cannot
pass upon. It is jurisprudentially settled that, as a rule, the jurisdiction of this Court is limited to a review of errors of law
allegedly committed by the appellate court. It is not bound to analyze and weigh all over again the evidence already
considered in the proceedings below.33
Likewise, in Viron Transportation v. Delos Santos:34
The rule is settled that the findings of the trial court especially when affirmed by the Court of Appeals, are conclusive on
this Court when supported by the evidence on record. The Supreme Court will not assess and evaluate all over again
the evidence, testimonial and documentary adduced by the parties to an appeal particularly where, such as here, the
findings of both the trial court and the appellate court on the maker coincide. 35 (Citation omitted)
However, there are exceptions that leave room for this court to make a factual determination for itself and, ultimately,
to overturn the factual findings with which it is confronted:
(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;
(2) When the inference made is manifestly mistaken, absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee;
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of specific evidence on which they are based;
(9) When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the
respondents; and
(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and
contradicted by the evidence on record.36
In Dela Llana v. Biong,37 this court conducted its own (re-) examination of the evidence as the findings of the Regional
Trial Court conflicted with those of the Court of Appeals. The Regional Trial Court held that the proximate cause of the
injuries suffered by the petitioner was the supposed reckless driving of the respondents employee; the Court of
Appeals held otherwise. On review, this court sustained the findings of the Court of Appeals.
In Standard Insurance v. Cuaresma,38 the ruling of the Metropolitan Trial Court was reversed by the Regional Trial
Court. The latter was then sustained by the Court of Appeals. On review, this court affirmed the decision of the Court of
Appeals. This court noted that the Metropolitan Trial Court erroneously gave weight to the traffic accident investigation
report presented by the petitioner as proof of the proximate cause of the damage sustained by a motor vehicle.
II
Here, petitioner insists that the Traffic Accident Investigation Report prepared by PO2 Tomas should not have been
admitted and accorded weight by the Metropolitan Trial Court as it was "improperly identified [and]
uncorroborated."39 Petitioner, in effect, asserts that the non-presentation in court of PO2 Tomas, the officer who
prepared the report, was fatal to respondents cause.
Unlike in Dela Llana and Standard Insurance, the findings of the Metropolitan Trial Court, the Regional Trial Court, and
the Court of Appeals in this case are all in accord. They consistently ruled that the proximate cause of the damage
sustained by the sedan was the negligent driving of a vehicle owned by petitioner. As with Standard Insurance,
however, this conclusion is founded on the misplaced probative value accorded to a traffic accident investigation
report. In the first place, this Report should not have been admitted as evidence for violating the Hearsay Rule. Bereft
of evidentiary basis, the conclusion of the lower courts cannot stand as it has been reduced to conjecture. Thus, we
reverse this conclusion.
Rule 130, Section 36 of the Revised Rules on Evidence provides for the Hearsay Rule. It renders inadmissible as evidence
out-of-court statements made by persons who are not presented as witnesses but are offered as proof of the matters
stated. This rule proceeds from the basic rationale of fairness, as the party against whom it is presented is unable to
cross-examine the person making the statement:40
SECTION 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.
The Hearsay Rule, however, is not absolute. Sections 37 to 47 of Rule 130 of the Revised Rules on Evidence enumerate
the exceptions to the Hearsay Rule. Of these, Section 44regarding entries in official recordsis particularly relevant
to this case:
SECTION 44. Entries in official records. Entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated.
Precisely as an exception to the Hearsay Rule, Rule 130, Section 44 does away with the need for presenting as witness
the public officer or person performing a duty specially enjoined by law who made the entry. This, however, is only
true, for as long the following requisites have been satisfied:
(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.41
Respondent, the Metropolitan Trial Court, the Regional Trial Court, and the Court of Appeals are all of the position that
the Report prepared by PO2 Tomas satisfies these requisites.1wphi1 Thus, they maintain that it is admissible as prima
facie evidence of the facts it states. This despite the admitted fact that neither PO2 Tomas, nor the person who
supposedly reported the events of February 28, 2002 to PO2 Tomas the person identified as "G. Simbahon of
PNCC/SLEX"42 gave a testimony in support of the Report.
They are in serious error.
The statements made by this court in Standard Insurance are on point:
[F]or the Traffic Accident Investigation Report to be admissible as prima facie evidence of the facts therein stated, the
following requisites must be present:
. . . (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.
Regrettably, in this case, petitioner failed to prove the third requisite cited above. As correctly noted by the courts
below, while the Traffic Accident Investigation Report was exhibited as evidence, the investigating officer who prepared
the same was not presented in court to testify that he had sufficient knowledge of the facts therein stated, and that he
acquired them personally or through official information. Neither was there any explanation as to why such officer was
not presented. We cannot simply assume, in the absence of proof, that the account of the incident stated in the report
was based on the personal knowledge of the investigating officer who prepared it.
Thus, while petitioner presented its assured to testify on the events that transpired during the vehicular collision, his
lone testimony, unsupported by other preponderant evidence, fails to sufficiently establish petitioner's claim that
respondents' negligence was, indeed, the proximate cause of the damage sustained by Cham's vehicle. 43[Emphasis
supplied]
Respondent presented proof of the occurrence of an accident that damaged Fidel Yubocos Honda Civic sedan, 44that
the sedan was insured by respondent,45 and that respondent paid Fidel Yubocos insurance claims. 46 As to the identity,
however, of the vehicle or of the person responsible for the damage sustained by the sedan, all that respondent relies
on is the Report prepared by PO2 Tomas.
It is plain to see that the matters indicated in the Report are not matters that were personally known to PO2 Tomas.
The Report is candid in admitting that the matters it states were merely reported to PO2 Tomas by "G. Simbahon of
PNCC/SLEX."47 It was this "G. Simbahon," not PO2 Tomas, who had personal knowledge of the facts stated in the
Report. Thus, even as the Report embodies entries made by a public officer in the performance of his duties, it fails to
satisfy the third requisite for admissibility for entries in official records as an exception to the Hearsay Rule.
To be admitted as evidence, it was thus imperative for the person who prepared the ReportPO2 Tomasto have
himself presented as a witness and then testify on his Report. However, even as the Report would have been admitted
as evidence, PO2 Tomas testimony would not have sufficed in establishing the identity of the motor vehicle and/or the
person responsible for the damage sustained by the sedan. For this purpose, the testimony of G. Simbahon was
necessary.
Of course, we are aware that this case was decided by the Metropolitan Trial Court pursuant to the Revised Rule on
Summary Procedure (considering that petitioners total claims amounted to less than P200,000.00 48). Accordingly, no
trial was conducted as, after the conduct of a preliminary conference, the parties were made to submit their position
papers. There was, thus, no opportunity to present witnesses during an actual trial. However, Section 9 of the Revised
Rule on Summary Procedure calls for the submission of witnesses affidavits together with a partys position paper and
after the conduct of a preliminary conference:
SECTION 9. Submission of Affidavits and Position Papers. Within ten (10) days from receipt of the order mentioned in
the next preceding section,49 the parties shall submit the affidavits of their witnesses and other evidence on the factual
issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them.
These affidavits take the place of actual testimony in court and serve to expedite the resolution of cases covered by the
Revised Rule on Summary Procedure. Thus, it was still insufficient for respondent to have merely annexed the Report to
its Position Paper. By its lonesome, and unsupported by an affidavit executed by PO2 Tomas, the Report was hearsay
and, thus, inadmissible.
As the sole evidence relied upon by respondent as to the identity of the responsible motor vehicle or person has been
rendered unworthy of even the slightest judicial consideration, there is no basis for holding-as the Metropolitan Trial
Court did-that the motor vehicle responsible for the damage sustained by the sedan was owned by petitioner. Not only
this, petitioner has even adduced proof that on February 28, 2002, its Isuzu Elf truck with plate number UAL-295 was
undergoing repairs and maintenance and, thus, could not have been at the South Luzon Expressway. The weight of
evidence is clearly in petitioner's favor.
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The assailed May 11, 2011 Decision and September 8,
2011 Resolution of the Court of Appeals Former Twelfth Division in CA-G.R. SP No. 109163 are REVERSED and SET
ASIDE. Respondent People's General Insurance Corporation's Complaint is DISMISSED.
No pronouncement as to costs.
SO ORDERED.
MARVIC M.V.F. LEONEN
Associate Justice
Footnotes
1
Rollo, pp. 13-60.
2
Id. at 6273. The Decision was penned by Associate Justice Edwin D. Sorongon and concurred in by Associate Justices
Rosalinda Asuncion-Vicente and Romeo F. Barza.
3
Id. at 75-77. The Resolution was penned by Associate Justice Edwin D. Sorongon and concurred in by Associate
Justices Rosalinda Asuncion-Vicente and Romeo F. Barza.
4
Id at. 7884, Complaint.
5
Id. at 7273.
6
Id. at 67.
7
Id.
8
Id. at 79.
9
Id. at 89.
10
Id. at 197.
11
Id.
12
Id. at 79, Complaint.
13
Id.
14
Id. at 80.
15
Id. at 81, and 9698, Annexes "L" to "M".
16
Id. at 7883, Complaint.
17
Id.
18
Id. at 103111.
19
Id. at 104105, Answer.
20
Id. at 112118.
21
The case was decided pursuant to the Revised Rule on Summary Procedure considering that petitioners total claims
amounted to less than P200,000.00.
22
Id. at 67, Court of Appeals Decision.
23
Id.
24
Id. at 7577.
25
Id. at 23, Petition.
26
271 Phil. 89 (1991) [Per J. Narvasa, Second Division].
27
Id. at 9798.
28
Frondarina v. Malazarte, 539 Phil. 279, 290291 (2006) [Per J. Velasco, Third Division].
29
Cheesman v. Intermediate Appellate Court, 271 Phil. 89, 9798 (1991) [Per J. Narvasa, Second Division].
30
G.R. No. 78777, September 2, 1992, 213 SCRA 309 [Per J. Gutierrez, Jr., Second Division].
31
Id. at 711.
32
386 Phil. 923 (2000) [Per J. Panganiban, Third Division].
33
Id. at 931.
34
399 Phil. 243 (2000) [Per J. Gonzaga-Reyes, Third Division].
35
Id. at 250.
36
Cirtek Employees Labor Union v. Cirtek Electronics, Inc., 665 Phil. 784, 789 (2011) [Per J. Carpio Morales, Third
Division].
37
G.R. No. 182356, December 4, 2013, 711 SCRA 522 [Per J. Brion, Second Division].
38
G.R. No. 200055, September 10, 2014, 734 SCRA 709 [Per J. Peralta, Third Division].
39
Rollo, p. 23.
40
See Estrella v. Court of Appeals, 254 Phil. 618 (1989) [Per J. Narvasa, First Division].
41
D.M. Consunji, Inc. v. Court of Appeals, 409 Phil. 275, 286 (2001) [Per J. Kapunan, First Division], citing Africa, et al. vs.
Caltex (Phil.), Inc., et al. 123 Phil. 272 (1966) [Per J. Makalintal, En Banc] and People vs. San Gabriel, 323 Phil. 102 (1996)
[Per J. Kapunan, First Division].
42
Rollo, p. 89.
43
Standard Insurance v. Cuaresma, G.R. No. 200055, September 10, 2014, 734 SCRA 709 [Per J. Peralta, Third Division].
44
Rollo, p. 198, Photographs, Annexes "F" and "G" of respondents Position Paper.
45
Id. at 196, Private Car Policy, Annex "D" of respondents Position Paper.
46
Id. at 199200, Voucher, Annex "H;" and Release of Claim, Annex "I" of respondents Position Paper.
47
Id. at 89.
48
SECTION 1. Scope. This rule shall govern the summary procedure in the Metropolitan Trial Courts, the Municipal
Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling
within their jurisdiction:
A. Civil Cases:
....
(2) All other cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed one
hundred thousand pesos (100,000.00) or, two hundred thousand pesos (P200,000.00) in Metropolitan Manila,
exclusive of interest and costs.
49
SECTION 8. Record of Preliminary Conference. Within five (5) days after the termination of the preliminary
conference, the court shall issue an order stating the matters taken up therein, including but not limited to:
a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
b) The stipulations or admissions entered into by the parties;
c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be
rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30)
days from issuance of the order;
d) A clear specification of material facts which remain controverted; and
e) Such other matters intended to expedite the disposition of the case.
 FIRST DIVISION

BARCELON, ROXAS SECURITIES, INC. G. R. No. 157064

(now known as UBP Securities, Inc.)
Petitioner, Pr e sen t:

PAN G ANI BAN, C. J. ,

Ch a ir man ,
- versus - YN ARE S -S AN TI A GO
AU S T RIA - MA R TINE Z,
CA LLE J O, S R. , an d
CHI C O - NA ZA RI O, J J.
COMMISSIONER OF INTERNAL
REVENUE, Promulgated:
Respondent.
August 7, 2006

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

DECISION

CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeking to set aside the Decision of the
Court of Appeals in CA-G.R. SP No. 60209 dated 11 July 2002,[1] ordering the petitioner to pay the Government the
amount of P826,698.31 as deficiency income tax for the year 1987 plus 25% surcharge and 20% interest per annum.The
Court of Appeals, in its assailed Decision, reversed the Decision of the Court of Tax Appeals (CTA) dated 17 May
2000[2] in C.T.A. Case No. 5662.

Petitioner Barcelon, Roxas Securities Inc. (now known as UBP Securities, Inc.) is a corporation engaged in the trading of
securities. On 14 April 1988, petitioner filed its Annual Income Tax Return for taxable year 1987. After an audit
investigation conducted by the Bureau of Internal Revenue (BIR), respondent Commissioner of Internal Revenue (CIR)
issued an assessment for deficiency income tax in the amount of P826,698.31 arising from the disallowance of the item
on salaries, bonuses and allowances in the amount of P1,219,093,93 as part of the deductible business expense since
petitioner failed to subject the salaries, bonuses and allowances to withholding taxes. This assessment was covered by
Formal Assessment Notice No. FAN-1-87-91-000649 dated 1 February 1991, which, respondent alleges, was sent to
petitioner through registered mail on 6 February 1991.However, petitioner denies receiving the formal assessment
notice.[3]

On 17 March 1992, petitioner was served with a Warrant of Distraint and/or Levy to enforce collection of the deficiency
income tax for the year 1987. Petitioner filed a formal protest, dated 25 March 1992, against the Warrant
of Distraint and/or Levy, requesting for its cancellation. On 3 July 1998, petitioner received a letter dated 30 April
1998 from the respondent denying the protest with finality. [4]

On 31 July 1998, petitioner filed a petition for review with the CTA. After due notice and hearing, the CTA
rendered a decision in favor of petitioner on 17 May 2000. The CTA ruled on the primary issue of prescription and
found it unnecessary to decide the issues on the validity and propriety of the assessment. It maintained that while a
mailed letter is deemed received by the addressee in the course of mail, this is merely a disputable presumption. It
reasoned that the direct denial of the petitioner shifts the burden of proof to the respondent that the mailed letter was
actually received by the petitioner. The CTA found the BIR records submitted by the respondent immaterial, self-
serving, and therefore insufficient to prove that the assessment notice was mailed and duly received by the
petitioner.[5] The dispositive portion of this decision reads:
 WHEREFORE, in view of the foregoing, the 1988 deficiency tax assessment against petitioner is hereby
CANCELLED. Respondent is hereby ORDERED TO DESIST from collecting said deficiency tax. No pronouncement
as to costs.[6]

On 6 June 2000, respondent moved for reconsideration of the aforesaid decision but was denied by the CTA in
a Resolution dated 25 July 2000. Thereafter, respondent appealed to the Court of Appeals on 31 August 2001. In
reversing the CTA decision, the Court of Appeals found the evidence presented by the respondent to be sufficient proof
that the tax assessment notice was mailed to the petitioner, therefore the legal presumption that it was received
should apply.[7] Thus, the Court of Appeals ruled that:

WHEREFORE, the petition is hereby GRANTED. The decision dated May 17, 2000 as well as
the Resolution dated July 25, 2000 are hereby REVERSED and SET ASIDE, and a new on entered
ordering the respondent to pay the amount of P826,698.31 as deficiency income tax for the year 1987
plus 25% surcharge and 20% interest per annum from February 6, 1991 until fully paid pursuant to
Sections 248 and 249 of the Tax Code.[8]

Petitioner moved for reconsideration of the said decision but the same was denied by the Court of Appeals in
its assailed Resolution dated 30 January 2003.[9]

Hence, this Petition for Review on Certiorari raising the following issues:

WHE THE R O R N O T LE G AL B A SE S E XI S T F OR TH E CO U R T O F AP PE A LS F INDI NG T HA T THE

CO U R T O F T AX AP PE A LS CO MM I T TE D G R OS S E RR OR IN THE AP PRE CI A TI O N OF F A C TS .

II

WHETHER OR NOT THE COURT OF APPEALS WAS CORRECT IN REVERSING THE SUBJECT DECISION OF THE
COURT OF TAX APPEALS.

III

WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL REVENUE TO ASSESS PETITIONER FOR ALLEGED
DEFICIENCY INCOME TAX FOR 1987 HAS PRESCRIBED.

IV

WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL REVENUE TO COLLECT THE SUBJECT ALLEGED
DEFICIENCY INCOME TAX FOR 1987 HAS PRESCRIBED.

WHETHER OR NOT PETITIONER IS LIABLE FOR THE ALLEGED DEFICIENCY INCOME TAX ASSESSMENT FOR 1987.

VI

WHETHER OR NOT THE SUBJECT ASSESSMENT IS VIOLATIVE OF THE RIGHT OF PETITIONER TO DUE PROCESS. [10]

This Court finds the instant Petition meritorious.

The core issue in this case is whether or not respondents right to assess petitioners alleged deficiency income
tax is barred by prescription, the resolution of which depends on reviewing the findings of fact of the Court of Appeals
and the CTA.

While the general rule is that factual findings of the Court of Appeals are binding on this Court, there are,
however, recognized exceptions[11] thereto, such as when the findings are contrary to those of the trial court or, in this
case, the CTA.[12]

In its Decision, the CTA resolved the issues raised by the parties thus:
 Jurisprudence is replete with cases holding that if the taxpayer denies ever having received an
assessment from the BIR, it is incumbent upon the latter to prove by competent evidence that such notice was
indeed received by the addressee. The onus probandi was shifted to respondent to prove by contrary evidence
that the Petitioner received the assessment in the due course of mail. The Supreme Court has consistently held
that while a mailed letter is deemed received by the addressee in the course of mail, this is merely a disputable
presumption subject to controversion and a direct denial thereof shifts the burden to the party favored by the
presumption to prove that the mailed letter was indeed received by the addressee (Republic vs. Court of
Appeals, 149 SCRA 351). Thus as held by the Supreme Court in Gonzalo P. Nava vs. Commissioner of Internal
Revenue, 13 SCRA 104, January 30, 1965:

The facts to be proved to raise this presumption are (a) that the letter was properly addressed
with postage prepaid, and (b) that it was mailed. Once these facts are proved, the presumption is that
the letter was received by the addressee as soon as it could have been transmitted to him in the
ordinary course of the mail. But if one of the said facts fails to appear, the presumption does not
lie. (VI, Moran, Comments on the Rules of Court, 1963 ed, 56-57 citing Enriquez vs. Sunlife Assurance
of Canada, 41 Phil 269).

In the instant case, Respondent utterly failed to discharge this duty. No substantial evidence was ever
presented to prove that the assessment notice No. FAN-1-87-91-000649 or other supposed notices
subsequent thereto were in fact issued or sent to the taxpayer. As a matter of fact, it only submitted the BIR
record book which allegedly contains the list of taxpayers names, the reference number, the year, the nature
of tax, the city/municipality and the amount (see Exh. 5-a for the Respondent). Purportedly, Respondent
intended to show to this Court that all assessments made are entered into a record book in chronological
order outlining the details of the assessment and the taxpayer liable thereon. However, as can be gleaned
from the face of the exhibit, all entries thereon appears to be immaterial and impertinent in proving that the
assessment notice was mailed and duly received by Petitioner. Nothing indicates therein all essential facts that
could sustain the burden of proof being shifted to the Respondent. What is essential to prove the fact of
mailing is the registry receipt issued by the Bureau of Posts or the Registry return card which would have been
signed by the Petitioner or its authorized representative. And if said documents cannot be located,
Respondent at the very least, should have submitted to the Court a certification issued by the Bureau of Posts
and any other pertinent document which is executed with the intervention of the Bureau of Posts. This Court
does not put much credence to the self serving documentations made by the BIR personnel especially if they
are unsupported by substantial evidence establishing the fact of mailing. Thus:

While we have held that an assessment is made when sent within the prescribed period,
even if received by the taxpayer after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and L-
12259, May 27, 1959), this ruling makes it the more imperative that the release, mailing or sending of
the notice be clearly and satisfactorily proved. Mere notations made without the taxpayers
intervention, notice or control, without adequate supporting evidence cannot suffice; otherwise, the
taxpayer would be at the mercy of the revenue offices, without adequate protection or
defense. (Nava vs. CIR, 13 SCRA 104, January 30, 1965).

xxxx

The failure of the respondent to prove receipt of the assessment by the Petitioner leads to the
conclusion that no assessment was issued. Consequently, the governments right to issue an assessment for the
said period has already prescribed. (Industrial Textile Manufacturing Co. of the Phils., Inc. vs. CIR CTA Case
4885, August 22, 1996).[13]

Jurisprudence has consistently shown that this Court accords the findings of fact by the CTA with the highest
respect. In Sea-Land Service Inc. v. Court of Appeals[14] this Court recognizes that the Court of Tax Appeals, which by the
very nature of its function is dedicated exclusively to the consideration of tax problems, has necessarily developed an
expertise on the subject, and its conclusions will not be overturned unless there has been an abuse or improvident
exercise of authority. Such findings can only be disturbed on appeal if they are not supported by substantial evidence or
there is a showing of gross error or abuse on the part of the Tax Court. [15] In the absence of any clear and convincing
proof to the contrary, this Court must presume that the CTA rendered a decision which is valid in every respect.

Under Section 203[16] of the National Internal Revenue Code (NIRC), respondent had three (3) years from the
last day for the filing of the return to send an assessment notice to petitioner. In the case of Collector of Internal
Revenue v. Bautista,[17] this Court held that an assessment is made within the prescriptive period if notice to this effect
is released, mailed or sent by the CIR to the taxpayer within said period. Receipt thereof by the taxpayer within the
prescriptive period is not necessary. At this point, it should be clarified that the rule does not dispense with the
requirement that the taxpayer should actually receive, even beyond the prescriptive period, the assessment notice
which was timely released, mailed and sent.

In the present case, records show that petitioner filed its Annual Income Tax Return for taxable year 1987
on 14 April 1988.[18] The last day for filing by petitioner of its return was on 15 April 1988,[19] thus, giving respondent
until 15 April 1991 within which to send an assessment notice. While respondent avers that it sent the assessment
notice dated 1 February 1991 on 6 February 1991, within the three (3)-year period prescribed by law, petitioner denies
having received an assessment notice from respondent. Petitioner alleges that it came to know of the deficiency tax
assessment only on 17 March 1992 when it was served with the Warrant of Distraint and Levy.[20]

In Protectors Services, Inc. v. Court of Appeals,[21] this Court ruled that when a mail matter is sent by registered
mail, there exists a presumption, set forth under Section 3(v), Rule 131 of the Rules of Court, [22] that it was received in
the regular course of mail. The facts to be proved in order to raise this presumption are: (a) that the letter was properly
addressed with postage prepaid; and (b) that it was mailed. While a mailed letter is deemed received by the addressee
in the ordinary course of mail, this is still merely a disputable presumption subject to controversion, and a direct denial
of the receipt thereof shifts the burden upon the party favored by the presumption to prove that the mailed letter was
indeed received by the addressee.[23]
In the present case, petitioner denies receiving the assessment notice, and the respondent was unable to
present substantial evidence that such notice was, indeed, mailed or sent by the respondent before the BIRs right to
assess had prescribed and that said notice was received by the petitioner. The respondent presented the BIR record
book where the name of the taxpayer, the kind of tax assessed, the registry receipt number and the date of mailing
were noted. The BIR records custodian, Ingrid Versola, also testified that she made the entries therein. Respondent
offered the entry in the BIR record book and the testimony of its record custodian as entries in official records in
accordance with Section 44, Rule 130 of the Rules of Court,[24] which states that:

Section 44. Entries in official records. - Entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated.

The foregoing rule on evidence, however, must be read in accordance with this Courts pronouncement
in Africa v. Caltex (Phil.), Inc.,[25] where it has been held that an entrant must have personal knowledge of the facts
stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same.

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 x x x.

In this case, the entries made by Ingrid Versola were not based on her personal knowledge as she did not
attest to the fact that she personally prepared and mailed the assessment notice. Nor was it stated in the transcript of
stenographic notes[26] how and from whom she obtained the pertinent information. Moreover, she did not attest to the
fact that she acquired the reports from persons under a legal duty to submit the same. Hence, Rule 130, Section 44
finds no application in the present case. Thus, the evidence offered by respondent does not qualify as an exception to
the rule against hearsay evidence.

Furthermore, independent evidence, such as the registry receipt of the assessment notice, or a certification
from the Bureau of Posts, could have easily been obtained. Yet respondent failed to present such evidence.

In the case of Nava v. Commissioner of Internal Revenue, [27] this Court stressed on the importance of proving
the release, mailing or sending of the notice.

While we have held that an assessment is made when sent within the prescribed period, even if received by
the taxpayer after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and L-12259, May 27, 1959), this ruling
makes it the more imperative that the release, mailing, or sending of the notice be clearly and satisfactorily
proved. Mere notations made without the taxpayers intervention, notice, or control, without adequate
supporting evidence, cannot suffice; otherwise, the taxpayer would be at the mercy of the revenue offices,
without adequate protection or defense.

In the present case, the evidence offered by the respondent fails to convince this Court that Formal
Assessment Notice No. FAN-1-87-91-000649 was released, mailed, or sent before 15 April 1991, or before the lapse of
 the period of limitation upon assessment and collection prescribed by Section 203 of the NIRC. Such evidence,
therefore, is insufficient to give rise to the presumption that the assessment notice was received in the regular course
of mail. Consequently, the right of the government to assess and collect the alleged deficiency tax is barred by
prescription.

IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. The assailed Decision of the Court of Appeals in
CA-G.R. SP No. 60209 dated 11 July 2002, is hereby REVERSED and SET ASIDE, and the Decision of the Court of Tax
Appeals in C.T.A. Case No. 5662, dated 17 May 2000, cancelling the 1988 Deficiency Tax Assessment
against Barcelon, Roxas Securitites, Inc. (now known as UPB Securities, Inc.) for being barred by prescription, is hereby
REINSTATED. No costs.

SO ORDERED.

M I NI T A V. C HI C O - N AZ A RI O
As s oc iat e Ju st ic e

[1]
Penned by Associate Justice Delilah Vidallon-Magtolis with Associate Justice Candido Rivera and Associate Justice
Sergio Pestao, concurring. Rollo, pp. 12-17.
[2]
Id. at 18-28.
[3]
Id. at 18.
[4]
Id. at 18-19.
[5]
Id. at 22-27.
[6]
Id. at 27.
[7]
Id. at 16-17.
[8]
Id. at 17.
[9]
CA rollo, p. 147.
[10]
Rollo, pp. 55-56.
[11]
Instances when the findings of fact of the trial court and/or Court of Appeals may be reviewed by the Supreme Court are (1)
when the conclusion is a finding grounded entirely on speculation, surmises or conjectures; (2) when the inference
made is manifestly mistaken, absurd or impossible; (3) where there is a grave abuse of discretion; (4) when the
judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of
Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee; (7) the findings of the Court of Appeals are contrary to those of the trial court; (8) when the
findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; and (10) the
finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the
evidence on record. (Misa v. Court of Appeals, G.R. No. 97291, 5 August 1992, 212 SCRA 217, 221-222)
[12]
Metro Construction, Inc. v. Chatham Properties, Inc., 418 Phil. 176, 206 (2001).
[13]
Rollo, pp. 24-27.
[14]
G.R. No. 122605, 30 April 2001, 357 SCRA 441, 445-446.
[15]
Commissioner of Internal Revenue v. Mitsubishi Metal Corp., G.R. Nos. 54908 and 80041, 22 January 1990, 181 SCRA 214,
220.
[16]
Section 203. Period of Limitation Upon Assessment and Collection. Except as provided in the Section 222, internal revenue
taxes shall be assessed within three (3) years after the last day prescribed by law for the filing of the return, and no
proceeding in court without assessment for the collection of such taxes shall be begun after expiration of such
period: Provided, that in a case where a return is filed beyond the period prescribed by law, the three (3)-year period
shall be counted from the day the return was filed. For purposes of this Section, a return filed before the last day
prescribed by law for the filing thereof shall be considered as filed on such last day.
[17]
105 Phil. 1326, 1327 (1959).
[18]
Rollo, pp. 14 and 24.
[19]
Section 77 (B) of the NIRC states that:
(B) Time of Filing the Income Tax Return. - The corporate quarterly declaration shall be filed within sixty (60) days
following the close of each of the first three (3) quarters of the taxable year. The final adjustment return shall be filed
on or before the fifteenth (15 th) day of April, or on or before the fifteenth (15 th) day of the fourth (4th) month following
the close of the fiscal year, as the case may be.
[20]
Rollo, pp. 53-54.
[21]
386 Phil. 611, 623 (2000).
[22]
Section 3(v), Rule 131, of the 1997 Rules of Court provides:
 Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
xxxx
(v) That a letter duly directed and mailed was received in the regular course of the mail;
[23]
Republic v. Court of Appeals, G.R. No. L-38540, 30 April 1987, 149 SCRA 351, 355.
[24]
Rollo, p. 56.
[25]
123 Phil. 272, 277 (1966).
[26]
Transcript of Stenographic Notes, Barcelon, Roxas Securities, Inc. v. Commissioner of Internal Revenue, CTA Case No. 5662, 25
August 1998, pp. 1-13.
[27]
121 Phil. 117, 123-124 (1965).
G.R. No. 201011 January 27, 2014
THERESITA, JUAN, ASUNCION, PATROCINIA, RICARDO, and GLORIA, all surnamed DIMAGUILA,Petitioners,
vs.
JOSE and SONIA A. MONTEIRO, Respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the August 15, 2011Decision 1 and
the March 5, 2012 Resolution2 of the Court of Appeals (CA), in CA-G.R. CV No. 92707, which affirmed the August 23,
2007 Decision3 of the Regional Trial Court, Branch 27, Santa Cruz, Laguna (RTC), in Civil Case No. SC-3108.
The Facts
On July 5, 1993, the respondent spouses, Jose and Sonia Monteiro (Spouses Monteiro), along with Jose, Gerasmo, Elisa,
and Clarita Nobleza, filed their Complaint for Partition and Damages before the RTC, against the pet1t10ners, Theresita,
Juan, Asuncion, Patrocinia, Ricardo, and Gloria Dimaguila (The Dimaguilas), together with Rosalina, Jonathan, Eve, Sol,
Venus, Enrique, Nina, Princess Arieta, and Evangelina Borlaza. The complaint alleged that all the pmiies were co-owners
and prayed for the pmiition of a residential house and lot located at Gat. Tayaw St., Liliw, Laguna, with an area of 489
square meters, and covered by Tax Declaration No. 1453. Spouses Monteiro anchored their claim on a deed of sale
executed in their favor by the heirs of Pedro Dimaguila (Pedro).
In their Answer, the Dimaguilas and the other defendants countered that there was no co-ownership to speak of in the
first place. They alleged that the subject property, then owned by Maria Ignacio Buenaseda, had long been partitioned
equally between her two sons, Perfecto and Vitaliano Dimaguila, through a Deed of Extrajudicial Partition, with its
southern-half portion assigned to Perfecto and the northern-half portion to Vitaliano. They claimed that they were the
heirs of Vitaliano and that Spouses Monteiro had nothing to do with the property as they were not heirs of either
Perfecto or Vitaliano.
During the course of the proceedings, several incidents were initiated, namely: (a) Motion to Dismiss for lack of legal
capacity to sue of Spouses Monteiro and for lack of cause of action; (b) Motion for Reconsideration of the Order of
denial thereof, which was denied; (c) Motion for Production and Inspection of Documents; (d) Motion for
Reconsideration of the Order granting the same, which was denied; (e) Motion to Defer Pre-trial; (f) Notice of
Consignation by the petitioners in the exercise of their alleged right of redemption of the share being claimed by the
Spouses Monteiro in light of the deed of sale they produced and claimed to have been executed by the heirs of Pedro in
their favor; (g) Motion to Remove Sonia Monteiro (Sonia) as plaintiff, which was denied; (h) Motion for Reconsideration
thereof, which was also denied; (i) Motion for Clarification and/or Extended Resolution; and (j) Motion to Suspend
Proceedings due to a pending Petition for Certiorari before the CA assailing several of the RTC orders. The proceedings
resumed after the promulgation by the CA of its April 5, 2000 Resolution in CA-G.R. No. SP 52833, which upheld the
assailed RTC orders.
On January 2, 2001, upon resumption of the proceedings, Spouses Monteiro filed their Motion for Leave to Amend
and/or Admit Amended Complaint.4 The RTC granted their motion. The amended complaint abandoned the original
claim for partition and instead sought the recovery of possession of a portion of the subject property occupied by the
Dimagui as and other defendants, specifically, the potiion sold to the couple by the heirs of Pedro. Furthermore, only
Spouses Monteiro were retained as plaintiffs and the Dimaguilas as defendants.
In amending their complaint, Spouses Montiero adopted the Dimaguilas' admission in their original answer that the
subject propetiy had already been partitioned between Perfecto and Vitaliano, through a Deed of Extrajudicial
Partition, dated October 5, 1945, and that during their lifetime, the brothers agreed that Perfecto would become the
owner of the southern-hal f portion and Vitaliano of the northern-half portion, which division was observed and
respected by them as well as their heirs and successors-in-interest.
Spouses Monteiro further averred that Perfecto was survived by Esperanza, Leandro and Pedro, who had divided the
southern-half portion equally amongst themselves, with their respective 1 /3 shares measuring 81.13 square meters
each; that Pedro's share pertains to the 1 /3 of the southern-half immediately adjacent to the northern-half adjudicated
to the
Dimaguilas as heirs of Vitaliano; that on September 29, 1992, Pedro's share was sold by his heirs to them through a
Bilihan ng Lahat Naming Karapatan (Bilihan) with the acquiescence of the heirs of Esperanza and Leandro appearing in
an Affidavit of Conformity and Waiver; and that when they attempted to take possession of the share of Pedro, they
discovered that the subject portion was being occupied by the Dimaguilas.
In their Answer5 to the amended complaint, the Dimaguilas admitted that the subject property was inherited by, and
divided equally between Perfecto and Vitaliano, but denied the admission in their original answer that it had been
actually divided into southern and nmihern portions. Instead, they argued that the Extrajudicial Partition mentioned
only the division of the subject property "into two and share and share alike." In effect, they argued the existence of a
co-owenrship, contrary to their original position. The Dimaguilas further argued that the Bilihan did not specify the
metes and bounds of the property sold, in violation of Article 1458 of the Civil Code. Even assuming that such had been
specified, they averred that the sale of a definite portion of a property owned in common was void since a co-owner
could only sell his undivided share in the property.
During the trial, Spouses Monteiro presented Pedrito Adrieta, brother of Sonia Monteiro (Sonia), who testified that
Perfecto was his grandfather and that at the time of Perfecto's death, he had two properties, one of which was the
subject property in Liliw, Laguna, which went to his children, Esperanza, Leonardo and Pedro. Pedro was survived by his
children Pedrito, Theresita, Francisco, and Luis, who, in turn, sold their rights over the subject property to Sonia.
Sonia testified that she was approached by Pedro's son, Francisco, and was asked if she was interested in purchasing
Pedro's 1/3 share of the southern portion of the Bahay na Sato, and that he showed her a deed of extrajudicial partition
executed by and between Perfecto and Vitaliano, as well as the tax declaration of the property to prove that the
property had already been partitioned between the two brothers.
Engineer Baltazar F. Mesina testified that he was the geodetic engineer hired by Spouses Monteiro to survey the
property in Liliw, and recounted that he checked the boundary of the subject property, subdivided the lot into two and
came up with a survey plan.
Crisostomo Arves, an employee from the Office of the Municipal Assessor, presented a certified true copy of the
cadastral map of Liliw and a list of claimants/owners.
Dominga Tolentino, a record officer of the Department of Environment and Natural Resources (DENR), testified that as
part of her duties, she certifies and safekeeps the records of surveyed land, including cadastral maps from the region.
One of the Dimaguilas, Asuncion, was the sole witness for the defendants. She testified that their first counsel made a
mistake when he alleged in their original answer that the property had already been partitioned into n01ihern and
southern portions between the two brothers, as the original answer had been rushed and they were never given a copy
of it. She claimed that the mistake was only pointed out to her by their new counsel after their former counsel
withdrew due to cancer. She further testified that there was no intention to partition the "bahay na bato" which stood
on the subject property, in order to preserve its historical and sentimental value.
Ruling of the RTC
In its August 23, 2007 Decision, the RTC ruled in favor of Spouses Monteiro and ordered the Dimaguilas to turn over the
possession of the subject 1 /3 portion of the southern-half of the property, to wit:
WHEREOF, judgment is hereby rendered in favor of the plaintiffs and against the defendants:
a. Ordering the defendants and all persons claiming rights under them to peacefully vacate and turn-over possession of
1/ 3 of the southern portion of the property covered by Tax Declaration No. 1453, specifically described as "A" of Lot
877 in the sketch plan marked as Exhibit "I", within 60 days from the finality of this Decision, failing which let a writ of
possession issue;
b. Ordering the defendants to pay the plaintiffs, jointly and solidarily, the amount of ?500 per month in the form of rent
for the use of the property from July 1993 until the property is vacated;
c. Ordering the defendants to pay the plaintiffs, jointly and solidarily, attorney's fees of P30,000 and litigation expense
of P20,000.
SO ORDERED.6
The RTC found that although the extrajudicial partition merely divided the property into two share and share alike,
evidence aliunde was appreciated to show that there was an actual division of the property into south and north
between Perfecto and Vitaliano, and that such partition was observed and honored by their heirs. These pieces of
evidence were the cadastral map of Liliw7 and a corresponding list of claimants, which showed that the subject
property had long been registered as Lot 876 (northern-half), claimed by Buenaventura Dimaguila (Buenaventura), an
heir of Vitaliano, and Lot 877 (southern-half), claimed by Perfecto.
The RTC held that the manner of partition was admitted by the Dimaguilas themselves in their original answer. It gave
no credence to the claim of Asuncion that such admission was an error of their fonner counsel and that she was
unaware of the contents of their original answer. It noted that the Dimaguilas had strongly maintained their theory of
partition from 1992 when the complaint was first filed, and only changed their defense in 2001 when Spouses Monteiro
filed their amended complaint. It keenly observed that it was precisely their admission which propelled Spouses
Monteiro to amend their complaint from one of partition to recovery of possession. Thus, the RTC concluded that there
was indeed a partition of the subject property into southern-half and northern-half portions between Perfecto and
Vitaliano and that the Dimaguilas were estopped from denying the same.
As to the authenticity of the Bilihan, where the 1 /3 share of Pedro was sold to Spouses Monteiro, the RTC found the
document to be regular and authentic absent any piece of evidence to the contrary. It stated that the proper persons to
contest the sale were not the Dimaguilas, who were the heirs of Vitaliano, but the heirs of Perfecto. It noted that the
records showed that the heirs of Esperanza and Leandro (Pedro's siblings), had signified their conformity to the
pa1iition and to the sale of Pedro's 1 /3 portion.
Ruling of the CA
In its assailed August 15, 2011 Decision, the CA affirmed the ruling of the RTC.
The CA found that Spouses Monteiro had established their case by a preponderance of evidence thru their presentation
of the Deed of Extrajudicial Partition,8 the cadastral map and the municipal assessor's records.9 It noted, more
importantly, that the Dimaguilas themselves corroborated the claim of partition in their original answer. It likewise
ruled that the petitioners were estopped from denying their admission of partition after the respondent spouses had
relied on their judicial admission.
The Dimaguilas also insisted on their argument, which was raised before the RTC, but not addressed, that the Bilihan
should not have been admitted as evidence for lack of a documentary stamp tax, in accordance with Section 201 of the
National Internal Revenue Code (N!RC). Citing Gabucan v. Manta 10 and Del Rosario v. Hamoy,11 the CA, however, ruled
that if a document which did not bear the required documentary stamp was presented in evidence, the court should
require the proponent to affix the requisite stamp. The CA noted that the RTC had failed to direct Spouses Monteiro to
affix the stamp and merely reminded the presiding judge to be more vigilant on similar situations in the future.
Nonetheless, it held that the petitioners did not possess the necessary personality to assail the sale between Spouses
Monteiro and the heirs of Pedro because it pe1iained to the southern-half of the property to which they had no claim.
The CA likewise found sufficient basis for the award of rentals as compensatory damages since Spouses Monteiro were
wrongfully deprived of possession of the 1/3 portion of the southern-half of the subject property. It also upheld the
award of attorney's fees and litigation expenses by the RTC, considering that Spouses Monteiro were compelled to
litigate and incur expenses to protect their rights and interest.
In its assailed March 5, 2012 Resolution, the CA denied the petitioners' motion for reconsideration for lack of merit.
Hence, this petition.
ASSIGNMENT OF ERRORS
I
THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE WAS AN ACTUAL PARTITION OF THE PROPERTY
COVERED BY TAX DECLARATION NO. 1453.
II
THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE 1/3 PORTION OF THE SOUTHERN HALF OF THE
PROPERTY WAS SOLD TO THE RESPONDENTS.
III
THE COURT OF APPEALS GRAVELY ERRED IN ADMITTING IN EVIDENCE EXHIBIT C, THE BIL/HAN NG LAHA T NAMING
KARAPATAN.
IV
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE RESPONDENTS ARE ENTITLED TO RECOVER POSSESSION
OF THE 1/3 PORTION OF THE SOUTHERN HALF OF THE PROPERTY.
V
THE COURT OF APPEALS GRAVELY ERRED IN FINDING THE PETITIONERS LIABLE FOR RENTALS FOR THE USE OF THE
PROPERTY FROM JULY 1993 UNTIL VACATED.
VI
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THE PETITIONERS LIABLE FOR ATTORNEY'S FEES AND LITIGATION
EXPENSES.
VII
THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED TO CONSIDER THE PETITIONERS' SUPPLEMENTAL ANSWER
TO AMENDED COMPLAINT AND TO GRANT THE COUNTERCLAIMS INTERPOSED THEREIN.12
The Dimaguilas argue that their original allegation regarding the partition of the subject property into northern and
southern portions was a mistake of their former counsel, and it was not their intention to partition the property
because to do so would damage the house thereon. Even assuming an admission was made, the petitioners aver that
such was made only by some, but not all, of the co-owners; and that partition can only be made by all co-owners, and
allowing the admission is tantamount to effecting partition by only some co-owners. Spouses Monteiro themselves, in
their original complaint, made an admission that they were co-owners of the property and asserted that there was no
partition. The evidence aliunde considered by the RTC, consisting of the cadastral map and the list of claimants, were
timely objected to during the trial as hearsay and a violation of the best evidence rule.
The petitioners reiterate that the Bilihan should not have been admitted into evidence because it lacked the
documentary stamp tax required by Section 201 of the NIRC, providing that no document shall be admitted in evidence
until the requisite stamps have been affixed thereto. They argue that the ruling of petitioners' lack of personality to
assail the deed of sale is different from the issue of the deed of sale's admissibility as evidence. They conclude that
considering that no documentary stamp was ever affixed on the deed of sale, such should never have been admitted
into evidence and consequently, should not have been relied upon by the lower courts to prove the sale of 1/3 of the
southern portion; and that considering that the Bilihan is inadmissible as evidence, the respondent spouses have no
basis for their claim to the subject 1/3 portion of the southern-half of the property. Thus, they insist that the lower
courts erred in awarding to Spouses Monteiro the possession of the subject prope1iy, the rentals, attorney's fees and
litigation expenses, and in failing to rule on their counterclaim for demolition of improvements and payment of
damages.
The assignment of errors boils down to two main issues:
I. Whether there was a pa1iition of the subject property; and
2. Whether the 1/3 portion of the southern-half of the subject property was sold to the respondent spouses.
Ruling of the Court
At the outset, it must be pointed out that the petitioners' assignment of errors calls for the Court to again evaluate the
evidence to determine whether there was a partition of the property and whether the 1/3 portion of the southern half
was sold to the respondent spouses. These clearly entail questions of fact which are beyond the Court's ambit of review
under Rule 45 of the Rules of Court, especially considering that the findings of fact of the RTC were affirmed by the
CA.13 On this ground alone, the present petition must be denied. Nonetheless, the Court shall delve into these factual
issues to finally put this case to rest.
Partition of the Subject Property
Spouses Monteiro, as plaintiffs in the original case, had the burden of proof to establish their case by a preponderance
of evidence, which is the weight, credit, and value of the aggregate evidence on either side, synonymous with the term
"greater weight of the evidence." Preponderance of evidence is evidence which is more convincing to the court as
worthy of belief than that which is offered in opposition thereto. 14
To prove their claim of partition, the respondent spouses presented the following: (1) the Deed of Extrajudicial
Partition, dated October 5, 1945, executed by and between the brothers Perfecto and Vitaliano; (2) the cadastral map
of Liliw Cadm-484,15 dated August 6, 1976, showing that the subject property had been divided into southern and
northern portions, registered as Lot Nos. 876 and 877; and (3) the Municipal Assessor's records 16 showing that the said
lots were respectively claimed by Buenaventura and Perfecto.
It is undisputed that the Deed of Extrajudicial Partition stated that Perfecto and Vitaliano agreed "to divide between
them into two and share and share alike" the subject property, including the house situated thereon. It appears,
however, that the property was actually partitioned into definite portions, namely, southern and northern halves, as
reflected in the cadastral map of Liliw, which were respectively claimed by an heir of Vitaliano and Perfecto himself. It,
thus, appears that the subject property had already been partitioned into definite portions more than 20 years prior to
the original complaint for partition filed in 1993, and that such division had been observed by the brothers' heirs. As
earlier pointed out, the petitioners themselves admitted to this very fact in their original answer, to wit:
(b) On September 5, 1945 the brothers PERFECTO and VITALIANO DIMAGUILA executed a deed of EXTRA JUDICIAL
PARTITION of the aforedescribed property dividing the same into two (2) equal parts as indicated in the aforesaid deed
as follows, to wit:
xxx
(c) As a result of the foregoing partition and as known by all the parties in this case from the beginning or as soon as
they reached the age of discernment PERFECTO DIMAGUILA became the sole and exclusive owner of the southern half
of the aforedescribed property and VITALIANO DIMAGUILA became the sole owner of the northern half of the same
property; the house that was built thereon and still existing up to this time was likewise equally divided between the
two (2) DIMAGUILA brothers in accordance with the extrajudicial partition of half equal shares;
xxx
2. In other words, the share of VITALIANO DIMAGUILA in the above described property has already been long
segregated and had passed on to his heirs as is very well known by all the parties in this case; 17
xxx
(Emphases in the Original)
Section 418 of Rule 129 of the Rules of Court provides that an admission made by a pa1iy in the course of the
proceedings in the same case does not require proof, and may be contradicted only by showing that it was made
through palpable mistake. The petitioners argue that such admission was the palpable mistake of their former counsel
in his rush to file the answer, a copy of which was not provided to them. Petitioner Asuncion testified:
Q So, why was that allegations (sic) made in the Answer?
A May be, (sic) in his rush to file the Answer, Atty. Paredes filed the same without giving us a copy ...19
This contention is unacceptable. It is a purely self-serving claim unsupported by any iota of evidence. Bare allegations,
unsubstantiated by evidence, are not equivalent to proof.20 Furthermore, the Court notes that this position was
adopted by the petitioners only almost eight (8) years after their original answer was filed, in response to the amended
complaint of the respondent spouses. In their original answer to the complaint for partition, their claim that there was
already a partition into northern-half and southern-half portions, was the very essence of their defense. It was precisely
this admission which moved the respondent spouses to amend their complaint. The petitioners cannot now insist that
the very foundation of their original defense was a palpable mistake.
Article 143121 of the Civil Code provides that through estoppel, an admission is rendered conclusive upon the person
making it, and cannot be denied or disproved as against the person relying thereon. The respondent spouses had
clearly relied on the petitioners' admission and so amended their original complaint for partition to one for recovery of
possession of a portion of the subject property. Thus, the petitioners are now estopped from denying or attempting to
prove that there was no partition of the property.
Considering that an admission does not require proof, the admission of the petitioners would actually be sufficient to
prove the partition even without the documents presented by the respondent spouses. If anything, the additional
evidence they presented only served to corroborate the petitioners' admission.
The petitioners argue that they timely objected to the cadastral map and the list of claimants presented by the
respondent spouses, on the ground that they violated the rule on hearsay and the best evidence rule.
Anent the best evidence rule, Section 3( d) of Rule 130 of the Rules of Court provides that when the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original document itself, except when the
original is a public record in the custody of a public officer or is recorded in a public office. 22Section 7 of the same Rule
provides that when the original of a document is in the custody of a public officer or is recorded in a public office, its
contents may be proved by a certified copy issued by the public officer in custody thereof.23 Section 24 of Rule 132
provides that the record of public documents may be evidenced by a copy attested by the officer having the legal
custody or the record.24
Certified true copies of the cadastral map of Liliw and the corresponding list of claimants of the area covered by the
map were presented by two public officers. The first was Crisostomo Arves, Clerk III of the Municipal Assessor's Office,
a repository of such documents. The second was Dominga Tolentino, a DENR employee, who, as a record officer,
certifies and safekeeps records of surveyed land involving cadastral maps. The cadastral maps and the list of claimants,
as ce1iified true copies of original public records, fall under the exception to the best evidence rule.
As to the hearsay rule, Section 44 of Rule 130 of the Rules of Court similarly provides that entries in official records are
an exception to the rule.25 The rule provides that entries in official records made in the performance of the duty of a
public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated. The necessity of this rule consists in the inconvenience and difficulty of requiring
the official's attendance as a witness to testify to the innumerable transactions in the course of his duty. The
document's trustworthiness consists in the presumption of regularity of performance of official duty. 26
Cadastral maps are the output of cadastral surveys. The DENR is the department tasked to execute, supervise and
manage the conduct of cadastral surveys.27 It is, therefore, clear that the cadastral map and the corresponding list of
claimants qualify as entries in official records as they were prepared by the DENR, as mandated by law. As such, they
are exceptions to the hearsay rule and are primafacie evidence of the facts stated therein.
Even granting that the petitioners had not admitted the partition, they presented no evidence to contradict the
evidence of the respondent spouses. Thus, even without the admission of the petitioners, the respondent spouses
proved by a preponderance of evidence that there had indeed been a partition of the subject property.
Sale of 1/3 Portion of the Southern-half
To prove that 1/3 of the southern-half portion of the subject property was sold to them, Spouses Monteiro presented a
deed of sale entitled Bilihan ng Lahat Naming Karapatan,28 dated September 29, 1992, wherein Pedro's share was sold
by his heirs to them, with the acquiescence of the heirs of Esperanza and Leandro in an Affidavit of Conformity and
Waiver.29 The petitioners argue that the Bilihan should not have been admitted into evidence because it lacked the
documentary stamp tax required by Section 201 of the NIRC.
On August 29, 1994, the petitioners filed a motion for the production and/or inspection of documents, 30 praying that
Spouses Monteiro be ordered to produce the deed of sale, which they cited as the source of their rights as co-owners.
On November 20, 1995, Spouses Monteiro submitted their compliance,31 furnishing the RTC and the petitioners with a
copy32 of the Bilihan. On January 3, 1996, the petitioners filed a notice of consignation, 33manifesting that they had
attempted to exercise their right of redemption as co-owners of the 1/3 portion of the southern half of the property
under Article 162334 of the Civil Code by sending and tendering payment of redemption to Spouses Monteiro, which
was, however, returned.
By filing the notice of consignation and tendering their payment for the redemption of the 1/3 portion of the southern-
half of the property, the petitioners, in effect, admitted the existence, due execution and validity of the Bilihan.
Consequently, they are now estopped from questioning its admissiblity in evidence for relying on such for their right of
redemption. Additionally, the Court notes that the copy 35 of the Bilihan which was originally submitted by Spouses
Monteiro with its compliance filed on November 20, 1995, does in fact bear a documentary stamp tax. It could only
mean that the documentary stamp tax on the sale was properly paid. The Bilihan was, therefore, properly admitted into
evidence and considered by the RTC.
In any case, as correctly held by the lower cou1is, the petitioners, as heirs of Vitaliano, who inherited the northern-half
po1iion of the subject property, do not possess the necessary personality to assail the sale of the southern-half portion
between Spouses Monteiro and the heirs of Pedro.1wphi1 They are not real parties-in-interest who stand to be
benefited or injured by the sale of the 1/3 portion of the southern-half over which they have absolutely no right. As
correctly ruled by the courts below, only fellow co-owners have the personality to assail the sale, namely, the heirs of
Pedro's siblings, Esperanza and Leandro. They have, however, expressly aquiesced to the sale and waived their right to
the property in the affidavit presented by Spouses Monteiro. 36 As such, the petitioners have no right to their
counterclaims of demolition of improvements and payment of damages.
With Spouses Monteiro having sufficiently proved their claim over the subject I /3 portion of the southern-half of the
prope1iy through the Bilihan, the lower courts did not err in awarding possession, rentals, attorney's fees, and litigation
expenses to them.
The Court, however, finds that the award of rentals should be reckoned from January 2, 2001, the date the Spouses
Monteiro filed their Amended Complaint seeking recovery of the subject portion. Interest at the rate of 6% per annum
shall also be imposed on the total amount of rent due from finality of this Decision until fully paid. 37
WHEREFORE, the petition is DENIED. The August 15, 2011 Decision and the March 15, 2012 Resolution of the Court of
Appeals, in CA-G .R. CV No. 92707 are AFFIRMED with MODIFICATION, in that:
a. The award of rent at the rate of P500.00 per month shall be reckoned from January 2, 2001 until the property is
vacated; and
b. Interest at the rate of 6% per annum shall be imposed on the total amount of rent due from finality of this Decision
until fully paid.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M. PERALTA ROBERTO A. ABAD
Associate Justice Associate Justice
 MARVIC MARIO VICTOR F. LEONEN
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the pinion of the Court's Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1
Rollo. pp. 29-43; penned by Associate Justice Hakim S. Abdulwahid. with Associate Justice Ricardo R. Rosario and
Associate Justice Rodil V. Zalameda. concurring.
2
Id. at 44-45.
3
Id. at 144-157.
4
Records, Vol. II pp. 289-308.
5
Id. at 315-328.
6
Rollo, pp. 156-157.
7
Records, Vol. I, Exhibit "A." pp. 24-25.
8
Records, Vol. Ill, Exhibit"J," p. 519.
9
Records, Vol. I, Exhibit "A." pp. 24-25.
10
184 Phil. 588 (1980).
11
235 Phil. 719(1987).
12
Rollo, pp. 13-14.
13
Heirs of Vda. Dela Cruz v. Heirs of Fajardo, G.R. No. 184966, May 30, 2011, 649 SCRA 463. 470.
14
Bank of the Philippine Islands v. Spouses Roveca. 581 Phil. 188. 194 (2008).
15
Records. Vol. Ill. Exhibit"J," p. 519.
16
Records, Vol. Ill. Exhibit "L," p. 556.
17
Records. Vol. I. pp. 11-12.
18
Section 4 . .Judicial admissions. An admission. verbal or written. made by the party in the course or the proceedings
in the same case. does not require proof. The admission may be contradicted only by showing that it was made through
palpable mistake or that no such admission was made.
19
TSN, December 1, 2005. p 15.
20
Rosaroso v. Soria, G.R. No. 194846, June 19, 2013.
21
Art. 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and
cannot be denied or disproved as against the person relying thereon.
22
Section 3. Original document must be produced; exceptions. - When the subject of inquiry is the contents of a
document. no evidence shall be admissible other than the original document itself. except in the following cases:
xxx
(d) When the original is a public record in the custody ofa public officer or is recorded in a public office.
23
Section 7. Evidence admissible when original document is a public record. - When the original or document is in the
custody of public officer or is recorded in a public office. its contents may be proved by a certified copy issued by the
public officer in custody thereof.
24
Section 24. Proof of official record. - The record of public documents referred to in paragraph (a) or Section 19, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record. or by his deputy. and accompanied if the record is not kept in the Philippines.
with a certificate that such officer has the custody. If the office in which the record is kept is in foreign country, the
certificate may be made by a secretary of the embassy or legation consul general, consul, vice consul, or consular agent
or by any officer in the foreign service or the Philippines stationed in the foreign country in which the record is kept.
and authenticated by the seal or his office.
25
Section 44. Entries in official records. -- Entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance ofa duty specially enjoined by law, are prima facie evidence
of the facts therein stated.
26
'Oscar M. Herrera, Remedial Law: Vol. V. (Quezon City. Philippines. Rex Printing Company. Inc 2004). p. 740.
27
DENR Admin Order 2001-23.
28
Records, Vol. Ill, Exhibit "C," p. 514.
29
Records, Vol. I. pp. 303-305 .
30
Id. at 75-76.
31
Id. at 111.
32
Id. at 112.
33
Id. at 113-115.
34
Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the
notice in writing by the prospective vendor. or by the vendor. as the case may be. The deed of sale shall not be
recorded in the Registry of Property. unless accompanied by an affidavit of the vendor that he has given written notice
thereof to all possible redemptioners.
The right of redemption of co-owners excludes that of adjoining owners.
35
"Records, Vol. I. p. 112.
36
Id. at 303-304.
37
Nacar v. Gallery Frames, G.R. No. 189871, August 13, 2013.
 SYLLABI/SYNOPSIS

FIRST DIVISION
[G.R. No. 127598. January 27, 1999]
MANILA ELECTRIC COMPANY, petitioner, vs. THE HONORABLE SECRETARY OF LABOR LEONARDO QUISUMBING AND
MERALCO EMPLOYEES AND WORKERS ASSOCIATION (MEWA), respondents.
DECISION
MARTINEZ, J.:
In this petition for certiorari, the Manila Electric Company (MERALCO) seeks to annul the orders of the Secretary
of labor dated August 19, 1996 and December 28, 1996, wherein the Secretary required MERALCO and its rank and file
union- the Meralco Workers Association (MEWA) to execute a collective bargaining agreement (CBA) for the remainder
of the parties 1992-1997 CBA cycle, and to incorporate in this new CBA the Secretarys dispositions on the disputed
economic and non-economic issues.
MEWA is the duly recognized labor organization of the rank-and-file employees of MERALCO.
On September 7, 1995, MEWA informed MERALCO of its intention to re-negotiate the terms and conditions of
their existing 1992-1997 Collective Bargaining Agreement (CBA) covering the remaining period of two years starting
from December 1, 1995 to November 30, 1997.[1] MERALCO signified its willingness to re-negotiate through its letter
dated October 17, 1995[2] and formed a CBA negotiating panel for the purpose. On November 10, 1995, MEWA
submitted its proposal[3] to MERALCO, which, in turn, presented a counter-proposal. Thereafter, collective bargaining
negotiations proceeded.However, despite the series of meetings between the negotiating panels of MERALCO and
MEWA, the parties failed to arrive at terms and conditions acceptable to both of them.
On April 23, 1996, MEWA filed a Notice of Strike with the National Capital Region Branch of the National
Conciliation and Mediation Board (NCMB) of the Department of Labor and Employment (DOLE) which was docketed as
NCMB-NCR-NS-04-152-96, on the grounds of bargaining deadlock and unfair labor practices. The NCMB then conducted
a series of conciliation meetings but the parties failed to reach an amicable settlement. Faced with the imminence of a
strike, MERALCO on May 2, 1996, filed an Urgent Petition [4] with the Department of Labor and Employment which was
docketed as OS-AJ No. 0503[1]96 praying that the Secretary assume jurisdiction over the labor dispute and to enjoin
the striking employees to go back to work.
The Labor Secretary granted the petition through its Order [5] of May 8, 1996, the dispositive portion of which
reads:
WHEREFORE, premises considered, this Office now assumes jurisdiction over the labor dispute obtaining between the
parties pursuant to Article 263 (g) of the Labor Code. Accordingly, the parties are here enjoined from committing any
act that may exacerbate the situation. To speed up the resolution of the dispute, the parties are also directed to submit
their respective Position Papers within ten (10) days from receipt.
Undersecretary Jose M. Espanol, Jr. is deputized to conduct conciliation conferences between the parties to bridge their
differences and eventually hammer out a solution that is mutually acceptable. He shall be assisted by the Legal Service.
SO ORDERED.
Thereafter, the parties submitted their respective memoranda and on August 19, 1996, the Secretary resolved the
labor dispute through an Order,[6] containing the following awards:
ECONOMIC DEMANDS
Wage increase - P2,300.00 for the first year covering the
period from December 1, 1995 to November 30, 1996
- P2,200.00 for the second year covering
the period December 1, 1996 to November 30, 1997.
Red Circle Rate (RCR) Allowance- all RCR allowances (promotional increases that go beyond the maximum range of a
job classification salary) shall be integrated into the basic salary of employees effective December 1, 1995.
Longevity Allowance- the integration of the longevity allowance into the basic wage is denied; the present policy is
maintained.
Longevity Increase- the present longevity bonus is maintained but the bonus shall be incorporated into the new CBA.
Sick Leave- MEWAs demand for upgrading is denied; the companys present policy is maintained. However, those who
have not used the sick leave benefit during a particular year shall be entitled to a one-day sick leave incentive.
Sick leave reserve- the present reserve of 25 days shall be reduced to 15 days; the employee has the option either to
convert the excess of 10 days to cash or let it remain as long as he wants. In case he opts to let it remain, he may later
on convert it to cash at his retirement or separation.
Vacation Leave - MEWAs demand for upgrading denied & the companys present policy is maintained which must be
incorporated into the new CBA but scheduled vacation leave may be rounded off to one full day at a time in case of a
benefit involving a fraction of a day.
Union Leave- of MEWAs officers, directors or stewards assigned to perform union duties or legitimate union activity is
increased from 30 to 40 Mondays per month.
Maternity, Paternity and Funeral leaves- the existing policy is to be maintained and must be incorporated in the new
CBA unless a new law granting paternity leave benefit is enacted which is superior to what the company has already
granted.
 Birthday Leave - unions demand is granted. If birthday falls on the employees rest day or on a non-working holiday, the
worker shall be entitled to go on leave with pay on the next working day.
Group Hospitalization & Surgical Insurance Plan (GHSIP) and Health Maintenance Plan (HMP)- present policy is
maintained insofar as the cost sharing is concerned- 70% for the Company and 30% for MEWA.
Health Maintenance Plan (HMP) for dependents - subsidized dependents increased from three to five dependents.
Longevity Bonus- is increased from P140.00 to P200.00 for every year of service to be received by the employee after
serving the Company for 5 years.
Christmas Bonus and Special Christmas Grant- MEWAs demand of one month salary as Christmas Bonus and two
months salary as Special Christmas Grant is granted and to be incorporated in the new CBA.
Midyear Bonus- one months pay to be included in the CBA.
Anniversary Bonus - unions demand is denied.
Christmas Gift Certificate - company has the discretion as to whether it will give it to its employees.
Retirement Benefits:
a. Full retirement-present policy is maintained;
b. one cavan of rice per month is granted to retirees;
c. special retirement leave and allowance-present policy is maintained;
d. HMP coverage for retirees- HMP coverage is granted to retirees who have not reached the age of 70, with MERALCO
subsidizing 100% of the monthly premium; those over 70 are entitled to not more than 30 days of hospitalization at the
J.F. Cotton Hospital with the company shouldering the entire cost.
e. HMP coverage for retirees dependents is denied
f. Monthly pension of P3,000.00 for each retiree is denied.
g. Death benefit for retirees beneficiaries is denied.
Optional retirement - unions demand is denied; present policy is maintained; employee is eligible for optional
retirement if he has rendered at least 18 years of service.
Dental, Medical and Hospitalization Benefits- grant of all the allowable medical, surgical, dental and annual
physical examination benefits, including free medicine whenever the same is not available at the JFCH.
Resignation benefits- unions demand is denied.
Night work- union demand is denied but present policy must be incorporated in CBA.
Shortswing- work in another shift within the same day shall be considered as the employees work for the following day
and the employee shall be given additional four (4) hours straight time and the applicable excess time premium if he
works beyond 8 hours in the other shift.
High Voltage allowance- is increased from P45.00 to P55.00 to be given to any employee authorized by the Safety
Division to perform work on or near energized bare lines & bus including stockman drivers & crane operators and other
crew members on ground.
High Pole Allowance- is increased from P30.00 to P40.00 to be given to those authorized to climb poles up to at least 60
ft. from the ground. Members of the team including stockman drivers, crane operators and other crew members on the
ground, are entitled to this benefit.
Towing Allowance- where stockmen drive tow trailers with long poles and equipment on board, they shall be entitled to
a towing allowance of P20.00 whether they perform the job on regular shift or on overtime.
Employees Cooperative- a loan of P3 M seed money is granted to the proposed establishment of a cooperative, payable
in twenty (20) years starting one year from the start of operations.
Holdup Allowance- the union demand is denied; the present policy shall be maintained.
Meal and Lodging Allowance- shall be increased effective December 1, 1995 as follows:
Breakfast - from P25.00 to P35.00
Lunch - from P35.00 to P45.00
Dinner - from P35.00 to P45.00
Lodging - from P135.00 to P180.00 a night in all MERALCO franchise areas
Payroll Treatment for Accident while on Duty- an employee shall be paid his salary and allowance if any is due plus
average excess time for the past 12 months from the time of the accident up to the time of full recovery and placing of
the employee back to normal duty or an allowance of P2,000.00, whichever is higher.
Housing and Equity Assistance Loan- is increased to P60,000.00; those who have already availed of the privilege shall be
allowed to get the difference.
Benefits for Collectors:
a. Company shall reduce proportionately the quota and monthly average product level (MAPL) in terms of equivalent bill
assignment when an employee is on sick leave and paid vacation leave.
b. When required to work on Saturdays, Sundays and holidays, an employee shall receive P60.00 lunch allowance and
applicable transportation allowance as determined by the Company and shall also receive an additional compensation
to one day fixed portion in addition to lunch and transportation allowance.
c. The collector shall be entitled to an incentive pay of P25.00 for every delinquent account disconnected.
d. When a collector voluntarily performs other work on regular shift or overtime, he shall be entitled to remuneration based
on his computed hourly compensation and the reimbursement of actually incurred transportation expenses.
e. Collectors shall be provided with bobcat belt bags every year
f. Collectors cash bond shall be deposited under his capital contribution to MESALA.
g. Collectors quota and MAPL shall be proportionately reduced during typhoons, floods, earthquakes and other similar force
majeure events when it is impossible for a collector to perform collection work.
Political Demands:
a. Scope of the collective bargaining unit- the collective bargaining unit shall be composed of all regular rank-and-file
employees hired by the company in all its offices and operative centers throughout its franchise area and those it may
employ by reason of expansion, reorganization or as a result of operational exigencies.
b. Union recognition and security -
i. The union shall be recognized by the Company as sole and exclusive bargaining representative of the rank-and-file
employees included in the bargaining unit. The Company shall agree to meet only with Union officers and its authorized
representatives on all matters involving the Union and all issues arising from the implementation and interpretation of
the new CBA.
ii. The union shall meet with the newly regularized employees for a period not to exceed four (4) hours, on company time,
to acquaint the new regular employees of the rights, duties and benefits of Union membership.
iii. The right of all rank-and-file employees to join the union shall be recognized in accordance with the maintenance of
membership principle as a form of union security.
c. Transfer of assignment and job security-
i. No transfer of an employee from one position to another shall be made if motivated by considerations of sex, race, creed,
political and religious belief, seniority or union activity.
ii. If the transfer is due to the reorganization or decentralization, the distance from the employees residence shall be
considered unless the transfer is accepted by the employee. If the transfer is extremely necessary, the transfer shall be
made within the offices in the same district.
iii. Personnel hired through agencies or contractors to perform the work done by covered employees shall not exceed one
month. If extension is necessary, the union shall be informed. But the Company shall not permanently contract out
regular or permanent positions that are necessary in the normal operation of the Company.
d. Check off Union Dues- where the union increases its dues as approved by the Board of Directors, the Company shall check
off such increase from the salaries of union members after the union submits check off authorizations signed by
majority of the members. The Company shall honor only those individual authorizations signed by the majority of the
union members and collectively submitted by the union to the Companys Salary Administration.
e. Payroll Reinstatement- shall be in accordance with Article 223, p. 3 of the Labor Code.
f. Union Representation in Committees- the union is allowed to participate in policy formulation and in the decision-making
process on matters affecting their rights and welfare, particularly in the Uniform Committee, the Safety Committee and
other committees that may be formed in the future.
Signing Bonus- P4,000.00 per member of the bargaining unit for the conclusion of the CBA
Existing benefits already granted by the Company but which are not expressly or impliedly repealed in the new
agreement shall remain subsisting and shall be included in the new agreement to be signed by the parties effective
December 1, 1995.
On August 30, 1996, MERALCO filed a motion for reconsideration [7] alleging that the Secretary of Labor committed
grave abuse of discretion amounting to lack or excess of jurisdiction:
1. in awarding to MEWA a package that would cost at least P1.142 billion, a package that is grossly excessive and
exorbitant, would not be affordable to MERALCO and would imperil its viability as a public utility affected with national
interest.
2. in ordering the grant of a P4,500.00 wage increase, as well as a new and improved fringe benefits, under the
remaining two (2) years of the CBA for the rank-and-file employees.
3. in ordering the incorporation into the CBA of all existing employee benefits, on the one hand, and those that
MERALCO has unilaterally granted to its employees by virtue of voluntary company policy or practice, on the other
hand.
4. in granting certain political demands presented by the union.
5. in ordering the CBA to be effective December 1995 instead of August 19, 1996 when he resolved the dispute.
MERALCO filed a supplement to the motion for reconsideration on September 18, 1995, alleging that the
Secretary of Labor did not properly appreciate the effect of the awarded wages and benefits on MERALCOs financial
viability.
MEWA likewise filed a motion asking the Secretary of Labor to reconsider its Order on the wage increase, leaves,
decentralized filing of paternity and maternity leaves, bonuses, retirement benefits, optional retirement, medical,
dental and hospitalization benefits, short swing and payroll treatment. On its political demands, MEWA asked the
Secretary to rule its proposal to institute a Code of Discipline for its members and the unions representation in the
administration of the Pension Fund.
On December 28, 1996, the Secretary issued an Order[8] resolving the parties separate motions, the modifications
of the August 19, 1996 Order being highlighted hereunder:
1) Effectivity of Agreement - December 1, 1995 to November 30, 1997.
Economic Demands
2) Wage Increase:
First year - P2,200.00 per month;
Second year - P2,200.00 per month.
 3) Integration of Red Circle Rate (RCR) and Longevity Allowance into Basic Salary -the RCR allowance shall be integrated
into the basic salary of employees as of August 19, 1996 (the date of the disputed Order).
4) Longevity Bonus - P170 per year of service starting from 10 years of continuous service.
5) Vacation Leave - The status quo shall be maintained as to the number of vacation leave but employees scheduled
vacation may be taken one day at a time in the manner that this has been provided in the supervisory CBA.
6) Sick Leave Reserve - is reduced to 15 days, with any excess payable at the end of the year. The employee has the
option to avail of this cash conversion or to accumulate his sick leave credits up to 25 days for conversion to cash at
retirement or separation from the service.
7) Birthday Leave - the grant of a day off when an employees birthday falls on a non-working day is deleted.
8) Retirement Benefits for Retirees - The benefits granted shall be effective on August 19, 1996, the date of the
disputed order up to November 30, 1997, which is the date the CBA expires and shall apply to those who are members
of the bargaining unit at the time the award is made.
One sack of rice per quarter of the year shall be given to those retiring between August 19, 1996 and November 30,
1997.
On HMP Coverage for Retirees- The parties maintain the status quo, that is, with the Company complying with the
present arrangement and the obligations to retirees as is.
9) Medical, Dental and Hospitalization Benefits - The cost of medicine unavailable at the J.F. Cotton Hospital shall be in
accordance with MERALCOs Memorandum dated September 14, 1976.
10) GHSIP and HMP for Dependents - The number of dependents to be subsidized shall be reduced from 5 to 4
provided that their premiums are proportionately increased.
11) Employees Cooperative - The original award of P3 million pesos as seed money for the proposed Cooperative is
reduced to P1.5 million pesos.
12) Shortswing - the original award is deleted.
13) Payroll Treatment for Accident on Duty - Company ordered to continue its present practice on payroll treatment for
accident on duty without need to pay the excess time the Union demanded.
Political Demands:
14) Scope of the collective bargaining unit - The bargaining unit shall be composed of all rank and file employees hired
by the Company in accordance with the original Order.
15) Union recognition and security - The incorporation of a closed shop form of union security in the CBA; the
Company is prohibited from entertaining individuals or groups of individuals only on matters that are exclusively within
the domain of the union; the Company shall furnish the union with a complete list of newly regularized employees
within a week from regularization so that the Union can meet these employees on the Unions and the employees own
time.
16) Transfer of assignment and job security - Transfer is a prerogative of the Company but the transfer must be for a
valid business reason, made in good faith and must be reasonably exercised. The CBA shall provide that No transfer of
an employee from one position to another, without the employees written consent, shall be made if motivated by
considerations of sex, race, creed, political and religious belief, age or union activity.
17) Contracting Out - The Company has the prerogative to contract out services provided that this move is based on
valid business reasons in accordance with law, is made in good faith, is reasonably exercised and, provided further that
if the contracting out involves more than six months, the Union must be consulted before its implementation.
18) Check off of union dues
In any increase of union dues or contributions for mandatory activities, the union must submit to the Company a copy
of its board resolution increasing the union dues or authorizing such contributions;
If a board resolution is submitted, the Company shall deduct union dues from all union members after a majority of the
union members have submitted their individual written authorizations. Only those check-off authorizations submitted
by the union shall be honored by the Company.
With respect to special assessments, attorneys fees, negotiation fees or any other extraordinary fees, individual
authorizations shall be necessary before the company may so deduct the same.
19) Union Representation in Committees - The union is granted representation in the Safety Committee, the Uniform
Committee and other committees of a similar nature and purpose involving personnel welfare, rights and benefits as
well as duties.
Dissatisfied, petitioner filed this petition contending that the Secretary of Labor gravely abused his discretion:
1). . . in awarding wage increases of P2,200.00 for 1996 and P2,200.00 for 1997;
2) . . . in awarding the following economic benefits:
a. Two months Christmas bonus;
b. Rice Subsidy and retirement benefits for retirees;
c. Loan for the employees cooperative;
d. Social benefits such as GHSIP and HMP for dependents, employees cooperative and housing equity assistance loan;
e. Signing bonus;
f. Integration of the Red Circle Rate Allowance
g. Sick leave reserve of 15 days
h. The 40-day union leave;
i. High pole/high voltage and towing allowance;
and
j. Benefits for collectors
3) . . . in expanding the scope of the bargaining unit to all regular rank and file employees hired by the company in all its
offices and operating centers and those it may employ by reason of expansion, reorganization or as a result of
operational exigencies;
4) . . . in ordering for a closed shop when his original order for a maintenance of membership arrangement was not
questioned by the parties;
5) . . . in ordering that Meralco should consult the union before any contracting out for more than six months;
6) . . . in decreeing that the union be allowed to have representation in policy and decision making into matters
affecting personnel welfare, rights and benefits as well as duties;
7) . . . in ruling for the inclusion of all terms and conditions of employment in the collective bargaining agreement;
8) . . . in exercising discretion in determining the retroactivity of the CBA;
Both MEWA and the Solicitor General; on behalf of the Secretary of Labor, filed their comments to the
petition. While the case was also set for oral argument on Feb 10, 1997, this hearing was cancelled due to MERALCO
not having received the comment of the opposing parties. The parties were instead required to submit written
memoranda, which they did. Subsequently, both petitioner and private respondent MEWA also filed replies to the
opposing parties Memoranda, all of which We took into account in the resolution of this case.
The union disputes the allegation of MERALCO that the Secretary abused his discretion in issuing the assailed
orders arguing that he acted within the scope of the powers granted him by law and by the Constitution. The union
contends that any judicial review is limited to an examination of the Secretarys decision-making/discretion - exercising
process to determine if this process was attended by some capricious or whimsical act that constitutes grave abuse; in
the absence of such abuse, his findings - considering that he has both jurisdiction and expertise to make them - are
valid.
The unions position is anchored on two premises:
First, no reviewable abuse of discretion could have attended the Secretarys arbitral award because the Secretary
complied with constitutional norms in rendering the dispute award. The union posits that the yardstick for comparison
and for the determination of the validity of the Secretarys actions should be the specific standards laid down by the
Constitution itself. To the union, these standards include the State policy on the promotion of workers welfare,[9] the
principle of distributive justice,[10] the right of the State to regulate the use of property, [11] the obligation of the State to
protect workers, both organized and unorganized, and insure their enjoyment of humane conditions of work and a
living wage, and the right of labor to a just share in the fruits of production. [12]
Second, no reversible abuse of discretion attended the Secretarys decision because the Secretary took all the
relevant evidence into account, judiciously weighed them, and rendered a decision based on the facts and law. Also,
the arbitral award should not be reversed given the Secretarys expertise in his field and the general rule that findings of
fact based on such expertise is generally binding on this Court.
To put matters in proper perspective, we go back to basic principles. The Secretary of Labors statutory power
under Art. 263 (g) of the Labor Code to assume jurisdiction over a labor dispute in an industry indispensable to the
national interest, and, to render an award on compulsory arbitration, does not exempt the exercise of this power from
the judicial review that Sec. 1, Art. 8 of the Constitution mandates. This constitutional provision states:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
Under this constitutional mandate, every legal power of the Secretary of Labor under the Labor Code, or, for that
matter, any act of the Executive, that is attended by grave abuse of discretion is subject to review by this Court in an
appropriate proceeding. To be sure, the existence of an executive power alone - whether granted by statute or by the
Constitution - cannot exempt the executive action from judicial oversight, interference or reversal when grave abuse of
discretion is, or is alleged to be, present. This is particularly true when constitutional norms are cited as the applicable
yardsticks since this Court is the final interpreter of the meaning and intent of the Constitution. [13]
The extent of judicial review over the Secretary of Labors arbitral award is not limited to a determination of grave
abuse in the manner of the secretarys exercise of his statutory powers. This Court is entitled to, and must - in the
exercise of its judicial power - review the substance of the Secretarys award when grave abuse of discretion is alleged
to exist in the award, i.e., in the appreciation of and the conclusions the Secretary drew from the evidence presented.
The natural and ever present limitation on the Secretarys acts is, of course, the Constitution. And we recognize
that indeed the constitutional provisions the union cited are State policies on labor and social justice that can serve as
standards in assessing the validity of a Secretary of Labors actions. However, we note that these provisions do not
provide clear, precise and objective standards of conduct that lend themselves to easy application. We likewise
recognize that the Constitution is not a lopsided document that only recognizes the interests of the working man; it too
protects the interests of the property owner and employer as well.[14]
For these reasons - and more importantly because a ruling on the breadth and scope of the suggested
constitutional yardsticks is not absolutely necessary in the disposition of this case - we shall not use these yardsticks in
accordance with the time-honored practice of avoiding constitutional interpretations when a decision can be reached
using non-constitutional standards. We have repeatedly held that one of the essential requisites for a successful judicial
inquiry into constitutional questions is that the resolution of the constitutional question must be necessary in deciding
the case.[15]
In this case we believe that the more appropriate and available standard - and one does not require a
constitutional interpretation - is simply the standard of reasonableness. In laymans terms, reasonableness implies the
absence of arbitrariness;[16] in legal parlance, this translates into the exercise of proper discretion and to the observance
of due process. Thus, the question we have to answer in deciding this case is whether the Secretarys actions have been
reasonable in light of the parties positions and the evidence they presented.
MEWAs second premise - i.e., that the Secretary duly considered the evidence presented - is the main issue that
we shall discuss at length below. Additionally, MEWA implied that we should take great care before reading an abuse of
discretion on the part of the Secretary because of his expertise on labor issues and because his findings of fact deserve
the highest respect from this Court.
This Court has recognized the Secretary of Labors distinct expertise in the study and settlement of labor disputes
falling under his power of compulsory arbitration. [17] It is also well-settled that factual findings of labor administrative
officials, if supported by substantial evidence, are entitled not only to great respect but even to finality. [18] We,
therefore, have no difficulty in accepting the unions caveat on how to handle a Secretary of Labors arbitral award.
But at the same time, we also recognize the possibility that abuse of discretion may attend the exercise of the
Secretarys arbitral functions; his findings in an arbitration case are usually based on position papers and their
supporting documents (as they are in the present case), and not on the thorough examination of the parties contending
claims that may be present in a court trial and in the face-to-face adversarial process that better insures the proper
presentation and appreciation of evidence.[19] There may also be grave abuse of discretion where the board, tribunal or
officer exercising judicial function fails to consider evidence adduced by the parties. [20] Given the parties positions on
the justiciability of the issues before us, the question we have to answer is one that goes into the substance of the
Secretarys disputed orders: Did the Secretary properly consider and appreciate the evidence presented before him?
We find, based on our consideration of the parties positions and the evidence on record, that the Secretary of
Labor disregarded and misappreciated evidence, particularly with respect to the wage award.The Secretary of Labor
apparently also acted arbitrarily and even whimsically in considering a number of legal points; even the Solicitor
General himself considered that the Secretary gravely abused his discretion on at least three major points: (a) on the
signing bonus issue; (b) on the inclusion of confidential employees in the rank and file bargaining unit, and (c) in
mandating a union security closed-shop regime in the bargaining unit.
We begin with a discussion on the wages issue. The focal point in the consideration of the wage award is the
projected net income for 1996 which became the basis for the 1996 wage award, which in turn - by extrapolation -
became the basis for the (2nd Year) 1997 award. MERALCO projected that the net operating income for 1996 was 14.7%
above the 1999 level or a total net operating income of 4.171 Billion, while the union placed the 1996 net operating
income at 5.795 Billion.
MERALCO based its projection on the increase of the income for the first 6 months of 1996 over the same period
in 1995. The union, on the other hand, projected that the 1996 income would increase by 29% to 35% because the
consumption of electric power is at its highest during the last two quarters with the advent of the Yuletide season. The
union likewise relied heavily on a newspaper report citing an estimate by an all Asia capital financial analyst that the net
operating income would amount to 5.795 Billion.[21]
Based essentially on these considerations, the Secretary made the following computations and ordered his
disputed wage award:
Projected net operating
Income for 1996 5,795,000,000
Principals and interests 1,426,571,703
Dividends at 1995 rate 1,636,949,000
Net amount left with the Company 2,729,479,297
Add: Tax credit equivalent to 35% of labor cost 231,804,940
Companys net operating income 2,961,284,237
For 1997, the projected income is P7,613,612 which can easily absorb the incremental increase of P2,200 per month or
a total of P4,500 during the last year of the CBA period.
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An overriding aim is to estimate the amount that is left with the Company after the awarded wages and benefits and
the companys customary obligations are paid. This amount can be the source of an item not found in the above
computations but which the Company must provide for, that is - the amount the company can use for expansion.
Considering the expansion plans stated in the Companys Supplement that calls for capital expenditures of 6 billion,
6.263 billion and 5.802 billion for 1996, 1997 and 1998 respectively, We conclude that our original award of P2,300 per
month for the first year and P2,200 for the second year will still leave much by way of retained income that can be used
for expansion.[22] (Underscoring ours.)
We find after considering the records that the Secretary gravely abused his discretion in making this wage award
because he disregarded evidence on record. Where he considered MERALCOs evidence at all, he apparently
misappreciated this evidence in favor of claims that do not have evidentiary support. To our mind, the MERALCO
projection had every reason to be reliable because it was based on actual and undisputed figures for the first six
months of 1996.[23] On the other hand, the union projection was based on a speculation of Yuletide consumption that
the union failed to substantiate. In fact, as against the unions unsubstantiated Yuletide consumption claim, MERALCO
adduced evidence in the form of historical consumption data showing that a lengthy consumption does not tend to rise
during the Christmas period.[24] Additionally, the All-Asia Capital Report was nothing more than a newspaper report that
did not show any specific breakdown or computations. While the union claimed that its cited figure is based on
MERALCOs 10-year income stream,[25] no data or computation of this 10-year stream appear in the record.
While the Secretary is not expected to accept the company-offered figures wholesale in determining a wage
award, we find it a grave abuse of discretion to completely disregard data that is based on actual and undisputed
record of financial performance in favor of the third-hand and unfounded claims the Secretary eventually relied
upon. At the very least, the Secretary should have properly justified his disregard of the company figures. The Secretary
should have also reasonably insured that the figure that served as the starting point for his computation had some
substantial basis.
Both parties extensely discussed the factors that the decision maker should consider in making a wage
award. While We do not seek to enumerate in this decision the factors that should affect wage determination, we must
emphasize that a collective bargaining dispute such as this one requires due consideration and proper balancing of the
interests of the parties to the dispute and of those who might be affected by the dispute. To our mind, the best way
in approaching this task holistically is to consider the available objective facts, including, where applicable, factors such
as the bargaining history of the company, the trends and amounts of arbitrated and agreed wage awards and the
companys previous CBAs, and industry trends in general. As a rule, affordability or capacity to pay should be taken into
account but cannot be the sole yardstick in determining the wage award, especially in a public utility like MERALCO. In
considering a public utility, the decision maker must always take into account the public interest aspects of the case;
MERALCOs income and the amount of money available for operating expenses - including labor costs - are subject to
State regulation. We must also keep in mind that high operating costs will certainly and eventually be passed on to the
consuming public as MERALCO has bluntly warned in its pleadings.
We take note of the middle ground approach employed by the Secretary in this case which we do not necessarily
find to be the best method of resolving a wage dispute. Merely finding the midway point between the demands of the
company and the union, and splitting the difference is a simplistic solution that fails to recognize that the parties may
already be at the limits of the wage levels they can afford. It may lead to the danger too that neither of the parties will
engage in principled bargaining; the company may keep its position artificially low while the union presents an
artificially high position, on the fear that a Solomonic solution cannot be avoided. Thus, rather than encourage
agreement, a middle ground approach instead promotes a play safe attitude that leads to more deadlocks than to
successfully negotiated CBAs.
After considering the various factors the parties cited, we believe that the interests of both labor and
management are best served by a wage increase of P1,900.00 per month for the first year and another P1,900.00 per
month for the second year of the two-year CBA term. Our reason for this is that these increases sufficiently protects the
interest of the worker as they are roughly 15% of the monthly average salary of P11,600.00.[26] They likewise sufficiently
consider the employers costs and its overall wage structure, while at the same time, being within the range that will not
disrupt the wage trends in Philippine industries.
The records shows that MERALCO, throughout its long years of existence, was never remiss in its obligation
towards its employees. In fact, as a manifestation of its strong commitment to the promotion of the welfare and well-
being of its employees, it has consistently improved their compensation package. For instance, MERALCO has granted
salary increases[27] through the collective bargaining agreement the amount of which since 1980 for both rank-and-file
and supervisory employees were as follows:
AMOUNT OF CBA INCREASES DIFFERENCE
CBA COVE RANK-AND-FILE SUPERVISORY AMOUNT PERCENT
RAGE
1980 230.00 342.50 112.50 48.91%
1981 210.00 322.50 112.50 53.57
1982 200.00 312.50 112.50 56.25
TOTAL 640.00 977.50 337.50 52.73
1983 320.00 432.50 112.50 35.16
1984 350.00 462.50 112.50 32.14
1985 370.00 482.50 112.50 30.41
TOTAL 1,040.00 1,377.50 337.50 32.45
1986 860.00 972.50 112.50 13.08
1987 640.00 752.50 112.50 17.58
1988 600.00 712.50 112.50 18.75
TOTAL 2,100.00 2,437.50 337.50 16.07
1989 1,100.00 1,212.50 112.50 10.23
1990 1,200.00 1,312.50 112.50 9.38
1991 1,300.00 1,412.50 112.50 8.65
TOTAL 3,600.00 3,937.50 337.50 9.38
 1992 1,400.00 1,742.50 342.50 24.46
1993 1,350.00 1,682.50 332.50 24.63
1994 1,150.00 1,442.50 292.50 25.43
TOTAL 3,900.00 4,867.50 967.50 24.81
Based on the above-quoted table, specifically under the column RANK-AND-FILE, it is easily discernible that the
total wage increase of P3,800.00 for 1996 to 1997 which we are granting in the instant case is significantly higher than
the total increases given in 1992 to 1994, or a span of three (3) years, which is only P3,900.00 a month. Thus, the
Secretarys grant of P2,200.00 monthly wage increase in the assailed order is unreasonably high a burden for MERALCO
to shoulder.
We now go to the economic issues.
1. CHRISTMAS BONUS
MERALCO questions the Secretarys award of Christmas bonuses on the ground that what it had given its
employees were special bonuses to mark or celebrate special occasions, such as when the Asia Money Magazine
recognized MERALCO as the best managed company in Asia. These grants were given on or about Christmas time, and
the timing of the grant apparently led the Secretary to the conclusion that what were given were Christmas bonuses
given by way of a company practice on top of the legally required 13 th month pay.
The Secretary in granting the two-month bonus, considered the following factual finding, to wit:
We note that each of the grant mentioned in the commonly adopted table of grants has a special description. Christmas
bonuses were given in 1988 and 1989. However, the amounts of bonuses given differed.In 1988, it was P1,500. In 1989,
it was month salary. The use of Christmas bonus title stopped after 1989. In 1990, what was given was a cash gift of
months salary. The grants thereafter bore different titles and were for varying amounts. Significantly, the Company
explained the reason for the 1995 bonuses and this explanation was not substantially contradicted by the Union.
What comes out from all these is that while the Company has consistently given some amount by way of bonuses since
1988, these awards were not given uniformly as Christmas bonuses or special Christmas grants although they may have
been given at or about Christmas time.
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The Company is not therefore correct in its position that there is not established practice of giving Christmas bonuses
that has ripened to the status of being a term and condition of employment. Regardless of its nomenclature and
purpose, the act of giving this bonus in the spirit of Christmas has ripened into a Company practice. [28]
It is MERALCOs position that the Secretary erred when he recognized that there was an established practice of
giving a two-month Christmas bonus based on the fact that bonuses were given on or about Christmas time. It points
out that the established practice attributed to MERALCO was neither for a considerable period of time nor identical in
either amount or purpose. The purpose and title of the grants were never the same except for the Christmas bonuses
of 1988 and 1989, and were not in the same amounts.
We do not agree.
As a rule, a bonus is not a demandable and enforceable obligation;[29] it may nevertheless be granted on equitable
consideration[30] as when the giving of such bonus has been the companys long and regular practice. [31] To be
considered a regular practice, the giving of the bonus should have been done over a long period of time, and must be
shown to have been consistent and deliberate.[32] Thus we have ruled in National Sugar Refineries Corporation vs.
NLRC:[33]
The test or rationale of this rule on long practice requires an indubitable showing that the employer agreed to continue
giving the benefits knowing fully well that said employees are not covered by the law requiring payment thereof.
In the case at bar, the record shows the MERALCO, aside from complying with the regular 13 th month bonus, has
further been giving its employees an additional Christmas bonus at the tail-end of the year since 1988. While the special
bonuses differed in amount and bore different titles, it can not be denied that these were given voluntarily and
continuously on or about Christmas time. The considerable length of time MERALCO has been giving the special grants
to its employees indicates a unilateral and voluntary act on its part, to continue giving said benefits knowing that such
act was not required by law.
Indeed, a company practice favorable to the employees has been established and the payments made by
MERALCO pursuant thereto ripened into benefits enjoyed by the employees. Consequently, the giving of the special
bonus can no longer be withdrawn by the company as this would amount to a diminution of the employees existing
benefits.[34]
We can not, however, affirm the Secretarys award of a two-month special Christmas bonus to the employees
since there was no recognized company practice of giving a two-month special grant. The two-month special bonus was
given only in 1995 in recognition of the employees prompt and efficient response during the calamities. Instead, a one-
month special bonus, We believe, is sufficient, this being merely a generous act on the part of MERALCO.
2. RICE SUBSIDY and RETIREMENT BENEFITS for RETIREES
It appears that the Secretary of Labor originally ordered the increase of the retirement pay, rice subsidy and
medical benefits of MERALCO retirees. This ruling was reconsidered based on the position that retirees are no longer
employees of the company and therefore are no longer bargaining members who can benefit from a compulsory
arbitration award. The Secretary, however, ruled that all members of the bargaining unit who retire between August
 19, 1996 and November 30, 1997 (i.e., the term of the disputed CBA under the Secretarys disputed orders) are entitled
to receive an additional rice subsidy.
The question squarely brought in this petition is whether the Secretary can issue an order that binds the
retirement fund. The company alleges that a separate and independent trust fund is the source of retirement benefits
for MERALCO retirees, while the union maintains that MERALCO controls these funds and may therefore be compelled
to improve this benefit in an arbitral award.
The issue requires a finding of fact on the legal personality of the retirement fund. In the absence of any evidence
on record indicating the nature of the retirement funds legal personality, we rule that the issue should be remanded to
the Secretary for reception of evidence as whether or not the MERALCO retirement fund is a separate and independent
trust fund. The existence of a separate and independent juridical entity which controls an irrevocable retirement trust
fund means that these retirement funds are beyond the scope of collective bargaining: they are administered by an
entity not a party to the collective bargaining and the funds may not be touched without the trustees conformity.
On the other hand, MERALCO control over these funds means that MERALCO may be compelled in the
compulsory arbitration of a CBA deadlock where it is the employer, to improve retirement benefits since retirement is a
term or condition of employment that is a mandatory subject of bargaining.
3. EMPLOYEES COOPERATIVE
The Secretarys disputed ruling requires MERALCO to provide the employees covered by the bargaining unit with a
loan of 1.5 Million as seed money for the employees formation of a cooperative under the Cooperative Law, R.A.
6938. We see nothing in this law - whether expressed or implied - that requires employers to provide funds, by loan or
otherwise, that employees can use to form a cooperative. The formation of a cooperative is a purely voluntary act
under this law, and no party in any context or relationship is required by law to set up a cooperative or to provide the
funds therefor. In the absence of such legal requirement, the Secretary has no basis to order the grant of a 1.5 million
loan to MERALCO employees for the formation of a cooperative. Furthermore, we do not see the formation of an
employees cooperative, in the absence of an agreement by the collective bargaining parties that this is a bargainable
term or condition of employment, to be a term or condition of employment that can be imposed on the parties on
compulsory arbitration.
4. GHSIP, HMP BENEFITS FOR DEPENDENTS and HOUSING EQUITY LOAN
MERALCO contends that it is not bound to bargain on these benefits because these do not relate to wages, hours
of work and other terms and conditions of employment hence, the denial of these demands cannot result in a
bargaining impasse.
The GHSIP, HMP benefits for dependents and the housing equity loan have been the subject of bargaining and
arbitral awards in the past. We do not see any reason why MERALCO should not now bargain on these benefits. Thus,
we agree with the Secretarys ruling:
x x x Additionally and more importantly, GHSIP and HMP, aside from being contributory plans, have been the subject of
previous rulings from this Office as bargainable matters. At this point, we cannot do any less and must recognize that
GHSIP and HMP are matters where the union can demand and negotiate for improvements within the framework of
the collective bargaining system.[35]
Moreover, MERALCO have long been extending these benefits to the employees and their dependents that they
now become part of the terms and conditions of employment. In fact, MERALCO even pledged to continue giving these
benefits. Hence, these benefits should be incorporated in the new CBA.
With regard to the increase of the housing equity grant, we find P60,000.00 reasonable considering the prevailing
economic crisis.
5. SIGNING BONUS
On the signing bonus issue, we agree with the positions commonly taken by MERALCO and by the Office of the
Solicitor General that the signing bonus is a grant motivated by the goodwill generated when a CBA is successfully
negotiated and signed between the employer and the union. In the present case, this goodwill does not exist. In the
words of the Solicitor General:
When negotiations for the last two years of the 1992-1997 CBA broke down and the parties sought the assistance of
the NCMB, but which failed to reconcile their differences, and when petitioner MERALCO bluntly invoked the
jurisdiction of the Secretary of Labor in the resolution of the labor dispute, whatever goodwill existed between
petitioner MERALCO and respondent union disappeared. xxx.[36]
In contractual terms, a signing bonus is justified by and is the consideration paid for the goodwill that existed in
the negotiations that culminated in the signing of a CBA. Without the goodwill, the payment of a signing bonus cannot
be justified and any order for such payment, to our mind, constitutes grave abuse of discretion. This is more so where
the signing bonus is in the not insignificant total amount of P16 Million.
6. RED-CIRCLE-RATE ALLOWANCE
An RCR allowance is an amount, not included in the basic salary, that is granted by the company to an employee
who is promoted to a higher position grade but whose actual basic salary at the time of the promotion already exceeds
the maximum salary for the position to which he or she is promoted. As an allowance, it applies only to specifics
individuals whose salary levels are unique with respect to their new and higher positions. It is for these reasons that
MERALCO prays that it be allowed to maintain the RCR allowance as a separate benefit and not be integrated in the
basic salary.
 The integration of the RCR allowance in the basic salary of the employees had consistently been raised in the past
CBAs (1989 and 1992) and in those cases, the Secretary decreed the integration of the RCR allowance in the basic
salary. We do not see any reason why it should not be included in the present CBA. In fact, in the 1995 CBA between
MERALCO and the supervisory union (FLAMES), the integration of the RCR allowance was recognized. Thus, Sec. 4 of
the CBA provides:
All Red-Circle-Rate Allowance as of December 1, 1995 shall be integrated in the basic salary of the covered employees
who as of such date are receiving such allowance. Thereafter, the company rules on RCR allowance shall continue to be
observed/applied.[37]
For purposes of uniformity, we affirm the Secretarys order on the integration of the RCR allowance in the basic
salary of the employees.
7. SICK LEAVE RESERVE OF 15 DAYS
MERALCO assails the Secretarys reduction of the sick leave reserve benefit from 25 days to 15 days, contending
that the sick leave reserve of 15 days has reached the lowest safe level that should be maintained to give employees
sufficient buffer in the event they fall ill.
We find no compelling reason to deviate from the Secretarys ruling that the sick leave reserve is reduced to 15
days, with any excess convertible to cash at the end of the year. The employee has the option to avail of this cash
conversion or to accumulate his sick leave credits up to 25 days for conversion to cash at his retirement or separation
from the service. This arrangement is, in fact, beneficial to MERALCO. The latter admits that the diminution of this
reserve does not seriously affect MERALCO because whatever is in reserve are sick leave credits that are payable to the
employee upon separation from service. In fact, it may be to MERALCOs financial interest to pay these leave credits
now under present salary levels than pay them at future higher salary levels. [38]
8. 40-DAY UNION LEAVE
MERALCO objects to the demand increase in union leave because the union leave granted to the union is already
substantial. It argues that the union has not demonstrated any real need for additional union leave.
The thirty (30) days union leave granted by the Secretary, to our mind, constitute sufficient time within which the
union can carry out its union activities such as but not limited to the election of union officers, selection or election of
appropriate bargaining agents, conduct referendum on union matters and other union-related matters in furtherance
of union objectives. Furthermore, the union already enjoys a special union leave with pay for union authorized
representatives to attend work education seminars, meetings, conventions and conferences where union
representation is required or necessary, and Paid-Time-off for union officers, stewards and representatives for purpose
of handling or processing grievances.
9. HIGH VOLTAGE/HIGH POLE/TOWING ALLOWANCE
MERALCO argues that there is no justification for the increase of these allowances. The personnel concerned will
not receive any additional risk during the life of the current CBA that would justify the increase demanded by the
union. In the absence of such risk, then these personnel deserve only the same salary increase that all other members
of the bargaining unit will get as a result of the disputed CBA.MERALCO likewise assails the grant of the high
voltage/high pole allowance to members of the team who are not exposed to the high voltage/high pole risks. The risks
that justify the higher salary and the added allowance are personal to those who are exposed to those risks. They are
not granted to a team because some members of the team are exposed to the given risks.
The increase in the high-voltage allowance (from P45.00 to P55.00), high-pole allowance (from P30.00 to P40.00),
and towing allowance is justified considering the heavy risk the employees concerned are exposed to. The high-voltage
allowance is granted to an employee who is authorized by the company to actually perform work on or near energized
bare lines and bus, while the high-pole allowance is given to those authorized to climb poles on a height of at least 60
feet from the ground to work thereat. The towing allowance, on the other hand, is granted to the stockman drivers who
tow trailers with long poles and equipment on board. Based on the nature of the job of these concerned employees, it
is imperative to give them these additional allowances for taking additional risks. These increases are not even
commensurate to the danger the employees concerned are subjected to. Besides, no increase has been given by the
company since 1992.[39]
We do not, however, subscribe to the Secretarys order granting these allowances to the members of the team
who are not exposed to the given risks. The reason is obvious- no risk, no pay. To award them the said allowances
would be manifestly unfair for the company and even to those who are exposed to the risks, as well as to the other
members of the bargaining unit who do not receive the said allowances.
10. BENEFITS FOR COLLECTORS
MERALCO opposes the Secretarys grant of benefits for collectors on the ground that this is grossly unreasonable
both in scope and on the premise it is founded.
We have considered the arguments of the opposing parties regarding these benefits and find the Secretarys ruling
on the (a) lunch allowance; (b) disconnection fee for delinquent accounts; (c) voluntary performance of other work at
the instance of the Company; (d) bobcat belt bags; and (e) reduction of quota and MAPL during typhoons and other
force majeure events, reasonable considering the risks taken by the company personnel involved, the nature of the
employees functions and responsibilities and the prevailing standard of living. We do not however subscribe to the
Secretarys award on the following:
(a) Reduction of quota and MAPL when the collector is on sick leave because the previous CBA has already provided for a
reduction of this demand. There is no need to further reduce this.
(b) Deposit of cash bond at MESALA because this is no longer necessary in view of the fact that collectors are no longer
required to post a bond.
We shall now resolve the non-economic issues.
1. SCOPE OF THE BARGAINING UNIT
The Secretarys ruling on this issue states that:
a. Scope of the collective bargaining unit. The union is demanding that the collective bargaining unit shall be composed
of all regular rank and file employees hired by the company in all its offices and operating centers through its franchise
and those it may employ by reason of expansion, reorganization or as a result of operational exigencies. The law is that
only managerial employees are excluded from any collective bargaining unit and supervisors are now allowed to form
their own union (Art. 254 of the Labor Code as amended by R.A. 6715). We grant the union demand.
Both MERALCO and the Office of the Solicitor General dispute this ruling because if disregards the rule We have
established on the exclusion of confidential employee from the rank and file bargaining unit.
In Pier 8 Arrastre vs. Confesor and General Maritime and Stevedores Union,[40] we ruled that:
Put another way, the confidential employee does not share in the same community of interest that might otherwise
make him eligible to join his rank and file co-workers, precisely because of a conflict in those interests.
Thus, in Metrolab Industries vs. Roldan-Confesor,[41] We ruled:
..that the Secretarys order should exclude the confidential employees from the regular rank and file employees
qualified to become members of the MEWA bargaining unit.
From the foregoing disquisition, it is clear that employees holding a confidential position are prohibited from
joining the union of the rank and file employees.
2. ISSUE OF UNION SECURITY
The Secretary in his Order of August 19, 1996,[42] ruled that:
b. Union recognition and security. The union is proposing that it be recognized by the Company as sole and exclusive
bargaining representative of the rank and file employees included in the bargaining unit for the purpose of collective
bargaining regarding rates of pay, wages, hours of work and other terms and conditions of employment. For this
reason, the Company shall agree to meet only with the Union officers and its authorized representatives on all matters
involving the Union as an organization and all issues arising from the implementation and interpretation of the new
CBA. Towards this end, the Company shall not entertain any individual or group of individuals on matters within the
exclusive domain of the Union.
Additionally, the Union is demanding that the right of all rank and file employees to join the Union shall be recognized
by the Company. Accordingly, all rank and file employees shall join the union.
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These demands are fairly reasonable. We grant the same in accordance with the maintenance of membership principle
as a form of union security."
The Secretary reconsidered this portion of his original order when he said in his December 28, 1996 order that:
x x x. when we decreed that all rank and file employees shall join the Union, we were actually decreeing the
incorporation of a closed shop form of union security in the CBA between the parties. In Ferrer v. NLRC, 224 SCRA 410,
the Supreme Court ruled that a CBA provision for a closed shop is a valid form of union security and is not a restriction
on the right or freedom of association guaranteed by the Constitution, citing Lirag v. Blanco, 109 SCRA 87.
MERALCO objected to this ruling on the grounds that: (a) it was never questioned by the parties; (b) there is no
evidence presented that would justify the restriction on employee's union membership; and (c) the Secretary cannot
rule on the union security demand because this is not a mandatory subject for collective bargaining agreement.
We agree with MERALCOs contention.
An examination of the records of the case shows that the union did not ask for a closed shop security regime; the
Secretary in the first instance expressly stated that a maintenance of membership clause should govern; neither
MERALCO nor MEWA raised the issue of union security in their respective motions for reconsideration of the Secretarys
first disputed order; and that despite the parties clear acceptance of the Secretarys first ruling, the Secretary motu
proprio reconsidered his maintenance of membership ruling in favor of the more stringent union shop regime.
Under these circumstances, it is indubitably clear that the Secretary gravely abused his discretion when he
ordered a union shop in his order of December 28, 1996. The distinctions between a maintenance of membership
regime from a closed shop and their consequences in the relationship between the union and the company are well
established and need no further elaboration.
Consequently, We rule that the maintenance of membership regime should govern at MERALCO in accordance
with the Secretarys order of August 19, 1996 which neither party disputed.
3. THE CONTRACTING OUT ISSUE
This issue is limited to the validity of the requirement that the union be consulted before the implementation of
any contracting out that would last for 6 months or more. Proceeding from our ruling in San Miguel Employees Union-
PTGWO vs Bersamina,[43] (where we recognized that contracting out of work is a proprietary right of the employer in
the exercise of an inherent management prerogative) the issue we see is whether the Secretarys consultation
requirement is reasonable or unduly restrictive of the companys management prerogative. We note that the Secretary
himself has considered that management should not be hampered in the operations of its business when he said that:
We feel that the limitations imposed by the union advocates are too specific and may not be applicable to the
situations that the company and the union may face in the future. To our mind, the greater risk with this type of
 limitation is that it will tend to curtail rather than allow the business growth that the company and the union must
aspire for. Hence, we are for the general limitations we have stated above because they will allow a calibrated response
to specific future situations the company and the union may face. [44]
Additionally, We recognize that contracting out is not unlimited; rather, it is a prerogative that management
enjoys subject to well-defined legal limitations. As we have previously held, the company can determine in its best
business judgment whether it should contract out the performance of some of its work for as long as the employer is
motivated by good faith, and the contracting out must not have been resorted to circumvent the law or must not have
been the result of malicious or arbitrary action.[45] The Labor Code and its implementing rules also contain specific rules
governing contracting out (Department of Labor Order No. 10, May 30, 1997, Sections. 1-25).
Given these realities, we recognize that a balance already exist in the parties relationship with respect to
contracting out; MERALCO has its legally defined and protected management prerogatives while workers are
guaranteed their own protection through specific labor provisions and the recognition of limits to the exercise of
management prerogatives. From these premises, we can only conclude that the Secretarys added requirement only
introduces an imbalance in the parties collective bargaining relationship on a matter that the law already sufficiently
regulates. Hence, we rule that the Secretarys added requirement, being unreasonable, restrictive and potentially
disruptive should be struck down.
4. UNION REPRESENTATION IN COMMITTEES
As regards this issue, We quote with approval the holding of the Secretary in his Order of December 28, 1996, to
wit:
We see no convincing reason to modify our original Order on union representation in committees. It reiterates what
the Article 211 (A)(g) of the Labor Codes provides: To ensure the participation of workers in decision and policy-making
processes affecting their rights, duties and welfare. Denying this opportunity to the Union is to lay the claim that only
management has the monopoly of ideas that may improve management strategies in enhancing the Companys
growth. What every company should remember is that there might be one among the Union members who may offer
productive and viable ideas on expanding the Companys business horizons. The unions participation in such
committees might just be the opportune time for dormant ideas to come forward. So, the Company must welcome this
development (see also PAL v. NLRC, et. al., G.R. 85985, August 13, 1995). It must be understood, however, that the
committees referred to here are the Safety Committee, the Uniform Committee and other committees of a similar
nature and purpose involving personnel welfare, rights and benefits as well as duties.
We do not find merit in MERALCOs contention that the above-quoted ruling of the Secretary is an intrusion into
the management prerogatives of MERALCO. It is worthwhile to note that all the Union demands and what the
Secretarys order granted is that the Union be allowed to participate in policy formulation and decision-making
process on matters affecting the Union members right, duties and welfare as required in Article 211 (A)(g) of the
Labor Code. And this can only be done when the Union is allowed to have representatives in the Safety Committee,
Uniform Committee and other committees of a similar nature. Certainly, such participation by the Union in the said
committees is not in the nature of a co-management control of the business of MERALCO. What is granted by the
Secretary is participation and representation. Thus, there is no impairment of management prerogatives.
5. INCLUSION OF ALL TERMS AND CONDITIONS IN THE CBA
MERALCO also decries the Secretarys ruling in both the assailed Orders that-
All other benefits being enjoyed by the companys employees but which are not expressly or impliedly repealed in this
new agreement shall remain subsisting and shall likewise be included in the new collective bargaining agreement to be
signed by the parties effective December 1, 1995.[46]
claiming that the above-quoted ruling intruded into the employers freedom to contract by ordering the inclusion in the
new CBA all other benefits presently enjoyed by the employees even if they are not incorporated in the new CBA. This
matter of inclusion, MERALCO argues, was never discussed and agreed upon in the negotiations; nor presented as
issues before the Secretary; nor were part of the previous CBAs between the parties.
We agree with MERALCO.
The Secretary acted in excess of the discretion allowed him by law when he ordered the inclusion of benefits,
terms and conditions that the law and the parties did not intend to be reflected in their CBA.
To avoid the possible problems that the disputed orders may bring, we are constrained to rule that only the terms
and conditions already existing in the current CBA and was granted by the Secretary (subject to the modifications
decreed in this decision) should be incorporated in the CBA, and that the Secretarys disputed orders should accordingly
be modified.
6. RETROACTIVITY OF THE CBA
Finally, MERALCO also assails the Secretarys order that the effectivity of the new CBA shall retroact to December
1, 1995, the date of the commencement of the last two years of the effectivity of the existing CBA. This retroactive
date, MERALCO argues, is contrary to the ruling of this Court in Pier 8 Arrastre and Stevedoring Services, Inc. vs.
Roldan-Confessor[47] which mandates that the effective date of the new CBA should be the date the Secretary of Labor
has resolved the labor disputes.
On the other hand, MEWA supports the ruling of the Secretary on the theory that he has plenary power and
discretion to fix the date of effectivity of his arbitral award citing our ruling in St. Lukes Medical Center, Inc. vs.
Torres.[48] MEWA also contends that if the arbitral award takes effect on the date of the Secretary Labors ruling on the
 parties motion for reconsideration (i.e., on December 28, 1996), an anomaly situation will result when CBA would be
more than the 5-year term mandated by Article 253-A of the Labor Code.
However, neither party took into account the factors necessary for a proper resolution of this aspect. Pier 8, for
instance, does not involve a mid-term negotiation similar to this case, while St. Lukes does not take the hold over
principle into account, i.e., the rule that although a CBA has expired, it continues to have legal effects as between the
parties until a new CBA has been entered into.[49]
Article 253-A serves as the guide in determining when the effectivity of the CBA at bar is to take effect. It provides
that the representation aspect of the CBA is to be for a term of 5 years, while
x x x [A]ll other provisions of the Collective Bargaining Agreement shall be re-negotiated not later than 3 years after its
execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within 6
months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement
shall retroact to the day immediately following such date. If such agreement is entered into beyond 6 months, the
parties shall agree on the duration of the effectivity thereof. x x x.
Under these terms, it is clear that the 5-year term requirement is specific to the representation aspect. What the
law additionally requires is that a CBA must be re-negotiated within 3 years after its execution. It is in this re-
negotiation that gives rise to the present CBA deadlock.
If no agreement is reached within 6 months from the expiry date of the 3 years that follow the CBA execution, the
law expressly gives the parties - not anybody else - the discretion to fix the effectivity of the agreement.
Significantly, the law does not specifically cover the situation where 6 months have elapsed but no agreement has
been reached with respect to effectivity. In this eventuality, we hold that any provision of law should then apply for the
law abhors a vacuum.[50]
One such provision is the principle of hold over, i.e., that in the absence of a new CBA, the parties must maintain
the status quo and must continue in full force and effect the terms and conditions of the existing agreement until a new
agreement is reached.[51] In this manner, the law prevents the existence of a gap in the relationship between the
collective bargaining parties. Another legal principle that should apply is that in the absence of an agreement between
the parties, then, an arbitrated CBA takes on the nature of any judicial or quasi-judicial award; it operates and may be
executed only respectively unless there are legal justifications for its retroactive application.
Consequently, we find no sufficient legal ground on the other justification for the retroactive application of the
disputed CBA, and therefore hold that the CBA should be effective for a term of 2 years counted from December 28,
1996 (the date of the Secretary of Labors disputed order on the parties motion for reconsideration) up to December 27,
1999.
WHEREFORE, the petition is granted and the orders of public respondent Secretary of Labor dated August 19,
1996 and December 28, 1996 are set aside to the extent set forth above. The parties are directed to execute a
Collective Bargaining Agreement incorporating the terms and conditions contained in the unaffected portions of the
Secretary of Labors order of August 19, 1996 and December 28, 1996, and the modifications set forth above. The
retirement fund issue is remanded to the Secretary of Labor for reception of evidence and determination of the legal
personality of the MERALCO retirement fund.
SO ORDERED.
Davide, Jr., C.J. (Chairman), Melo, Kapunan, and Pardo, JJ., concur.

[1]
Annex A of Petition, Rollo. p. 93.
[2]
Annex B of Petition, Rollo. p. 94.
[3]
Annex 5 of MEWAs Comment, Rollo. pp. 852-879:
1. Wage increase 1995 P4,000.00/month
1996 P3,000.00/month
2. Integration of RCR and longevity allowances into the basic salary.
3. Longevity increase in the amount of P30.00 a year.
4. Sick leave upgraded from 21 to 31 days depending on length of service and sick leave reserve reduced to 15 days.
5. Vacation leave 24 days minimum 32 days maximum.
6. Union leave with pay for 50 Mondays per month.
7. Maternity Leave- 70 days-normal delivery
90 days caesarian
Paternity leave 10 days normal
14 days caesarian
8 days miscarriage.
8. Funeral leave 12 days 6 days.
9. Birthday leave falls on regular working day leave with pay/regular day off entitled next working day non-working holiday
next working day.
10. Group hospitalization and surgical insurance plan (GHSIP) and health and maintenance plan (HMP) for dependents.
11. Longevity bonus.
12. Christmas bonus equivalent to one months salary & allowance
 and special Christmas grant (incorporated in the CBA) equivalent to two months pay to be given in the middle of
November and second week of December.
13. Mid-year bonus incorporated in the CBA.
14. Anniversary bonus P6,000.00/1st year P8,000.00 2nd year.
15. Christmas Gift Certificate
16. Retirement
17. Dental, medical and hospitalization benefits
18. Resignation benefit for employees who served for at least 7 years.
19. Night work 50% of employees basic salary.
20. Shortswing an employee after resting for not more than 8 hours is required to work in another shift is considered
employees work for the following day and given additional 4 hours straight time.
21. High voltage/high pole allowance for P45.00 to P75.00.
22. Employees Cooperative to provide the seed money of P3,000,000.00.
23. Hold-up allowance pay P5,000.00 value of personal belonging taken from accountable officer.
24. Fieldmens rubber shoes
25. Uniforms
26. Calamity leave
27. Danger exposure allowance
28. Meal and lodging allowance breakfast - P40.00
Lunch - P60.00
Dinner - P60.00
Lodging - P200/night
29. Payroll treatment for accident while on duty
30. Housing equity assistance loan increased to P60,000.00
31. Female employees uniforms, and
32. Benefits for collectors.
The Unions political demands consist of:
1. The scope of the collective bargaining unit all regular rank and file hired by the company in all its offices.
1. Union recognition and security all rank & file employees to join the union
2. allow union to meet with the newly regularized employees for a period not exceeding 4 hours excused for work.
3. Transfer of assignment and job security
4. Check-off of union dues
5. Payroll reinstatement
6. Union representation in committees
7. Signing bonus of P7,000.00.
[4]
Annex G of Petition, Rollo. pp. 120-122.
[5]
Annex H of Petition, Rollo. pp. 124-125.
[6]
Annex M, Rollo. pp. 319-340.
[7]
Annex N of Petition, Rollo. pp. 341-394.
[8]
Annex V of Petition, Rollo. pp. 661-715.
[9]
Section 18, Article 2 of the 1987 Constitution.
[10]
Section 6, Article 12, Id.
[11]
Section 1, Article 13, Id.
[12]
Section 3, Article 12 and Section 3[3], Article 15 of the 1987 Constitution.
[13]
Phil. Scout Veteran Security vs. NLRC, 262 SCRA 112 [1996], citing Insular Bank of Asia and America Employees Union
(IBAAEU) vs. Inciong, 132 SCRA 663 [1984]; Endencia vs. David, 93 Phil. 696 [1953].
[14]
Section 3, pars. 3 & 4, Article 13 of the 1987 Constitution.
[15]
Garcia vs. Exec. Secretary, 204 SCRA 516 [1991]; Dumlao vs. Comelec, 95 SCRA 390 [1980]; Assoc. of Small
Landowners of the Phil. vs. Secretary of Agrarian Reform, 175 SCRA 343 [1989].
[16]
Taxicab Operators of Metro Manila, Inc. vs. Board of Transportation, 117 SCRA 597 [1982].
[17]
Pier 8 Arrastre and Stevedoring Services, Inc. vs. Roldan-Confessor, 241 SCRA 295 [1995].
[18]
American Home Assurance Company vs. NLRC, 259 SCRA 280 [1996]; Lopez Sugar Corp. vs. Federation of Free
Workers, et al., 189 SCRA 179 [1990].
[19]
PAL vs. Confesor, 231 SCRA 41 [1994].
[20]
PAL vs. Confesor, Id.; Caltex Filipino Managers Supervisors vs. CIR, 44 SCRA 350 [1972]; Labor ng Pagkakaisa sa Peter-
Paul vs. CIR, 96 Phil. 63 [1954].
[21]
See Annex B of the Unions Rejoinder to Companys Opposition to Unions Motion for Reconsideration, Rollo. p.1521.
[22]
Annex V of Petition, Rollo. p. 694.
[23]
Annex S of Petition, Rollo. p. 596..
[24]
Annex W of Petition, Rollo. p. 716.
[25]
A formula used by the Court in determining the reasonableness of the wages award in PAL vs. Confesor, supra.
[26]
Annex I, Rollo. p. 133:
The MERALCO rank and file employee receives a monthly salary of P11,601 as against the median salary of P9,620
monthly and the weighted average salary of P9,729 monthly prevailing in the community. This means that Meralcos
average monthly salary rate for its rank and file employees is 20.60 percent higher than the median salary and 19.24
percent higher than the weighted average salary enjoyed by other rank and file employees within the community.
[27]
Annex K, Rollo. p. 221.
[28]
Annex V of Petition, Rollo. pp. 700-701.
[29]
Azucena, The Labor Code, Vol. 1, 1996 Ed., p. 314.
[30]
Philippine Education Co., Inc. vs Court of Industrial Relations, 92 SCRA 381 [1979].
[31]
Liberation Steamship Co., Inc. vs CIR, 23 Phil. 1105 [1968]; National Development Co. vs. CIR, 23 Phil. 1106; Heacock
Co. vs. NLU, 95 Phil. 553; NWSA vs NWSA Consolidated Labor Union, 21 SCRA 203 [1967].
[32]
Globe Mackay Cable and Radio Corporation vs. NLRC, 163 SCRA 71 [1988].
[33]
220 SCRA 463 [1993].
[34]
Article 100 of the Labor Code; Davao Fruits Corporation vs. Associate Labor Union, 225 SCRA 567 [1993].
[35]
Annex V of Petition, Rollo. p. 704.
[36]
See Rollo. p. 1786.
[37]
Annex E of the Unions Rejoinder to Companys Opposition to Unions Motion for Reconsideration, Rollo. p. 1525.
[38]
MERALCOs Memorandum, Rollo. p. 1721.
[39]
MEWA s Memorandum, p. 37.
[40]
214 SCRA 295 [1995] citing Golden Farms, Inc. vs. Calleja, 175 SCRA 471 [1989]; Philips Industrial Development,
Inc. vs. NLRC, 210 SCRA 348 [1992]; National Association of Trade Unions-Republic Planters Bank Supervisors
Chapter vs. Hon. Ruben Torres, 239 SCRA 546 [1994].
[41]
254 SCRA 182.
[42]
Annex M of Petition, Rollo. p. 338.
[43]
186 SCRA 496 [1990].
[44]
Annex V of Petition, Rollo. pp. 713-714.
[45]
De Ocampo vs. NLRC, 213 SCRA 652 [1992].
[46]
Annex M of Petition, Rollo, p. 340.
[47]
241 SCRA 294, 307 [1995].
[48]
223 SCRA 779 [1993].
[49]
Lopez Sugar Corporation vs. Federation of Free Workers, 189 SCRA 179 [1990].
[50]
Duldulao vs. Ramos, 91 Phil. 2611; Rivera vs. Court of Appeals, 176 SCRA 169 [1989].
[51]
National Congress of Unions in the Sugar Industry vs. Ferrer-Calleja, 205 SCRA 478 [1995].
 EN BANC
G.R. No. 207257, February 03, 2015
HON. RAMON JESUS P. PAJE, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES (DENR), Petitioner, v. HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO, HON. RAFAEL
V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON.
EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-
GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA
MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P.
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN
CARLO DELOS REYES, Respondents.

[G.R. NO. 207257]

REDONDO PENINSULA ENERGY, INC., Petitioner, v. HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO, HON.
RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON.
EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-
GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA
MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P.
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN
CARLO DELOS REYES, RAMON JESUS P. PAJE, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES AND SUBIC BAY METROPOLITAN AUTHORITY, Respondents.

[G.R. NO. 207276]

HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G.
BAUTISTA, JR., HON. RAFAEL V. MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS
REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA
CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
HERMOSA, RODOLFO SAMBAJON, ET AL., Petitioners,

[G.R. NO. 207282]

RAMON JESUS P. PAJE IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, SUBIC BAY METROPOLITAN AUTHORITY, AND REDONDO PENINSULA ENERGY, INC., Respondents.

[G.R. NO. 207366]

SUBIC BAY METROPOLITAN AUTHORITY, Petitioner, v. HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO,
HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO,
HON EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA, GREGORIO LLORCA MAGDARAOG,
RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO
A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS
REYES, HON. RAMON JESUS P. PAJE, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES AND REDONDO PENINSULA ENERGY, INC., Respondents.
DECISION
DEL CASTILLO, J.:
Before this Court are consolidated Petitions for Review on Certiorari1 assailing the Decision2 dated January 30, 2013 and
the Resolution3 dated May 22, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00015, entitled Hon. Teodoro A.
Casio, et al. v. Hon. Ramon Jesus P. Paje, et al.

Factual Antecedents

In February 2006, Subic Bay Metropolitan Authority (SBMA), a government agency organized and established under
Republic Act No. (RA) 7227,4 and Taiwan Cogeneration Corporation (TCC) entered into a Memorandum of
Understanding (MOU) expressing their intention to build a power plant in Subic Bay which would supply reliable and
affordable power to Subic Bay Industrial Park (SBIP).5chanRoblesvirtualLawlibrary

On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC undertook to build and operate a coal-fired
power plant.6 In the said MOU, TCC identified 20 hectares of land at Sitio Naglatore, Mt. Redondo, Subic Bay Freeport
Zone (SBFZ) as the suitable area for the project and another site of approximately 10 hectares to be used as an ash
pond.7 TCC intends to lease the property from SBMA for a term of 50 years with rent fixed at $3.50 per square meter,
payable in 10 equal 5-year installments.8chanRoblesvirtualLawlibrary
On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental Compliance Certificate (ECC) No. EC-SBFZ-ECC-
69-21-500 in favor of Taiwan Cogeneration International Corporation (TCIC), a subsidiary of TCC, 9 for the construction,
installation, and operation of 2x150-MW Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power Plant
at Sitio Naglatore.10chanRoblesvirtualLawlibrary

On June 6, 2008, TCC assigned all its rights and interests under the MOU dated July 28, 2006 to Redondo Peninsula
Energy, Inc. (RP Energy),11 a corporation duly organized and existing under the laws of the Philippines with the primary
purpose of building, owning, and operating power plants in the Philippines, among others. 12 Accordingly, an Addendum
to the said MOU was executed by SBMA and RP Energy.13chanRoblesvirtualLawlibrary

RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an Environmental Impact Statement (EIS) for the proposed
coal-fired power plant and to assist RP Energy in applying for the issuance of an ECC from the Department of
Environment and Natural Resources (DENR).14chanRoblesvirtualLawlibrary

On August 27, 2008, the Sangguniang Panglungsod of Olongapo City issued Resolution No. 131, Series of 2008,
expressing the city governments objection to the coal-fired power plant as an energy source and urging the proponent
to consider safer alternative sources of energy for Subic Bay.15chanRoblesvirtualLawlibrary

On December 22, 2008, the DENR, through former Secretary Jose L. Atienza, Jr., issued an ECC for the proposed 2x150-
MW coal-fired power plant.16chanRoblesvirtualLawlibrary

Sometime thereafter, RP Energy decided to include additional components in its proposed coal-fired power plant. Due
to the changes in the project design, which involved the inclusion of a barge wharf, seawater intake breakwater, subsea
discharge pipeline, raw water collection system, drainage channel improvement, and a 230kV double-circuit
transmission line,17 RP Energy requested the DENR Environmental Management Bureau (DENR-EMB) to amend its
ECC.18 In support of its request, RP Energy submitted to the DENR-EMB an Environmental Performance Report and
Management Plan (EPRMP), which was prepared by GHD.19chanRoblesvirtualLawlibrary

On June 8, 2010, RP Energy and SBMA entered into a Lease and Development Agreement (LDA) over a 380,004.456-
square meter parcel of land to be used for building and operating the coal-fired power
plant.20chanRoblesvirtualLawlibrary

On July 8, 2010, the DENR-EMB issued an amended ECC (first amendment) allowing the inclusion of additional
components, among others.21chanRoblesvirtualLawlibrary

Several months later, RP Energy again requested the DENR-EMB to amend the ECC.22 Instead of constructing a 2x150-
MW coal-fired power plant, as originally planned, it now sought to construct a 1x300-MW coal-fired power plant.23 In
support of its request, RP Energy submitted a Project Description Report (PDR) to the DENR-
EMB.24chanRoblesvirtualLawlibrary

On May 26, 2011, the DENR-EMB granted the request and further amended the ECC (second
amendment).25chanRoblesvirtualLawlibrary

On August 1, 2011, the Sangguniang Panglalawigan of Zambales issued Resolution No. 2011-149, opposing the
establishment of a coal-fired thermal power plant at Sitio Naglatore, Brgy. Cawag, Subic,
Zambales.26chanRoblesvirtualLawlibrary

On August 11, 2011, the Liga ng mga Barangay of Olongapo City issued Resolution No. 12, Series of 2011, expressing its
strong objection to the coal-fired power plant as an energy source. 27chanRoblesvirtualLawlibrary

On July 20, 2012, Hon. Teodoro A. Casio, Hon. Raymond V. Palatino, Hon. Rafael V. Mariano, Hon. Emerenciana A. De
Jesus, Clemente G. Bautista, Jr., Hon. Rolen C. Paulino, Hon. Eduardo Piano, Hon. James de los Reyes, Hon. Aquilino Y.
Cortez, Jr., Hon. Sarah Lugerna Lipumano-Garcia, Noraida Velarmino, Bianca Christine Gamboa Espinos, Charo Simons,
Gregorio Llorca Magdaraog, Rubelh Peralta, Alex Corpus Hermoso, Rodolfo Sambajon, Rev. Fr. Gerardo Gregorio P.
Jorge, Carlito A. Baloy, Ofelia D. Pablo, Mario Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and John Carlo delos
Reyes (Casio Group) filed before this Court a Petition for Writ of kalikasan against RP Energy, SBMA, and Hon. Ramon
Jesus P. Paje, in his capacity as Secretary of the DENR.28chanRoblesvirtualLawlibrary

On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of kalikasan; and (2) refer the case to the CA for
hearing and reception of evidence and rendition of judgment. 29chanRoblesvirtualLawlibrary

While the case was pending, RP Energy applied for another amendment to its ECC (third amendment) and submitted
 another EPRMP to the DENR-EMB, proposing the construction and operation of a 2x300-MW coal-fired power
plant.30chanRoblesvirtualLawlibrary

On September 11, 2012, the Petition for Writ of kalikasan was docketed as CA-G.R. SP No. 00015 and raffled to the
Fifteenth Division of the CA.31 In the Petition, the Casio Group alleged, among others, that the power plant project
would cause grave environmental damage;32 that it would adversely affect the health of the residents of the
municipalities of Subic, Zambales, Morong, Hermosa, and the City of Olongapo; 33 that the ECC was issued and the LDA
entered into without the prior approval of the concerned sanggunians as required under Sections 26 and 27 of the
Local Government Code (LGC);34 that the LDA was entered into without securing a prior certification from the National
Commission on Indigenous Peoples (NCIP) as required under Section 59 of RA 8371 or the Indigenous Peoples Rights
Act of 1997 (IPRA Law);35 that Section 8.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30) which allows
amendments of ECCs is ultra vires because the DENR has no authority to decide on requests for amendments of
previously issued ECCs in the absence of a new EIS;36 and that due to the nullity of Section 8.3 of DAO 2003-30, all
amendments to RP Energys ECC are null and void.37chanRoblesvirtualLawlibrary

On October 29, 2012, the CA conducted a preliminary conference wherein the parties, with their respective counsels,
appeared except for Hon. Teodoro A. Casio, Hon. Rafael V. Mariano, Hon. Emerencia A. De Jesus, Clemente G.
Bautista, Mario Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and the SBMA. 38 The matters taken up during the
preliminary conference were embodied in the CAs Resolution dated November 5, 2012, to
wit:chanroblesvirtuallawlibrary
I. ISSUES
A. Petitioners (Casio Group)

1. Whether x x x the DENR Environmental Compliance Certificate (ECC x x x) in favor of RP Energy for a 2x150 MW
Coal-Fired Thermal Power Plant Project (Power Plant, x x x ) and its amendment to 1x300 MW Power Plant, and the
Lease and Development Agreement between SBMA and RP Energy complied with the Certification Precondition as
required under Section 59 of Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 (IPRA Law, x x x);

2. Whether x x x RP Energy can proceed with the construction and operation of the 1x300 MW Power Plant without
prior consultation with and approval of the concerned local government units (LGUs, x x x ), pursuant to Sections 26
and 27 of Republic Act No. 7160 or the Local Government Code;

3. Whether x x x Section 8.3 of DENR Administrative Order No. 2003-30 (DAO No. 2003-30, x x x ) providing for the
amendment of an ECC is null and void for being ultra vires; and

4. Whether x x x the amendment of RP Energys ECC under Section 8.3 of DAO No. 2003-30 is null and void.
B. Respondent RP Energy

1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked;

1.1 Whether x x x the same is valid until annulled;
2. Whether x x x petitioners exhausted their administrative remedies with respect to the amended ECC for the 1x300
MW Power Plant;
2.1 Whether x x x the instant Petition is proper;
3. Whether x x x RP Energy complied with all the procedures/requirements for the issuance of the DENR ECC and its
amendment;
3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on Indigenous Peoples is applicable in the
instant case;
4. Whether x x x the LGUs approval under Sections 26 and 27 of the Local Government Code is necessary for the
issuance of the DENR ECC and its amendments, and what constitutes LGU approval;

5. Whether x x x there is a threatened or actual violation of environmental laws to justify the Petition;
5.1 Whether x x x the approved 1x300 MW Power Plant complied with the accepted legal standards on thermal
pollution of coastal waters, air pollution, water pollution, and acid deposits on aquatic and terrestrial ecosystems; and
6. Whether x x x the instant Petition should be dismissed for failure to comply with the requirements of proper
verification and certification of non-forum shopping with respect to some petitioners.
C. Respondent DENR Secretary Paje

1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP Energy requires compliance with
Section 59 of the IPRA Law, as well as Sections 26 and 27 of the Local Government Code;

2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this proceeding; and

3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.

II. ADMISSIONS/DENIALS

Petitioners, through Atty. Ridon, admitted all the allegations in RP Energys Verified Return, except the
following:ChanRoblesVirtualawlibrary
1. paragraphs 1.4 to 1.7;
2. paragraphs 1.29 to 1.32; and
3. paragraphs 1.33 to 1.37.
Petitioners made no specific denial with respect to the allegations of DENR Secretary Pajes Verified Return. x x x

Respondent RP Energy proposed the following stipulations, which were all admitted by petitioners, through Atty. Ridon,
viz:chanroblesvirtuallawlibrary
1. The 1x300 MW Power Plant is not yet operational;
2. At present, there is no environmental damage;
3. The 1x300 MW Power Plant project is situated within the Subic Special Economic Zone; and
4. Apart from the instant case, petitioners have not challenged the validity of Section 8.3 of DAO No. 2003-30.
Public respondent DENR Secretary Paje did not propose any matter for stipulation. 39

Thereafter, trial ensued.

The Casio Group presented three witnesses, namely: (1) Raymond V. Palatino, a two-term representative of
the Kabataan Partylist in the House of Representatives;40 (2) Alex C. Hermoso, the convenor of the Zambales-Olongapo
City Civil Society Network, a director of the PREDA 41Foundation, and a member of the Zambales Chapter of the Kaya
Natin Movement and the Zambales Chapter of the People Power Volunteers for Reform; 42 and (3) Ramon Lacbain, the
Vice-Governor of the Province of Zambales.43chanRoblesvirtualLawlibrary

RP Energy presented five witnesses, namely: (1) Junisse P. Mercado (Ms. Mercado), an employee of GHD and the
Project Director of ongoing projects for RP Energy regarding the proposed power plant project; 44 (2) Juha Sarkki (Engr.
Sarkki), a Master of Science degree holder in Chemical Engineering;45 (3) Henry K. Wong, a degree holder of Bachelor of
Science Major in Mechanical Engineering from Worcester Polytechnic Institute;46 (4) Dr. Ely Anthony R. Ouano (Dr.
Ouano), a licensed Chemical Engineer, Sanitary Engineer, and Environmental Planner in the Philippines;47 and (5) David
C. Evangelista (Mr. Evangelista), a Business Development Analyst working for RP Energy. 48chanRoblesvirtualLawlibrary

SBMA, for its part, presented its Legal Department Manager, Atty. Von F. Rodriguez (Atty.
Rodriguez).49chanRoblesvirtualLawlibrary

The DENR, however, presented no evidence. 50chanRoblesvirtualLawlibrary

Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was issued in connection with RP Energys
application for the 2x300-MW coal-fired power plant.51chanRoblesvirtualLawlibrary

On November 15, 2012, the DENR-EMB granted RP Energys application for the third amendment to its ECC, approving
the construction and operation of a 2x300-MW coal-fired power plant, among others.52chanRoblesvirtualLawlibrary

Ruling of the Court of Appeals

On January 30, 2013, the CA rendered a Decision denying the privilege of the writ of kalikasan and the application for
an environment protection order due to the failure of the Casio Group to prove that its constitutional right to a
balanced and healthful ecology was violated or threatened. 53 The CA likewise found no reason to nullify Section 8.3 of
DAO No. 2003-30. It said that the provision was not ultra vires, as the express power of the Secretary of the DENR, the
Director and Regional Directors of the EMB to issue an ECC impliedly includes the incidental power to amend the
same.54 In any case, the CA ruled that the validity of the said section could not be collaterally attacked in a petition for a
writ of kalikasan.55chanRoblesvirtualLawlibrary

Nonetheless, the CA resolved to invalidate the ECC dated December 22, 2008 for non-compliance with Section 59 of the
IPRA Law56 and Sections 26 and 27 of the LGC57 and for failure of Luis Miguel Aboitiz (Mr. Aboitiz), Director of RP
Energy, to affix his signature in the Sworn Statement of Full Responsibility, which is an integral part of the ECC. 58 Also
declared invalid were the ECC first amendment dated July 8, 2010 and the ECC second amendment dated May 26, 2011
in view of the failure of RP Energy to comply with the restrictions set forth in the ECC, which specifically require that
any expansion of the project beyond the project description or any change in the activity x x x shall be subject to a new
Environmental Impact Assessment.59 However, as to the ECC third amendment dated November 15, 2012, the CA
decided not to rule on its validity since it was not raised as an issue during the preliminary
conference.60chanRoblesvirtualLawlibrary
The CA also invalidated the LDA entered into by SBMA and RP Energy as it was issued without the prior consultation
and approval of all the sanggunians concerned as required under Sections 26 and 27 of the LGC, 61 and in violation of
Section 59, Chapter VIII of the IPRA Law, which enjoins all departments and other governmental agencies from granting
any lease without a prior certification that the area affected does not overlap with any ancestral domain. 62 The CA
noted that no CNO was secured from the NCIP prior to the execution of the LDA,63 and that the CNO dated October 31,
2012 was secured during the pendency of the case and was issued in connection with RP Energys application for a
2x300-MW coal-fired power plant.64chanRoblesvirtualLawlibrary

Thus, the CA disposed of the case in this wise:chanroblesvirtuallawlibrary

WHEREFORE, premises considered, judgment is hereby rendered DENYING the privilege of the writ of kalikasan and the
application for an environmental protection order. The prayer to declare the nullity of Section 8.3 of the DENR
Administrative Order No. 2003-30 for being ultra vires is DENIED; and the following are all declared INVALID:

1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-011-4021) dated 22 December 2008 issued in favor
of respondent Redondo Peninsula Energy, Inc. by former Secretary Jose L. Atienza, Jr. of the Department of
Environment and Natural Resources;

2. The ECC first amendment dated 08 July 2010 and ECC second amendment dated 26 May 2011, both issued in favor of
respondent Redondo Peninsula Energy, Inc. by OIC Director Atty. Juan Miguel T. Cuna of the Department of
Environment and Natural Resources, Environmental Management Bureau; and

3. The Lease and Development Agreement dated 08 June 2010 entered into by respondents Subic Bay Metropolitan
Authority and Redondo Peninsula Energy, Inc. involving a parcel of land consisting of 380,004.456 square meters.

SO ORDERED.65

The DENR and SBMA separately moved for reconsideration.66 RP Energy filed a Motion for Partial
Reconsideration,67 attaching thereto a signed Statement of Accountability. 68 The Casio Group, on the other hand, filed
Omnibus Motions for Clarification and Reconsideration.69chanRoblesvirtualLawlibrary

On May 22, 2013, the CA issued a Resolution70 denying the aforesaid motions for lack of merit. The CA opined that the
reliefs it granted in its Decision are allowed under Section 15, Rule 7 of the Rules of Procedure for Environmental Cases
as the reliefs enumerated therein are broad, comprehensive, and non-exclusive.71 In fact, paragraph (e) of the said
provision allows the granting of such other reliefs in consonance with the objective, purpose, and intent of the
Rules.72 SBMAs contention that the stoppage of a project for non-compliance with Section 59 of the IPRA Law may only
be done by the indigenous cultural communities or indigenous peoples was also brushed aside by the CA as the Casio
Group did not file a case under the IPRA Law but a Petition for a Writ of kalikasan, which is available to all natural or
juridical persons whose constitutional right to a balanced and healthful ecology is violated, or threatened to be
violated.73 As to RP Energys belated submission of a signed Statement of Accountability, the CA gave no weight and
credence to it as the belated submission of such document, long after the presentation of evidence of the parties had
been terminated, is not in accord with the rules of fair play. 74 Neither was the CA swayed by the argument that the
omitted signature of Luis Miguel Aboitiz is a mere formal defect, which does not affect the validity of the entire
document.75 The dispositive portion of the ++Resolution reads:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, respondents Subic Bay Metropolitan Authoritys Motion for Reconsideration dated
18 February 2013, Department of Environment and Natural Resources Secretary Ramon Jesus P. Pajes Motion for
Reconsideration dated 19 February 2013, and Redondo Peninsula Energy, Inc.s Motion for Partial Reconsideration
dated 22 February 2013, as well as petitioners Omnibus Motions for Clarification and Reconsideration dated 25
February 2013, are all DENIED for lack of merit.

SO ORDERED.76

Unsatisfied, the parties appealed to this Court.

The Casio Groups arguments

The Casio Group, in essence, argues that it is entitled to a Writ of kalikasan as it was able to prove that the operation
of the power plant would cause environmental damage and pollution, and that this would adversely affect the
residents of the provinces of Bataan and Zambales, particularly the municipalities of Subic, Morong, Hermosa, and the
City of Olongapo. It cites as basis RP Energys EIS, which allegedly admits that acid rain may occur in the combustion of
coal;77 that the incidence of asthma attacks among residents in the vicinity of the project site may increase due to
exposure to suspended particles from plant operations;78 and that increased sulfur oxides (SOx) and nitrogen oxides
(NOx) emissions may occur during plant operations.79 It also claims that when the SBMA conducted Social Acceptability
Policy Consultations with different stakeholders on the proposed power plant, the results indicated that the overall
persuasion of the participants was a clear aversion to the project due to environmental, health, economic and socio-
cultural concerns.80 Finally, it contends that the ECC third amendment should also be nullified for failure to comply with
the procedures and requirements for the issuance of the ECC.81chanRoblesvirtualLawlibrary

The DENRs arguments

The DENR imputes error on the CA in invalidating the ECC and its amendments, arguing that the determination of the
validity of the ECC as well as its amendments is beyond the scope of a Petition for a Writ of kalikasan.82 And even if it is
within the scope, there is no reason to invalidate the ECC and its amendments as these were issued in accordance with
DAO No. 2003-30.83 The DENR also insists that contrary to the view of the CA, a new EIS was no longer necessary since
the first EIS was still within the validity period when the first amendment was requested, and that this is precisely the
reason RP Energy was only required to submit an EPRMP in support of its application for the first amendment. 84 As to
the second amendment, the DENR-EMB only required RP Energy to submit documents to support the proposed revision
considering that the change in configuration of the power plant project, from 2x150MW to 1x300MW, was not
substantial.85 Furthermore, the DENR argues that no permits, licenses, and/or clearances from other government
agencies are required in the processing and approval of the ECC. 86 Thus, non-compliance with Sections 26 and 27 of the
LGC as well as Section 59 of the IPRA Law is not a ground to invalidate the ECC and its amendments.87 The DENR further
posits that the ECC is not a concession, permit, or license but is a document certifying that the proponent has complied
with all the requirements of the EIS System and has committed to implement the approved Environmental
Management Plan.88 The DENR invokes substantial justice so that the belatedly submitted certified true copy of the ECC
containing the signature of Mr. Aboitiz on the Statement of Accountability may be accepted and accorded weight and
credence.89chanRoblesvirtualLawlibrary

SBMAs arguments

For its part, SBMA asserts that since the CA did not issue a Writ of kalikasan, it should not have invalidated the LDA and
that in doing so, the CA acted beyond its powers. 90 SBMA likewise puts in issue the legal capacity of the Casio Group to
impugn the validity of the LDA91 and its failure to exhaust administrative remedies. 92 In any case, SBMA contends that
there is no legal basis to invalidate the LDA as prior consultation under Sections 26 and 27 of the LGC is not required in
this case considering that the area is within the SBFZ.93 Under RA 7227, it is the SBMA which has exclusive jurisdiction
over projects and leases within the SBFZ and that in case of conflict between the LGC and RA 7227, it is the latter, a
special law, which must prevail.94 Moreover, the lack of prior certification from the NCIP is also not a ground to
invalidate a contract.95 If at all, the only effect of non-compliance with the said requirement under Section 59 of the
IPRA Law is the stoppage or suspension of the project.96 Besides, the subsequent issuance of a CNO has cured any legal
defect found in the LDA.97chanRoblesvirtualLawlibrary

RP Energys arguments

RP Energy questions the propriety of the reliefs granted by the CA considering that it did not issue a writ of kalikasan in
favor of the Casio Group.98 RP Energy is of the view that unless a writ of kalikasan is issued, the CA has no power to
grant the reliefs prayed for in the Petition.99 And even if it does, the reliefs are limited to those enumerated in Section
15, Rule 7 of the Rules of Procedure for Environmental Cases and that the phrase such other reliefs in paragraph (e)
should be limited only to those of the same class or general nature as the four other reliefs enumerated. 100 As to the
validity of the LDA, the ECC and its amendments, the arguments of RP Energy are basically the same arguments
interposed by SBMA and the DENR. RP Energy maintains that the ECC and its amendments were obtained in compliance
with the DENR rules and regulations;101 that a CNO is not necessary in the execution of an LDA and in the issuance of
the ECC and its amendments;102 and that prior approval of the local governments, which may be affected by the
project, are not required because under RA 7227, the decision of the SBMA shall prevail in matters affecting the Subic
Special Economic Zone (SSEZ), except in matters involving defense and security. 103 RP Energy also raises the issue of
non-exhaustion of administrative remedies on the part of the Casio Group. 104chanRoblesvirtualLawlibrary

Preliminaries

This case affords us an opportunity to expound on the nature and scope of the writ of kalikasan. It presents some
interesting questions about law and justice in the context of environmental cases, which we will tackle in the main body
of this Decision.

But we shall first address some preliminary matters, in view of the manner by which the appellate court disposed of this
case.

The Rules on the Writ of kalikasan,105 which is Part III of the Rules of Procedure for Environmental Cases,106 was issued
by the Court pursuant to its power to promulgate rules for the protection and enforcement of constitutional rights, 107 in
particular, the individuals right to a balanced and healthful ecology. 108 Section 1 of Rule 7
provides:chanroblesvirtuallawlibrary
Section 1. Nature of the writ. - The writ is a remedy available to a natural or juridical person, entity authorized by law,
peoples organization, non-governmental organization, or any public interest group accredited by or registered with any
government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity,
involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or
more cities or provinces.

The writ is categorized as a special civil action and was, thus, conceptualized as an extraordinary remedy, which aims to
provide judicial relief from threatened or actual violation/s of the constitutional right to a balanced and healthful
ecology of a magnitude or degree of damage that transcends political and territorial boundaries. 109 It is intended to
provide a stronger defense for environmental rights through judicial efforts where institutional arrangements of
enforcement, implementation and legislation have fallen short 110 and seeks to address the potentially exponential
nature of large-scale ecological threats.111chanRoblesvirtualLawlibrary

Under Section 1 of Rule 7, the following requisites must be present to avail of this extraordinary remedy: (1) there is an
actual or threatened violation of the constitutional right to a balanced and healthful ecology; (2) the actual or
threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or
entity; and (3) the actual or threatened violation involves or will lead to an environmental damage of such magnitude
as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

Expectedly, the Rules do not define the exact nature or degree of environmental damage but only that it must be
sufficiently grave, in terms of the territorial scope of such damage, so as to call for the grant of this extraordinary
remedy. The gravity of environmental damage sufficient to grant the writ is, thus, to be decided on a case-to-case basis.

If the petitioner successfully proves the foregoing requisites, the court shall render judgment granting the privilege of
the writ of kalikasan. Otherwise, the petition shall be denied. If the petition is granted, the court may grant the reliefs
provided for under Section 15 of Rule 7, to wit:chanroblesvirtuallawlibrary
Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the court shall
render judgment granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty
in violation of environmental laws resulting in environmental destruction or damage;

(b) Directing the respondent public official, government agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance
with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on
the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners.

It must be noted, however, that the above enumerated reliefs are non-exhaustive. The reliefs that may be granted
under the writ are broad, comprehensive and non-exclusive.112chanRoblesvirtualLawlibrary

Prescinding from the above, the DENR, SBMA and RP Energy are one in arguing that the reliefs granted by the appellate
court, i.e. invalidating the ECC and its amendments, are improper because it had denied the Petition for Writ
of kalikasan upon a finding that the Casio Group failed to prove the alleged environmental damage, actual or
threatened, contemplated under the Rules.

Ordinarily, no reliefs could and should be granted. But the question may be asked, could not the appellate court have
granted the Petition for Writ of kalikasan on the ground of the invalidity of the ECC for failure to comply with certain
laws and rules?

This question is the starting point for setting up the framework of analysis which should govern writ of kalikasan cases.
In their Petition for Writ of kalikasan,113 the Casio Groups allegations, relative to the actual or threatened violation of
the constitutional right to a balanced and healthful ecology, may be grouped into two.

The first set of allegations deals with the actual environmental damage that will occur if the power plant project is
implemented. The Casio Group claims that the construction and operation of the power plant will result in (1) thermal
pollution of coastal waters, (2) air pollution due to dust and combustion gases, (3) water pollution from toxic coal
combustion waste, and (4) acid deposition in aquatic and terrestrial ecosystems, which will adversely affect the
residents of the Provinces of Bataan and Zambales, particularly the Municipalities of Subic, Morong and Hermosa, and
the City of Olongapo.

The second set of allegations deals with the failure to comply with certain laws and rules governing or relating to the
issuance of an ECC and amendments thereto. The Casio Group claims that the ECC was issued in violation of (1) the
DENR rules on the issuance and amendment of an ECC, particularly, DAO 2003-30 and the Revised Procedural Manual
for DAO 2003-30 (Revised Manual), (2) Section 59 of the IPRA Law, and (3) Sections 26 and 27 of the LGC. In addition, it
claims that the LDA entered into between SBMA and RP Energy violated Section 59 of the IPRA Law.

As to the first set of allegations, involving actual damage to the environment, it is not difficult to discern that, if they are
proven, then the Petition for Writ of kalikasan could conceivably be granted.

However, as to the second set of allegations, a nuanced approach is warranted. The power of the courts to nullify an
ECC existed even prior to the promulgation of the Rules on the Writ of kalikasan for judicial review of the acts of
administrative agencies or bodies has long been recognized 114subject, of course, to the doctrine of exhaustion of
administrative remedies.115chanRoblesvirtualLawlibrary

But the issue presented before us is not a simple case of reviewing the acts of an administrative agency, the DENR,
which issued the ECC and its amendments. The challenge to the validity of the ECC was raised in the context of a writ
of kalikasan case. The question then is, can the validity of an ECC be challenged via a writ of kalikasan?

We answer in the affirmative subject to certain qualifications.

As earlier noted, the writ of kalikasan is principally predicated on an actual or threatened violation of the constitutional
right to a balanced and healthful ecology, which involves environmental damage of a magnitude that transcends
political and territorial boundaries. A party, therefore, who invokes the writ based on alleged defects or irregularities in
the issuance of an ECC must not only allege and prove such defects or irregularities, but must also provide a causal link
or, at least, a reasonable connection between the defects or irregularities in the issuance of an ECC and the actual or
threatened violation of the constitutional right to a balanced and healthful ecology of the magnitude contemplated
under the Rules. Otherwise, the petition should be dismissed outright and the action re-filed before the proper forum
with due regard to the doctrine of exhaustion of administrative remedies. This must be so if we are to preserve the
noble and laudable purposes of the writ against those who seek to abuse it.

An example of a defect or an irregularity in the issuance of an ECC, which could conceivably warrant the granting of the
extraordinary remedy of the writ of kalikasan, is a case where there are serious and substantial misrepresentations or
fraud in the application for the ECC, which, if not immediately nullified, would cause actual negative environmental
impacts of the magnitude contemplated under the Rules, because the government agencies and LGUs, with the final
authority to implement the project, may subsequently rely on such substantially defective or fraudulent ECC in
approving the implementation of the project.

To repeat, in cases of defects or irregularities in the issuance of an ECC, it is not sufficient to merely allege such defects
or irregularities, but to show a causal link or reasonable connection with the environmental damage of the magnitude
contemplated under the Rules. In the case at bar, no such causal link or reasonable connection was shown or even
attempted relative to the aforesaid second set of allegations. It is a mere listing of the perceived defects or irregularities
in the issuance of the ECC. This would have been sufficient reason to disallow the resolution of such issues in a writ
of kalikasan case.

However, inasmuch as this is the first time that we lay down this principle, we have liberally examined the alleged
defects or irregularities in the issuance of the ECC and find that there is only one group of allegations, relative to the
ECC, that can be reasonably connected to an environmental damage of the magnitude contemplated under the Rules.
This is with respect to the allegation that there was no environmental impact assessment relative to the first and
second amendments to the subject ECC. If this were true, then the implementation of the project can conceivably
actually violate or threaten to violate the right to a healthful and balanced ecology of the inhabitants near the vicinity
of the power plant. Thus, the resolution of such an issue could conceivably be resolved in a writ of kalikasan case
provided that the case does not violate, or is an exception to the doctrine of exhaustion of administrative remedies and
primary jurisdiction.116chanRoblesvirtualLawlibrary
 As to the claims that the issuance of the ECC violated the IPRA Law and LGC and that the LDA, likewise, violated the
IPRA Law, we find the same not to be within the coverage of the writ of kalikasan because, assuming there was non-
compliance therewith, no reasonable connection can be made to an actual or threatened violation of the right to a
balanced and healthful ecology of the magnitude contemplated under the Rules.

To elaborate, the alleged lack of approval of the concerned sanggunians over the subject project would not lead to or is
not reasonably connected with environmental damage but, rather, it is an affront to the local autonomy of LGUs.
Similarly, the alleged lack of a certificate precondition that the project site does not overlap with an ancestral domain
would not result in or is not reasonably connected with environmental damage but, rather, it is an impairment of the
right of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains. These alleged
violations could be the subject of appropriate remedies before the proper administrative bodies (like the NCIP) or a
separate action to compel compliance before the courts, as the case may be. However, the writ of kalikasan would not
be the appropriate remedy to address and resolve such issues.

Be that as it may, we shall resolve both the issues proper in a writ of kalikasan case and those which are not,
commingled as it were here, because of the exceptional character of this case. We take judicial notice of the looming
power crisis that our nation faces. Thus, the resolution of all the issues in this case is of utmost urgency and necessity in
order to finally determine the fate of the project center of this controversy. If we were to resolve only the issues proper
in a writ of kalikasan case and dismiss those not proper therefor, that will leave such unresolved issues open to another
round of protracted litigation. In any case, we find the records sufficient to resolve all the issues presented herein. We
also rule that, due to the extreme urgency of the matter at hand, the present case is an exception to the doctrine of
exhaustion of administrative remedies.117 As we have often ruled, in exceptional cases, we can suspend the rules of
procedure in order to achieve substantial justice, and to address urgent and paramount State interests vital to the life
of our nation.cralawred
Issues

In view of the foregoing, we shall resolve the following issues:

1. Whether the Casio Group was able to prove that the construction and operation of the power plant will cause grave
environmental damage.
1.1. The alleged thermal pollution of coastal waters, air pollution due to dust and combustion
gases, water pollution from toxic coal combustion waste, and acid deposition to aquatic and
terrestrial ecosystems that will be caused by the project.
1.2. The alleged negative environmental assessment of the project by experts in a report
generated during the social acceptability consultations.
1.3. The alleged admissions of grave environmental damage in the EIS itself of the project.
2.
3. Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz, as representative of RP Energy, in the
Statement of Accountability of the ECC.
4. Whether the first and second amendments to the ECC are invalid for failure to undergo a new environmental impact
assessment (EIA) because of the utilization of inappropriate EIA documents.
5. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition to the issuance of an ECC and
the lack of its prior issuance rendered the ECC invalid.
6. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition to the consummation of the
Lease and Development Agreement (LDA) between SBMA and RP Energy and the lack of its prior issuance rendered the
LDA invalid.
7. Whether compliance with Section 27, in relation to Section 26, of the LGC (i.e., approval of the
concerned sanggunian requirement) is necessary prior to the implementation of the power plant project.
8. Whether the validity of the third amendment to the ECC can be resolved in this case.

Ruling

The parties to this case appealed from the decision of the appellate court pursuant to Section 16, Rule 7 of the Rules of
Procedure for Environmental Cases, viz:chanroblesvirtuallawlibrary
Section 16. Appeal. - Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for
reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise
questions of fact. (Emphasis supplied)

It is worth noting that the Rules on the Writ of kalikasan allow the parties to raise, on appeal, questions of fact and,
thus, constitutes an exception to Rule 45 of the Rules of Court because of the extraordinary nature of the
circumstances surrounding the issuance of a writ of kalikasan. 118Thus, we shall review both questions of law and fact in
resolving the issues presented in this case.
 We now rule on the above-mentioned issues in detail.cralawred
I.

Whether the Casio Group was able to prove that the construction and operation of the power plant will cause grave
environmental damage.
The alleged thermal pollution of coastal
waters, air pollution due to dust and
combustion gases, water pollution from
toxic coal combustion waste, and acid
deposition in aquatic and terrestrial
ecosystems that will be caused by the
project.

As previously noted, the Casio Group alleged that the construction and operation of the power plant shall adversely
affect the residents of the Provinces of Bataan and Zambales, particularly, the Municipalities of Subic, Morong and
Hermosa, and the City of Olongapo, as well as the sensitive ecological balance of the area. Their claims of ecological
damage may be summarized as follows:
1. Thermal pollution of coastal waters. Due to the discharge of heated water from the operation of the plant, they claim that
the temperature of the affected bodies of water will rise significantly. This will have adverse effects on aquatic
organisms. It will also cause the depletion of oxygen in the water. RP Energy claims that there will be no more than a
3C increase in water temperature but the Casio Group claims that a 1C to 2C rise can already affect the metabolism
and other biological functions of aquatic organisms such as mortality rate and reproduction.
2. Air pollution due to dust and combustion gases. While the Casio Group admits that Circulating Fluidized Bed (CFB) Coal
technology, which will be used in the power plant, is a clean technology because it reduces the emission of toxic gases,
it claims that volatile organic compounds, specifically, polycyclic aromatic hydrocarbons (PAHs) will also be emitted
under the CFB. PAHs are categorized as pollutants with carcinogenic and mutagenic characteristics. Carbon monoxide, a
poisonous gas, and nitrous oxide, a lethal global warming gas, will also be produced.
3. Water pollution from toxic coal combustion waste. The waste from coal combustion or the residues from burning pose
serious environmental risk because they are toxic and may cause cancer and birth defects. Their release to nearby
bodies of water will be a threat to the marine ecosystem of Subic Bay. The project is located in a flood-prone area and
is near three prominent seismic faults as identified by Philippine Institute of Volcanology and Seismology. The
construction of an ash pond in an area susceptible to flooding and earthquake also undermines SBMAs duty to
prioritize the preservation of the water quality in Subic Bay.
4. Acid deposition in aquatic and terrestrial ecosystems. The power plant will release 1,888 tons of nitrous oxides and 886
tons of sulfur dioxide per year. These oxides are responsible for acid deposition. Acid deposition directly impacts
aquatic ecosystems. It is toxic to fish and other aquatic animals. It will also damage the forests near Subic Bay as well as
the wildlife therein. This will threaten the stability of the biological diversity of the Subic Bay Freeport which was
declared as one of the ten priority sites among the protected areas in the Philippines and the Subic Watershed and
Forest Reserve. This will also have an adverse effect on tourism. 119

In its January 30, 2013 Decision, the appellate court ruled that the Casio Group failed to prove the above allegations.

We agree with the appellate court.

Indeed, the three witnesses presented by the Casio Group are not experts on the CFB technology or on environmental
matters. These witnesses even admitted on cross-examination that they are not competent to testify on the
environmental impact of the subject project. What is wanting in their testimonies is their technical knowledge of the
project design/implementation or some other aspects of the project, even those not requiring expert knowledge, vis--
vis the significant negative environmental impacts which the Casio Group alleged will occur. Clearly, the Casio Group
failed to carry the onus of proving the alleged significant negative environmental impacts of the project. In comparison,
RP Energy presented several experts to refute the allegations of the Casio Group.

As aptly and extensively discussed by the appellate court:chanroblesvirtuallawlibrary

Petitioners120 presented three (3) witnesses, namely, Palatino, Hermoso, and Lacbain, all of whom are not experts on
the CFB technology or even on environmental matters. Petitioners did not present any witness from Morong or
Hermosa. Palatino, a former freelance writer and now a Congressman representing the Kabataan Partylist, with a
degree of BS Education major in Social Studies, admitted that he is not a technical expert. Hermoso, a Director of the
PREDA foundation which is allegedly involved on environmental concerns, and a member of Greenpeace, is not an
expert on the matter subject of this case. He is a graduate of BS Sociology and a practicing business director involved in
social development and social welfare services. Lacbain, incumbent Vice-Governor of the Province of Zambales, an
accounting graduate with a Master in Public Administration, was a former Banco Filipino teller, entertainment manager,
disco manager, marketing manager and college instructor, and is also not an expert on the CFB technology. Lacbain also
admitted that he is neither a scientist nor an expert on matters of the environment.

Petitioners cited various scientific studies or articles and websites culled from the internet. However, the said scientific
studies and articles including the alleged Key Observations and Recommendations on the EIS of the Proposed RPE
Project by Rex Victor O. Cruz (Exhibit DDDDD) attached to the Petition, were not testified to by an expert witness, and
are basically hearsay in nature and cannot be given probative weight. The article purportedly written by Rex Victor O.
Cruz was not even signed by the said author, which fact was confirmed by Palatino.

Petitioners witness, Lacbain, admitted that he did not personally conduct any study on the environmental or health
effects of a coal-fired power plant, but only attended seminars and conferences pertaining to climate change; and that
the scientific studies mentioned in the penultimate whereas clause of Resolution No. 2011-149 (Exhibit AAAAA) of
the Sangguniang Panlalawigan of Zambales is based on what he read on the internet, seminars he attended and what
he heard from unnamed experts in the field of environmental protection.

In his Judicial Affidavit (Exhibit HHHHH), Palatino stated that he was furnished by the concerned residents the Key
Observations and Recommendations on the EIS of Proposed RPE Project by Rex Victor O. Cruz, and that he merely
received and read the five (5) scientific studies and articles which challenge the CFB technology. Palatino also testified
that: he was only furnished by the petitioners copies of the studies mentioned in his Judicial Affidavit and he did not
participate in the execution, formulation or preparation of any of the said documents; he does not personally know Rex
Cruz or any of the authors of the studies included in his Judicial Affidavit; he did not read other materials about coal-
fired power plants; he is not aware of the acceptable standards as far as the operation of a coal-fired power plant is
concerned; petitioner Velarmino was the one who furnished him copies of the documents in reference to the MOU and
some papers related to the case; petitioner Peralta was the one who e-mailed to him the soft copy of all the documents
[letters (a) to (o) of his Judicial Affidavit], except the LGU Resolutions; and he has never been at the actual Power Plant
project site. It must be noted that petitioners Velarmino and Peralta were never presented as witnesses in this case. In
addition, Palatino did not identify the said studies but simply confirmed that the said studies were attached to the
Petition.

Indeed, under the rules of evidence, a witness can testify only to those facts which the witness knows of his or her
personal knowledge, that is, which are derived from the witness own perception. Concomitantly, a witness may not
testify on matters which he or she merely learned from others either because said witness was told or read or heard
those matters. Such testimony is considered hearsay and may not be received as proof of the truth of what the witness
has learned. This is known as the hearsay rule. Hearsay is not limited to oral testimony or statements; the general rule
that excludes hearsay as evidence applies to written, as well as oral statements. There are several exceptions to the
hearsay rule under the Rules of Court, among which are learned treatises under Section 46 of Rule
130, viz:ChanRoblesVirtualawlibrary
SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on a subject of history, law, science, or art is
admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert
in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his
profession or calling as expert in the subject.
The alleged scientific studies mentioned in the Petition cannot be classified as learned treatises. We cannot take judicial
notice of the same, and no witness expert in the subject matter of this case testified, that the writers of the said
scientific studies are recognized in their profession or calling as experts in the subject.

In stark contrast, respondent RP Energy presented several witnesses on the CFB technology.

In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of Science, Major in Mechanical Engineering
from Worcester Polytechnic Institute; he is a Consulting Engineer of Steam Generators of URS; he was formerly
connected with Foster Wheeler where he held the positions of site commissioning engineer, testing engineer,
instrumentation and controls engineer, mechanical equipment department manager, director of boiler performance
and mechanical design engineering and pulverized coal product director. He explained that: CFB stands for Circulating
Fluidized Bed; it is a process by which fuel is fed to the lower furnace where it is burned in an upward flow of
combustion air; limestone, which is used as sulfur absorbent, is also fed to the lower furnace along with the fuel; the
mixture of fuel, ash, and the boiler bed sorbent material is carried to the upper part of the furnace and into a cyclone
separator; the heavier particles which generally consist of the remaining uncombusted fuel and absorbent material are
separated in the cyclone separator and are recirculated to the lower furnace to complete the combustion of any
unburned particles and to enhance SO2 capture by the sorbent; fly ash and flue gas exit the cyclone and the fly ash is
collected in the electrostatic precipitator; furnace temperature is maintained in the range of 800 to 900 C by suitable
heat absorbing surface; the fuel passes through a crusher that reduces the size to an appropriate size prior to the
introduction into the lower furnace along with the limestone; the limestone is used as a SO2 sorbent which reacts with
the sulfur oxides to form calcium sulfate, an inert and stable material; air fans at the bottom of the furnace create
sufficient velocity within the steam generator to maintain a bed of fuel, ash, and limestone mixture; secondary air is
 also introduced above the bed to facilitate circulation and complete combustion of the mixture; the combustion
process generates heat, which then heats the boiler feedwater flowing through boiler tube bundles under pressure; the
heat generated in the furnace circuit turns the water to saturated steam which is further heated to superheated steam;
this superheated steam leaves the CFB boiler and expands through a steam turbine; the steam turbine is directly
connected to a generator that turns and creates electricity; after making its way through the steam turbine, the low-
pressure steam is exhausted downwards into a condenser; heat is removed from the steam, which cools and condenses
into water (condensate); the condensate is then pumped back through a train of feedwater heaters to gradually
increase its temperature before this water is introduced to the boiler to start the process all over again; and CFB
technology has advantages over pulverized coal firing without backend cleanup systems, i.e., greater fuel flexibility,
lower SO2 and NOx emissions. Moreover, Wong testified, inter alia, that: CFBs have a wider range of flexibility so they
can environmentally handle a wider range of fuel constituents, mainly the constituent sulfur; and is capable of handling
different types of coal within the range of the different fuel constituents; since CFB is the newer technology than the PC
or stalker fire, it has better environmental production; 50 percent of the electric generation in the United States is still
produced by coal combustion; and the CFB absorbs the sulfur dioxide before it is emitted; and there will be a lower
percentage of emissions than any other technology for the coal.

In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for Process Concept in Foster Wheeler; he was a
Manager of Process Technology for Foster Wheeler from 1995 to 2007; and he holds a Master of Science degree in
Chemical Engineering. He explained that: CFB boilers will emit PAHs but only in minimal amounts, while BFB will
produce higher PAH emissions; PAH is a natural product of any combustion process; even ordinary burning, such as
cooking or driving automobiles, will have some emissions that are not considered harmful; it is only when emissions are
of a significant level that damage may be caused; a CFB technology has minimal PAH emissions; the high combustion
efficiency of CFB technology, due to long residence time of particles inside the boiler, leads to minimal emissions of
PAH; other factors such as increase in the excess air ratio[,] decrease in Ca/S, as well as decrease in the sulfur and
chlorine contents of coal will likewise minimize PAH production; and CFB does not cause emissions beyond scientifically
acceptable levels. He testified, inter alia, that: the CFB technology is used worldwide; they have a 50% percent share of
CFB market worldwide; and this will be the first CFB by Foster Wheeler in the Philippines; Foster Wheeler manufactures
and supplies different type[s] of boilers including BFB, but CFB is always applied on burning coal, so they do not apply
any BFB for coal firing; CFB has features which have much better combustion efficiency, much lower emissions and it is
more effective as a boiler equipment; the longer the coal stays in the combustion chamber, the better it is burned;
eight (8) seconds is already beyond adequate but it keeps a margin; in CFB technology, combustion technology is
uniform throughout the combustion chamber; high velocity is used in CFB technology, that is vigorous mixing or
turbulence; turbulence is needed to get contact between fuel and combustion air; and an important feature of CFB is
air distribution.

In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical Engineer, Sanitary Engineer and Environmental
Planner in the Philippines; he is also a chartered Professional Engineer in Australia and a member of the colleges of
environmental engineers and chemical engineers of the Institution of Engineers (Australia); he completed his Bachelor
in Chemical Engineering in 1970, Master of Environmental Engineering in 1972 and Doctor of Environmental
Engineering in 1974; he also graduated from the University of Sydney Law School with the degree of Master of
Environmental Law in 2002 and PhD in Law from Macquarie University in 2007. He explained in his Judicial Affidavit
that: the impacts identified and analyzed in the EIA process are all potential or likely impacts; there are a larger number
of EIA techniques for predicting the potential environmental impacts; it is important to note that all those methods and
techniques are only for predicting the potential environmental impacts, not the real impacts; almost all environmental
systems are non-linear and they are subject to chaotic behavior that even the most sophisticated computer could not
predict accurately; and the actual or real environmental impact could only be established when the project is in actual
operation. He testified, inter alia, that: the higher the temperature the higher the nitrous oxide emitted; in CFB
technology, the lower the temperature, the lower is the nitrogen oxide; and it still has a nitrogen oxide but not as high
as conventional coal; the CFB is the boiler; from the boiler itself, different pollution control facilities are going to be
added; and for the overall plant with the pollution control facilities, the particulate matters, nitrogen oxide and sulfur
dioxide are under control. (Citations omitted)121

We also note that RP Energy controverted in detail the afore-summarized allegations of the Casio Group on the four
areas of environmental damage that will allegedly occur upon the construction and operation of the power plant:
1. On thermal pollution of coastal waters.
As to the extent of the expected rise in water temperature once the power plant is operational, Ms. Mercado stated in
her Judicial Affidavit thus:chanroblesvirtuallawlibrary
Q: What was the result of the Thermal Plume Modeling that was conducted for RP Energy?
A: The thermal dispersion modeling results show that largest warming change (0.95C above ambient) is
observed in the shallowest (5 m) discharge scenario. The warmest surface temperature change for the
deepest (30 m) scenario is 0.18C. All the simulated scenarios comply with the DAO 90-35 limit for
temperature rise of 3C within the defined 70 x 70 m mixing zone. The proposed power plant location is
 near the mouth of Subic Bay, thus the tidal currents influence the behavior of thermal discharge plume.
Since the area is well-flushed, mixing and dilution of the thermal discharge is expected.
It also concluded that corals are less likely to be affected by the cooling water discharge as corals may persist in shallow
marine waters with temperatures ranging from 18C to 36C. The predicted highest temperature of 30.75C, from the
0.95C increase in ambient in the shallowest (5 m) discharge scenario, is within this range. 122

In the same vein, Dr. Ouano stated in his Judicial Affidavit:chanroblesvirtuallawlibrary

Q: In page 41, paragraph 99 of the Petition, it was alleged that: x x x a temperature change of 1C to 2C can
already affect the metabolism and other biological functions of aquatic organisms such as mortality rate
and reproduction. What is your expert opinion, if any, on this matter alleged by the Petitioners?
A: Living organisms have proven time and again that they are very adaptable to changes in the environment.
Living organisms have been isolated in volcanic vents under the ocean living on the acidic nutrient soup of
sulfur and other minerals emitted by the volcano to sub-freezing temperature in Antarctica. As a general
rule, metabolism and reproductive activity [increase] with temperature until a maximum is reached after
which [they decline]. For this reason, during winter, animals hibernate and plants become dormant after
shedding their leaves. It is on the onset of spring that animals breed and plants bloom when the air and
water are warmer. At the middle of autumn when the temperature drops to single digit, whales, fish, birds
and other living organisms, which are capable of migrating, move to the other end of the globe where
spring is just starting. In the processes of migration, those migratory species have to cross the tropics where
the temperature is not just one or two degrees warmer but 10 to 20 degrees warmer.

When discussing the impact of 1 to 2 degrees temperature change and its impact on the ecosystem, the most
important factors to consider are (1) Organism Type specifically its tolerance to temperature change (mammals
have higher tolerance); (2) Base Temperature it is the temperature over the optimum temperature such that an
increase will result in the decline in number of the organisms; (3) Mobility or Space for Migration (i.e., an aquarium with
limited space or an open ocean that the organism can move to a space more suited to [a] specific need, such as the
migratory birds); and (4) Ecosystem Complexity and Succession. The more complex the ecosystem the more stable it is
as succession and adaptation [are] more robust.

Normally, the natural variation in water temperature between early morning to late afternoon could be several degrees
(four to five degrees centigrade and up to ten degrees centigrade on seasonal basis). Therefore, the less than one
degree centigrade change predicted by the GHD modeling would have minimal impact. 123chanRoblesvirtualLawlibrary

On cross-examination, Dr. Ouano further explained

ATTY. AZURA:
x x x When you say Organism Type you mentioned that mammals have a higher tolerance for temperature change?

DR. OUANO:
Yes.

ATTY. AZURA:
What about other types of organisms, Dr. Ouano? Fish for example?

DR. OUANO:
Well, mammals have high tolerance because mammals are warm[-]blooded. Now, when it comes to cold[-]blooded
animals the tolerance is much lower. But again when you are considering x x x fish [e]specially in open ocean you have
to remember that nature by itself is x x x very brutal x x x where there is always the prey-predator relationship. Now,
most of the fish that we have in open sea [have] already a very strong adaptability mechanism. And in fact, Kingman
back in 1964 x x x studied the coal reef around the gulf of Oman where the temperature variation on day to day basis
varied not by 1 degree to 2 degrees but by almost 12 degrees centigrade. Now, in the Subic Bay area which when
youre looking at it between daytime variation, early dawn when it is cold, the air is cold, the sea temperature, sea
water is quite cold. Then by 3:00 oclock in the afternoon it starts to warm up. So the variation [in the] Subic Bay area is
around 2 to 4 degrees by natural variation from the sun as well as from the current that goes around it. So when you
are talking about what the report has said of around 1 degree change, the total impact x x x on the fishes will be
minimal. x x x

ATTY. AZURA:
x x x So, you said, Dr. Ouano, that fish, while they have a much lower tolerance for temperature variation, are still very
adaptable. What about other sea life, Dr. Ouano, for example, sea reptiles?

DR. OUANO:
Thats what I said. The most sensitive part of the marine ecology is physically the corals because corals are non-
migratory, they are fix[ed]. Second[ly] x x x corals are also highly dependent on sunlight penetration. If they are
exposed out of the sea, they die; if they are so deep, they die. And that is why I cited Kingman in his studies of coral
adaptability [in] the sea of Oman where there was a very high temperature variation, [they] survived.

ATTY. AZURA:
Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic Bay?

DR. OUANO:
Not in Subic Bay but I have reviewed the temperature variation, natural temperature variation from the solar side, the
days side as well as the seasonal variation. There are two types of variation since temperatures are very critical. One is
the daily, which means from early morning to around 3:00 oclock, and the other one is seasonal variation because
summer, December, January, February are the cold months and then by April, May we are having warm temperature
where the temperature goes around 32-33 degrees; Christmas time, it drops to around 18 to 20 degrees so it[']s a
variation of around seasonal variation of 14 degrees although some of the fish might even migrate and that is why I was
trying to put in corals because they are the ones that are really fix[ed]. They are not in a position to migrate in this
season.

ATTY. AZURA:
To clarify. You said that the most potentially sensitive part of the ecosystem would be the corals.

DR. OUANO:
Or threatened part because they are the ones [that] are not in a position to migrate.

ATTY AZURA:
In this case, Dr. Ouano, with respect to this project and the projected temperature change, will the corals in Subic Bay
be affected?

DR. OUANO:
As far as the outlet is concerned, they have established it outside the coral area. By the time it reaches the coral area
the temperature variation, as per the GHD study is very small, it[]s almost negligible.

ATTY AZURA:
Specifically, Dr. Ouano, what does negligible mean, what level of variation are we talking about?

DR. OUANO:
If you are talking about a thermometer, you might be talking about, normally about .1 degrees centigrade. Thats the
one that you could more or less ascertain. x x x

ATTY. AZURA:
Dr. Ouano, you mentioned in your answer to the same question, Question 51, that there is a normal variation in water
temperature. In fact, you said there is a variation throughout the day, daily and also throughout the year, seasonal. Just
to clarify, Dr. Ouano. When the power plant causes the projected temperature change of 1 degree to 2 degrees Celsius
this will be in addition to existing variations? What I mean, Dr. Ouano, just so I can understand, how will that work?
How will the temperature change caused by the power plant work with the existing variation?

DR. OUANO:
There is something like what we call the zonal mixing. This is an area of approximately one or two hectares where the
pipe goes out, the hot water goes out. So that x x x, we have to accept x x x that [throughout it] the zone will be a
disturb[ed] zone. After that one or two hectares park the water temperature is well mixed [so] that the temperature
above the normal existing variation now practically drops down to almost the normal
level.124chanRoblesvirtualLawlibrary
On air pollution due to dust and combustion gases.

To establish that the emissions from the operation of the power plant would be compliant with the standards under the
Clean Air Act,125 Ms. Mercado stated in her Judicial Affidavit thus:chanroblesvirtuallawlibrary
271. Q: What was the result of the Air Dispersion Modeling that was conducted for RP Energy?

A: The Air Dispersion Modeling predicted that the Power Plant Project will produce the following emissions, which [are]
fully compliant with the standards set by DENR:
Predicted GLC126 for 1-hr averaging period National Ambient Air Quality Guideline
Values
 SO2 45.79 g/Nm3 340 g/Nm3
NO2 100.8 g/Nm3 260 g/Nm3
CO 10 g/Nm3 35 g/Nm3

Predicted GLC for 8-hr averaging period National Ambient Air Quality
Guideline Values
CO 0.19 mg/ncm 10 g/Nm3

Predicted GLC for 24-hr averaging period National Ambient Air Quality Guideline
Values
SO2 17.11 g/Nm3 180 g/Nm3
NO2 45.79 g/Nm3 150 g/Nm3

Predicted GLC for 1-yr averaging period National Ambient Air Quality
Guideline Values
SO2 6.12 g/Nm3 80 g/Nm3
NO2 No standard ---
CO No standard ---

272. Q: What other findings resulted from the Air Dispersion Modeling, if any?
A: It also established that the highest GLC to Clean Air Act Standards ratio among possible receptors was
located 1.6 km North NorthEast (NNE) of the Power Plant Project. Further, this ratio was valued only at
0.434 or less than half of the upper limit set out in the Clean Air Act. This means that the highest air
ambient quality disruption will happen only 1.6 km NNE of the Power Plant Project, and that such disruption
would still be compliant with the standards imposed by the Clean Air Act. 127

The Casio Group argued, however, that, as stated in the EIS, during upset conditions, significant negative
environmental impact will result from the emissions. This claim was refuted by RP Energys witness during cross-
examination:chanroblesvirtuallawlibrary
ATTY. AZURA:

If I may refer you to another page of the same annex, Ms. Mercado, thats page 202 of the same document, the August
2012. Fig. 2-78 appears to show, theres a Table, Ms. Mercado, the first table, the one on top appears to show a
comparison in normal and upset conditions. I noticed, Ms. Mercado, that the black bars are much higher than the bars
in normal condition. Can you state what this means?

MS. MERCADO:

It means there are more emissions that could potentially be released when it is under upset condition.

ATTY. AZURA:

I also noticed, Ms. Mercado, at the bottom part of this chart there are Receptor IDs, R1, R2, R3 and so forth and on
page 188 of this same document, Annex 9-Mercado, there is a list identifying these receptors, for example, Receptor
6, Your Honor, appears to have been located in Olongapo City, Poblacion. Just so I can understand, Ms. Mercado, does
that mean that if upset condition[s] were to occur, the Olongapo City Poblacion will be affected by the emissions?

MS. MERCADO:

All it means is that there will be higher emissions and a higher ground concentration. But you might want to also pay
attention to the y axis, it says there GLC/CAA [Ground Level Concentration/Clean Air Act limit]. So it means that even
under upset conditions say for R6, the ground level concentration for upset condition is still around .1 or 10% percent
only of the Clean Air Act limit. So its still much lower than the limit.

ATTY. AZURA:

But that would mean, would it not, Ms. Mercado, that in the event of upset conditions[,] emissions would increase in
the Olongapo City Poblacion?
MS. MERCADO:

Not emissions will increase. The emissions will be the same but the ground level concentration, the GLC, will be higher
if you compare normal versus upset. But even if it[]s under upset conditions, it is still only around 10% percent of the
Clean Air Act Limit.

xxxx

J. LEAGOGO:

So you are trying to impress upon this Court that even if the plant is in an upset condition, it will emit less than what the
national standards dictate?

MS. MERCADO:

Yes, Your Honor.128chanRoblesvirtualLawlibrary

With respect to the claims that the power plant will release dangerous PAHs and CO, Engr. Sarrki stated in his Judicial
Affidavit thus:ChanRoblesVirtualawlibrary
Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that Volatile Organic Compounds (VOC)
specifically Polycyclic Aromatic Hydrocarbon (PAH) will be emitted even by CFB boilers. What can you say
about this?
A: Actually, the study cited by the Petitioners does not apply to the present case because it does not refer to
CFB technology. The study refers to a laboratory-scale tubular Bubbling Fluidized Bed (BFB) test rig and
not a CFB. CFB boilers will emit PAHs but only in minimal amounts. Indeed, a BFB will produce higher PAH
emissions.
xxxx
Q: Why can the study cited by Petitioners not apply in the present case?
A: The laboratory-scale BFB used in the study only has one (1) air injection point and does not replicate the
staged-air combustion process of the CFB that RP Energy will use. This staged-air process includes the
secondary air. Injecting secondary air into the system will lead to more complete combustion and inhibits
PAH production. There is a study entitled Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a Coal-
Fired Pilot FBC System by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley found in the Journal of
Hazardous Materials B84 (2001) where the findings are discussed.
Also, the small-scale test rig utilized in the study does not simulate the process conditions (hydrodynamics, heat
transfer characteristics, solid and gas mixing behavior, etc.) seen in a large scale utility boiler, like those which would be
utilized by the Power Plant Project.
xx
xx
Q: Aside from residence time of particles and secondary air, what other factors, if any, reduce PAH
production?
A: Increase in the excess air ratio will also minimize PAH production. Furthermore, decrease in Calcium to
Sulfur moral ratio (Ca/S), as well as decrease in the sulfur and chlorine contents of coal will likewise
minimize PAH production. This is also based on the study entitled Polycyclic Aromatic Hydrocarbon (PAH)
Emissions from a Coal-Fired Pilot FBC System by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley.

In RP Energys Power Plant Project, the projected coal to be utilized has low sulfur and chlorine contents minimizing
PAH production. Also, due to optimum conditions for the in-furnace SO2 capture, the Ca/S will be relatively low,
decreasing PAH production.
Q: In paragraph 104 of the Petition, it was alleged that Carbon monoxide (CO), a poisonous, colorless and
odorless gas is also produced when there is partial oxidation or when there is not enough oxygen (O2) to
form carbon dioxide (CO2). What can you say about this?
A: CFB technology reduces the CO emissions of the Power Plant Project to safe amounts. In fact, I understand
that the projected emissions level of the Power Plant Project compl[ies] with the International Finance
Corporation (IFC) standards. Furthermore, characteristics of CFB technology such as long residence time,
uniform temperature and high turbulence provide an effective combustion environment which results [in]
lower and safer CO emissions.
Q: I have no further questions for you at the moment. Is there anything you wish to add to the foregoing?
A: Yes. PAH is a natural product of ANY combustion process. Even ordinary burning, such as cooking or driving
 automobiles, will have some emissions that are not considered harmful. It is only when emissions are of a
significant level that damage may be caused.

Given that the Power Plant Project will utilize CFB technology, it will have minimal PAH emissions. The high combustion
efficiency of CFB technology, due to the long residence time of particles inside the boiler, leads to the minimal
emissions of PAH. Furthermore, other factors such as increase in the excess air ratio, decrease in Ca/S, as well as
decrease in the sulfur and chlorine contents of coal will likewise minimize PAH production. CFB does not cause
emissions beyond scientifically acceptable levels, and we are confident it will not result in the damage speculated by
the Petitioners.129

3. On water pollution from toxic coal combustion waste.

With regard to the claim that coal combustion waste produced by the plant will endanger the health of the inhabitants
nearby, Dr. Ouano stated in his Judicial Affidavit thus:chanroblesvirtuallawlibrary
Q: In page 43, paragraph 110 of the Petition, it was alleged that: [s]olid coal combustion waste is highly toxic
and is said to cause birth defects and cancer risks among others x x x. What is your expert opinion, if any,
on this matter alleged by the Petitioners?
A: Coal is geologically compressed remains of living organisms that roamed the earth several million years ago.
In the process of compression, some of the minerals in the soil, rocks or mud, the geologic media for
compression, are also imparted into the compressed remains. If the compressing media of mud, sediments
and rocks contain high concentration of mercury, uranium, and other toxic substances, the coal formed will
likewise contain high concentration of those substances. If the compressing materials have low
concentration of those substances, then the coal formed will likewise have low concentration of those
substances. If the coal does not contain excessive quantities of toxic substances, the solid residues are even
used in agriculture to supply micronutrients and improve the potency of fertilizers. It is used freely as a fill
material in roads and other construction activities requiring large volume of fill and as additive in cement
manufacture. After all, diamonds that people love to hang around their necks and keep close to the chest
are nothing more than the result of special geologic action, as those in volcanic pipes on coal.130

RP Energy further argued, a matter which the Casio Group did not rebut or refute, that the waste generated by the
plant will be properly handled, to wit:chanroblesvirtuallawlibrary
4.1.49 When coal is burned in the boiler furnace, two by-products are generated - bottom and fly ash. Bottom ash
consists of large and fused particles that fall to the bottom of the furnace and mix with the bed media. Fly ash includes
fine-grained and powdery particles that are carried away by flue gas into the electrostatic precipitator, which is then
sifted and collected. These by-products are non-hazardous materials. In fact, a coal power plants Fly Ash, Bottom Ash
and Boiler Slag have consequent beneficial uses which generate significant environmental, economic, and
performance benefits. Thus, fly ash generated during the process will be sold and transported to cement
manufacturing facilities or other local and international industries.

4.1.50 RP Energy shall also install safety measures to insure that waste from burning of coal shall be properly handled
and stored.

4.1.51 Bottom ash will be continuously collected from the furnace and transferred through a series of screw and chain
conveyors and bucket elevator to the bottom ash silo. The collection and handling system is enclosed to prevent dust
generation. Discharge chutes will be installed at the base of the bottom ash silo for unloading. Open trucks will be used
to collect ash through the discharge chutes. Bottom ash will be sold, and unsold ash will be stored in ash cells. A portion
of the bottom ash will be reused as bed material through the installation of a bed media regeneration system (or ash
recycle). Recycled bottom ash will be sieved using a vibrating screen and transported to a bed material surge bin for re-
injection into the boiler.

4.1.52 Fly ash from the electrostatic precipitator is pneumatically removed from the collection hopper using
compressed air and transported in dry state to the fly ash silo. Two discharge chutes will be installed at the base of the
fly ash silo. Fly ash can either be dry-transferred through a loading spout into an enclosed lorry or truck for selling, re-
cycling, or wet-transferred through a wet unloader into open dump trucks and transported to ash cells. Fly ash
discharge will operate in timed cycles, with an override function to achieve continuous discharge if required. Fly ash
isolation valves in each branch line will prevent leakage and backflow into non-operating lines.

4.1.53 Approximately 120,000m will be required for the construction of the ash cell. Ash will be stacked along the
sloping hill, within a grid of excavations (i.e. cells) with a 5m embankment. Excavated soils will be used for embankment
construction and backfill. To prevent infiltration [of] ash deposits into the groundwater, a clay layer with minimum
depth of 400mm will be laid at the base of each cell. For every 1-m depth of ash deposit, a 10-cm soil backfill will be
applied to immobilize ash and prevent migration via wind. Ash cell walls will be lined with high-density polyethylene to
prevent seepage. This procedure and treatment method is in fact suitable for disposal of toxic and hazardous
wastes although fly ash is not classified as toxic and hazardous materials.131

Anent the claims that the plant is susceptible to earthquake and landslides, Dr. Ouano testified
thus:chanroblesvirtuallawlibrary
J. LEAGOGO:

In terms of fault lines, did you study whether this project site is in any fault line?

DR. OUANO:

There are some fault lines and in fact, in the Philippines it is very difficult to find an area except Palawan where there is
no fault line within 20 to 30 [kilometers]. But then fault lines as well as earthquakes really [depend] upon your
engineering design. I mean, Sto. Tomas University has withstood all the potential earthquakes we had in Manila[,] even
sometimes it[]s intensity 8 or so because the design for it back in 1600 they are already using what we call floating
foundation. So if the engineering side for it[,] technology is there to withstand the expected fault line [movement].

J. LEAGOGO:

What is the engineering side of the project? You said UST is floating.

DR. OUANO:

The foundation, that means to say you dont break

J. LEAGOGO:

Floating foundation. What about this, what kind of foundation?

DR. OUANO:

It will now depend on their engineering design, the type of equipment

J. LEAGOGO:

No, but did you read it in their report?

DR. OUANO:

It[]s not there in their report because it will depend on the supplier, the equipment supplier.

J. LEAGOGO:

So it[]s not yet there?

DR. OUANO:

It[]s not yet there in the site but it is also covered in our Building Code what are the intensities of earthquakes
expected of the different areas in the Philippines.

J. LEAGOGO:

Have you checked our geo-hazard maps in the Philippines to check on this project site?

DR. OUANO:

Yes. It is included there in the EIA Report.

J. LEAGOGO:

It[]s there?

DR. OUANO:
It[]s there.132

4. On acid deposition in aquatic and terrestrial ecosystems.

Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit, thus:chanroblesvirtuallawlibrary
Q: In page 44, paragraph 114 of the Petition, it was alleged that the coal-fired power plant will release 1,888
tons of nitrous oxides (NOx) per year and 886 tons of sulfur dioxide (SO2) per year. These oxides are the
precursors to the formation of sulfuric acid and nitric acid which are responsible for acid deposition. What
is your expert opinion on this matter alleged by the Petitioners?
A: NO2 is found in the air, water and soil from natural processes such as lightning, bacterial activities and
geologic activities as well as from human activities such as power plants and fertilizer usage in agriculture.
SO2 is also found in air, water and soil from bacterial, geologic and human activities.

NO2 and SO2 in the air are part of the natural nitrogen and sulfur cycle to widely redistribute and recycle those
essential chemicals for use by plants. Without the NO2 and SO2 in the air, plant and animal life would be limited to
small areas of this planet where nitrogen and sulfur are found in abundance. With intensive agricultural practices,
nitrogen and sulfur are added in the soil as fertilizers.

Acid rain takes place when the NO2 and SO2 concentration are excessive or beyond those values set in the air quality
standards. NO2 and SO2 in the air in concentrations lower than those set in the standards have beneficial effect to the
environment and agriculture and are commonly known as micronutrients.133

On clarificatory questions from the appellate court, the matter was further dissected thus:chanroblesvirtuallawlibrary
J. LEAGOGO:
x x x The project will release 1,888 tons of nitrous oxide per year. And he said, yes; that witness answered, yes, it will
produce 886 tons of sulfur dioxide per year. And he also answered yes, that these oxides are the precursors to the
formation of sulfuric acid and nitric acid. Now my clarificatory question is, with this kind of releases there will be acid
rain?

DR. OUANO:
No.

J. LEAGOGO:
Why?

DR. OUANO:
Because it[]s so dilute[d].

J. LEAGOGO:
It will?

DR. OUANO:
Because the acid concentration is so dilute[d] so that it is not going to cause acid rain.

J. LEAGOGO:
The acid concentration is so diluted that it will not cause acid rain?

DR. OUANO:
Yes.

J. LEAGOGO:
What do you mean it[]s so diluted? How will it be diluted?

DR. OUANO:
Because it[]s going to be mixed with the air in the atmosphere; diluted in the air in the atmosphere. And besides this
886 tons, this is not released in one go, it is released almost throughout the year.

J. LEAGOGO:
You also answered in Question No. 61, acid rain takes place when the NO2 AND SO2 concentration are excessive. So
when do you consider it as excessive?
DR. OUANO:
That is something when you are talking about acid

J. LEAGOGO:
In terms of tons of nitrous oxide and tons of sulfur oxide, when do you consider it as excessive?

DR. OUANO:
It is in concentration not on tons weight, Your Honor.

J. LEAGOGO:
In concentration?

DR. OUANO:
In milligrams per cubic meter, milligrams per standard cubic meter.

J. LEAGOGO:
So being an expert, what will be the concentration of this kind of 1,888 tons of nitrous oxide? What will be the
concentration in terms of your?

DR. OUANO:
If the concentration is in excess of something like 8,000 micrograms per standard cubic meters, then there is already
potential for acid rain.

J. LEAGOGO:
I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous oxide?

DR. OUANO:
Yes.

J. LEAGOGO:
In terms of concentration, what will that be?

DR. OUANO:
In terms of the GHD study that will result [in] 19 milligrams per standard cubic meters and the time when acid rain will
start [is when the concentration gets] around 8,000 milligrams per standard cubic meters. So we have 19 compared to
8,000. So we are very, very safe.

J. LEAGOGO:
What about SO2?

DR. OUANO:
SO2, we are talking about ... you wont mind if I go to my codigo. For sulfur dioxide this acid rain most likely will start at
around 7,000 milligrams per standard cubic meter but then sorry, it[]s around 3,400 micrograms per cubic meter.
That is the concentration for sulfur dioxide, and in our plant it will be around 45 micrograms per standard cubic meter.
So the acid rain will start at 3,400 and the emission is estimated here to result to concentration of 45.7 micrograms.

J. LEAGOGO:
That is what GHD said in their report.

DR. OUANO:
Yes. So that is the factor of x x x safety that we have.134

Apart from the foregoing evidence, we also note that the above and other environmental concerns are extensively
addressed in RP Energys Environmental Management Plan or Program (EMP). The EMP is a section in the EIS that
details the prevention, mitigation, compensation, contingency and monitoring measures to enhance positive impacts
and minimize negative impacts and risks of a proposed project or undertaking. 135 One of the conditions of the ECC is
that RP Energy shall strictly comply with and implement its approved EMP. The Casio Group failed to contest, with
proof, the adequacy of the mitigating measures stated in the aforesaid EMP.

In upholding the evidence and arguments of RP Energy, relative to the lack of proof as to the alleged significant
environmental damage that will be caused by the project, the appellate court relied mainly on the testimonies of
experts, which we find to be in accord with judicial precedents. Thus, we ruled in one case:chanroblesvirtuallawlibrary
 Although courts are not ordinarily bound by testimonies of experts, they may place whatever weight they choose upon
such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is
peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his
actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his
possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for
study and observation of the matters about which he testifies, and any other matters which serve to illuminate his
statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all
the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given
controlling effects (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of
his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an
abuse of that discretion.136

Hence, we sustain the appellate courts findings that the Casio Group failed to establish the alleged grave
environmental damage which will be caused by the construction and operation of the power plant.

In another vein, we, likewise, agree with the observations of the appellate court that the type of coal which shall be
used in the power plant has important implications as to the possible significant negative environmental impacts of the
subject project.137 However, there is no coal supply agreement, as of yet, entered into by RP Energy with a third-party
supplier. In accordance with the terms and conditions of the ECC and in compliance with existing environmental laws
and standards, RP Energy is obligated to make use of the proper coal type that will not cause significant negative
environmental impacts.

The alleged negative environmental

assessment of the project by experts
in a report generated during the social
acceptability consultations

The Casio Group also relies heavily on a report on the social acceptability process of the power plant project to bolster
its claim that the project will cause grave environmental damage. We purposely discuss this matter in this separate
subsection for reasons which will be made clear shortly.

But first we shall present the pertinent contents of this report.

According to the Casio Group, from December 7 to 9, 2011, the SBMA conducted social acceptability policy
consultations with different stakeholders on RP Energys proposed 600 MW coal plant project at the Subic Bay
Exhibition and Convention Center. The results thereof are contained in a document prepared by SBMA entitled Final
Report: Social Acceptability Process for RP Energy, Inc.s 600-MW Coal Plant Project (Final Report). We note that SBMA
adopted the Final Report as a common exhibit with the Casio Group in the course of the proceedings before the
appellate court.

The Final Report stated that there was a clear aversion to the concept of a coal-fired power plant from the participants.
Their concerns included environmental, health, economic and socio-cultural factors. Pertinent to this case is the alleged
assessment, contained in the Final Report, of the potential effects of the project by three experts: (1) Dr. Rex Cruz (Dr.
Cruz), Chancellor of the University of the Philippines, Los Baos and a forest ecology expert, (2) Dr. Visitacion Antonio, a
toxicologist, who related information as to public health; and (3) Andre Jon Uychiaco, a marine biologist.

The Final Report stated these experts alleged views on the project, thus:chanroblesvirtuallawlibrary
IV. Experts Opinion
xxxx

The specialists shared the judgment that the conditions were not present to merit the operation of a coal-fired power
plant, and to pursue and carry out the project with confidence and assurance that the natural assets and ecosystems
within the Freeport area would not be unduly compromised, or that irreversible damage would not occur and that the
threats to the flora and fauna within the immediate community and its surroundings would be adequately addressed.

The three experts were also of the same opinion that the proposed coal plant project would pose a wide range of
negative impacts on the environment, the ecosystems and human population within the impact zone.

The specialists likewise deemed the Environment Impact Assessment (EIA) conducted by RPEI to be incomplete and
limited in scope based on the following observations:
i. The assessment failed to include areas 10km. to 50km. from the operation site, although according to the panel, sulfur
emissions could extend as far as 40-50 km.
 ii. The EIA neglected to include other forests in the Freeport in its scope and that there were no specific details on the
protection of the endangered flora and endemic fauna in the area. Soil, grassland, brush land, beach forests and home
gardens were also apparently not included in the study.
iii. The sampling methods used in the study were limited and insufficient for effective long-term monitoring of surface water,
erosion control and terrestrial flora and fauna.
The specialists also discussed the potential effects of an operational coal-fired power plant [on] its environs and the
community therein. Primary among these were the following:
i. Formation of acid rain, which would adversely affect the trees and vegetation in the area which, in turn, would diminish
forest cover. The acid rain would apparently worsen the acidity of the soil in the Freeport.
ii. Warming and acidification of the seawater in the bay, resulting in the bio-accumulation of contaminants and toxic
materials which would eventually lead to the overall reduction of marine productivity.
iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and other heavy metals such as mercury and lead to
the surrounding region, which would adversely affect the health of the populace in the vicinity.
V. Findings
Based on their analyses of the subject matter, the specialists recommended that the SBMA re-scrutinize the coal-fired
power plant project with the following goals in mind:
i. To ensure its coherence and compatibility to [the] SBMA mandate, vision, mission and development plans, including its
Protected Area Management Plan;
ii. To properly determine actual and potential costs and benefits;
iii. To effectively determine the impacts on environment and health; and
iv. To ensure a complete and comprehensive impacts zone study.

The specialists also urged the SBMA to conduct a Comprehensive Cost And Benefit Analysis Of The Proposed Coal Plant
Project Relative To Each Stakeholder Which Should Include The Environment As Provider Of Numerous Environmental
Goods And Services.

They also recommended an Integrated/Programmatic Environmental Impact Assessment to accurately determine the
environmental status of the Freeport ecosystem as basis and reference in evaluating future similar projects. The need
for a more Comprehensive Monitoring System for the Environment and Natural Resources was also reiterated by the
panel.138

Of particular interest are the alleged key observations of Dr. Cruz on the EIS prepared by RP Energy relative to the
project:chanroblesvirtuallawlibrary
Key Observations and Recommendations on the EIS of Proposed RPE Project
Rex Victor O. Cruz
Based on SBMA SAP on December 7-9, 2011

1. The baseline vegetation analysis was limited only within the project site and its immediate vicinity. No vegetation
analysis was done in the brushland areas in the peninsula which is likely to be affected in the event acid rain forms due
to emissions from the power plant.

2. The forest in the remaining forests in the Freeport was not considered as impact zone as indicated by the lack of
description of these forests and the potential impacts the project might have on these forests. This appears to be a key
omission in the EIS considering that these forests are well within 40 to 50 km away from the site and that there are
studies showing that the impacts of sulphur emissions can extend as far as 40 to 50 km away from the source.

3. There are 39 endemic fauna and 1 endangered plant species (Molave) in the proposed project site. There will be a
need to make sure that these species are protected from being damaged permanently in wholesale. Appropriate
measures such as ex situ conservation and translocation if feasible must be implemented.

4. The Project site is largely in grassland interspersed with some trees. These plants if affected by acid rain or by sulphur
emissions may disappear and have consequences on the soil properties and hydrological processes in the area.
Accelerated soil erosion and increased surface runoff and reduced infiltration of rainwater into the soil.

5. The rest of the peninsula is covered with brushland but were never included as part of the impact zone.

6. There are home gardens along the coastal areas of the site planted to ornamental and agricultural crops which are
likely to be affected by acid rain.

7. There is also a beach forest dominated by aroma, talisai and agoho which will likely be affected also by acid rain.

8. There are no Environmentally Critical Areas within the 1 km radius from the project site. However, the Olongapo
Watershed Forest Reserve, a protected area is approximately 10 km southwest of the project site. Considering the
prevailing wind movement in the area, this forest reserve is likely to be affected by acid rain if it occurs from the
emission of the power plant. This forest reserve is however not included as part of the potential impact area.

9. Soil in the project site and the peninsula is thin and highly acidic and deficient in NPK with moderate to severe
erosion potential. The sparse vegetation cover in the vicinity of the project site is likely a result of the highly acidic soil
and the nutrient deficiency. Additional acidity may result from acid rain that may form in the area which could further
make it harder for the plants to grow in the area that in turn could exacerbate the already severe erosion in the area.

10. There is a need to review the proposal to ensure that the proposed project is consistent with the vision for the
Freeport as enunciated in the SBMA Master Plan and the Protected Area Management Plan. This will reinforce the
validity and legitimacy of these plans as a legitimate framework for screening potential locators in the Freeport. It will
also reinforce the trust and confidence of the stakeholders on the competence and authority of the SBMA that would
translate in stronger popular support to the programs implemented in the Freeport.

11. The EGF and Trust Fund (Table 5.13) should be made clear that the amounts are the minimum amount and that
adequate funds will be provided by the proponent as necessary beyond the minimum amounts. Furthermore the basis
for the amounts allocated for the items (public liability and rehabilitation) in Trust Fund and in EGF (tree planting and
landscaping, artificial reef establishment) must be clarified. The specific damages and impacts that will be covered by
the TF and EGF must also be presented clearly at the outset to avoid protracted negotiations in the event of actual
impacts occurring in the future.

12. The monitoring plan for terrestrial flora and fauna is not clear on the frequency of measurement. More importantly,
the proposed method of measurement (sampling transect) while adequate for estimating the diversity of indices for
benchmarking is not sufficient for long[-]term monitoring. Instead, long[-]term monitoring plots (at least 1 hectare in
size) should be established to monitor the long[-]term impacts of the project on terrestrial flora and fauna.

13. Since the proposed monitoring of terrestrial flora and fauna is limited to the vicinity of the project site, it will be
useful not only for mitigating and avoiding unnecessary adverse impacts of the project but also for improving
management decisions if long[-]term monitoring plots for the remaining natural forests in the Freeport are established.
These plots will also be useful for the study of the dynamic interactions of terrestrial flora and fauna with climate
change, farming and other human activities and the resulting influences on soil, water, biodiversity, and other vital
ecosystem services in the Freeport.139

We agree with the appellate court that the alleged statements by these experts cannot be given weight because they
are hearsay evidence. None of these alleged experts testified before the appellate court to confirm the pertinent
contents of the Final Report. No reason appears in the records of this case as to why the Casio Group failed to present
these expert witnesses.

We note, however, that these statements, on their face, especially the observations of Dr. Cruz, raise serious objections
to the environmental soundness of the project, specifically, the EIS thereof. It brings to fore the question of whether
the Court can, on its own, compel the testimonies of these alleged experts in order to shed light on these matters in
view of the right at stake not just damage to the environment but the health, well-being and, ultimately, the lives of
those who may be affected by the project.

The Rules of Procedure for Environmental Cases liberally provide the courts with means and methods to obtain
sufficient information in order to adequately protect or safeguard the right to a healthful and balanced ecology. In
Section 6 (l)140 of Rule 3 (Pre-Trial), when there is a failure to settle, the judge shall, among others, determine the
necessity of engaging the services of a qualified expert as a friend of the court (amicus curiae). While, in Section 12141 of
Rule 7 (Writ of kalikasan), a party may avail of discovery measures: (1) ocular inspection and (2) production or
inspection of documents or things. The liberality of the Rules in gathering and even compelling information, specifically
with regard to the Writ of kalikasan, is explained in this wise:chanroblesvirtuallawlibrary
[T]he writ of kalikasan was refashioned as a tool to bridge the gap between allegation and proof by providing a remedy
for would-be environmental litigants to compel the production of information within the custody of the government.
The writ would effectively serve as a remedy for the enforcement of the right to information about the environment.
The scope of the fact-finding power could be: (1) anything related to the issuance, grant of a government permit issued
or information controlled by the government or private entity and (2) [i]nformation contained in documents such as
environmental compliance certificate (ECC) and other government records. In addition, the [w]rit may also be
employed to compel the production of information, subject to constitutional limitations. This function is analogous to a
discovery measure, and may be availed of upon application for the writ. 142

Clearly, in environmental cases, the power to appoint friends of the court in order to shed light on matters requiring
special technical expertise as well as the power to order ocular inspections and production of documents or things
evince the main thrust of, and the spirit behind, the Rules to allow the court sufficient leeway in acquiring the necessary
information to rule on the issues presented for its resolution, to the end that the right to a healthful and balanced
ecology may be adequately protected. To draw a parallel, in the protection of the constitutional rights of an accused,
when life or liberty is at stake, the testimonies of witnesses may be compelled as an attribute of the Due Process
Clause. Here, where the right to a healthful and balanced ecology of a substantial magnitude is at stake, should we not
tread the path of caution and prudence by compelling the testimonies of these alleged experts?

After due consideration, we find that, based on the statements in the Final Report, there is no sufficiently compelling
reason to compel the testimonies of these alleged expert witnesses for the following reasons.

First, the statements are not sufficiently specific to point to us a flaw (or flaws) in the study or design/implementation
(or some other aspect) of the project which provides a causal link or, at least, a reasonable connection between the
construction and operation of the project vis--vis potential grave environmental damage. In particular, they do not
explain why the Environmental Management Plan (EMP) contained in the EIS of the project will not adequately address
these concerns.

Second, some of the concerns raised in the alleged statements, like acid rain, warming and acidification of the
seawater, and discharge of pollutants were, as previously discussed, addressed by the evidence presented by RP Energy
before the appellate court. Again, these alleged statements do not explain why such concerns are not adequately
covered by the EMP of RP Energy.

Third, the key observations of Dr. Cruz, while concededly assailing certain aspects of the EIS, do not clearly and
specifically establish how these omissions have led to the issuance of an ECC that will pose significant negative
environmental impacts once the project is constructed and becomes operational. The recommendations stated therein
would seem to suggest points for improvement in the operation and monitoring of the project, but they do not clearly
show why such recommendations are indispensable for the project to comply with existing environmental laws and
standards, or how non-compliance with such recommendations will lead to an environmental damage of the magnitude
contemplated under the writ of kalikasan. Again, these statements do not state with sufficient particularity how the
EMP in the EIS failed to adequately address these concerns.

Fourth, because the reason for the non-presentation of the alleged expert witnesses does not appear on record, we
cannot assume that their testimonies are being unduly suppressed.

By ruling that we do not find a sufficiently compelling reason to compel the taking of the testimonies of these alleged
expert witnesses in relation to their serious objections to the power plant project, we do not foreclose the possibility
that their testimonies could later on be presented, in a proper case, to more directly, specifically and sufficiently assail
the environmental soundness of the project and establish the requisite magnitude of actual or threatened
environmental damage, if indeed present. After all, their sense of civic duty may well prevail upon them to voluntarily
testify, if there are truly sufficient reasons to stop the project, above and beyond their inadequate claims in the Final
Report that the project should not be pursued. As things now stand, however, we have insufficient bases to compel
their testimonies for the reasons already proffered.

The alleged admissions of grave

environmental damage in the EIS
of the project.

In their Omnibus Motions for Clarification and Reconsideration before the appellate court and Petition for Review
before this Court, the Casio Group belatedly claims that the statements in the EIS prepared by RP Energy established
the significant negative environmental impacts of the project. They argue in this manner:chanroblesvirtuallawlibrary
Acid Rain

35. According to RP Energys Environmental Impact Statement for its proposed 2 x 150 MW Coal-Fired Thermal Power
Plant Project, acid rain may occur in the combustion of coal, to wit
xxxx

During the operation phase, combustion of coal will result in emissions of particulates SOx and NOx. This may
contribute to the occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions
may give rise to health problems for residents within the impact area.

xxxx
Asthma Attacks

36. The same EPRMP143 mentioned the incidence of asthma attacks [as a] result of power plant operations, to wit
xxxx

The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposure to
suspended particulates from plant operations.144

RP Energy, however, counters that the above portions of the EIS were quoted out of context. As to the subject of acid
rain, the EIS states in full:chanroblesvirtuallawlibrary
Operation

During the operation phase, combustion of coal will result in emissions of particulates, SOx and NOx. This may
contribute to the occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions
may give rise to health problems for residents within the impact area. Emissions may also have an effect on vegetation
(Section 4.1.4.2). However, the use of CFBC technology is a built-in measure that results in reduced emission
concentrations. SOx emissions will be minimised by the inclusion of a desulfurisation process, whilst NOx emissions
will be reduced as the coal is burned at a temperature lower than that required to oxidise nitrogen. 145 (Emphasis
supplied)

As to the subject of asthma attacks, the EIS states in full:chanroblesvirtuallawlibrary

The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposure to
suspended particulates from plant operations. Coal and ash particulates may also become suspended and dispersed
into the air during unloading and transport, depending on wind speed and direction. However, effect on air quality due
to windblown coal particulates will be insignificant as the coal handling system will have enclosures (i.e. enclosed
conveyors and coal dome) to eliminate the exposure of coal to open air, and therefore greatly reduce the potential
for particulates from being carried away by wind (coal handling systems, Section 3.4.3.3). In addition, the proposed
process will include an electrostatic precipitator that will remove fly ash from the flue gas prior to its release through
the stacks, and so particulates emissions will be minimal.146(Emphasis supplied)

We agree with RP Energy that, while the EIS discusses the subjects of acid rain and asthma attacks, it goes on to state
that there are mitigating measures that will be put in place to prevent these ill effects. Quite clearly, the Casio Group
quoted piecemeal the EIS in such a way as to mislead this Court as to its true and full contents.

We deplore the way the Casio Group has argued this point and we take this time to remind it that litigants should not
trifle with court processes. Along the same lines, we note how the Casio Group has made serious allegations in its
Petition for Writ of kalikasan but failed to substantiate the same in the course of the proceedings before the appellate
court. In particular, during the preliminary conference of this case, the Casio Group expressly abandoned its factual
claims on the alleged grave environmental damage that will be caused by the power plant (i.e., air, water and land
pollution) and, instead, limited itself to legal issues regarding the alleged non-compliance of RP Energy with certain laws
and rules in the procurement of the ECC.147 We also note how the Casio Group failed to comment on the subject
Petitions before this Court, which led this Court to eventually dispense with its comment. 148 We must express our
disapproval over the way it has prosecuted its claims, bordering as it does on trifling with court processes. We deem it
proper, therefore, to admonish it to be more circumspect in how it prosecutes its claims.

In sum, we agree with the appellate court that the Casio Group failed to substantiate its claims that the construction
and operation of the power plant will cause environmental damage of the magnitude contemplated under the writ
of kalikasan. The evidence it presented is inadequate to establish the factual bases of its claims.cralawred
II.

Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz (Mr. Aboitiz), as representative of RP Energy,
in the Statement of Accountability of the ECC.

The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to sign the Statement of Accountability
portion of the ECC.

We shall discuss the correctness of this ruling on both procedural and substantive grounds.

Procedurally, we cannot fault the DENR for protesting the manner by which the appellate court resolved the issue of
the aforesaid lack of signature. We agree with the DENR that this issue was not among those raised by the Casio
Group in its Petition for Writ of kalikasan.149 What is more, this was not one of the triable issues specifically set during
the preliminary conference of this case. 150chanRoblesvirtualLawlibrary

How then did the issue of lack of signature arise?

A review of the voluminous records indicates that the matter of the lack of signature was discussed, developed or
surfaced only in the course of the hearings, specifically, on clarificatory questions from the appellate court, to
wit:chanroblesvirtuallawlibrary
J. LEAGOGO:
I would also show to you your ECC, thats page 622 of the rollo. I am showing to you this Environmental Compliance
Certificate dated December 22, 2008 issued by Sec. Jose L. Atienza, Jr. of the DENR. This is your Exhibit 18. Would
you like to go over this? Are you familiar with this document?

MS. MERCADO:
Yes, it[]s my Annex 3, Your Honor.

J. LEAGOGO:
I would like to refer you to page 3 of the ECC dated December 22, 2008. Page 2 refers to the Environmental Compliance
Certificate, ECC Ref. No. 0804-011-4021. Thats page 2 of the letter dated December 22, 2008. And on page 3, Dr. Julian
Amador recommended approval and it was approved by Sec. Atienza. You see that on page 3?

MS. MERCADO:
Yes, Your Honor.

J. LEAGOGO:
Okay. On the same page, page 3, theres a Statement of Accountability.

MS. MERCADO:
Yes, Your Honor.

J. LEAGOGO:
Luis, who is Luis Miguel Aboitiz?

MS. MERCADO:
During that time he was the authorized representative of RP Energy, Your Honor.

J. LEAGOGO:
Now, who is the authorized representative of RP Energy?

MS. MERCADO:
It would be Mr. Aaron Domingo, I believe.

J. LEAGOGO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability?

Because the Statement of Accountability says, Mr. Luis Miguel Aboitiz, Director, representing Redondo Peninsula
Energy with office address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in
complying with all conditions in this Environmental Compliance Certificate [ECC][.] Will you tell this Court why this was
not signed?

MS. MERCADO:
It was signed, Your Honor, but this copy wasnt signed. My apologies, I was the one who provided this, I believe, to the
lawyers. This copy was not signed because during.

J. LEAGOGO:
But this is your exhibit, this is your Exhibit 18 and this is not signed. Do you agree with me that your Exhibit 18 is not
signed by Mr. Aboitiz?

MS. MERCADO:
Thats correct, Your Honor.151

We find this line of questioning inadequate to apprise the parties that the lack of signature would be a key issue in this
case; as in fact it became decisive in the eventual invalidation of the ECC by the appellate court.

Concededly, a court has the power to suspend its rules of procedure in order to attain substantial justice so that it has
the discretion, in exceptional cases, to take into consideration matters not originally within the scope of the issues
raised in the pleadings or set during the preliminary conference, in order to prevent a miscarriage of justice. In the case
at bar, the importance of the signature cannot be seriously doubted because it goes into the consent and commitment
of the project proponent to comply with the conditions of the ECC, which is vital to the protection of the right to a
balanced and healthful ecology of those who may be affected by the project.

Nonetheless, the power of a court to suspend its rules of procedure in exceptional cases does not license it to foist a
surprise on the parties in a given case. To illustrate, in oral arguments before this Court, involving sufficiently important
public interest cases, we note that individual members of the Court, from time to time, point out matters that may not
have been specifically covered by the advisory (the advisory delineates the issues to be argued and decided). However,
a directive is given to the concerned parties to discuss the aforesaid matters in their memoranda. Such a procedure
ensures that, at the very least, the parties are apprised that the Court has taken an interest in such matters and may
adjudicate the case on the basis thereof. Thus, the parties are given an opportunity to adequately argue the issue or
meet the issue head-on. We, therefore, find that the appellate court should have, at the very least, directed RP Energy
and the DENR to discuss and elaborate on the issue of lack of signature in the presentation of their evidence and
memoranda, before making a definitive ruling that the lack thereof invalidated the ECC. This is in keeping with the basic
tenets of due process.

At any rate, we shall disregard the procedural defect and rule directly on whether the lack of signature invalidated the
ECC in the interest of substantial justice.

The laws governing the ECC, i.e., Presidential Decree No. (PD) 1151 and PD 1586, do not specifically state that the lack
of signature in the Statement of Accountability has the effect of invalidating the ECC. Unlike in wills or donations, where
failure to comply with the specific form prescribed by law leads to its nullity,152 the applicable laws here are silent with
respect to the necessity of a signature in the Statement of Accountability and the effect of the lack thereof. This is, of
course, understandable because the Statement of Accountability is a mere off-shoot of the rule-making powers of the
DENR relative to the implementation of PD 1151 and PD 1586. To determine, therefore, the effect of the lack of
signature, we must look at the significance thereof under the Environmental Impact Assessment (EIA) Rules of the
DENR and the surrounding circumstances of this case.

To place this issue in its proper context, a helpful overview of the stages of the EIA process, taken from the Revised
Manual, is reproduced below:
Figure 1-3 Overview of Stages of the Philippine EIA Process153

1.0 SCREENING Screening determines if a project is

covered or not covered by the PEISS.154 If a
project is covered, screening further
determines what document type the
project should prepare to secure the
needed approval, and what the rest of the
2.0 SCOPING requirements are in terms of EMB office of
application, endorsing and decision
authorities, duration of processing.
Scoping is a Proponent-driven multi-
sectoral formal process of determining the
focused Terms of Reference of the EIA
Study. Scoping identifies the most
significant issues/impacts of a proposed
project, and then, delimits the extent of
baseline information to those necessary to
evaluate and mitigate the impacts. The
need for and scope of an Environmental
Risk Assessment (ERA) is also done during
the scoping session. Scoping is done with
EIA STUDY and the local community through Public
3.0 REPORT Scoping and with a third party EIA Review
PREPARATION Committee (EIARC) through Technical
Scoping, both with the participation of the
DENR-EMB. The process results in a signed
Formal Scoping Checklist by the review
team, with final approval by the EMB Chief.
The EIA Study involves a description of the
proposed project and its alternatives,
characterization of the project
 EIA REPORT environment, impact identification and
4.0 REPORT and prediction, evaluation of impact
EVALUATION significance, impact mitigation,
formulation of Environmental
Management and Monitoring Plan, with
corresponding cost estimates and
institutional support commitment. The
study results are presented in an EIA
Report for which an outline is prescribed
by EMB for every major document type.
Review of EIA Reports normally entails an
EMB procedural screening for compliance
with minimum requirements specified
5.0 DECISION during Scoping, followed by a substantive
MAKING review of either composed third party
experts commissioned by EMB as the EIA
Review Committee for PEIS/EIS-based
applications, or DENR/EMB internal
specialists, the Technical Committee, for
IEE-based applications. EMB evaluates the
EIARC recommendations and the publics
inputs during public consultations/hearings
in the process of recommending a decision
on the application. The EIARC Chair signs
EIARC recommendations including issues
outside the mandate of the EMB. The
entire EIA review and evaluation process is
MONITORING. summarized in the Review Process Report
6.0 VALIDATION, and (RPR) of the EMB, which includes a draft
EVALUATION/ decision document.
AUDIT Decision Making involves evaluation of EIA
recommendations and the draft decision
document, resulting to the issuance of an
ECC, CNC or Denial Letter. When approved,
a covered project is issued its certificate of
Environmental Compliance Commitment
(ECC) while an application of a non-
covered project is issued a Certificate of
Non-Coverage (CNC). Endorsing and
deciding authorities are designated by AO
42, and further detailed in this Manual for
every report type. Moreover, the
Proponent signs a sworn statement of full
responsibility on implementation of its
commitments prior to the release of the
ECC. The ECC is then transmitted to
concerned LGUs and other GAs for
integration into their decision-making
process. The regulated part of EIA Review
is limited to the processes within EMB
control. The timelines for the issuance of
decision documents provided for in AO 42
and DAO 2003-30 are applicable only from
the time the EIA Report is accepted for
substantive review to the time a decision
is issued on the application.
Monitoring, Validation and
Evaluation/Audit stage assesses
performance of the Proponent against the
ECC and its commitments in the
Environmental Management and
 Monitoring Plans to ensure actual impacts
of the project are adequately prevented or
mitigated.

The signing of the Statement of Accountability takes place at the Decision-Making Stage. After a favorable review of its
ECC application, the project proponent, through its authorized representative, is made to sign a sworn statement of full
responsibility on the implementation of its commitments prior to the official release of the ECC.

The definition of the ECC in the Revised Manual highlights the importance of the signing of the Statement of
Accountability:chanroblesvirtuallawlibrary
Environmental Compliance Certificate (ECC) - a certificate of Environmental Compliance Commitment to which the
Proponent conforms with, after DENR-EMB explains the ECC conditions, by signing the sworn undertaking of full
responsibility over implementation of specified measures which are necessary to comply with existing environmental
regulations or to operate within best environmental practices that are not currently covered by existing laws. It is a
document issued by the DENR/EMB after a positive review of an ECC application, certifying that the Proponent has
complied with all the requirements of the EIS System and has committed to implement its approved Environmental
Management Plan. The ECC also provides guidance to other agencies and to LGUs on EIA findings and
recommendations, which need to be considered in their respective decision-making process.157 (Emphasis supplied)

As can be seen, the signing of the Statement of Accountability is an integral and significant component of the EIA
process and the ECC itself. The evident intention is to bind the project proponent to the ECC conditions, which will
ensure that the project will not cause significant negative environmental impacts by the implementation of specified
measures which are necessary to comply with existing environmental regulations or to operate within best
environmental practices that are not currently covered by existing laws. Indeed, the EIA process would be a
meaningless exercise if the project proponent shall not be strictly bound to faithfully comply with the conditions
necessary to adequately protect the right of the people to a healthful and balanced ecology.

Contrary to RP Energys position, we, thus, find that the signature of the project proponents representative in the
Statement of Accountability is necessary for the validity of the ECC. It is not, as RP Energy would have it, a mere
formality and its absence a mere formal defect.

The question then is, was the absence of the signature of Mr. Aboitiz, as representative of RP Energy, in the Statement
of Accountability sufficient ground to invalidate the ECC?

Viewed within the particular circumstances of this case, we answer in the negative.

While it is clear that the signing of the Statement of Accountability is necessary for the validity of the ECC, we cannot
close our eyes to the particular circumstances of this case. So often have we ruled that this Court is not merely a court
of law but a court of justice. We find that there are several circumstances present in this case which militate against the
invalidation of the ECC on this ground.

We explain.

First, the reason for the lack of signature was not adequately taken into consideration by the appellate court. To
reiterate, the matter surfaced during the hearing of this case on clarificatory questions by the appellate court,
viz:chanroblesvirtuallawlibrary
J. LEAGOGO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability?

Because the Statement of Accountability says, Mr. Luis Miguel Aboitiz, Director, representing Redondo Peninsula
Energy with office address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in
complying with all conditions in this Environmental Compliance Certificate [ECC][.] Will you tell this Court why this was
not signed?

MS. MERCADO:
It was signed, Your Honor, but this copy wasnt signed. My apologies, I was the one who provided this, I believe, to
the lawyers. This copy was not signed because during

J. LEAGOGO:
But this is your exhibit, this is your Exhibit 18 and this is not signed. Do you agree with me that your Exhibit 18 is not
signed by Mr. Aboitiz?
MS. MERCADO:
Thats correct, Your Honor.158 (Emphasis supplied)

Due to the inadequacy of the transcript and the apparent lack of opportunity for the witness to explain the lack of
signature, we find that the witness testimony does not, by itself, indicate that there was a deliberate or malicious
intent not to sign the Statement of Accountability.

Second, as previously discussed, the concerned parties to this case, specifically, the DENR and RP Energy, were not
properly apprised that the issue relative to the lack of signature would be decisive in the determination of the validity
of the ECC. Consequently, the DENR and RP Energy cannot be faulted for not presenting proof during the course of the
hearings to squarely tackle the issue of lack of signature.

Third, after the appellate court ruled in its January 30, 2013 Decision that the lack of signature invalidated the ECC, RP
Energy attached, to its Motion for Partial Reconsideration, a certified true copy of the ECC, issued by the DENR-EMB,
which bore the signature of Mr. Aboitiz. The certified true copy of the ECC showed that the Statement of Accountability
was signed by Mr. Aboitiz on December 24, 2008. 159chanRoblesvirtualLawlibrary

The authenticity and veracity of this certified true copy of the ECC was not controverted by the Casio Group in its
comment on RP Energys motion for partial reconsideration before the appellate court nor in their petition before this
Court. Thus, in accordance with the presumption of regularity in the performance of official duties, it remains
uncontroverted that the ECC on file with the DENR contains the requisite signature of Mr. Aboitiz in the Statement of
Accountability portion.

As previously noted, the DENR and RP Energy were not properly apprised that the issue relative to the lack of signature
would be decisive in the determination of the validity of the ECC. As a result, we cannot fault RP Energy for submitting
the certified true copy of the ECC only after it learned that the appellate court had invalidated the ECC on the ground of
lack of signature in its January 30, 2013 Decision.

We note, however, that, as previously discussed, the certified true copy of the Statement of Accountability was signed
by Mr. Aboitiz on December 24, 2008 or two days after the ECCs official release on December 22, 2008. The afore-
discussed rules under the Revised Manual, however, state that the proponent shall sign the sworn statement of full
responsibility on implementation of its commitments prior to the release of the ECC. It would seem that the ECC was
first issued, then it was signed by Mr. Aboitiz, and thereafter, returned to the DENR to serve as its file copy. Admittedly,
there is lack of strict compliance with the rules although the signature is present. Be that as it may, we find nothing in
the records to indicate that this was done with bad faith or inexcusable negligence because of the inadequacy of the
evidence and arguments presented, relative to the issue of lack of signature, in view of the manner this issue arose in
this case, as previously discussed. Absent such proof, we are not prepared to rule that the procedure adopted by the
DENR was done with bad faith or inexcusable negligence but we remind the DENR to be more circumspect in following
the rules it provided in the Revised Manual. Thus, we rule that the signature requirement was substantially complied
with pro hac vice.

Fourth, we partly agree with the DENR that the subsequent letter-requests for amendments to the ECC, signed by Mr.
Aboitiz on behalf of RP Energy, indicate its implied conformity to the ECC conditions. In practical terms, if future
litigation should occur due to violations of the ECC conditions, RP Energy would be estopped from denying its consent
and commitment to the ECC conditions even if there was no signature in the Statement of Accountability. However, we
note that the Statement of Accountability precisely serves to obviate any doubt as to the consent and commitment of
the project proponent to the ECC conditions. At any rate, the aforesaid letter-requests do additionally indicate RP
Energys conformity to the ECC conditions and, thus, negate a pattern to maliciously evade accountability for the ECC
conditions or to intentionally create a loophole in the ECC to be exploited in a possible future litigation over non-
compliance with the ECC conditions.

In sum, we rule that the appellate court erred when it invalidated the ECC on the ground of lack of signature of Mr.
Aboitiz in the ECCs Statement of Accountability relative to the copy of the ECC submitted by RP Energy to the appellate
court. While the signature is necessary for the validity of the ECC, the particular circumstances of this case show that
the DENR and RP Energy were not properly apprised of the issue of lack of signature in order for them to present
controverting evidence and arguments on this point, as the matter only developed during the course of the
proceedings upon clarificatory questions from the appellate court. Consequently, RP Energy cannot be faulted for
submitting the certified true copy of the ECC only after it learned that the ECC had been invalidated on the ground of
lack of signature in the January 30, 2013 Decision of the appellate court.

The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of Accountability portion, was
issued by the DENR-EMB and remains uncontroverted. It showed that the Statement of Accountability was signed by
Mr. Aboitiz on December 24, 2008. Although the signing was done two days after the official release of the ECC on
December 22, 2008, absent sufficient proof, we are not prepared to rule that the procedure adopted by the DENR was
done with bad faith or inexcusable negligence. Thus, we rule that the signature requirement was substantially complied
with pro hac vice.cralawred
III.

Whether the first and second amendments to the ECC are invalid for failure to undergo a new environmental impact
assessment (EIA) because of the utilization of inappropriate EIA documents.

Upholding the arguments of the Casio Group, the appellate court ruled that the first and second amendments to the
ECC were invalid because the ECC contained an express restriction that any expansion of the project beyond the project
description shall be the subject of a new EIA. It found that both amendments failed to comply with the appropriate EIA
documentary requirements under DAO 2003-30 and the Revised Manual. In particular, it found that the Environmental
Performance Report and Management Plan (EPRMP) and Project Description Report (PDR), which RP Energy submitted
to the DENR, relative to the application for the first and second amendments, respectively, were not the proper EIA
document type. Hence, the appellate court ruled that the aforesaid amendments were invalid.

Preliminarily, we must state that executive actions carry presumptive validity so that the burden of proof is on the
Casio Group to show that the procedure adopted by the DENR in granting the amendments to the ECC were done with
grave abuse of discretion. More so here because the administration of the EIA process involves special technical skill or
knowledge which the law has specifically vested in the DENR.

After our own examination of DAO 2003-30 and the Revised Manual as well as the voluminous EIA documents of RP
Energy appearing in the records of this case, we find that the appellate court made an erroneous interpretation and
application of the pertinent rules.

We explain.

As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, this law recognized the right of the people
to a healthful environment.160 Pursuant thereto, in every action, project or undertaking, which significantly affects the
quality of the environment, all agencies and instrumentalities of the national government, including government-
owned or -controlled corporations, as well as private corporations, firms, and entities were required to prepare, file and
include a statement (i.e., Environmental Impact Statement or EIS) containing:

(a) the environmental impact of the proposed action, project or undertaking;

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented;

(c) alternative to the proposed action;

(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance
and enhancement of the long-term productivity of the same; and

(e) whenever a proposal involves the use of depletable or non-renewable resources, a finding must be made that such
use and commitment are warranted.161chanRoblesvirtualLawlibrary

To further strengthen and develop the EIS, PD 1586 was promulgated, which established the Philippine Environmental
Impact Statement System (PEISS). The PEISS is a systems-oriented and integrated approach to the EIS system to ensure
a rational balance between socio-economic development and environmental protection for the benefit of present and
future generations.162 The ECC requirement is mandated under Section 4 thereof:chanroblesvirtuallawlibrary
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the Philippines
may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation
declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or
corporation shall undertake or operate any such declared environmentally critical project or area without first
securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. x x x
(Emphasis supplied)

The PEISS consists of the Environmental Impact Assessment (EIA) process, which is mandatory for private or public
projects that may significantly affect the quality of the environment. It involves evaluating and predicting the likely
impacts of the project on the environment, designing appropriate preventive, mitigating and enhancement measures
addressing these consequences to protect the environment and the communitys
welfare.163chanRoblesvirtualLawlibrary

PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system or procedure to determine when a project is
required to secure an ECC and when it is not. When an ECC is not required, the project proponent procures a Certificate
of Non-Coverage (CNC).164 As part of the EIA process, the project proponent is required to submit certain studies or
reports (i.e., EIA document type) to the DENR-EMB, which will be used in the review process in assessing the
environmental impact of the project and the adequacy of the corresponding environmental management plan or
program to address such environmental impact. This will then be part of the bases to grant or deny the application for
an ECC or CNC, as the case may be.

Table 1-4 of the Revised Manual summarizes the required EIA document type for each project category. It classifies a
project as belonging to group I, II, III, IV or V, where:

I- Environmentally Critical Projects (ECPs) in either Environmentally Critical Area (ECA) or Non-Environmentally Critical
Area (NECA),

II- Non-Environmentally Critical Projects (NECPs) in ECA,

III- NECPs in NECA,

IV- Co-located Projects, and

V- Unclassified Projects.

The aforesaid table then further classifies a project, as pertinent to this case, as belonging to category A, B or C,
where:ChanRoblesVirtualawlibrary
A- new;

B- existing projects for modification or re-start up; and

C- operating projects without an ECC.

Finally, the aforesaid table considers whether the project is single or co-located.165 After which, it states the appropriate
EIA document type needed for the application for an ECC or CNC, as the case may be.

The appropriate EIA document type vis--vis a particular project depends on the potential significant environmental
impact of the project. At the highest level would be an ECP, such as the subject project. The hierarchy of EIA document
type, based on comprehensiveness and detail of the study or report contained therein, insofar as single projects are
concerned, is as follows:

1. Environmental Impact Statement166 (EIS),

2. Initial Environmental Examination167 (IEE) Report,

3. Initial Environmental Examination168 (IEE) Checklist Report,

4. Environmental Performance Report and Management Plan 169 (EPRMP), and

5. Project Description170 (PD) or Project Description Report (PDR).

Thus, in the course of RP Energys application for an ECC, it was required by the DENR-EMB to submit an EIS because
the subject project is: an ECP, new and a single project.

The present controversy, however, revolves around, not an application for an ECC, but amendments thereto.

RP Energy requested the subject first amendment to its ECC due to its desire to modify the project design through the
inclusion of a barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection system,
drainage channel improvement and a 230-kV double transmission line. The DENR-EMB determined that this was a
major amendment and, thus, required RP Energy to submit an EPRMP.

The Casio Group argued, and the appellate court sustained, that an EPRMP is not the correct EIA document type based
on the definition of an EPRMP in DAO 2003-30 and the Revised Manual.

In DAO 2003-30, an EPRMP is defined as:chanroblesvirtuallawlibrary

Environmental Performance Report and Management Plan (EPRMP) documentation of the actual cumulative
environmental impacts and effectiveness of current measures for single projects that are already operating but
without ECC's, i.e., Category A-3. For Category B-3 projects, a checklist form of the EPRMP would suffice;171 (Emphasis
supplied)

Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is required for A-2: Existing and to be expanded
(including undertakings that have stopped operations for more than 5 years and plan to re-start with or without
expansion) and A-3: Operating without ECC.

On the other hand, the Revised Manual delineates when an EPRMP is the proper EIA document type,
thus:chanroblesvirtuallawlibrary
For operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start
operations, or for projects operating without an ECC but applying to secure one to comply with PD 1586 regulations,
the appropriate document is not an EIS but an EIA Report incorporating the projects environmental performance and
its current Environmental Management Plan. This report is x x x an x x x Environmental Performance Report and
Management Plan (EPRMP) for single project applications x x x172 (Emphasis supplied)

In its Glossary, the Revised Manual defines an EPRMP as:chanroblesvirtuallawlibrary

Environmental Performance Report and Management Plan (EPRMP) - documentation of the actual cumulative
environmental impacts and effectiveness of current measures for single projects that are already operating but
without ECCs.173 (Emphasis supplied)

Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required for Item I-B: Existing Projects for
Modification or Re-start up (subject to conditions in Annex 2-1c) and I-C: Operating without ECC.

From these definitions and tables, an EPRMP is, thus, the required EIA document type for an ECP-single project which
is:chanroblesvirtuallawlibrary
1. Existing and to be expanded (including undertakings that have stopped operations for more than 5 years and plan to
re-start with or without expansion);

2. Operating but without ECCs;

3. Operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start
operations; and

4. Existing projects for modification or re-start up.

It may be observed that, based from the above, DAO 2003-30 and the Revised Manual appear to use the terms
operating and existing interchangeably. In the case at bar, the subject project has not yet been constructed
although there have been horizontal clearing operations at the project site.

On its face, therefore, the theory of the Casio Group, as sustained by the appellate court that the EPRMP is not the
appropriate EIA document type seems plausible because the subject project is not: (1) operating/existing with a
previous ECC but planning or applying for modification or expansion, or (2) operating but without an ECC. Instead, the
subject project is an unimplemented or a non-implemented, hence, non-operating project with a previous ECC but
planning for modification or expansion.

The error in the above theory lies in the failure to consider or trace the applicable provisions of DAO 2003-30 and the
Revised Manual on amendments to an ECC.

The proper starting point in determining the validity of the subject first amendment, specifically, the propriety of the
EIA document type (i.e., EPRMP) which RP Energy submitted in relation to its application for the aforesaid amendment,
must of necessity be the rules on amendments to an ECC.174 This is principally found in Section 8.3, Article II of DAO
2003-03, viz:chanroblesvirtuallawlibrary
8.3 Amending an ECC

Requirements for processing ECC amendments shall depend on the nature of the request but shall be focused on the
information necessary to assess the environmental impact of such changes.

8.3.1. Requests for minor changes to ECCs such as extension of deadlines for submission of post-ECC requirements shall
be decided upon by the endorsing authority.

8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding authority.

8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of the amendment application shall not exceed
 thirty (30) working days; and for ECCs issued pursuant to an EIS, the processing shall not exceed sixty (60) working days.
Provisions on automatic approval related to prescribed timeframes under AO 42 shall also apply for the processing of
applications to amend ECCs. (Emphasis supplied)

Implementing the afore-quoted section, the Revised Manual pertinently states in Section 2.2, paragraph
16:chanroblesvirtuallawlibrary
16) Application Process for ECC Amendments

Figure 2-4 presents how Proponents may request for minor or major changes in their ECCs. Annex 2-1c provides a
decision chart for the determination of requirements for project modifications, particularly for delineating which
application scenarios will require EPRMP (which will be subject to Figure 2-1 process) or other support documentations
(which will be subject to Figure 2-4 process).

Figure 2-4, in turn, provides:chanroblesvirtuallawlibrary

Figure 2-4. Flowchart on Request for ECC Amendments175chanRoblesvirtualLawlibrary

Scenario 1: Request for Minor Scenario 2: Request for

Amendments
1. Typographical error
2. Extension of deadlines for submission of
post-ECC requirement/s
3. Extension of ECC validity
4. Change in company name/ownership
5. Decrease in land/project area or
production capacity
6. Other amendments deemed minor at
the discretion of the EMB CO/RO
Director
Major Amendments
1. Expansion of project area w/in catchment described in EIA
2. Increase in production capacity or auxiliary component of the original
project
3. Change/s in process flow or technology
4. Addition of new product
5. Integration of ECCs for similar or dissimilar but contiguous projects
(NOTE: ITEM#5 IS PROPONENTS OPTION, NOT EMBS)
6. Revision/Reformatting of ECC Conditions
7. Other amendments deemed major at the discretion of the EMB
CO/RO Director

1 [Start] 1[Start]
Within three (3) years from ECC Within three (3) years from ECC issuance (for projects not
issuance (for projects not started) OR at started) OR at any time during project implementation, the
any time during project implementation, Proponent prepares and submits to the ECC-endorsing DENR-EMB
the Proponent prepares and submits to office a LETTER-REQUEST for ECC amendments, including
the ECC-endorsing DENR-EMB office data/information, reports or documents to substantiate the
a LETTER-REQUEST for ECC amendment, requested revisions.
including data/information, reports or 2
documents to substantiate the For projects that have started implementation, EMB evaluates
requested revisions. request based on Annex 2-1c for various scenarios of project
modification. Documentary requirements may range from a Letter-
? Request to an EPRMP to the EMB CO/RO while for those with
Programmatic ECC, a PEPRMP may need to be submitted to the
EMB CO to support the request. It is important to note that for
operating projects, the appropriate document is not an EIS but an
EIA Report incorporating the projects historical environmental
2 performance and its current EMP, subject to specific documentary
requirements detailed in Annex 2-1c for every modification
scenario.

The ECC-endorsing EMB office assigns a
Case Handler to evaluate the request
3?
For EPRMP/PEPRMP-based requests, EMB forms a
Technical/Review Committee to evaluate the request. For other
requests, a Case Handler may solely undertake the evaluation. EMB
CO and RO will process P/EPRMP for PECC/ECC under Groups I and
II respectively. (Go to Figure 2-1)

4?
3? ECC-endorsing/issuing Authority (per Table 1-4) decides on Letter
ECC-endorsing Authority decides on the Requests/EPRMP/PEPRMP/Other documents based on EMB CH
Letter-Request, based on CH and/or Tech/Review Committee recommendations.
recommendation Max Processing Time to Issuance of Decision
Maximum Processing Time to Issuance CO CO RO RO
of Decision PEPRMP EPRMP PEPRMP EPRMP
EMB CO 7 workdays 120 90 60 30
EMB RO 7 workdays workdays workdays workdays workdays
Other document applications: max 30 workdays (EMB CO and RO)

Noteworthy in the above, which is pertinent to the issue at hand, is that the amendment process squarely applies to
projects not started, such as the subject project, based on the phrase [w]ithin three (3) years from ECC issuance (for
projects not started) x x x.
Annex 2-1c, in turn, provides a Decision Chart for Determination of Requirements For Project Modification. We
reproduce below the first three columns of Annex 2-1c, as are pertinent to the issue at
hand:ChanRoblesVirtualawlibrary

ANNEX 2-1c

DECISION CHART FOR DETERMINATION OF REQUIREMENTS

FOR PROJECT MODIFICATION178chanRoblesvirtualLawlibrary
Proposed Modifications
to the Current Project
1. Expansion of land/project
area w/in catchment or
environment described in
the original EIA Report
2. Expansion of land/project
area OUTSIDE catchment
or environment described
in the original EIA Report
3. Increase in capacity or
auxiliary component of
the original project which
will either not entail
exceedance of PDR (non-
covered project)
thresholds or EMP & ERA
can still address impacts
& risks arising from
modification
Analysis of Proposed
Modifications
Since the modification will
be in an area already
described and evaluated in
the original EIA Report,
incremental impacts from
additional land
development will have
been addressed in the
approved EMP
It is assumed the
modification proposal may
have significant potential
impacts due to absence of
prior assessment as to
how the project may affect
the proposed expansion
area
Non-exceedance of PDR
(non covered project)
threshold is assumed that
impacts are not significant;
Modification scenario and
decision process are
applicable to both non-
implemented and
operating projects issued
ECCs
Resulting Decision
Document/Type of EIA
Report Required
Operational projects, or
those which have stopped
for ? 5 years and plan to re-
start
For Groups I and II
EIS-based Projects with an
ECC applying for modification
ECC Amendment
/Letter Request with
brief description of
activities in the
additional area
ECC Amendment
/Environmental
Performance Report
and Management Plan (EPRMP)
ECC Amendment
/Letter Request with brief
description of additional
capacity or component
4. Increase in capacity or Exceedance of PDR (non- ECC Amendment
auxiliary component of covered) threshold is /Environmental Performance
the original project which assumed that impacts may Report and Management
will either exceed PDR be potentially significant, Plan (EPRMP)
(non-covered project) particularly if modification
thresholds, or EMP & ERA will result to a next higher
cannot address impacts level of threshold range
and risks arising from
modification Modification scenario and
decision process are
applicable to both non-
implemented and
operating projects with or
without issued ECCs
5. Change/s in process flow EMP and ERA can still ECC Amendment
or technology address impacts & risks /Letter Request with
arising from modification brief process
description
EMP and ERA cannot ECC Amendment
address impacts & risks /Environmental Performance
arising from modification Report and Management
Plan (EPRMP)
6. Additional component or Activity is directly ECC Amendment
products which will lessening or mitigating the /Letter Request with
enhance the environment projects impacts on the consolidated Project
(e.g. due to compliance to environment. However, to Description Report
new stringent ensure there is no of new project
requirements) or lessen component in the component and
impacts on the modification which fall integrated EMP
environment (e.g. thru under covered project
utilization of waste into types, EMB will require
new products) disclosure of the
description of the
components and process
with which the new
product will be developed.
7. Downgrade project size or No incremental adverse From ECC Amendment to Relief
area or other units of impacts; may result to of ECC Commitments
measure of thresholds lower project threshold or (Conversion to CNC):
limits may result to non- /Letter-Request only
coverage
8. Conversion to new Considered new New ECC
project type (e.g. bunker- application but with lesser /EIS
fired plant to gas-fired) data requirements since
most facilities are
established;
environmental
performance in the past
will serve as baseline;
However, for operating
projects, there may be
need to request for Relief
from ECC Commitment
prior to applying for new
project type to ensure no
balance of environmental
accountabilities from the
current project
9. Integration of ECCs for No physical change in ECC Amendment
similar or contiguous project size/area; no /Letter Request with
 projects change in consolidated Project
process/technology but Description Report
(Note: Integration of ECCs improved management of and integrated EMP
is at the option of the continuous projects by
Proponent to having an integrated
request/apply) planning document in the
form or an integrated ECC
(ECC conditions will be
harmonized across
projects; conditions
relating to requirements
within other agencies
mandates will be deleted)
10. Revision/ No physical change on the ECC Amendment
Reformatting of ECC project but ECC conditions /Letter Request only
Conditions relating to requirements
within other agencies
mandates will be deleted

We now apply these provisions to the case at bar.

To reiterate, the first amendment to the ECC was requested by RP Energy due to its planned change of project design
involving the inclusion of a barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection
system, drainage channel improvement and a 230-kV double transmission line. The DENR-EMB determined179 that the
proposed modifications involved a major amendment because it will result in an increase in capacity or auxiliary
component, as per Scenario 2, Item #2 of Figure 2-4:
Scenario 2: Request for Major
Amendments

1. Expansion of project area w/in catchment described in EIA

2. Increase in production capacity or auxiliary cmponent of the original project180
3. Change/s in process flow or technology
4. Addition of new product
5. Integration of ECCs for similar or dissimilar but contiguous projects (NOTE: ITEM#5 IS PROPONENTS OPTION, NOT EMBS)
6. Revision/Reformatting of ECC Conditions
7. Other amendments deemed major at the discretion of the EMB CO/RO Director
The Casio Group does not controvert this finding by the DENR-EMB and we find the same reasonably supported by the
evidence on record considering that, among others, the construction of a 230-kV double transmission line would result
in major activities outside the project site which could have significant environmental impacts.

Consequently, the amendment was considered as falling under Item#4 of Annex 2-1c, and, thus, the appropriate EIA
document type is an EPRMP, viz:chanroblesvirtuallawlibrary
4. Increase in capacity or auxiliary Exceedance of PDR (non-covered) ECC
component of the original thresholds is assumed that impacts Amendment
project which will either exceed may be potentially significant, / Environmental
PDR (non-covered project) particularly if modification will result Performance
thresholds, or EMP & ERA to a next higher level of threshold Report and
cannot address impacts and range Management
risks arising from modification Plan (EPRMP)182
Modification scenario and decision
process are applicable to both non-
implemented and operating projects
with or without issued ECCs

Note that the Chart expressly states that, [m]odification scenario and decision process are applicable to both non-
implemented and operating projects with or without ECCs.183 To recall, the subject project has not been constructed
and is not yet operational, although horizontal clearing activities have already been undertaken at the project site.
Thus, the subject project may be reasonably classified as a non-implemented project with an issued ECC, which falls
under Item#4 and, hence, an EPRMP is the appropriate EIA document type.
This lengthy explanation brings us to a simple conclusion. The definitions in DAO 2003-30 and the Revised Manual,
stating that the EPRMP is applicable to (1) operating/existing projects with a previous ECC but planning or applying for
modification or expansion, or (2) operating projects but without an ECC, were not an exclusive list.

The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, plainly show that the EPRMP can, likewise, be
used as an appropriate EIA document type for a single, non-implemented project applying for a major amendment to
its ECC, involving an increase in capacity or auxiliary component, which will exceed PDR (non-covered project)
thresholds, or result in the inability of the EMP and ERA to address the impacts and risks arising from the modification,
such as the subject project.

That the proposed modifications in the subject project fall under this class or type of amendment was a determination
made by the DENR-EMB and, absent a showing of grave abuse of discretion, the DENR-EMBs findings are entitled to
great respect because it is the administrative agency with the special competence or expertise to administer or
implement the EIS System.

The apparent confusion of the Casio Group and the appellate court is understandable. They had approached the issue
with a legal training mindset or background. As a general proposition, the definition of terms in a statute or rule is
controlling as to its nature and scope within the context of legal or judicial proceedings. Thus, since the procedure
adopted by the DENR-EMB seemed to contradict or go beyond the definition of terms in the relevant issuances, the
Casio Group and the appellate court concluded that the procedure was infirm.

However, a holistic reading of DAO 2003-30 and the Revised Manual will show that such a legalistic approach in its
interpretation and application is unwarranted. This is primarily because the EIA process is a system, not a set of rigid
rules and definitions. In the EIA process, there is much room for flexibility in the determination and use of the
appropriate EIA document type as the foregoing discussion has shown.184 To our mind, what should be controlling is the
guiding principle set in DAO 2003-30 in the evaluation of applications for amendments to ECCs, as stated in Section 8.3
thereof: [r]equirements for processing ECC amendments shall depend on the nature of the request but shall be
focused on the information necessary to assess the environmental impact of such
changes.185chanRoblesvirtualLawlibrary

This brings us to the next logical question, did the EPRMP provide the necessary information in order for the DENR-EMB
to assess the environmental impact of RP Energys request relative to the first amendment?

We answer in the affirmative.

In the first place, the Casio Group never attempted to prove that the subject EPRMP, submitted by RP Energy to the
DENR-EMB, was insufficient for purposes of evaluating the environmental impact of the proposed modifications to the
original project design. There is no claim that the data submitted were falsified or misrepresented. Neither was there
an attempt to subpoena the review process documents of the DENR to establish that the grant of the amendment to
the ECC was done with grave abuse of discretion or to the grave prejudice of the right to a healthful environment of
those who will be affected by the project. Instead, the Casio Group relied solely on the definition of terms in DAO
2003-30 and the Revised Manual, which approach, as previously discussed, was erroneous.

At any rate, we have examined the contents of the voluminous EPRMP submitted by RP Energy and we find therein
substantial sections explaining the proposed changes as well as the adjustments that will be made in the environmental
management plan in order to address the potential environmental impacts of the proposed modifications to the
original project design. These are summarized in the Project Fact Sheet 186 of the EPRMP and extensively discussed in
Section 4187 thereof. Absent any claim or proof to the contrary, we have no bases to conclude that these data were
insufficient to assess the environmental impact of the proposed modifications. In accordance with the presumption of
regularity in the performance of official duties, the DENR-EMB must be deemed to have adequately assessed the
environmental impact of the proposed changes, before granting the request under the first amendment to the subject
ECC.

In sum, the Revised Manual permits the use of an EPRMP, as the appropriate EIA document type, for major
amendments to an ECC, even for an unimplemented or non-implemented project with a previous ECC, such as the
subject project. Consequently, we find that the procedure adopted by the DENR, in requiring RP Energy to submit an
EPRMP in order to undertake the environmental impact assessment of the planned modifications to the original project
design, relative to the first amendment to the ECC, suffers from no infirmity.

We apply the same framework of analysis in determining the propriety of a PDR, as the appropriate EIA document type,
relative to the second amendment to the subject ECC.
 Again, the Casio Group, as sustained by the appellate court, relied on the definitions of a PDR in DAO 2003-30 and the
Revised Manual:chanroblesvirtuallawlibrary
Project Description (PD) document, which may also be a chapter in an EIS, that describes the nature, configuration,
use of raw materials and natural resources, production system, waste or pollution generation and control and the
activities of a proposed project. It includes a description of the use of human resources as well as activity timelines,
during the pre-construction, construction, operation and abandonment phases. It is to be used for reviewing co-located
and single projects under Category C, as well as for Category D projects.188chanRoblesvirtualLawlibrary

xxxx

a) For new projects: x x x For non-covered projects in Groups II and III, a x x x Project Description Report (PDR) is the
appropriate document to secure a decision from DENR/EMB. The PDR is a must requirement for environmental
enhancement and mitigation projects in both ECAs (Group II) and NECAs (Group III) to allow EMB to confirm the benign
nature of proposed operations for eventual issuance of a Certificate of Non-Coverage (CNC). All other Group III (non-
covered) projects do not need to submit PDRs application is at the option of the Proponent should it need a CNC for
its own purposes, e.g. financing pre-requisite. For Group V projects, a PDR is required to ensure new
processes/technologies or any new unlisted project does not pose harm to the environment. The Group V PDR is a basis
for either issuance of a CNC or classification of the project into its proper project group.

b) For operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start
operations, or for projects operating without an ECC but applying to secure one to comply with PD 1586 regulations,
the appropriate document is not an EIS but an EIA Report incorporating the projects environmental performance and
its current Environmental Management Plan. This report is either an (6) Environmental Performance Report and
Management Plan (EPRMP) for single project applications or a (7) Programmatic EPRMP (PEPRMP) for co-located
project applications. However, for small project modifications, an updating of the project description or the
Environmental Management Plan with the use of the proponents historical performance and monitoring records may
suffice. 189chanRoblesvirtualLawlibrary

xxxx

Project Description (PD) - document, which may also be a chapter in an EIS, that describes the nature, configuration,
use of raw materials and natural resources, production system, waste or pollution generation and control and the
activities of a proposed project. It includes a description of the use of human resources as well as activity timelines,
during the pre-construction, construction, operation and abandonment phases. 190

We will no longer delve into the details of these definitions. Suffice it to state, similar to the discussion on the EPRMP,
that if we go by the strict limits of these definitions, the PDR relative to the subject second amendment would not fall
squarely under any of the above.

However, again, these are not the only provisions governing the PDR in the Revised Manual.

After the favorable grant of the first amendment, RP Energy applied for another amendment to its ECC, this time in
consideration of its plan to change the configuration of the project from 2 x 150 MW to 1 x 300 MW. In practical terms,
this meant that the subject project will still produce 300 MW of electricity but will now make use of only one boiler
(instead of two) to achieve greater efficiency in the operations of the plant. The DENR-EMB determined191 this
amendment to be minor, under Scenario 1, Item#6 of Figure 2-4:
Scenario 1: Request for Minor
Amendments

1. Typographical error
2. Extension of deadlines for submission of post-ECC requirement/s
3. Extension of ECC validity
4. Change in company name/ownership
5. Decrease in land/project area or production capacity
6. Other amendments deemed minor at the discretion of the EMB CO/RO Director192

because (1) there is no increase in capacity; (2) it does not constitute any significant impact; and (3) its EMP and ERA
as specified in the submitted EPRMP remain the same.193 Relative to Annex 2-1c, the requested amendment was, in
turn, determined to fall under Item#3:chanroblesvirtuallawlibrary
3. Increase in capacity or auxiliary Non-exceedance of PDR (non ECC Amendment
component of the original project covered project) thresholds is / Letter Request
which will either not entail assumed that impacts are not with brief
 exceedance of PDR (non-covered significant; description of
project) thresholds or EMP & ERA additional capacity
can still address impacts & risks Modification scenario and or component
arising from modification decision process are applicable
to both non-implemented and
operating projects issued ECCs

We make the same observation, as before, that the above applies to an unimplemented or non-implemented project
with a previous ECC, like the subject project. Although it may be noted that the proposed modification does not
squarely fall under Item#3, considering that, as previously mentioned, there will be no increase in capacity relative to
the second amendment, still, we find nothing objectionable to this classification by the DENR-EMB, for it seems plain
enough that this classification was used because the modification was deemed too minor to require a detailed project
study like an EIS or EPRMP. Since this is the classification most relevant and closely related to the intended amendment,
following the basic precept that the greater includes the lesser, the DENR-EMB reasonably exercised its discretion in
merely requiring a letter request with a brief description of the modification.

As earlier noted, the PDR is the EIA document type with the least detail, and, thus, applicable to such minor
modifications. Thus, the DENR-EMB cannot be faulted for requiring RP Energy to submit a PDR relative to its application
for the second amendment. Consequently, as before, we find that the Revised Manual supports the procedure adopted
by the DENR-EMB in requiring RP Energy to submit a PDR in order to assess the environmental impact of the planned
modifications relative to the second amendment.

In their Petition before this Court, the Casio Group boldly asserts that [t]here is nothing in the Project Description
Report that provides an environmental impact assessment of the effects of constructing and operating a single 300-MW
generating unit.196 However, to our dismay, as in their other serious allegations in their Petition for Writ of kalikasan,
the same is, likewise, baseless. Apart from such a sweeping claim, the Casio Group has provided no evidence or
argument to back up the same.

An examination of the PDR readily reveals that it contains the details of the proposed modifications 197 and an express
finding that no significant environmental impact will be generated by such modifications, as in fact it is expected that
the operation of the power plant will become more efficient as a result of the change from 2 x 150 MW to 1 x 300 MW
configuration.198 Consequently, the PDR merely reiterates the same mitigating measures that will presumably address
the minor modifications to the project design. Again, no evidence was presented to show substantial errors or
misrepresentations in these data or their inadequacy for providing the bases for the DENR-EMB to assess the
environmental impact of the proposed modifications under the second amendment.

In fine, absent proof to the contrary, bearing in mind that allegations are not proof, we sustain the procedure adopted
by the DENR-EMB in requiring RP Energy to submit a PDR and, on the basis thereof, approving the request for the
second amendment.

In another vein, we note that the appellate court proceeded from the erroneous premise that the EIA is a document,
when it repeatedly stated that the amendments to the ECC require a new EIA, and not merely an EPRMP or PDR. The
appellate court relied on the proviso in the ECC, which stated that [a]ny expansion of the project beyond the project
description or any change in the activity or transfer of location shall be subject to a new Environmental Impact
Assessment.199chanRoblesvirtualLawlibrary

However, as correctly pointed out by the DENR and RP Energy, the EIA is not a document but a
process:chanroblesvirtuallawlibrary
Environmental Impact Assessment (EIA) process that involves evaluating and predicting the likely impacts of a
project (including cumulative impacts) on the environment during construction, commissioning, operation and
abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures addressing
these consequences to protect the environment and the community's welfare. The process is undertaken by, among
others, the project proponent and/or EIA Consultant, EMB, a Review Committee, affected communities and other
stakeholders.200 (Emphasis supplied)

When the proviso in the ECC, therefore, states that a new EIA shall be conducted, this simply means that the project
proponent shall be required to submit such study or report, as warranted by the DENR Rules and circumstances, which
will sufficiently aid the DENR in making a new EIA and, thus, determine whether to grant the proposed amendment (or
project modification). As we have seen, consistent with DAO 2003-30 and the Revised Manual, the DENR required RP
Energy to submit an EPRMP and a PDR relative to the latters request involving the first and second amendments,
respectively, which led to the new EIA of the project in compliance with the proviso of the ECC.
Verily, the various EIA documents, such as the EPRMP and PDR, are mere tools used by the DENR to assess the
environmental impact of a particular project. These documents are flexibly used by the DENR, as the circumstances
warrant, in order to adequately assess the impacts of a new project or modifications thereto. Being the administrative
agency entrusted with the determination of which EIA document type applies to a particular application for an
amendment to an ECC, falling as it does within its particular technical expertise, we must accord great respect to its
determination, absent a showing of grave abuse of discretion or patent illegality.

In sum, we find that the appellate court erred when it ruled that the first and second amendments to the subject ECC
were invalid for failure to comply with a new EIA and for violating DAO 2003-30 and the Revised Manual. The appellate
court failed to properly consider the applicable provisions in DAO 2003-30 and the Revised Manual on amendments to
ECCs. Our examination of the provisions on amendments to ECCs, as well as the EPRMP and PDR themselves, shows
that the DENR reasonably exercised its discretion in requiring an EPRMP and a PDR for the first and second
amendments, respectively. Through these documents, which the DENR reviewed, a new EIA was conducted relative to
the proposed project modifications. Hence, absent sufficient showing of grave abuse of discretion or patent illegality,
relative to both the procedure and substance of the amendment process, we uphold the validity of these
amendments.cralawred
IV.

Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a precondition to the issuance of an
ECC and the lack of its prior issuance rendered the ECC invalid.

The appellate court ruled that the ECC issued in favor of RP Energy on December 22, 2008 is invalid because the CNO
covering the subject project was issued only on October 31, 2012 or almost four years from the time of issuance of the
ECC. Thus, the ECC was issued in violation of Section 59 of the IPRA Law and its implementing rules which require that a
CNO be obtained prior to the issuance of a government agency of, among others, a license or permit. In so ruling, the
appellate court implicitly upheld the Casio Groups argument that the ECC is a form of government license or permit
pursuant to Section 4 of PD 1586 which requires all entities to secure an ECC before (1) engaging in an environmentally
critical project or (2) implementing a project within an environmentally critical area.

The DENR and RP Energy, however, argue that an ECC is not the license or permit contemplated under Section 59 of the
IPRA Law and its implementing rules as may be deduced from the definition, nature and scope of an ECC under DAO
2003-03 and the Revised Manual. The DENR explains that the issuance of an ECC does not exempt the project
proponent from securing other permits and clearances as required under existing laws, including the CNO, and that the
final decision on whether a project will be implemented lies with the concerned local government unit/s or the lead
government agency which has sectoral mandate to promote the government program where the project belongs.

We agree with the DENR and RP Energy.

Section 59, Chapter VIII of the IPRA Law provides:chanroblesvirtuallawlibrary

SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly
enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing
agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral
domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains
Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior
informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or
government-owned or -controlled corporation may issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to
stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation
process. (Emphasis supplied)

While Section 9, Part II, Rule VIII of National Commission on Indigenous Peoples (NCIP) Administrative Order No. 01-
98201 states:chanroblesvirtuallawlibrary
SECTION 9. Certification Precondition Prior to Issuance of any Permits or Licenses.

a. Need for Certification. No department of government or other agencies shall issue, renew or grant
any concession, license, lease, permit, or enter into any production sharing agreement without a prior certification
from the NCIP that the area affected does not overlap any ancestral domain.

b. Procedure for Issuance of Certification by NCIP.

1) The certification, above mentioned, shall be issued by the Ancestral Domain Office, only after a field based
investigation that such areas are not within any certified or claimed ancestral domains.
2) The certification shall be issued only upon the free, prior, informed and written consent of the ICCs/IPs who will be
affected by the operation of such concessions, licenses or leases or production-sharing agreements. A written consent
for the issuance of such certification shall be signed by at least a majority of the representatives of all the households
comprising the concerned ICCs/IPs. (Emphasis supplied)

As may be deduced from its subtitle, Section 59 requires as a precondition, relative to the issuance of any concession,
license, lease or agreement over natural resources, a certification issued by the NCIP that the area subject thereof does
not lie within any ancestral domain.202 This is in keeping with the State policy to protect the rights of Indigenous
Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains in order to ensure their economic, social
and cultural well-being as well as to recognize the applicability of customary laws governing property rights or relations
in determining the ownership and extent of such ancestral domain.203chanRoblesvirtualLawlibrary

The IPRA Law and its implementing rules do not define the terms license and permit so that resort to their plain or
ordinary meaning in relation to the intendment of the law is appropriate.

A license has been defined as a governmental permission to perform a particular act (such as getting married),
conduct a particular business or occupation, operate machinery or vehicles after proving capacity and ability to do so
safely, or use property for a certain purpose204 while a permit has been defined as a license or other document
given by an authorized public official or agency (building inspector, department of motor vehicles) to allow a person or
business to perform certain acts.205chanRoblesvirtualLawlibrary

The evident intention of Section 59, in requiring the CNO prior to the issuance of a license or permit, is to prevent the
implementation of a project that may impair the right of ICCs/IPs to their ancestral domains. The law seeks to ensure
that a project will not overlap with any ancestral domain prior to its implementation and thereby pre-empt any
potential encroachment of, and/or damage to the ancestral domains of ICCs/IPs without their prior and informed
consent.

With these considerations in mind, we now look at the definition, nature and scope of an ECC in order to determine if it
falls within the ambit of a license or permit to which the CNO requirement, under Section 59 of the IPRA Law and
its implementing rules, finds application.

Section 4 of PD 1586 provides, in part:chanroblesvirtuallawlibrary

SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the Philippines
may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation
declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or
corporation shall undertake or operate any such declared environmentally critical project or area without first
securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For
the proper management of said critical project or area, the President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or instrumentalities including the re-alignment of government
personnel, and their specific functions and responsibilities. (Emphasis supplied)

While the above statutory provision reveals that the ECC is an indispensable requirement before (1) the conduct of an
environmentally critical project or (2) the implementation of a project in an environmentally critical area, it does not
follow that the ECC is the license or permit contemplated under Section 59 of the IPRA Law and its implementing
rules.

Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise:chanroblesvirtuallawlibrary

SECTION 3. Definition of Terms.

For the purpose of this Order, the following definitions shall be applied:

xxxx

d. Environmental Compliance Certificate (ECC) document issued by the DENR/EMB after a positive review of an ECC
application, certifying that based on the representations of the proponent, the proposed project or undertaking will not
cause significant negative environmental impact. The ECC also certifies that the proponent has complied with all the
requirements of the EIS System and has committed to implement its approved Environmental Management Plan. The
ECC contains specific measures and conditions that the project proponent has to undertake before and during the
operation of a project, and in some cases, during the project's abandonment phase to mitigate identified
environmental impacts.

In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in part:chanroblesvirtuallawlibrary
3) Purpose of the EIA Process

As a basic principle, EIA is used to enhance planning and guide decision-making. In this Manual, EIA is primarily
presented in the context of a requirement to integrate environmental concerns in the planning process of projects at
the feasibility stage. Through the EIA Process, adverse environmental impacts of proposed actions are considerably
reduced through a reiterative review process of project siting, design and other alternatives, and the subsequent
formulation of environmental management and monitoring plans. A positive determination by the DENR-EMB results to
the issuance of an Environmental Compliance Commitment (ECC) document, to be conformed to by the Proponent and
represents the projects Environmental Compliance Certificate. The release of the ECC allows the project to proceed to
the next stage of project planning, which is the acquisition of approvals from other government agencies and LGUs,
after which the project can start implementation.

xxxx

6) The EIA Process in Relation to Other Agencies Requirements

It is inherent upon the EIA Process to undertake a comprehensive and integrated approach in the review and evaluation
of environment-related concerns of government agencies (GAs), local government units (LGUs) and the general public.
The subsequent EIA findings shall provide guidance and recommendations to these entities as a basis for their decision
making process.
a) An Inter-agency MOA on EIS Streamlining was entered into in 1992 by 29 government agencies wherein ECC
of covered projects was agreed to be a pre-requisite of all other subsequent government approvals;
b) DENR Memo Circular No. 2007-08 issued on 13 July 2007 reiterates in effect the intent of the MOA and
reinforces the role of the ECC/CNC as a guidance document to other agencies and LGUs, as follows:
i) No permits and/or clearances issued by other National Government Agencies and Local
Government Units shall be required in the processing of ECC or CNC applications.
ii) The findings and recommendations of the EIA shall be transmitted to relevant government
agencies for them to integrate in their decision making prior to the issuance of clearances,
permits and licenses under their mandates.
iii) The issuance of an ECC or CNC for a project under the EIS System does not exempt the
Proponent from securing other government permits and clearances as required by other laws.
The current practice of requiring various permits, clearances and licenses only constrains the
EIA evaluation process and negates the purpose and function of the EIA.
iv) Henceforth, all related previous instructions and other issuances shall be made consistent with
the Circular.
c) Permits, licenses and clearances are inclusive of other national and local government approvals such as
endorsements, resolutions, certifications, plans and programs, which have to be cleared/approved or other
government documents required within the respective mandates and jurisdiction of these agencies/LGUs.
x
x
x
x
f) The final decision whether a project will be implemented or not lies either with the LGUs who have
spatial jurisdiction over the project or with the lead government agency who has sectoral mandate to
promote the government program where the project belongs, e.g. DOE for energy projects; DENR-MGB for
mining projects. (Emphasis supplied)

As can be seen, the issuance of the ECC does not, by and of itself, authorize the implementation of the project.
Although it is indispensable before the covered project can be commenced, as per Section 4 of PD 1586, the issuance of
the ECC does not, as of yet, result in the implementation of the project. Rather, the ECC is intended to, among others,
provide guidance or act as a decision-making tool to other government agencies and LGUs which have the final
authority to grant licenses or permits, such as building permits or licenses to operate, that will ultimately result in, or
authorize the implementation of the project or the conduct of specific activities.

As a consequence, we find that the CNO requirement under Section 59 of the IPRA Law is not required to be obtained
prior to the issuance of an ECC. As previously discussed, Section 59 aims to forestall the implementation of a project
that may impair the right of ICCs/IPs to their ancestral domains, by ensuring or verifying that a project will not overlap
with any ancestral domain prior to its implementation. However, because the issuance of an ECC does not result in the
implementation of the project, there is no necessity to secure a CNO prior to an ECCs issuance as the goal or purpose,
which Section 59 seeks to achieve, is, at the time of the issuance of an ECC, not yet applicable.
 In sum, we find that the ECC is not the license or permit contemplated under Section 59 of the IPRA Law and its
implementing rules. Hence, there is no necessity to secure the CNO under Section 59 before an ECC may be issued and
the issuance of the subject ECC without first securing the aforesaid certification does not render it invalid.cralawred
V.

Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a precondition to the
consummation of the Lease and Development Agreement (LDA) between SBMA and RP Energy and the lack of its prior
issuance rendered the LDA invalid.

We now turn to the applicability of Section 59 of the IPRA Law to the LDA entered into between the SBMA and RP
Energy on June 8, 2010. Similar to the ECC, the LDA was entered into prior to the issuance of the CNO on October 31,
2012.

Before this Court, SBMA and RP Energy reiterate their arguments on why the CNO is no longer necessary in the instant
case, to wit:
1. Prior to entering into the LDA with RP Energy, SBMA entered into a lease agreement with HHIC 206-Philippines, Inc. and a
CNO was already issued therefor which, for all intents and purposes, is applicable to the area leased by RP Energy being
part of contiguous lots in Redondo Peninsula.
2. The site of the power plant project is very distant from the boundaries of the lone area at the Subic Bay Freeport Zone
covered by an Aeta Communitys Certificate of Ancestral Domain Title (CADT).
3. There was no indigenous community within the vicinity of the project area as stated in RP Energys EIS.
4. The land where the project is located was subsequently classified as industrial by the SBMA.
5. The scoping/procedural screening checklist classified as not relevant the issue of indigenous people.
6. Ms. Mercado, who was part of the team which prepared the EIS, testified that she visited the project site ten or more
times and did not see any Aeta communities there.
7. Mr. Evangelista testified that the project site used to be a firing range of the U.S. Armed Forces which would make it
impossible to be a settlement area of indigenous communities.
8. Atty. Rodriguez stated that the project site is not covered by a CADT and that from the start of negotiations on the LDA,
the SBMA Ecology Center verified with the NCIP that there was no application for said area to be covered by a CADT.

RP Energy further argues that, in any case, as a matter of prudence, it secured a CNO from the NCIP. On October 31,
2012, the NCIP issued the subject CNO over the project site, which should erase any doubt as to whether it overlaps
with an ancestral domain.

Upholding the arguments of the Casio Group, the appellate court ruled that SBMA failed to comply with the CNO
requirement and, thus, the LDA entered into between SBMA and RP Energy is invalid. It rejected the reasons given by
SBMA and RP Energy, to wit:
1. RP Energys reliance on its own field investigation that no indigenous community was found within the vicinity is
unavailing because it was not the field investigation by the NCIP required by the IPRA Law.
2. RP Energy acknowledged that Aetas were among the earliest settlers in the municipality where the project will be built.
Hence, it was not clearly shown that in 2008, at the time the LDA was entered into, there were no indigenous
communities in the project site.
3. SBMAs representation that the project site is industrial relies on a letter dated March 5, 2008 and the scoping checklist,
which are hearsay evidence.
4. The statements of Atty. Rodriguez have no probative value because he is not an officer of SBMA Ecology Center or an
officer of NCIP.
5. At the time the CNO was issued on October 31, 2012, and the field investigation relative thereto was conducted by the
NCIP, the project site no longer reflected the actual condition on December 22, 2008 when the LDA was entered into
because the households which occupied the site had already been relocated by then.
6. SBMA, prior to entering into a lease agreement with HHIC, secured a CNO, but oddly did not do the same with respect to
the lease agreement with RP Energy, considering that both leases cover lands located within the same peninsula. RP
Energy appears to have been accorded a different treatment.
7. The CNO issued in favor of HHIC cannot justify the lack of a CNO for the power plant project because the two projects are
situated in different locations: the HHIC project is located in Sitio Agusuhin, while the power plant project is located
in Sitio Naglatore.

While we agree with the appellate court that a CNO should have been secured prior to the consummation of the LDA
between SBMA and RP Energy, and not after, as was done here, we find that, under the particular circumstances of this
case, the subsequent and belated compliance with the CNO requirement does not invalidate the LDA.

For convenience, and as starting point of our analysis, we reproduce Section 59 of the IPRA Law
below:chanroblesvirtuallawlibrary
SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly
enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing
agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral
domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains
Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior
informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or
government-owned or -controlled corporation may issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to
stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation
process. (Emphasis supplied)

The law is clear but its actual operation or application should not be interpreted beyond the bounds of reason or
practicality.

We explain.

Indeed, a CNO is required prior to the grant of a lease by all government agencies, including the SBMA. Again, the
evident intention is to prevent the impairment of the right of ICCs/IPs to their ancestral domains. A lease, such as the
LDA under consideration, would result in, among others, granting RP Energy the right to the use and enjoyment of the
project site to the exclusion of third parties.207 As such, the lease could conceivably encroach on an ancestral domain if
the CNO is not first obtained.

However, implicit in the operation of Section 59 is the practical reality that the concerned government agency must
make a preliminary determination on whether or not to obtain the required certification in the first place. To expound,
a government agency, which wishes to lease part of its property located near Padre Faura Street, Manila City could not,
and should not be reasonably expected to obtain the CNO, as it is obviously inapplicable to its planned lease. In
contrast, a government agency, which intends to lease a property in a valley or mountainous region, where indigenous
communities are known to reside, conduct hunting activities, perform rituals, or carry out some other activities, should
be reasonably expected to secure the CNO prior to consummating the planned lease with third persons.

Even if the indigenous community does not actually reside on the proposed lease site, the government agency would
still be required to obtain the CNO precisely to rule out the possibility that the proposed lease site encroaches upon an
ancestral domain. The reason for this is that an ancestral domain does not only cover the lands actually occupied by an
indigenous community, but all areas where they have a claim of ownership, through time immemorial use, such as
hunting, burial or worship grounds and to which they have traditional access for their subsistence and other traditional
activities.208chanRoblesvirtualLawlibrary

The wording of the law itself seems to presuppose that if the concession, lease, license or production-sharing
agreement is over natural resources, then the CNO should be first obtained. This is because the last term, production-
sharing agreement, normally refers to natural resources. But the problem arises as to what should be considered
natural resources; for a vacant lot, near Padre Faura Street, or a forest land, in Mt. Banahaw, could both be
considered as natural resources, depending on the restrictive or expansive understanding of that term.

After due consideration, we find that the proper rule of action, for purposes of application of Section 59, is that all
government offices should undertake proper and reasonable diligence in making a preliminary determination on
whether to secure the CNO, bearing in mind the primordial State interest in protecting the rights of ICCs/IPs to their
ancestral domains. They should consider the nature and location of the areas involved; the historical background of the
aforesaid areas relative to the occupation, use or claim of ownership by ICCs/IPs; the present and actual condition of
the aforesaid areas like the existence of ICCs/IPs within the area itself or within nearby territories; and such other
considerations that would help determine whether a CNO should be first obtained prior to granting a concession, lease,
license or permit, or entering into a production-sharing agreement.

If there are circumstances that indicate that a claim of ownership by ICCs/IPs may be present or a claim of ownership
may be asserted in the future, no matter how remote, the proper and prudent course of action is to obtain the CNO. In
case of doubt, the doubt should be resolved in favor of securing the CNO and, thus, the government agency is under
obligation to secure the aforesaid certification in order to protect the interests and rights of ICCs/IPs to their ancestral
domains. This must be so if we are to accord the proper respect due to, and adequately safeguard the interests and
rights of, our brothers and sisters belonging to ICCs/IPs in consonance with the constitutional policy 209 to promote and
protect the rights of ICCS/IPs as fleshed out in the IPRA Law and its implementing rules.

In the case at bar, we find, applying this rule of action, that the SBMA should have first secured a CNO before entering
into the LDA with RP Energy for the following reasons.
First, the Subic area is historically known to be the home of our brothers and sisters belonging to the Aeta communities.
In particular, the EIS210 itself of RP Energy noted that Aeta communities originally occupied the proposed project site of
the power plant. Thus, even if we assume that, at the time of the ocular inspection of the proposed project site in 2008,
there were no Aeta communities seen thereat, as claimed by RP Energy, the exercise of reasonable prudence should
have moved SBMA and RP Energy to secure a CNO in order to rule out the possibility that the project site may overlap
with an ancestral domain. This is especially so, in view of the observation previously made, that lack of actual
occupation by an indigenous community of the area does not necessarily mean that it is not a part of an ancestral
domain because the latter encompasses areas that are not actually occupied by indigenous communities but are used
for other purposes like hunting, worship or burial grounds.

Second, SBMA and RP Energy claim that the SBMA Ecology Center verified with the NCIP that the project site does not
overlap with an ancestral domain. However, the person, who allegedly did the verification, and the officer from the
NCIP, who was contacted in this alleged verification, were not presented in court. Assuming that this verification did
take place and that the SBMA Ecology Center determined that there is no pending application for a CADT covering the
project site and that the presently recognized CADT of Aeta communities is too far away from the project site, it still
does not follow that the CNO under Section 59 should have been dispensed with.

The acts of individual members of a government agency, who allegedly checked with the NCIP that the project site does
not overlap with an ancestral domain, cannot substitute for the CNO required by law. The reason is obvious. Such
posture would circumvent the noble and laudable purposes of the law in providing the CNO as the appropriate
mechanism in order to validly and officially determine whether a particular project site does not overlap with an
ancestral domain. It would open the doors to abuse because a government agency can easily claim that it checked with
the NCIP regarding any application for an ancestral domain over a proposed project site while stopping short of
securing a CNO. To reiterate, the legally mandated manner to verify if a project site overlaps with an ancestral domain
is the CNO, and not through personal verification by members of a government agency with the NCIP.

Third, that the project site was formerly used as the firing range of the U.S. Armed Forces does not preclude the
possibility that a present or future claim of ancestral domain may be made over the aforesaid site. The concept of an
ancestral domain indicates that, even if the use of an area was interrupted by the occupation of foreign forces, it may
still be validly claimed to be an ancestral domain.211chanRoblesvirtualLawlibrary

Fourth, that the project site was subsequently classified by the SBMA as forming part of an industrial zone does not
exempt it from the CNO requirement. The change in the classification of the land is not an exception to the CNO
requirement under the IPRA Law. Otherwise, government agencies can easily defeat the rights of ICCs/IPs through the
conversion of land use.

Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and purposes, be applicable to RP Energy.
However, as correctly ruled by the appellate court, the CNO issued to HHICs shipyard cannot be extended to RP
Energys project site because they involve two different locations although found within the same land mass. The CNO
issued in favor of HHIC clearly states that the findings in the CNO are applicable only to the shipyard location of HHIC.

Last, the steps taken by SBMA, in securing a CNO prior to its lease agreement with HHIC, was the proper and prudent
course of action that should have been applied to the LDA with RP Energy. It does not matter that HHIC itself asked for
the CNO prior to entering into a lease agreement with SBMA, as claimed by SBMA, while RP Energy did not make such a
request because, as we have discussed, SBMA had the obligation, given the surrounding circumstances, to secure a
CNO in order to rule out the possibility that the project site overlapped with an ancestral domain.

All in all, we find, applying the foregoing rule of action, that SBMA should have secured a CNO before entering into the
LDA with RP Energy. Considering that Section 59 is a prohibitory statutory provision, a violation thereof would ordinarily
result in the nullification of the contract.212 However, we rule that the harsh consequences of such a ruling should not
be applied to the case at bar.

The reason is that this is the first time that we lay down the foregoing rule of action so much so that it would be
inequitable to retroactively apply its effects with respect to the LDA entered into between SBMA and RP Energy. We
also note that, under the particular circumstances of this case, there is no showing that SBMA and RP Energy had a
deliberate or ill intent to escape, defeat or circumvent the mandate of Section 59 of the IPRA Law. On the contrary,
they appear to have believed in good faith, albeit erroneously, that a CNO was no longer needed because of the afore-
discussed defenses they raised herein. When the matter of lack of a CNO relative to the LDA was brought to their
attention, through the subject Petition for Writ of kalikasan filed by the Casio Group, RP Energy, with the
endorsement of SBMA, promptly undertook to secure the CNO, which was issued on October 31, 2012 and stated that
the project site does not overlap with any ancestral domain.213chanRoblesvirtualLawlibrary

Thus, absent proof to the contrary, we are not prepared to rule that SBMA and RP Energy acted in bad faith or with
inexcusable negligence, considering that the foregoing rule of action has not heretofore been laid down by this Court.
As a result, we hold that the LDA should not be invalidated due to equitable considerations present here.

By so ruling, we clarify that we reject RP Energys claim that the belated submission of the CNO is an over compliance
on its part. Quite the contrary, as we have discussed, the CNO should have been first secured given the surrounding
circumstances of this case.

In the same vein, we reject SBMAs argument that the belated application for, and submission of the CNO cured
whatever defect the LDA had. We have purposely avoided a ruling to the effect that a CNO secured subsequent to the
concession, lease, license, permit or production-sharing agreement will cure the defect. Such a ruling would lead to
abuse of the CNO requirement since the defect can be cured anyway by a subsequent and belated application for a
CNO. Government agencies and third parties, either through deliberate intent or negligence, may view it as an excuse
not to timely and promptly secure the CNO, even when the circumstances warrant the application for a CNO under the
afore-discussed rule of action, to the damage and prejudice of ICCs/IPs. Verily, once the concession, lease, license or
permit is issued, or the agreement is entered into without the requisite CNO, consequent damages will have already
occurred if it later turns out that the site overlaps with an ancestral domain. This is so even if the ICCs/IPs can have the
project stopped upon discovery that it overlapped with their ancestral domain under the last proviso214 of Section 59.
To prevent this evil, compliance with the CNO requirement should be followed through the afore-discussed rule of
action.

In sum, we rule that a CNO should have been secured prior to the consummation of the LDA between SBMA and RP
Energy. However, considering that this is the first time we lay down the rule of action appropriate to the application of
Section 59, we refrain from invalidating the LDA due to equitable considerations.cralawred
VI.

Whether compliance with Section 27, in relation to Section 26, of the LGC (i.e., approval of the
concerned sanggunian requirement) is necessary prior to the implementation of the power plant project.

Sustaining the arguments of the Casio Group, the appellate court ruled that the subject project cannot be constructed
and operated until after the prior approval of the concerned sanggunian requirement, under Section 27 of the LGC, is
complied with. Hence, the ECC and LDA could not be validly granted and entered into without first complying with the
aforesaid provision. It held that all the requisites for the application of the aforesaid provision are present. As to the
pertinent provisions of RA 7227 or The Bases Conversion and Development Act of 1992, which grants broad powers
of administration to the SBMA over the Subic Special Economic Zone (SSEZ), the appellate court ruled that RA 7227
contains a provision recognizing the basic autonomy of the LGUs which joined the SSEZ. Thus, the LGC and RA 7227
should be harmonized whereby the concerned sanggunians power to approve under Section 27 must be respected.

The DENR impliedly agrees with the Casio Group that compliance with Section 27 is still required but without clearly
elaborating its reasons therefor.

The SBMA and RP Energy, however, argue that the prior approval of the concerned sanggunian requirement, under
Section 27, is inapplicable to the subject project because it is located within the SSEZ. The LGC and RA 7227 cannot be
harmonized because of the clear mandate of the SBMA to govern and administer all investments and businesses within
the SSEZ. Hence, RA 7227 should be deemed as carving out an exception to the prior approval of the
concerned sanggunian requirement insofar as the SSEZ is concerned.

We agree with the SBMA and RP Energy.

Preliminarily, we note that Sections 26 and 27 of the LGC contemplate two requirements: (1) prior consultations and (2)
prior approval of the concerned sanggunian, viz:chanroblesvirtuallawlibrary
SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. It shall be the duty of
every national agency or government-owned or -controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable
resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant species, to consult with the
local government units, nongovernmental organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the community in terms of environmental or
ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.
(Emphasis supplied)

SECTION 27. Prior Consultations Required. No project or program shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall
not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution. (Emphasis supplied)

In the case at bar, the Casio Group only questions the alleged lack of the prior approval of the concerned sanggunians
under Section 27 of the LGC. Thus, we shall limit our discussion to the resolution of this issue. (Parenthetically, we note
that prior consultations, as required by Section 26 of the LGC, appear to have been complied with. This may be gleaned
from the EIS of RP Energy which contains the documentation of the extensive public consultations held, under the
supervision of the DENR-EMB, relative to the subject project, as required by the EIA process, 215as well as the social
acceptability policy consultations conducted by the SBMA, which generated the document entitled Final Report: Social
Acceptability Process for RP Energy, Inc.s 600-MW Coal Plant Project, as noted and discussed in an earlier
subsection.216)

We also note that the Casio Group argues that the approval of the concerned sanggunian requirement was necessary
prior to the issuance of the ECC and the consummation of the LDA; the absence of which invalidated the ECC and LDA.

We shall no longer discuss at length whether the approval of the concerned sanggunian requirement must be complied
with prior to the issuance of an ECC. As discussed in an earlier subsection, the issuance of an ECC does not, by itself,
result in the implementation of the project. Hence, the purpose or goal of Sections 26 and 27 of the LGC, like Section 59
of the IPRA Law, does not yet obtain and, thus, the ECC may be issued even without prior compliance with Sections 26
and 27 of the LGC.

We, thus, limit the discussion as to whether the approval of the concerned sanggunian requirement should have been
complied with prior to the consummation of the LDA, considering that the LDA is part of the implementation of the
subject project and already vests in RP Energy the right to the use and enjoyment of the project site, as in fact
horizontal clearing activities were already undertaken by RP Energy at the project site by virtue of the LDA.

The prior approval of the concerned sanggunian requirement is an attribute and implementation of the local autonomy
granted to, and enjoyed by LGUs under the Constitution.217 The LGU has the duty to protect its constituents and
interests in the implementation of the project. Hence, the approval of the concerned sanggunian is required by law to
ensure that local communities partake in the fruits of their own backyard. 218chanRoblesvirtualLawlibrary

For Section 27, in relation to Section 26, to apply, the following requisites must concur: (1) the planning and
implementation of the project or program is vested in a national agency or government-owned and-controlled
corporation, i.e., national programs and/or projects which are to be implemented in a particular local community; and
(2) the project or program may cause pollution, climatic change, depletion of non-renewable resources, loss of
cropland, rangeland, or forest cover, extinction of animal or plant species, or call for the eviction of a particular group of
people residing in the locality where the project will be implemented. 219chanRoblesvirtualLawlibrary

In the case at bar, the two requisites are evidently present: (1) the planning and implementation of the subject project
involves the Department of Energy, DENR, and SBMA; and (2) the subject project may cause pollution, climatic change,
depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant
species, or call for the eviction of a particular group of people residing in the locality where the project will be
implemented. Hence, Section 27 of the LGC should ordinarily apply.

It is not disputed that no approval was sought from the concerned sanggunians relative to the subject project. What is
more, the affected LGUs have expressed their strong oppositions to the project through various sanggunian
resolutions.220 However, it is also undisputed that the subject project is located within the SSEZ and, thus, under the
territorial jurisdiction of the SBMA pursuant to RA 7227.

Thus, we are tasked to determine the applicability of the prior approval of the concerned sanggunian requirement,
under Section 27 of the LGC, relative to a project within the territorial jurisdiction of the SBMA under RA 7227.

RA 7227 was passed on March 13, 1992 in the aftermath of the Mount Pinatubo eruption and the closure of the Subic
Naval Base of the U.S. Armed Forces. It sought to revive the affected areas by creating and developing the SSEZ into a
self-sustaining industrial, commercial, financial and investment center to generate employment opportunities in and
around the zone and to attract and promote productive foreign investments. 221 The SSEZ covered the City of Olangapo
and Municipality of Subic in the Province of Zambales and the lands and its contiguous extensions occupied by the
former U.S. Naval Base, which traversed the territories of the Municipalities of Hermosa and Morong in the Province of
Bataan. Under Section 12 of RA 7227, the creation of the SSEZ was made subject to the concurrence by resolution of
the respective sanggunians of the City of Olongapo and the Municipalities of Subic, Morong and
Hermosa, viz:chanroblesvirtuallawlibrary
SECTION 12. Subic Special Economic Zone. Subject to the concurrence by resolution of the sangguniang
panlungsod of the City of Olongapo and the sangguniang bayan of the Municipalities of Subic, Morong and Hermosa,
there is hereby created a Special Economic and Free-port Zone consisting of the City of Olongapo and the Municipality
of Subic, Province of Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as embraced,
covered, and defined by the 1947 Military Bases Agreement between the Philippines and the United States of America
as amended, and within the territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan,
hereinafter referred to as the Subic Special Economic Zone whose metes and bounds shall be delineated in a
proclamation to be issued by the President of the Philippines. Within thirty (30) days after the approval of this Act, each
local government unit shall submit its resolution of concurrence to join the Subic Special Economic Zone to the office of
the President. Thereafter, the President of the Philippines shall issue a proclamation defining the metes and bounds of
the Zone as provided herein.

Subsequently, the aforesaid sanggunians submitted their respective resolutions of concurrence and the President
issued Presidential Proclamation No. 532, Series of 1995, defining the metes and bounds of the SSEZ.

In Executive Secretary v. Southwing Heavy Industries, Inc., 222 we described the concept of SSEZ as a
Freeport:chanroblesvirtuallawlibrary
The Freeport was designed to ensure free flow or movement of goods and capital within a portion of the Philippine
territory in order to attract investors to invest their capital in a business climate with the least governmental
intervention. The concept of this zone was explained by Senator Guingona in this wise:chanroblesvirtuallawlibrary
Senator Guingona. Mr. President, the special economic zone is successful in many places, particularly Hong Kong, which
is a free port. The difference between a special economic zone and an industrial estate is simply expansive in the sense
that the commercial activities, including the establishment of banks, services, financial institutions, agro-industrial
activities, maybe agriculture to a certain extent.

This delineates the activities that would have the least of government intervention, and the running of the affairs of
the special economic zone would be run principally by the investors themselves, similar to a housing subdivision,
where the subdivision owners elect their representatives to run the affairs of the subdivision, to set the policies, to
set the guidelines.

We would like to see Subic area converted into a little Hong Kong, Mr. President, where there is a hub of free port
and free entry, free duties and activities to a maximum spur generation of investment and jobs.

While the investor is reluctant to come in the Philippines, as a rule, because of red tape and perceived delays, we
envision this special economic zone to be an area where there will be minimum government interference.

The initial outlay may not only come from the Government or the Authority as envisioned here, but from them
themselves, because they would be encouraged to invest not only for the land but also for the buildings and factories.
As long as they are convinced that in such an area they can do business and reap reasonable profits, then many from
other parts, both local and foreign, would invest, Mr. President. 223(Emphasis in the original)

To achieve the above-mentioned purposes, the law created SBMA to administer the SSEZ. In the process, SBMA was
granted broad and enormous powers as provided for under Section 13(b) of RA 7227:chanroblesvirtuallawlibrary
Sec. 13. The Subic Bay Metropolitan Authority.

xxxx

(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay Metropolitan Authority, otherwise
known as the Subic Authority, shall have the following powers and function:

(1) To operate, administer, manage and develop the ship repair and ship building facility, container port, oil storage and
refueling facility and Cubi Air Base within the Subic Special Economic and Free-port Zone as a free market in accordance
with the policies set forth in Section 12 of this Act;

(2) To accept any local or foreign investment, business or enterprise, subject only to such rules and regulations to be
promulgated by the Subic Authority in conformity with the policies of the Conversion Authority without prejudice to the
nationalization requirements provided for in the Constitution;

(3) To undertake and regulate the establishment, operation and maintenance of utilities, other services and
infrastructure in the Subic Special Economic Zone including shipping and related business, stevedoring and port
terminal services or concessions, incidental thereto and airport operations in coordination with the Civil Aeronautics
Board, and to fix just and reasonable rates, fares charges and other prices therefor;

(4) To construct, acquire, own, lease, operate and maintain on its own or through contract, franchise, license permits
bulk purchase from the private sector and build-operate transfer scheme or joint-venture the required utilities and
infrastructure in coordination with local government units and appropriate government agencies concerned and in
conformity with existing applicable laws therefor;

(5) To adopt, alter and use a corporate seal; to contract, lease, sell, dispose, acquire and own properties; to sue and be
sued in order to carry out its duties and functions as provided for in this Act and to exercise the power of eminent
domain for public use and public purpose;

(6) Within the limitation provided by law, to raise and/or borrow the necessary funds from local and international
financial institutions and to issue bonds, promissory notes and other securities for that purpose and to secure the same
by guarantee, pledge, mortgage deed of trust, or assignment of its properties held by the Subic Authority for the
purpose of financing its projects and programs within the framework and limitation of this Act;

(7) To operate directly or indirectly or license tourism related activities subject to priorities and standards set by the
Subic Authority including games and amusements, except horse racing, dog racing and casino gambling which shall
continue to be licensed by the Philippine Amusement and Gaming Corporation (PAGCOR) upon recommendation of the
Conversion Authority; to maintain and preserve the forested areas as a national park;

(8) To authorize the establishment of appropriate educational and medical institutions;

(9) To protect, maintain and develop the virgin forests within the baselands, which will be proclaimed as a national park
and subject to a permanent total log ban, and for this purpose, the rules and regulations of the Department of
Environment and Natural Resources and other government agencies directly involved in the above functions shall be
implemented by the Subic Authority;

(10) To adopt and implement measures and standards for environmental pollution control of all areas within its
territory, including but not limited to all bodies of water and to enforce the same. For which purpose the Subic
Authority shall create an Ecology Center; and

(11) To exercise such powers as may be essential, necessary or incidental to the powers granted to it hereunder as well
as to carry out the policies and objectives of this Act. (Emphasis supplied)

The Implementing Rules of RA 7227 further provide:chanroblesvirtuallawlibrary

Sec. 11. Responsibilities of the SBMA. Other than the powers and functions prescribed in Section 10 of these Rules, the
SBMA shall have the following responsibilities:

(a) The SBMA shall exercise authority and jurisdiction over all economic activity within the
SBF224chanRoblesvirtualLawlibrary

xxxx

(f) Consistent with the Constitution, the SBMA shall have the following powers to enforce the law and these Rules in the
SBF:

xxxx

(8) to issue, alter, modify, suspend or revoke for cause, any permit, certificate, license, visa or privilege allowed under
the Act or these Rules;

xxxx

(11) to promulgate such other rules, regulations and circulars as may be necessary, proper or incidental to carry out the
policies and objectives of the Act, these Rules, as well as the powers and duties of the SBMA thereunder. 225

As can be seen, the SBMA was given broad administrative powers over the SSEZ and these necessarily include the
power to approve or disapprove the subject project, which is within its territorial jurisdiction. But, as previously
discussed, the LGC grants the concerned sanggunians the power to approve and disapprove this same project. The
SBMA asserts that its approval of the project prevails over the apparent disapproval of the concerned sanggunians.
There is, therefore, a real clash between the powers granted under these two laws.

Which shall prevail?

Section 12 of RA 7227 provides:ChanRoblesVirtualawlibrary

Sec. 12. Subic Special Economic Zone. x x x

The abovementioned zone shall be subjected to the following policies:

(a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions
of the Local Government Code, the Subic Special Economic Zone shall be developed into a self-sustaining, industrial,
commercial, financial and investment center to generate employment opportunities in and around the zone and to
attract and promote productive foreign investments;

xxxx

(i) Except as herein provided, the local government units comprising the Subic Special Economic Zone shall retain their
basic autonomy and identity. The cities shall be governed by their respective charters and the municipalities shall
operate and function in accordance with Republic Act No. 7160, otherwise known as the Local Government Code of
1991. (Emphasis supplied)

This section sets out the basic policies underlying the creation of the SSEZ. Indeed, as noted by the appellate court,
Section 12(i) expressly recognizes the basic autonomy and identity of the LGUs comprising the SSEZ. However, the
clause [e]xcept as herein provided unambiguously provides that the LGUs do not retain their basic autonomy and
identity when it comes to matters specified by the law as falling under the powers, functions and prerogatives of the
SBMA.

In the case at bar, we find that the power to approve or disapprove projects within the SSEZ is one such power over
which the SBMAs authority prevails over the LGUs autonomy. Hence, there is no need for the SBMA to secure the
approval of the concerned sanggunians prior to the implementation of the subject project.

This interpretation is based on the broad grant of powers to the SBMA over all administrative matters relating to the
SSEZ under Section 13 of RA 7227, as afore-discussed. Equally important, under Section 14, other than those involving
defense and security, the SBMAs decision prevails in case of conflict between the SBMA and the LGUs in all matters
concerning the SSEZ, viz.:chanroblesvirtuallawlibrary
Sec. 14. Relationship with the Conversion Authority and the Local Government Units.

(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic Authority shall
exercise administrative powers, rule-making and disbursement of funds over the Subic Special Economic Zone in
conformity with the oversight function of the Conversion Authority.

(b) In case of conflict between the Subic Authority and the local government units concerned on matters affecting the
Subic Special Economic Zone other than defense and security, the decision of the Subic Authority shall prevail.
(Emphasis supplied)

Clearly, the subject project does not involve defense or security, but rather business and investment to further the
development of the SSEZ. Such is in line with the objective of RA 7227 to develop the SSEZ into a self-sustaining
industrial, commercial, financial and investment center. Hence, the decision of the SBMA would prevail over the
apparent objections of the concerned sanggunians of the LGUs.

Significantly, the legislative deliberations on RA 7227, likewise, support and confirm the foregoing interpretation. As
earlier noted, Section 13 b(4) of RA 7227 provides:chanroblesvirtuallawlibrary
Sec. 13. The Subic Bay Metropolitan Authority.

xxxx

(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay Metropolitan Authority, otherwise
known as the Subic Authority, shall have the following powers and function:

xxxx

(4) To construct, acquire, own, lease, operate and maintain on its own or through contract, franchise, license permits
bulk purchase from the private sector and build-operate transfer scheme or joint-venture the required utilities and
infrastructure in coordination with local government units and appropriate government agencies concerned and in
conformity with existing applicable laws therefor;

In the Senate, during the period of amendments, when the provision which would eventually become the afore-quoted
Section 13 b(4) of RA 7227 was under consideration, the following exchanges took place:chanroblesvirtuallawlibrary
Senator Laurel. Mr. President.

The President. Senator Laurel is recognized.

Senator Laurel. Relative to line 27 up to line 31 of page 16, regarding the provision to the effect that the Authority will
have the following functions: to construct, acquire, own, etcetera, that is all right.

My motion is that we amend this particular line, starting from the word structures, by deleting the words that follow
on line 31, which states: in coordination with local government units and, and substitute the following in place of
those words: SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS AND
IN COORDINATION WITH.

So, this paragraph will read, as follows: to construct, own, lease, operate, and maintain on its own or through contract,
franchise, license permits, bulk purchase from the private sector and build-operate-transfer scheme or joint venture the
required utilities and infrastructure SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL
GOVERNMENT UNITS AND IN coordination with appropriate government agencies concerned and in conformity with
existing applicable laws therefor.

The President. What does the Sponsor say?

Senator Shahani. I believe this would cripple the Authority. I would like to remind our Colleagues that in the Board of
Directors, the representatives of the local government units that agree to join with the Subic Special Economic Zone
will be members of the Board so that they will have a say, Mr. President. But if we say subject, that is a very strong
word. It really means that they will be the ones to determine the policy.

So, I am afraid that I cannot accept this amendment, Mr. President.

Senator Laurel. May I respond or react, Mr. President.

The President. Yes.

Senator Laurel. The Constitution is there, very categorical in the promotion and encouragement of local autonomy, and
mandating Congress to enact the necessary Local Government Code with emphasis on local autonomy.

We have now Section 27 of the new Local Government Code which actually provides that for every project in any local
government territory, the conformity or concurrence of the Sanggunian of every such local government unit shall be
secured in the form of resolutionthe consent of the Sanggunian.

The President. Well, both sides have already been heard. There is the Laurel amendment that would make the power of
the Subic Bay Metropolitan Authority to construct, acquire, own, lease, operate and maintain on its own or through
contract, franchise, license, permits, bulk purchases from private sector, build-operate-and-transfer scheme, or joint
venture, the required utilities and infrastructure, subject to approval by the appropriate Sanggunian of the local
government concerned.

This amendment to the amendment has been rejected by the Sponsor. So, we are voting now on this amendment.

As many as are in favor of the Laurel amendment, say Aye. (Few Senators: Aye.)

Those who are against the said amendment, say Nay. (Several Senators: Nay.)

Senator Laurel. Mr. President, may I ask for a nominal voting.

The President. A nominal voting should be upon the request of one-fifth of the Members of the House, but we can
accommodate the Gentleman by asking for a division of the House.

Therefore, those in favor of the Laurel amendment, please raise their right hands. (Few Senators raised their right
hands.)

Senator Laurel. I was asking, Mr. President, for a nominal voting.

The President. A nominal voting can be had only upon motion of one-fifth of the Members of the Body.

Senator Laurel. That is correct, Mr. President. But this is such an important issue being presented to us, because this
question is related to the other important issue, which is: May an elected public official of a particular government unit,
such as a town or municipality, participate as a member of the Board of Directors of this particular zone.

The President. The ruling of the Chair stands. The division of the House is hereby directed.

As many as are in favor of the Laurel amendment, please raised (sic) their right hands. (Few Senators raised their right
hands.)

As many as are against the said amendment, please do likewise. (Several Senators raised their right hands.)

The amendment is lost.226 (Emphasis supplied)

Indubitably, the legislature rejected the attempts to engraft Section 27s prior approval of the
concerned sanggunian requirement under the LGC into RA 7227. Hence, the clear intent was to do away with the
approval requirement of the concerned sanggunians relative to the power of the SBMA to approve or disapprove a
project within the SSEZ.

The power to create the SSEZ is expressly recognized in Section 117 of the LGC, viz.:chanroblesvirtuallawlibrary
TITLE VIII.
Autonomous Special Economic Zones

SECTION 117. Establishment of Autonomous Special Economic Zones. The establishment by law of autonomous
special economic zones in selected areas of the country shall be subject to concurrence by the local government units
included therein.

When the concerned sanggunians opted to join the SSEZ, they were, thus, fully aware that this would lead to some
diminution of their local autonomy in order to gain the benefits and privileges of being a part of the SSEZ.

Further, the point of Senator Shahani that the representation of the concerned LGUs in the Board of Directors will
compensate for the diminution of their local autonomy and allow them to be represented in the decision-making of the
SBMA is not lost on us. This is expressly provided for in Section 13(c) of RA 7227, viz:chanroblesvirtuallawlibrary
SECTION 13. The Subic Bay Metropolitan Authority.

xxxx

(c) Board of Directors. The powers of the Subic Authority shall be vested in and exercised by a Board of Directors,
hereinafter referred to as the Board, which shall be composed of fifteen (15) members, to wit:

(1) Representatives of the local government units that concur to join the Subic Special Economic Zone;

(2) Two (2) representatives from the National Government;

(3) Five (5) representatives from the private sector coming from the present naval stations, public works center, ship
repair facility, naval supply depot and naval air station; and

(4) The remaining balance to complete the Board shall be composed of representatives from the business and
investment sectors. (Emphasis supplied)

SBMAs undisputed claim is that, during the board meeting when the subject project was approved, except for one, all
the representatives of the concerned LGUs were present and voted to approve the subject project. 227 Verily, the
wisdom of the law creating the SSEZ; the wisdom of the choice of the concerned LGUs to join the SSEZ; and the wisdom
of the mechanism of representation of the concerned LGUs in the decision-making process of the SBMA are matters
outside the scope of the power of judicial review. We can only interpret and apply the law as we find it.

In sum, we find that the implementation of the project is not subject to the prior approval of the
concerned sanggunians, under Section 27 of the LGC, and the SBMAs decision to approve the project prevails over the
apparent objections of the concerned sanggunians of the LGUs, by virtue of the clear provisions of RA 7227. Thus, there
was no infirmity when the LDA was entered into between SBMA and RP Energy despite the lack of approval of the
concerned sanggunians.cralawred
VII.

Whether the validity of the third amendment to the ECC can be resolved by the Court.
The Casio Group argues that the validity of the third amendment should have been resolved by the appellate court
because it is covered by the broad issues set during the preliminary conference.

RP Energy counters that this issue cannot be resolved because it was expressly excluded during the preliminary
conference.

The appellate court sustained the position of RP Energy and ruled that this issue was not included in the preliminary
conference so that it cannot be resolved without violating the right to due process of RP Energy.

We agree with the appellate court.

Indeed, the issue of the validity of the third amendment to the ECC was not part of the issues set during the preliminary
conference, as it appears at that time that the application for the third amendment was still ongoing. The following
clarificatory questions during the aforesaid conference confirm this, viz.:chanroblesvirtuallawlibrary
J. LEAGOGO:
So what are you questioning in your Petition?

ATTY. RIDON:
We are questioning the validity of the amendment, Your Honor.

J. LEAGOGO:
Which amendment?

ATTY. RIDON:
From 2 x 150 to 1 x 300, Your Honor.

J. LEAGOGO:
Your Petition does not involve the 2 x 300 which is still pending with the DENR. Because you still have remedies there,
you can make your noise there, you can question it to your heart[]s content because it is still pending

xxxx

J. LEAGOGO:
Atty. Ridon, I go back to my question. Were not yet talking of the legal points here. Im just talking of what are you
questioning. You are questioning the 1 x 300?

ATTY. RIDON:
Yes, Your Honor.

J. LEAGOGO:
Because it was 2 x 150 and then 1 x 300?

ATTY. RIDON:
Yes, Your Honor.

J. LEAGOGO:
Up to that point?

ATTY. RIDON:
Yes, Your Honor.

J. LEAGOGO:
Because there is no amended ECC yet for the 2 x 300 or 600. Thats clear enough for all of us.

ATTY. RIDON:
Yes, Your Honor.228

Given the invocation of the right to due process by RP Energy, we must sustain the appellate courts finding that the
issue as to the validity of the third amendment cannot be adjudicated in this case.

Refutation of the Partial Dissent.

Justice Leonen partially dissents from the foregoing disposition on the following grounds:

(a) Environmental cases, such as a petition for a writ of kalikasan, should not, in general, be litigated via a
representative, citizen or class suit because of the danger of misrepresenting the interests and thus, barring future
action due to res judicata of those not actually present in the prosecution of the case, either because they do not yet
exist, like the unborn generations, or because the parties bringing suit do not accurately represent the interests of the
group they represent or the class to which they belong. As an exception, such representative, citizen or class suit may
be allowed subject to certain conditions; and

(b) The amendments to the ECC, granted by the DENR in favor of RP Energy, are void for failure to submit a new EIS in
support of the applications for these amendments to the subject ECC, and a petition for writ of kalikasan is not the
proper remedy to raise a defect in the ECC.

We disagree.cralawred
A.

Justice Leonens proposition that environmental cases should not, in general, be litigated via a representative, citizen or
class suit is both novel and ground-breaking. However, it is inappropriate to resolve such an important issue in this
case, in view of the requisites for the exercise of our power of judicial review, because the matter was not raised by the
parties so that the issue was not squarely tackled and fully ventilated. The proposition will entail, as Justice Leonen
explains, an abandonment or, at least, a modification of our ruling in the landmark case of Oposa v. Factoran.229 It will
also require an amendment or a modification of Section 5 (on citizen suits), Rule 2 of the Rules of Procedure for
Environmental Cases. Hence, it is more appropriate to await a case where such issues and arguments are properly
raised by the parties for the consideration of the Court.cralawred
B.

Justice Leonen reasons that the amendments to the subject ECC are void because the applications therefor were
unsupported by an EIS, as required by PD 1151 and PD 1586. The claim is made that an EIS is required by law, even if
the amendment to the ECC is minor, because an EIS is necessary to determine the environmental impact of the
proposed modifications to the original project design. The DENR rules, therefore, which permit the modification of the
original project design without the requisite EIS, are void for violating PD 1151 and PD 1586.

We disagree.

Indeed, Section 4 of PD 1151 sets out the basic policy of requiring an EIS in every action, project or undertaking that
significantly affects the quality of the environment, viz:chanroblesvirtuallawlibrary
SECTION 4. Environmental Impact Statements. Pursuant to the above enunciated policies and goals, all agencies and
instrumentalities of the national government, including government-owned or -controlled corporations, as well as
private corporations, firms and entities shall prepare, file and include in every action, project or undertaking which
significantly affects the quality of the environment a detailed statement on

(a) the environmental impact of the proposed action, project or undertaking;

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance
and enhancement of the long-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or non-renewable resources, a finding must be made that such
use and commitment are warranted.

Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over, or special
expertise on, the subject matter involved shall comment on the draft environmental impact statement made by the
lead agency within thirty (30) days from receipt of the same. (Emphasis supplied)

As earlier stated, the EIS was subsequently developed and strengthened through PD 1586 which established the
Philippine Environmental Impact Statement System. Sections 4 and 5 of PD 1586 provide:chanroblesvirtuallawlibrary
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the Philippines
may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation
declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or
corporation shall undertake or operate any such declared environmentally critical project or area without first
securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For
the proper management of said critical project or area, the President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or instrumentalities including the re-alignment of government
personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or water use
pattern for said critical project(s) or area(s); (b) establish ambient environmental quality standards; (c) develop a
program of environmental enhancement or protective measures against calamituous factors such as earthquake,
floods, water erosion and others, and (d) perform such other functions as may be directed by the President from time
to time.

SECTION 5. Environmentally Non-Critical Projects. All other projects, undertakings and areas not declared by the
President as environmentally critical shall be considered as non-critical and shall not be required to submit an
environmental impact statement. The National Environmental Protection Council, thru the Ministry of Human
Settlements may however require non-critical projects and undertakings to provide additional environmental
safeguards as it may deem necessary. (Emphasis supplied)

These laws were, in turn, implemented by DAO 2003-30 and the Revised Manual.

As correctly noted by Justice Leonen, Presidential Proclamation No. 2146 was subsequently issued which, among
others, classified fossil-fueled power plants as environmentally critical projects.

In conformity with the above-quoted laws and their implementing issuances, the subject project, a coal power plant,
was classified by the DENR as an environmentally critical project, new and single. Hence, RP Energy was required to
submit an EIS in support of its application for an ECC. RP Energy thereafter complied with the EIS requirement and the
DENR, after review, evaluation and compliance with the other steps provided in its rules, issued an ECC in favor of RP
Energy. As can be seen, the EIS requirement was duly complied with.

Anent Justice Leonens argument that the subsequent amendments to the ECC were void for failure to prepare and
submit a new EIS relative to these amendments, it is important to note that PD 1586 does not state the procedure to be
followed when there is an application for an amendment to a previously issued ECC. There is nothing in PD 1586 which
expressly requires an EIS for an amendment to an ECC.

In footnote 174 of the ponencia, it is stated:chanroblesvirtuallawlibrary

Parenthetically, we must mention that the validity of the rules providing for amendments to the ECC was challenged by
the Casio Group on the ground that it is ultra vires before the appellate court. It argued that the laws governing the
ECC do not expressly permit the amendment of an ECC. However, the appellate court correctly ruled that the validity of
the rules cannot be collaterally attacked. Besides, the power of the DENR to issue rules on amendments of an ECC is
sanctioned under the doctrine of necessary implication. Considering that the greater power to deny or grant an ECC is
vested by law in the President or his authorized representative, the DENR, there is no obstacle to the exercise of the
lesser or implied power to amend the ECC for justifiable reasons. This issue was no longer raised before this Court and,
thus, we no longer tackle the same here.

Because PD 1586 did not expressly provide the procedure to be followed in case of an application for an amendment to
a previously issued ECC, the DENR exercised its discretion, pursuant to its delegated authority to implement this law, in
issuing DAO 2003-30 and the Revised Manual.

Justice Leonens argument effectively challenges the validity of the provisions in DAO 2003-30 and the Revised Manual
relative to amendments to an ECC for being contrary to PD 1151 and 1586.

We disagree.

First, to repeat, there is nothing in PD 1586 which expressly requires an EIS for an amendment to an ECC.

Second, as earlier noted, the proposition would constitute a collateral attack on the validity of DAO 2003-30 and the
Revised Manual, which is not allowed under the premises. The Casio Group itself has abandoned this claim before this
Court so that the issue is not properly before this Court for its resolution.

Third, assuming that a collateral attack on the validity of DAO 2003-30 and the Revised Manual can be allowed in this
case, the rules on amendments appear to be reasonable, absent a showing of grave abuse of discretion or patent
illegality.

Essentially, the rules take into consideration the nature of the amendment in determining the proper Environmental
Impact Assessment (EIA) document type that the project proponent will submit in support of its application for an
amendment to its previously issued ECC. A minor amendment will require a less detailed EIA document type, like a
Project Description Report (PDR), while a major amendment will require a more detailed EIA document type, like an
Environmental Performance Report and Management Plan (EPRMP) or even an EIS. 230chanRoblesvirtualLawlibrary
The rules appear to be based on the premise that it would be unduly burdensome or impractical to require a project
proponent to submit a detailed EIA document type, like an EIS, for amendments that, upon preliminary evaluation by
the DENR, will not cause significant environmental impact. In particular, as applied to the subject project, the DENR
effectively determined that it is impractical to require RP Energy to, in a manner of speaking, start from scratch by
submitting a new EIS in support of its application for the first amendment to its previously issued ECC, considering that
the existing EIS may be supplemented by an EPRMP to adequately evaluate the environmental impact of the proposed
modifications under the first amendment. The same reasoning may be applied to the PDR relative to the second
amendment.

As previously discussed, the Casio Group failed to prove that the EPRMP and PDR were inadequate to assess the
environmental impact of the planned modifications under the first and second amendments, respectively. On the
contrary, the EPRMP and PDR appeared to contain the details of the planned modifications and the corresponding
adjustments to be made in the environmental management plan or mitigating measures in order to address the
potential impacts of these planned modifications. Hence, absent sufficient proof, there is no basis to conclude that the
procedure adopted by the DENR was done with grave abuse of discretion.

Justice Leonens proposition would effectively impose a stringent requirement of an EIS for each and every proposed
amendment to an ECC, no matter how minor the amendment may be. While this requirement would seem ideal, in
order to ensure that the environmental impact of the proposed amendment is fully taken into consideration, the
pertinent laws do not, however, expressly require that such a procedure be followed. As already discussed, the DENR
appear to have reasonably issued DAO 2003-30 and the Revised Manual relative to the amendment process of an ECC,
by balancing practicality vis--vis the need for sufficient information in determining the environmental impact of the
proposed amendment to an ECC. In fine, the Court cannot invalidate the rules which appear to be reasonable, absent a
showing of grave abuse of discretion or patent illegality.

We next tackle Justice Leonens argument that a petition for certiorari, and not a writ of kalikasan, is the proper
remedy to question a defect in an ECC.

In general, the proper procedure to question a defect in an ECC is to follow the appeal process provided in DAO 2003-
30 and the Revised Manual. After complying with the proper administrative appeal process, recourse may be made to
the courts in accordance with the doctrine of exhaustion of administrative remedies. However, as earlier discussed, in
exceptional cases, a writ of kalikasan may be availed of to challenge defects in the ECC provided that (1) the defects are
causally linked or reasonably connected to an environmental damage of the nature and magnitude contemplated under
the Rules on Writ of kalikasan, and (2) the case does not violate, or falls under an exception to, the doctrine of
exhaustion of administrative remedies and/or primary jurisdiction.

As previously discussed, in the case at bar, only the allegation with respect to the lack of an EIA relative to the first and
second amendments to the subject ECC may be reasonably connected to such an environmental damage. Further,
given the extreme urgency of resolving the issue due to the looming power crisis, this case may be considered as falling
under an exception to the doctrine of exhaustion of administrative remedies. Thus, the aforesaid issue may be
conceivably resolved in a writ of kalikasan case.

More importantly, we have expressly ruled that this case is an exceptional case due to the looming power crisis, so that
the rules of procedure may be suspended in order to address issues which, ordinarily, the Court would not consider
proper in a writ of kalikasan case. Hence, all issues, including those not proper in a writ of kalikasan case, were resolved
here in order to forestall another round of protracted litigation relative to the implementation of the subject project.

Conclusion

We now summarize our findings:

1. The appellate court correctly ruled that the Casio Group failed to substantiate its claims that the construction and
operation of the power plant will cause environmental damage of the magnitude contemplated under the writ
of kalikasan. On the other hand, RP Energy presented evidence to establish that the subject project will not cause grave
environmental damage, through its Environmental Management Plan, which will ensure that the project will operate
within the limits of existing environmental laws and standards;

2. The appellate court erred when it invalidated the ECC on the ground of lack of signature of Mr. Aboitiz in the ECCs
Statement of Accountability relative to the copy of the ECC submitted by RP Energy to the appellate court. While the
signature is necessary for the validity of the ECC, the particular circumstances of this case show that the DENR and RP
Energy were not properly apprised of the issue of lack of signature in order for them to present controverting evidence
and arguments on this point, as the issue only arose during the course of the proceedings upon clarificatory questions
 from the appellate court. Consequently, RP Energy cannot be faulted for submitting the certified true copy of the ECC
only after it learned that the ECC had been invalidated on the ground of lack of signature in the January 30, 2013
Decision of the appellate court. The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement
of Accountability portion, was issued by the DENR-EMB, and remains uncontroverted. It showed that the Statement of
Accountability was signed by Mr. Aboitiz on December 24, 2008. Because the signing was done after the official release
of the ECC on December 22, 2008, we note that the DENR did not strictly follow its rules, which require that the signing
of the Statement of Accountability should be done before the official release of the ECC. However, considering that the
issue was not adequately argued nor was evidence presented before the appellate court on the circumstances at the
time of signing, there is insufficient basis to conclude that the procedure adopted by the DENR was tainted with bad
faith or inexcusable negligence. We remind the DENR, however, to be more circumspect in following its rules. Thus, we
rule that the signature requirement was substantially complied with pro hac vice.

3. The appellate court erred when it ruled that the first and second amendments to the ECC were invalid for failure to
comply with a new EIA and for violating DAO 2003-30 and the Revised Manual. It failed to properly consider the
applicable provisions in DAO 2003-30 and the Revised Manual for amendment to ECCs. Our own examination of the
provisions on amendments to ECCs in DAO 2003-30 and the Revised Manual, as well as the EPRMP and PDR
themselves, shows that the DENR reasonably exercised its discretion in requiring an EPRMP and a PDR for the first and
second amendments, respectively. Through these documents, which the DENR reviewed, a new EIA was conducted
relative to the proposed project modifications. Hence, absent sufficient showing of grave abuse of discretion or patent
illegality, relative to both the procedure and substance of the amendment process, we uphold the validity of these
amendments;

4. The appellate court erred when it invalidated the ECC for failure to comply with Section 59 of the IPRA Law. The ECC
is not the license or permit contemplated under Section 59 of the IPRA Law and its implementing rules. Hence, there is
no necessity to secure the CNO under Section 59 before an ECC may be issued, and the issuance of the subject ECC
without first securing the aforesaid certification does not render it invalid;

5. The appellate court erred when it invalidated the LDA between SBMA and RP Energy for failure to comply with
Section 59 of the IPRA Law. While we find that a CNO should have been secured prior to the consummation of the LDA
between SBMA and RP Energy, considering that this is the first time we lay down the rule of action appropriate to the
application of Section 59, we refrain from invalidating the LDA for reasons of equity;

6. The appellate court erred when it ruled that compliance with Section 27, in relation to Section 26, of the LGC
(i.e., approval of the concerned sanggunian requirement) is necessary prior to issuance of the subject ECC. The issuance
of an ECC does not, by itself, result in the implementation of the project. Hence, there is no necessity to secure prior
compliance with the approval of the concerned sanggunian requirement, and the issuance of the subject ECC without
first complying with the aforesaid requirement does not render it invalid. The appellate court also erred when it ruled
that compliance with the aforesaid requirement is necessary prior to the consummation of the LDA. By virtue of the
clear provisions of RA 7227, the project is not subject to the aforesaid requirement and the SBMAs decision to approve
the project prevails over the apparent objections of the concerned sanggunians. Thus, the LDA entered into between
SBMA and RP Energy suffers from no infirmity despite the lack of approval of the concerned sanggunians; and

7. The appellate court correctly ruled that the issue as to the validity of the third amendment to the ECC cannot be
resolved in this case because it was not one of the issues set during the preliminary conference, and would, thus,
violate RP Energys right to due process.chanrobleslaw

WHEREFORE, the Court resolves to:

1. DENY the Petition in G.R. No. 207282; and
2. GRANT the Petitions in G.R. Nos. 207257, 207366 and 207276:
2.1. The January 30, 2013 Decision and May 22, 2013 Resolution of the Court of Appeals in CA-G.R. SP
No. 00015 are reversed and set aside;
2.2. The Petition for Writ of kalikasan, docketed as CA-G.R. SP No. 00015, is denied for insufficiency of
evidence;
2.3. The validity of the December 22, 2008 Environmental Compliance Certificate, as well as the July
8, 2010 first amendment and the May 26, 2011 second amendment thereto, issued by the
Department of Environment and Natural Resources in favor of Redondo Peninsula Energy, Inc.,
are upheld; and
2.4. The validity of the June 8, 2010 Lease and Development Agreement between Subic Bay
Metropolitan Authority and Redondo Peninsula Energy, Inc. is upheld.

SO ORDERED.cralawlawlibrary
concurring and dissenting opinion.
Jardeleza, J., no part.
Endnotes:

1
rollo (G.R. No. 207257), pp. 122-153; rollo (G.R. No. 207276), Volume I, pp. 13-105; rollo (G.R. 207282), pp. 2-50;
and rollo (G.R. No. 207366), pp. 117-149.
2
rollo (G.R. No. 207257), pp. 158-258; penned by Associate Justice Celia C. Librea-Leagogo and concurred in by
Associate Justices Franchito N. Diamante and Melchor Quirino C. Sadang.
3
Id. at 259-266.
4
The Bases Conversion and Development Act of 1992.
5
rollo (G.R. No. 207257), p. 210.
6
Id.
41
Peoples Recovery Empowerment and Development Assistance
42
rollo (G.R. No. 207257), p. 175.

77
rollo (G.R. No. 207282), p. 26.

105
Rule 7, Part III, Rules of Procedure for Environmental Cases

106
A.M. No. 09-6-8-SC dated April 13, 2010

107
ARTICLE VIII, Section 5(5) of the Constitution provides:

Section 5. The Supreme Court shall have the following powers:

xxxx

5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

108
Article II, Section 16, Constitution.

109
The Rationale and Annotation to the Rules of Procedure for Environmental Cases issued by the Supreme Court
[hereafter Annotation], p. 133.

110
Annotation, p. 78.

111
Annotation, p. 78-79.

112
Annotation, p. 139.

113
Rollo (G.R. 207282), pp. 2-50.

114
See Rule 43, Rules of Court.

115
See Bangus Fry Fisherfolk v. Lanzanas, 453 Phil. 479, 494 (2003).

116
It should be noted that the Rules on the Writ of kalikasan were promulgated with due regard to the doctrine of
exhaustion of administrative remedies and primary jurisdiction. (Annotation, p. 100).

117
Boracay Foundation v. The Province of Aklan, G.R. No. 196870, June 26, 2012, 674 SCRA 555, 604.

118
Annotation, p. 140.

119
CA rollo, Volume I, pp. 41-47.

120
Referred to as the Casio Group in this case.

121
rollo (G.R. No. 207257), pp. 241-245.
122
rollo (G.R. No. 207276), Volume I, p. 474.

123
CA rollo, Volume XVI, pp. 5856-5857.

124
TSN, December 12, 2012, pp. 179-186.

125
RA 8749 entitled An Act Providing for a Comprehensive Air Pollution Control Policy and for Other Purposes; also
known as The Philippine Clean Air Act of 1999.

126
Refers to ground level concentrations.

127
rollo (G.R. No. 207276), Volume I, p. 475.

128
TSN, December 5, 2012, pp. 162-164, 169.

129
CA rollo, Volume XV, pp. 5763-5765.

130
CA rollo, Volume XVI, p. 5857.

131
rollo (G.R. No. 207282), pp. 342-343.

132
TSN, December 12, 2012, pp. 171-174.

133
CA rollo, Volume XVI, p. 5859.

134
TSN, December 12, 2012, pp. 141-148.

135
Section 3(l), DAO 2003-30.

136
Salomon v. Intermediate Appellate Court, 263 Phil. 1068, 1077 (1990).

137
The appellate court noted, thus:

However, while the CFB technology appears to be a better choice compared with the traditional technology for
operating power plants, it cannot be declared, at this point in time, that the CFB technology to be used by RP Energy in
its Power Plant project will not cause any environmental damage or harm. Sarkki, who is one of the members of the
team that developed the CFB technology and an employee of Foster Wheeler (manufacturer of the CFB boilers)
testified that: it depends on the kind of coal and the technology to be used in burning the coal; semirara coal is known
to have very high fouling characteristics and it was not in the interest of RP Energy to utilize said coal; and high fouling
means ash is melting in low temperature and collected on its surfaces and making it impossible to continue the
operation of a boiler; RP Energy has not yet ordered any CFB boiler from Foster Wheeler, and manufacturing has not
started because there is no finalized contract; and RP Energy is still finalizing its coal contract. Wong testified that he
was not shown any coal supply agreement. Ouano testified that, per report, there are no coal and equipment supply
agreements yet and that he recommended to RP Energy the Indonesian coal because it has much lower volatile matter
and it is better than semirara coal. Mercado also testified that she did not see any coal supply agreement with a
supplier. Evangelista testified that RP Energy already selected Foster Wheeler as the supplier for the Power Plant
project's boiler but there is no purchase agreement yet in connection with the equipment to be used. Thus, since RP
Energy has, as yet, no equipment purchase agreement in connection with its proposed CFB Coal-Fired Power Plant
project nor a coal supply agreement that comply with the recommendations of the various engineers on CFB
technology, there is no scientific certainty of its environmental effect. [rollo (G.R. No. 207257), pp. 245-246]

138
CA rollo, Volume I, pp. 127-129.

139
Id. at 131-132.

140
SEC. 6. Failure to settle. - If there is no full settlement, the judge shall:

xxxx

(l) Determine the necessity of engaging the services of a qualified expert as a friend of the court (amicus curiae); x x x

141
SEC. 12. Discovery Measures. A party may file a verified motion for the following reliefs:
(a) Ocular Inspection; order The motion must show that an ocular inspection order is necessary to establish the
magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities
or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses
having personal knowledge of the violation or threatened violation of environmental law.

After hearing, the court may order any person in possession or control of a designated land or other property to permit
entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. The
order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of
making the inspection and may prescribe other conditions to protect the constitutional rights of all parties.

(b) Production or inspection of documents or things; order The motion must show that a production order is
necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of
inhabitants in two or more cities or provinces.

After hearing, the court may order any person in possession, custody or control of any designated documents, papers,
books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which
constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or
photographing by or on behalf of the movant.

The production order shall specify the person or persons authorized to make the production and the date, time, place
and manner of making the inspection or production and may prescribe other conditions to protect the constitutional
rights of all parties.

142
Annotation, p. 80.

143
Environmental Performance Report and Management Plan.

144
rollo (G.R. 207282), pp. 21-22.

145
CA rollo, Volume III, p. 847.

146
Id.

147
TSN, October 29, 2012, p. 82; see also issues for the Casio Group in preliminary conference.

148
In its Resolution dated July 23, 2013, the Court required the adverse parties to comment within ten days from notice
on the separate Petitions for Review on Certiorari in G.R. Nos. 207257, 207276, 207282 and 207366. Then in its
Resolution dated April 1, 2014, the Court resolved to, among others, dispense with the filing of the comment of
respondents Casio, et al. (Casio Group) in G.R. No. 207276. Additionally, the Court, among others, noted in its
Resolution dated June 10, 2014, SBMAs Manifestation and Motion to Resolve dated May 21, 2014 praying, among
others, that respondents Casio, et al. (Casio Group) be deemed to have waived their right to file their comment with
respect to the Petition for Review on Certiorari dated July 15, 2013 in G.R. No. 207366.

149
As earlier noted, the grounds raised by the Casio Group in its Petition for Writ of kalikasan were limited to whether:
(1) the power plant project would cause grave environmental damage; (2) it would adversely affect the health of the
residents of the municipalities of Subic, Zambales, Morong, Hermosa, and the City of Olongapo; (3) the ECC was issued
and the LDA entered into without the prior approval of the sanggunians concerned as required under Sections 26 and
27 of the Local Government Code (LGC); (4) the LDA was entered into without securing a prior certification from the
NCIP as required under Section 59 of the IPRA Law; (5) Section 8.3 of DAO 2003-30 which allows amendments of ECCs
is ultra vires because the DENR has no authority to decide on requests for amendments of previously issued ECCs in the
absence of a new EIS; and (6) due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP Energys ECC are
null and void.

150
As narrated earlier, the issues set during the preliminary conference were limited to:

I. ISSUES

A. Petitioners (Casio Group)

1. Whether x x x the DENR Environmental Compliance Certificate (ECC x x x) in favor of RP Energy for a 2x150 MW
Coal-Fired Thermal Power Plant Project (Power Plant, x x x) and its amendment to 1x300 MW Power Plant, and the
Lease and Development Agreement between SBMA and RP Energy complied with the Certification Precondition as
required under Section 59 of Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 (IPRA Law, x x x);

2. Whether x x x RP Energy can proceed with the construction and operation of the 1x300 MW Power Plant without
prior consultation with and approval of the concerned local government units (LGUs, x x x), pursuant to Sections 26
and 27 of Republic Act No. 7160 or the Local Government Code;

3. Whether x x x Section 8.3 of DENR Administrative Order No. 2003-30 (DAO No. 2003-30, x x x) providing for the
amendment of an ECC is null and void for being ultra vires; and

4. Whether x x x the amendment of RP Energys ECC under Section 8.3 of DAO No. 2003-30 is null and void.

B. Respondent RP Energy

1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked;

1.1 Whether x x x the same is valid until annulled;

2. Whether x x x petitioners exhausted their administrative remedies with respect to the amended ECC for the 1x300
MW Power Plant;

2.1 Whether x x x the instant Petition is proper;

3. Whether x x x RP Energy complied with all the procedures/requirements for the issuance of the DENR ECC and its
amendment;

3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on Indigenous Peoples is applicable in the
instant case;

4. Whether x x x the LGUs approval under Sections 26 and 27 of the Local Government Code is necessary for the
issuance of the DENR ECC and its amendments, and what constitutes LGU approval;

5. Whether x x x there is a threatened or actual violation of environmental laws to justify the Petition;

5.1 Whether x x x the approved 1x300 MW Power Plant complied with the accepted legal standards on thermal
pollution of coastal waters, air pollution, water pollution, and acid deposits on aquatic and terrestrial ecosystems; and

6. Whether x x x the instant Petition should be dismissed for failure to comply with the requirements of proper
verification and certification of non-forum shopping with respect to some petitioners.

C. Respondent DENR Secretary Paje

1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP Energy requires compliance with
Section 59 of the IPRA Law, as well as Sections 26 and 27 of the Local Government Code;

2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this proceeding; and

3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.

Concededly, the issue as to whether x x x RP Energy complied with all the procedures/ requirements for the issuance
of the DENR ECC and its amendment is broad enough to include the issue of the lack of signature. That this was,
however, contemplated by the parties or the appellate court is negated by the context in which the issue arose, as will
be discussed in what follows.

151
TSN, December 12, 2012, pp. 63-67.

152
See CIVIL CODE, Art. 745 and 749.

153
Revised Procedural Manual for DAO 2003-30 (Revised Manual), p. 15.

154
Philippine Environmental Impact Statement System.

155
Administrative Order.
156
Underline supplied for this sentence.

157
Revised Manual, p. 9 and Glossary, letter h; Section 3(d), Article I, DAO 2003-30.

158
TSN, December 12, 2012, pp. 65-67.

159
CA rollo, Volume XVII, pp. 7010-7011.

160
Section 3 of PD 1151 provides:

SECTION 3. Right to a Healthy Environment. In furtherance of these goals and policies, the Government recognizes
the right of the people to a healthful environment. It shall be the duty and responsibility of each individual to
contribute to the preservation and enhancement of the Philippine environment.

161
Section 4, PD 1151.

162
Section 1, Article I, DAO 2003-30.

163
Section 3(h), Article I,DAO 2003-30.

164
Under Section 3(a), Article I of DAO 2003-30, a CNC is a certification issued by the EMB certifying that, based on the
submitted project description, the project is not covered by the EIS System and is not required to secure an ECC.

165
As distinguished from single projects, co-located projects/undertakings are defined under Section 3(b), Article I of
DAO 2003-30 as projects, or series of similar projects or a project subdivided to several phases and/or stages by the
same proponent, located in contiguous areas.

166
Section 3(k), Article I of DAO 2003-30 defines an EIS as a document, prepared and submitted by the project
proponent and/or EIA Consultant that serves as an application for an ECC. It is a comprehensive study of the significant
impacts of a project on the environment. It includes an Environmental Management Plan/ Program that the proponent
will fund and implement to protect the environment.

167
Section 3(s), Article I of DAO 2003-30 defines an IEE as a document similar to an EIS, but with reduced details and
depth of assessment and discussion.

168
Section 3(t), Article I of DAO 2003-30 defines an IEE Checklist Report as a simplified checklist version of an IEE
Report, prescribed by the DENR, to be filled up by a proponent to identify and assess a project's environmental impacts
and the mitigation/enhancement measures to address such impacts.

169
Section 3(p), Article I of DAO 2003-30 defines an EPRMP as a documentation of the actual cumulative
environmental impacts and effectiveness of current measures for single projects that are already operating but without
ECCs, i.e., Category A-3. For Category B-3 projects, a checklist form of the EPRMP would suffice.

170
Section 3(x), Article I of DAO 2003-30 defines a PD as a document, which may also be a chapter in an EIS, that
describes the nature, configuration, use of raw materials and natural resources, production system, waste or pollution
generation and control and the activities of a proposed project. It includes a description of the use of human resources
as well as activity timelines, during the pre-construction, construction, operation and abandonment phases. It is to be
used for reviewing co-located and single projects under Category C, as well as for Category D projects.

171
Section 3(p), Article I, DAO 2003-30.

172
Section 1.0, paragraph 8 (b), Revised Manual.

173
Glossary, letter (t), Revised Manual.

174
Parenthetically, we must mention that the validity of the rules providing for amendments to the ECC was challenged
by the Casio Group on the ground that it is ultra vires before the appellate court. [It] argued that the laws governing
the ECC do not expressly permit the amendment of an ECC. However, the appellate court correctly ruled that the
validity of the rules cannot be collaterally attacked. Besides, the power of the DENR to issue rules on amendments of an
ECC is sanctioned under the doctrine of necessary implication. Considering that the greater power to deny or grant an
ECC is vested by law in the President or his authorized representative, the DENR, there is no obstacle to the exercise of
the lesser or implied power to amend the ECC for justifiable reasons. This issue was no longer raised before this Court
and, thus, we no longer tackle the same here.
175
Footnotes omitted.

176
Underline supplied.

177
Underline supplied.

178
Footnotes omitted.

179
rollo (G.R. No. 207257), pp. 150-151. (DENRs Petition, pp. 29-30)

180
Underline supplied.

181
Underline supplied.

182
Underline supplied.

183
Emphasis supplied.

184
To illustrate the flexibility of the EIA documents used in the EIA process, we can look at the EPRMP itself. The
contents of an EPRMP, under Section 5.2.5, Article II of DAO 2003-30, are as follows:

5.2.5. x x x

The EPRMP shall contain the following:ChanRoblesVirtualawlibrary

a. Project Description;
b. Baseline conditions for critical environmental parameters;
c. Documentation of the environmental performance based on the current/past environmental management measures
implemented;
d. Detailed comparative description of the proposed project expansion and/or process modification with corresponding
material and energy balances in the case of process industries[;] and
e. EMP based on an environmental management system framework and standard set by EMB.
As previously demonstrated, the EPRMP is not just used for ECPs, which are operating but without an ECC or operating
with a previous ECC but planning for expansion or re-start, but for major amendments to a non-implemented project
with a previous ECC, such as the subject project. Section 5.2.5(c), however, requires that an EPRMP should contain
[d]ocumentation of the environmental performance based on the current/past environmental management measures
implemented. This would be inapplicable to a non-implemented project. Thus, the project proponent merely notes in
the EPRMP that there are no current/past environmental management measures implemented because the project is
not yet implemented. As can be seen, the use of the EPRMP is flexible enough to accommodate such different project
types, whether implemented or not, for as long as the necessary information is obtained in order to assess the
environmental impact of the proposed changes to the original project design/description.

185
Emphasis supplied.

186
CA rollo, Volume IV, pp. 1129-1132.

187
Excerpts from Section 4 of the EPRMP (Baseline Environmental Conditions for Critical Environmental Parameters,
Impact Assessment and Mitigation) are reproduced below:

4.1 The Land

4.1.1 Existing Condition

The proposed route of the transmission line will traverse grasslands with sloping terrain, ranging from 3-50% slopes as
shown in Figure 30 and Figure 31. x x x

4.1.2 Impacts

Construction of the transmission line components will include minimal civil and electrical works. Tower structures will
be pre-assembled in a workshop and transported to designated locations for erection and linkage. Excavation and
clearing activities will be minimal and short-term, whilst generated spoils will be low/negligible in terms of volume.

xxxx
 4.1.3 Mitigation

Generated spoils will be used as backfill material for aesthetic rehabilitation and stabilisation, if necessary. Slope
stabilisation, and inspection and testing of the transmission line components will be conducted prior to project
turnover for quality assurance and structural integrity. Proper handling and transport of the tower structures, as well as
safe practice for electrical works will be disseminated and complied with across all personnel and involved contractors.

An integrated foundation system consisting of combined footings will be employed in order to ensure adequate footing
embedment and tower stabilization. Soil stabilisation and slope protection measures will be implemented to
significantly reduce erosion potential of mountain soil.

Tower installation and related activities will only commence upon finalisation of agreement between the proponent
and concerned stakeholders (i.e., regulatory agencies). Disputes and discussions over lease agreement and right-of-way
permitting works will be placed through due legal process of the SBMA.

xxxx

4.2 The Water

xxxx

4.2.1 Existing Condition

The Subic Bay is rich in marine biodiversity including coral reef areas, seagrass patches, fisheries and coastal resources.
xxx

4.2.2 Impacts

The additional RPE project facilities, except for the transmission line, will have impacts on water quality and ecology for
both freshwater and marine components, as these will be located along the coastline or involve the use of freshwater
resources.

The construction phase entails earth-moving activities, both inland and offshore. The initial concern upon
implementation of the project is the degradation of the reef area within the proposed RPE project site, resulting from
high sediment influx either via soil erosion, surface run-off or re-suspension.

xxxx

4.2.3 Mitigation

The following mitigating measures may be applied in order to minimize the potential impacts of the proposed project
on marine resources. Whilst these measures will aid in minimizing the perceived impacts, mortalities of coastal
resources may still occur as individuals of different coral and seagrass species have different levels of environmental
sensitivity. Likewise, mortalities may also be influenced by a variety of factors unrelated to the proposed project such as
water temperature fluctuations due to climatic phenomenon.
Placing mooring buoys within the area encompassed by offshore construction work would allow construction barges to
dock onto them during the construction of the coal pier and other offshore project facilities. The mooring buoys will
negate the need to use chain anchors to prevent these vessels from drifting towards the reef or seagrass areas.
During the driving of the pier piles, the use of silt curtains to minimise suspended sediments from reaching the coral
community will aid the chance of survival of many coral colonies. The coral community in the area is dominated by
massive growth forms which are more resilient to sedimentation compared to branching colonies. Whilst this is true,
these massive forms still have a maximum tolerance threshold, hence the use of mitigating measures is imperative.
Sediment curtains will greatly improve the chances of survival of these corals during the construction phase by
constraining the movement of liberated silt.
The operators of construction equipment, as well as contractors, will need to be informed of the location of the fragile
coral community and seagrass bed in the area, so that they will work in a manner that will minimise the effects on
these areas. This condition can be included in their contracts.
Alignment and/or integration of mitigations with the Subic Coastal Resources Management Plan.
Overall, the primary impact that needs to be mitigated is sedimentation resulting from heavy equipment manoeuvring to
construct the coal pier and other structures and from increased traffic in the project area due to vehicles working
inland and construction barges working offshore.
xxxx

4.3 The Air

Baseline conditions for this module as reported in the EIS (GHD, 2008) are appropriate and sufficient to describe site
conditions for the additional RPE components. A brief summary to highlight the key impacts and mitigation for this
module are presented below.

4.3.1 Existing Condition

The air shed of the proposed project site falls under the category of Type I climate, which is characterized by two
pronounced seasons, generally dry season from December to May, and wet season from June to November.

4.3.2 Impacts

Dust and noise generation resulting from earthmoving activities (i.e., excavation, scraping and leveling methods) is of
significant concern. Concentration of suspended particulates in the atmosphere is likely to increase for the duration of
the construction phase. Similarly, high noise levels within the immediate impact area will be experienced.

4.3.3 Mitigation

The proponent will implement control measures addressed at reducing noise levels and dust concentrations. Regular
wetting of construction grounds, as well as putting up perimeter wall around major construction areas will limit the re-
suspension of dust. Installation of noise barriers (i.e., vegetation buffer, noise wall) around the construction area and
noise reduction technology for vehicles and equipment (i.e., mufflers) will significantly reduce the impacts of
construction noise to nearby communities. In addition, construction activities contributing to high-noise levels will be
scheduled during daytime. x x x (CA rollo, Volume IV, pp. 1193-1194, 1200-1201, 1204)

188
Section 3(x), Article I, DAO 2003-30.

189
Section 1.0, paragraph 8 (a) and (b), Revised Manual.

190
Glossary, letter aa, Revised Manual.

191
rollo (G.R. No. 207257), pp. 151-152. (DENRs Petition pp. 30-31)

192
Underline supplied.

193
Supra note 191.

194
Underline supplied.

195
Underline supplied.

196
rollo (G.R. No. 207282) p. 9. (Casio Group Petition, p. 8)

197
CA rollo, Volume V, pp. 1444-1448.

198
The PDR states, in part:

RPE now proposes to construct a single high-efficiency 300-MW (net) circulating-fluidized-bed coal-fired generating unit
for Phase 1 of the project, instead of two less-efficient 150-MW units, the environmental impacts of which are
unchanged from the original proposal. (CA rollo, Volume V, p. 1441)

199
rollo (G.R. No. 207257), p. 68.

200
Section 3(h), Article I, DAO 2003-30.

201
Rules and Regulations implementing Republic Act No. 8371, otherwise known as The Indigenous Peoples Rights Act
of 1997.

202
Cruz v. Sec. of Environment & Natural Resources, 400 Phil. 904, 1012 (2000).
203
RA 8371, Section 2 (b).

204
(visited 27 November 2014).

205
(visited 27 November 2014).

206
Hanjin Heavy Industries and Construction

207
Article 1643 of the Civil Code provides:

ARTICLE 1643. In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing
for a price certain, and for a period which may be definite or indefinite. However, no lease for more than ninety-nine
years shall be valid.

208
This is the clear import of the definition of ancestral domains in Section 3(a) of the IPRA Law, viz:

SECTION 3. Definition of Terms. For purposes of this Act, the following terms shall mean:

a) Ancestral Domains Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands,
inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by
ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to
the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a
consequence of government projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include
ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and
disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural
resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had
access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators; x x x (Emphasis supplied)

209
The following are the relevant constitutional provisions:

Article II, Section 22: The State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development.

Article XII, Section 5: The State, subject to the provisions of this Constitution and national development policies and
programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic,
social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights and relations in
determining the ownership and extent of ancestral domain.

ARTICLE XIV, Section 17: The State shall recognize, respect, and protect the rights of indigenous cultural communities to
preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of
national plans and policies.

ARTICLE XIII, Section 6: The State shall apply the principles of agrarian reform or stewardship, whenever applicable in
accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain
under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the
rights of indigenous communities to their ancestral lands.

The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to
them in the manner provided by law.

Article XVI, Section 12: The Congress may create a consultative body to advise the President on policies affecting
indigenous cultural communities, the majority of the members of which shall come from such communities.

Article VI, Section 5(2): The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection
or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector.
210
RP Energys EIS dated September 2008 stated, in part:

4.4.1.1.4 Indigenous People

The Aetas are acknowledged to be one of the earliest settlers in the municipality. Historically, as lowlanders came to
Subic, Aetas were displaced and were forced to flee to the hinterlands. While a number of Aetas have managed to be
integrated within the mainstream of development activities in the municipality, many have remained deprived of public
services such as health, social welfare and basic education. Aeta families are scattered in some barangays in Subic, such
as: Batiawan and Naugsol. There are no Aeta communities identified within the vicinity of the project areas. (CA rollo,
Volume III, p. 857)

211
This is the clear implication of the clause except when interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government
and private individuals/corporations in the definition of ancestral domain, in the IPRA Law viz:

SECTION 3. Definition of Terms. For purposes of this Act, the following terms shall mean:

a) Ancestral Domains Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands,
inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by
ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to
the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a
consequence of government projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include
ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and
disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural
resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had
access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators; x x x (Emphasis supplied)

212
Article 5 of the Civil Code provides:

ARTICLE 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law
itself authorizes their validity.

213
The Certificate of Non-Overlap with Control No. RIII-CNO-12-10-0011 issued on 31 October 2012 stated:

THIS IS TO CERTIFY that based on the findings of the FBI Team in its report dated October 8, 2012 and submitted by
Ms. Candida P. Cabinta, Provincial Officer, the applied site/s for Certification Precondition situated at Subic Bay
Freeport Zone (SBFZ) Sitio Naglatore, Brgy. Cawag, Subic, Zambales covering an aggregate area of Thirty Eight (38.00)
hectares more or less, does not affect/overlap with any ancestral domain.

THIS CERTIFICATION is issued to SBMA-REDONDO PENINSULA ENERGY CORPORATION with office address at Unit 304
The Venue, Rizal Highway, Subic Bay Industrial Park, Phase I, Subic Bay Freeport Zone 2222 in connection with the
application for 600 MW Circulating Fluidized Bed (CFB) Coal Fired Power Plant before the Ecology Center, Subic Bay
Metropolitan Authority.

x x x x (CA rollo, Volume XVI, p. 6495)

214
SECTION 59. Certification Precondition. All departments and other governmental agencies shall henceforth be
strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-
sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral
domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains
Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior
informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or
government-owned or -controlled corporation may issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to
stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation
process. (Emphasis supplied)

215
The DENR, in assessing ECC applications, requires project proponents to conduct public participation/consultation.
Section 5.3, Article II of DAO 2003-30 on public hearing/consultation requirements provides, in part:

Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of
stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All public
consultations and public hearings conducted during the EIA process are to be documented. x x x

216
In any event, there appears to be no good reason why the subject project should not comply with the prior
consultations requirement under Section 26, in relation to Section 27, of the LGC. There would be no conflict with RA
7227 because prior consultations do not impair the power of the SBMA to approve or disapprove a project within the
SSEZ, i.e. the results of the public consultations do not bind or compel the SBMA to either approve or disapprove the
project or program. See discussion, infra.

217
Article X, Section 2 of the Constitution provides:

The territorial and political subdivisions shall enjoy local autonomy.

218
Alvarez v. Picop, 538 Phil 348, 402-403 (2006).

219
Lina, Jr. v. Pao, 416 Phil. 438, 449-450 (2001).

220
Supra notes 15, 26, and 27.

221
RA 7227, Section 12(a).

222
518 Phil 103 (2006).

223
Id. at124-125.

224
Subic Bay Freeport; also referred to as the SSEZ.

225
Section 11 of the Rules and Regulations Implementing the Provisions Relative to the Subic Special Economic and
Freeport Zone and the Subic Bay Metropolitan Authority Under Republic Act No. 7227, Otherwise Known as the Bases
Conversion and Development Act of 1992.

226
III Records, Senate 8th Congress, 59th Session, 613 (January 29, 1992).

227
CA rollo, Volume XVII, p. 6893. (Motion for Reconsideration of SBMA)

228
TSN, October 29, 2012, pp. 47, 50-51.

229
G.R. No. 101083, July 30, 1993, 224 SCRA 792 (1993).

230
Note that in Item #8 of the DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT
MODIFICATION, a new EIS can be required for the amendment covered therein:
8. Conversion to new project type Considered new application but with New ECC
(e.g. bunker-fired plant to gas- lesser data requirements since most /EIS
fired) facilities are established;
environmental performance in the
past will serve as baseline; However,
for operating projects, there may be
need to request for Relief from ECC
Commitment prior to applying for
new project type to ensure no
balance of environmental
accountabilities from the current
project

CONCURRING OPINION

VELASCO, JR., J.:

 I concur with the well-crafted ponencia of Justice Mariano C. Del Castillo. I will, however, further elucidate on the
procedural issues raised by the indefatigable Justice Marvic M.V.F.Leonen.

Justice Leonen posits that a petition for a writ of kalikasan is not the proper remedy in the instant proceedings since
what the petitionersin G.R. No. 207282 assail is the propriety of the issuance and subsequent amendment of the ECCs
by DENR for a project that has yet to be implemented. He argues that the novel action is inapplicable even more so to
projects whose ECCs are yet to be issued or can still be challenged through administrative review processes. He
concludes that the extraordinary initiatory petition does not subsume and is not a substitute for all remedies that can
contribute to the protection of communities and their environment. While the good Justice did not specifically
mention what the other available remedies are, certiorari under Rule 65 easily comes to mind as one such remedy.

I beg to disagree. The special civil action for a writ of kalikasan under Rule 7 of the Rules of Procedure for
Environmental Cases (RPEC for brevity) is, I submit, the best available and proper remedy for petitioners Casio, et al.

As distinguished from other available remedies in the ordinary rules of court, the writ of kalikasan is designed for a
narrow but special purpose: to accord a stronger protection for environmental rights, aiming, among others, to provide
a speedy and effective resolution of a case involving the violationof ones constitutional right to a healthful and
balanced ecology. As a matter of fact, by explicit directive from the Court, the RPEC are SPECIAL RULES crafted precisely
to govern environmental cases. On the other hand, the remedies that can contribute to the protection of communities
and their environment alluded to in Justice Leonens dissent clearly form part of the Rules of Court which by express
provision of the special rules for environmental cases shall apply in a suppletory manner under Section 2 of Rule 22.
Suppletory means supplying deficiencies. It is apparent that there is novacuum in the special rules on the legal
remedy on unlawful acts or omission concerning environmental damage since precisely Rule 7 on the writ
of kalikasan encompasses all conceivable situations of this nature.

As a potent and effective tool for environmental protection and preservation, Rule 7, Section l of A.M. No. 09-6-8-SC,
orthe RPEC, reads:chanroblesvirtuallawlibrary
SEC. 1. Nature of the writ. The writ [of kalikasan] is a remedy available to a natural or juridical person, entity
authorized by law, peoples organization, non-governmental organization, or any public interest group accredited by or
registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful
ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or
private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.

Availment of the kalikasan writ would,therefore, be proper if the following requisites concur in a given case:
1. that there is an actual or threatened violation of the constitutional right to a balanced and healthful ecology;
2. the actual or threatened violation is due to an unlawful act or omission of a public official or employee, or private
individual or entity;
3. the situation in the ground involves an environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.

Perusing the four corners of the petition in G.R. No. 207282, it can readily be seen that all the requisites are
satisfactorily met.

There is, aproposthe first requisite, allegations of actual or threatened violation of the constitutional right to a balanced
and healthful ecology, as follows:chanroblesvirtuallawlibrary
Environmental Impact and
Threatened Damage to the
Environment and Public Health

Acid Rain

35. According to RP Energys Environmental Impact Statement for its proposed 2 x 150 MW Coal-Fired Thermal Power
Plant Project, acid rain may occur in the combustion of coal, to wit -

xxxx

During the operation phase, combustion of coal will result in emissions of particulates SOx and NOx. This may
contribute to the occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions
may give rise to health problems for residents within the impact area.

xxxx
 Asthma Attacks

36. The same EPRMP mentioned the incidence of asthma attacks as result of power plant operations, to wit

xxxx

The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposure to
suspended particulates from plant operations.

x xxx

37. The respondents witness, Junisse Mercado, the Project Director of GHD, RP Energys project Consultant engaged to
conduct the environmental impact assessments, cannot also make certain that despite the mitigation and the lower
emissions of the Proposed Project, no incidence of asthma will occur within the project site.

38. RP Energy has not made a study of the existing level of asthma incidence in the affected area, despite knowledge of
secondary data that the leading cause of morbidity in the area are acute respiratory diseases.

Air Impact

39. Air quality impact is (sic) exists not only in the vicinity of the Project Site but to surroundings (sic) areas, particularly
contiguous local government units as well.

40. In the air dispersion modeling of the 2012 EPRMP for the expansion of the Coal Fired Power Plant, among those
identified as a discrete receptor for the modeling is the Olongapo City Poblacion.

41. The results of the air dispersion modeling study show that upon upset conditions, there exists deviation from
normal conditions in relation to the extent of emission and pollution, even in receptors as far as the Olongapo City
Poblacion, which is an area and local government unit outside the Project Site.

42. The possibility of upset conditions during plant operations are also likewise not denied, in which increased SOx and
NOx emissions may occur.1 (citations omitted)

xxxx

57. The SBMA Social Acceptability Consultations also included the assessment of different experts in various fields as to
the potential effects of the Project. x xx

58. Based on the SBMA Final Report on the above mentioned consultations, the three experts shared the view, to wit
xxxx

x x x the conditions were not present to merit the operation of a coal-fired power plant, and to pursue and carry out
the project with confidence and assurance that the natural assets and ecosystems within the Freeport area would not
be unduly compromised, or that irreversible damage would not occur and that the threats to the flora and fauna within
the immediate community and its surroundings would be adequately addressed.

The three experts were also of the same opinion that the proposed coal plant project would pose a wide range of
negative impacts on the environment, the ecosystems and human population within the impact zone.

xxxx

The specialists also discussed the potential effects of an operational coal-fired power plant to its environs and the
community therein. Primary among these were the following:
i. Formation of acid rain, which would adversely affect the trees and vegetation in the area which, in turn, would diminish
forest cover. The acid rain would also apparently worsen the acidity of the soil in the Freeport.
ii. Warming and acidification of the seawater of the bay, resulting in the bioaccumulation of contaminants and toxic
materials which would eventually lead to the overall reduction of marine productivity.
iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and other heavy metals such as mercury and lead to
the surrounding region, which would adversely affect the health of the populace in the vicinity. 2

The second requisite, i.e., that the actual or threatened violation is due to the unlawful act or omission of a public
official or employee or private individual or entity, is deducible from the ensuing allegations:chanroblesvirtuallawlibrary
a. The environmental compliance certificate was issued and the lease and development agreement was entered upon
for the construction and operation of RP Energys 1x300 MW coal-fired power plant without satisfying the certification
precondition requirement under Sec. 59 of Republic Act No. 8371 or the indigenous peoples rights act and its
implementing rules and regulations;

b. The environmental compliance certificate was issued and the lease and development agreement was entered upon
for the construction and operation of the power plant without the prior approval of the Sanggunian concerned,
pursuant to Secs. 26 and 27 of the Local Government Code;

c. Sec. 8.3 of DENR Administrative Order 2003-30 allowing amendments of environmental compliance certificates is null
and void for being enacted ultra vires;

d. Prescinding from the nullity of Sec. 8.3 of DENR Administrative Order 2003-30, all amendments to RP Energys
Environmental Compliance Certificate for the construction and operation of a 2 x 150 MW coal-fired power plant are
null and void.3

Specifically, the unlawful acts or omissions are:

1. Failure to comply with the certification precondition requirement under Sections 9 and 59 of Republic Act No. 8371
or the Indigenous Peoples Rights Act and its implementing rules and regulations;

2. Non-compliance with the requisite approval of the Sanggunian Pambayan pursuant to Sections 26 and 27 of the
Local Government Code; and

3. Violation of Section 8.3 of DENR Administrative Order 2003-30 on environmental compliance certificate.

All the alleged unlawful acts or omissions were averred to be committed by public and private respondents. The
petition impleads the DENR, the Subic Bay Metropolitan Authority and the project proponent.

Thus, the second requisite was satisfied.

The estimated range of the feared damage, as clearly set forth in the petition, covers the provinces of Bataan and
Zambales, specifically the municipalities and city mentioned therein,and thus addressingthe requisite territorial
requirement.

The petition avers:chanroblesvirtuallawlibrary

121. The matter is thus of extreme urgency that, unless immediately restrained, will inevitably cause damage to the
environment, the inhabitants of the provinces of Zambales and Bataan, particularly the municipalities of Subic,
Zambales, Hermosa and Morong, Bataan and the City of Olongapo, Zambales including the herein Petitioners who will
all suffer grave injustice and irreparable injury, particularly in proceeding with construction and operation of the Coal-
Fired Power Plant in the absence of compliance with the Local Government Codes consultation and approval
requirements under Sec. 26 and 27, Sec. 59 of R.A. No. 8371s requiring an NCIP Certification prior to the issuance of
permits or licenses by government agencies and violating the restrictions imposed in its original ECC.4

Having satisfied all the requirements under the special rules, then Rule 7 on the writ of kalikasan is beyond cavil
applicable and presents itself as the best available remedy considering the facts of the case and the circumstances of
the parties.

Petition for Issuance of Writ of Kalikasan

vis--vis Special Civil Action for Certiorari

Anent Justice Leonens argument that there are other remedies that can contribute to the protection of communities
and their environment other than Rule 7 of RPEC, doubtless referring to a Rule 65 petition, allow me to state in
disagreement that there are instances when the act or omission of a public official or employee complained of will
ultimately result in the infringement of the basic right to a healthful and balanced ecology. And said unlawful act or
omission would invariably constitute grave abuse of discretion which, ordinarily, could be addressed by the corrective
hand of certiorari under Rule 65. In those cases, a petition for writ of kalikasan would still be the superior remedy as in
the present controversy, crafted as it were precisely to address and meet head-on such situations. Put a bit differently,
in proceedings involving enforcement or violation of environmental laws, where arbitrariness or caprice is ascribed to a
public official, the sharper weapon to correct the wrong would be a suit for the issuance of the kalikasan writ.

Prior to the effectivity of the RPEC which, inter alia, introduced the writ of kalikasan, this Court entertained cases
involving attacks on ECCs via a Rule 65 petition5 which exacts the exhaustion of administrative remedies as condition
sine qua non before redress from the courts may be had.

Following the ordinary rules eventually led to several procedural difficulties in the litigation of environmental cases, as
experienced by practitioners, concerned government agencies, peoples organizations, non-governmental
organizations, corporations, and public-interest groups,6 more particularly with respect to locus standi, fees and
preconditions. These difficulties signalled the pressing need to make accessible a more simple and expeditious relief to
parties seeking the protection not only of their right to life but also the protection of the countrys remaining and
rapidly deteriorating natural resources from further destruction. Hence, the RPEC.With its formulation, the Court
sought to address procedural concerns peculiar to environmental cases, 7 taking into consideration the imperative of
prompt relief or protection where the impending damage to the environment is of a grave and serious degree. Thus,
the birth of the writ of kalikasan, an extraordinary remedy especially engineered to deal with environmental damages,
or threats thereof, that transcend political and territorial boundaries. 8chanRoblesvirtualLawlibrary

The advent of A.M. No. 09-6-8-SC to be sure brought about significant changes in the procedural rules that apply to
environmental cases. The differences on eight (8) areas between a Rule 65 certiorari petition and Rule 7
kalikasan petition may be stated as follows:

1. Subject matter. Since its subject matter is any unlawful act or omission, a Rule 7 kalikasan petition is broad enough
to correct any act taken without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction which is the subject matter of a Rule 65 certiorari petition. Any form of abuse of discretion as long
as it constitutes an unlawful act or omission involving the environment can be subject of a Rule 7 kalikasan petition. A
Rule 65 petition, on the other hand, requires the abuse of discretion to be grave. Ergo, a subject matter which
ordinarily cannot properly be subject of a certiorari petition can be the subject of a kalikasanpetition.

2. Who may file. Rule 7 has liberalized the rule on locus standi, such thatavailment of the writ of kalikasan is open to a
broad range of suitors, to include even an entity authorized by law, peoples organization, or any public interest group
accredited by or registered with any government agency, on behalf of persons whose right to a balanced and healthful
ecology is violated or threatened to be violated. Rule 65 allows only the aggrieved person to be the petitioner.

3. Respondent. The respondent in a Rule 65 petition is only the government or its officers, unlike in a kalikasan petition
where the respondent may be a private individual or entity.

4. Exemption from docket fees. The kalikasan petition is exempt from docket fees, unlike in a Rule 65 petition. Rule 7
of RPEC has pared down the usually burdensome litigation expenses.

5. Venue. The certiorari petition can be filed with (a) the RTC exercising jurisdiction over the territory where the act was
committed; (b) the Court of Appeals; and (c) the Supreme Court. Given the magnitude of the damage,
the kalikasan petition can be filed directly with the Court of Appeals or the Supreme Court. The direct filing of a
kalikasan petition will prune case delay.

6. Exhaustion of administrative remedies. This doctrine generally applies to a certiorari petition, unlike in
a kalikasan petition.

7. Period to file. An aggrieved party has 60 days from notice of judgment or denial of a motion for reconsideration to
file a certiorari petition, while a kalikasan petition isnot subject to such limiting time lines.

8. Discovery measures. In a certiorari petition, discovery measures are not available unlike in
a kalikasan petition. Resort to these measures will abbreviate proceedings.

It is clear as day that a kalikasan petition provides more ample advantages to a suitor than a Rule 65 petition for
certiorari.

Taking into consideration the provisions of Rule 65 of the Rules of Court vis--vis Rule 7 of the RPEC, it should be at
onceapparent that in petitions like the instant petition involving unlawful act or omissioncausing environmental
damage of such a magnitude as to prejudice the life, health or property of inhabitants in two or more cities or
provinces, Rule 7 of the RPEC is the applicable remedy. Thus, the vital, pivotal averment is the illegal act or omission
involving environmental damage of such a dimension that will prejudice a huge number of inhabitants in at least 2 or
more cities and provinces. Without such assertion, then the proper recourse would be a petition under Rule 65,
assuming the presence of the essential requirements for a resort to certiorari. It is, therefore, possible that subject
matter of a suit which ordinarily would fall under Rule 65 is subsumed by the Rule 7 on kalikasan as long as such
qualifying averment of environmental damage is present. I can say without fear of contradiction that a petition for a
writ of kalikasan is a special version of a Rule 65 petition, but restricted in scope but providing a more expeditious,
simplified and inexpensive remedy to the parties.
The Court must not take a myopic view of the case, but must bear in mind that what is on the table is a case which
seeks to avert the occurrence of a disaster whichpossibly could result in a massive environmental damage and
widespread harm to the health of the residents of an area. This is not a simple case of grave abuse of discretion by a
government official which does not pose an environmental threat with serious and far-reaching implications and could
be adequately and timely resolved using ordinary rules of procedure. To reiterate, the Rules on petitions for writ
of kalikasan were specifically crafted for the stated purpose of expediting proceedings where immediacy of action is
called for owing to the gravity and irreparability of the threatened damage. And this is precisely what is being avoided
in the instant case.

Additionally, it must be emphasized that the initial determination of whether a case properly falls under a writ of
kalikasan petition differs from the question of whether the parties were able to substantiate their claim of a possible
adverse effect of the activity to the environment. The former requires only a perfunctoryreview of the allegations in the
petition, without passing on the evidence, while the latter calls for the evaluation and weighing of the parties
respective evidence. And it is in the latter instance that Casio, et al. miserably fell short. By not presenting even a
single expert witness, they were unable to discharge their duty of proving to the Court that the completion and
operation of the power plant would bring about the alleged adverse effects to the health of the residents of Bataan and
Zambales and would cause serious pollution and environmental degradation thereof. Hence, the denial of their
petition.

Oposa ruling should not be abandoned

The dissent proposes the abandonment of the doctrinal pronouncement in Oposa9 bearing on the filing of suits in
representation of others and of generations yet unborn, now embodied in Sec. 5 of the Environmental Rules. In the
alternative, it is proposed that allowing citizen suits under the same Section 5 of the Environmental Rules be limited
only to the following situations: (1) there is a clear legal basis for the representative suit; (2) there are actual concerns
based squarely upon an existing legal right; (3) there is no possibility of any countervailing interests existing within the
population represented or those that are yet to be born; and (4) there is an absolute necessity for such standing
because there is a threat or catastrophe so imminent that an immediate protective measure is necessary.

I strongly disagree with the proposal.

For one, Oposa carries on the tradition to further liberalize the requirement on locus standi. For another, the dissent
appears to gloss over the fact that there are instances when statutes have yet to regulate an activity or the use and
introduction of a novel technology in our jurisdiction and environs, and to provide protection against a violation of the
peoples right to life. Hence, requiring the existence of an existing and clear legal right or basis may only prove to be
an imposition of a strict, if impossible, condition upon the parties invoking the protection of their right to life.

And for a third, to require that there should be no possibility of any countervailing interests existing within the
population represented or those that are yet to be born would likewise effectively remove the rule on citizens suits
from our Environmental Rules or render it superfluous. No party could possibly prove, and no court could calculate,
whether there is a possibility that other countervailing interests exist in a given situation. We should not lose sight of
the fact that the impact of an activity to the environment, to our flora and fauna, and to the health of each and every
citizen will never become an absolute certainty such that it can be predicted or calculated without error, especially if
we are talking about generations yet unborn where we would obviously not have a basis for said determination. Each
organism, inclusive of the human of the species, reacts differently to a foreign body or a pollutant, thus, the need to
address each environmental case on a case-to-case basis. Too, making sure that there are no countervailing interests in
existence, especially those of populations yet unborn, would only cause delays in the resolution of an environmental
case as this is a gargantuan, if not well-nigh impossible, task.

It is for the same reason that the rule on res judicata should not likewise be applied to environmental cases with the
same degree of rigidityobservedin ordinary civil cases, contrary to the dissents contention. Suffice it to state that the
highly dynamic, generally unpredictable, and unique nature of environmental cases precludes Us from applying the said
principle in environmental cases.

Lastly, the dissents proposition that a citizen suit should only be allowed when there is an absolute necessity for such
standing because there is a threat or catastrophe so imminent that an immediate protective measure is necessary is a
pointless condition to be latched onto the RPEC. While the existence of an emergency provides a reasonable basis for
allowing another person personally unaffected by an environmental accident to secure relief from the courts in
representation of the victims thereof, it is my considered view that We need not limit the availability of a citizens suit
to such extreme situation.

The true and full extent of an environmental damage is difficult to fully comprehend, much so to predict. Considering
the dynamics of nature, where every aspect thereof is interlinked, directly or indirectly, it can be said that a negative
impact on the environment, though at times may appear minuscule at one point, may cause a serious imbalance to our
environs in the long run. And it is not always that this imbalance immediately surfaces. In some instances, it may take
years before we realize that the deterioration is already serious and possibly irreparable, just as what happened to the
Manila Bay where decades of neglect, if not sheer citizen and bureaucratic neglect, ultimately resulted in the severe
pollution of the Bay.10 To my mind, the imposition of the suggested conditions would virtually render the provisions on
citizens suit a pure jargon, a useless rule, in short.

Anent the substantive issues, I join the ponencia in its determination that Casio, et al. failed to substantiate their claim
of an imminent and grave injury to the environment should the power project proceed.

I vote to DENY the Petition in G.R. No. 207282, and to GRANT the Petitions in G.R. Nos. 207257, 207276 and 207366.
Endnotes:

1
Rollo (G.R. No. 207282), pp. 21-24.

2
Id. at 31-33.

3
Petition, pp. 17-18.

4
Petition, p. 46.

5
Section 1. Petition for certiorari.- When a tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies
of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46. See Bangus Fry Fisherfolk, et al. v. Lanzanas, G.R. No. 131442,
July 10, 2003.

6
Annotation to the Rules of Procedure for Environmental Cases, p. 98.

7
Id.

8
Id. at 133.

9
G.R. No. 101083, July 30, 1993, 224 SCRA 792.

10
See MMDA v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, December 18, 2008.

CONCURRING AND DISSENTING OPINION

LEONEN, J.:

I concur that the petition for the Issuance of a Writ of Kalikasan should be dismissed.

A Writ of Kalikasan is an extraordinary and equitable writ that lies only to prevent an actual or imminent threat of such
magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. 1 It is not the
proper remedy to stop a project that has not yet been built. It is not the proper remedy for proposed projects whose
environmental compliance certificates (ECC) are yet to be issued or may still be questioned through the proper
administrative and legal review processes. In other words, the petition for a Writ of Kalikasan does not subsume and is
not a replacement for all remedies that can contribute to the protection of communities and their environment.

I dissent from the majoritys ruling regarding the validity of the amended ECCs. Aside from this case being the wrong
forum for such issues, Presidential Decree Nos. 11512 and 15863 instituting the Environmental Impact Statement
System grants no power to the Department of Environment and Natural Resources to exempt environmentally critical
projects from this requirement in the guise of amended project specifications. Besides, even assuming without
granting that the Department of Environment and Natural Resources Administrative Order No. 2003-304 was validly
issued, the changes in the project design were substantial. Its impact on the ecology would have been different from
how the project was initially presented. The Court of Appeals committed grave abuse of discretion in considering this
issue because the procedure for a Writ of Kalikasan is not designed to evaluate the propriety of the ECCs.

Compliance with Sections 265 and 276 of the Local Government Code and the provisions of the Indigenous Peoples
Rights Act (IPRA)7 is not a matter that relates to environmental protection directly. The absence of compliance with
these laws forms causes of action that cannot also be brought through a petition for the issuance of a Writ of Kalikasan.

This case highlights the dangers of abuse of the extraordinary remedy of the Writ of Kalikasan. Petitioners were not
able to move forward with substantial evidence. Their attempt to present technical evidence and expert opinion was
so woefully inadequate that they put at great risk the remedies of those who they purported to represent in this suit
inclusive of generations yet unborn.cralawred
I

Furthermore, the original Petition for the issuance of a Writ of Kalikasan that was eventually remanded to the Court of
Appeals was not brought by the proper parties.

Only real parties in interest may prosecute and defend actions.8 The Rules of Court defines real party in interest as a
person who would benefit or be injured by the courts judgment. Rule 3, Section 2 of the Rules of Court
provides:chanroblesvirtuallawlibrary
SEC. 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action
must be prosecuted or defended in the name of the real party in interest.

The rule on real parties in interest is incorporated in the Rules of Procedure for Environmental Cases. Rule 2, Section 4
provides:chanroblesvirtuallawlibrary
Section 4. Who may file. Any real party in interest, including the government and juridical entities authorized by law,
may file a civil action involving the enforcement or violation of any environmental law.

A person cannot invoke the courts jurisdiction if he or she has no right or interest to protect. 9 He or she who invokes
the courts jurisdiction must be the owner of the right sought to be enforced.10 In other words, he or she must have a
cause of action. An action may be dismissed on the ground of lack of cause of action if the person who instituted it is
not the real party in interest.11 The term interest under the Rules of Court must refer to a material interest that is not
merely a curiosity about or an interest in the question involved. 12 The interest must be present and substantial. It is
not a mere expectancy or a future, contingent interest. 13chanRoblesvirtualLawlibrary

A person who is not a real party in interest may institute an action if he or she is suing as representative of a real party
in interest. When an action is prosecuted or defended by a representative, that representative is not and does not
become the real party in interest. The person represented is deemed the real party in interest. The representative
remains to be a third party to the action instituted on behalf of another. Thus:chanroblesvirtuallawlibrary
SEC. 3. Representatives as parties. Where the action is allowed to be prosecuted or defended by a representative or
someone acting in a fiduciary capacity, the beneficiary shall be included in the title of a case and shall be deemed to be
the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal except when the contract involves things
belonging to the principal.

To sue under this rule, two elements must be present: (a) the suit is brought on behalf of an identified party whose
right has been violated, resulting in some form of damage, and (b) the representative authorized by law or the Rules of
Court to represent the victim.14chanRoblesvirtualLawlibrary

The Rules of Procedure for Environmental Cases allows filing of a citizens suit. A citizens suit under this rule allows any
Filipino citizen to file an action for the enforcement of environmental law on behalf of minors or generations yet
unborn. It is essentially a representative suit that allows persons who are not real parties in interest to institute actions
on behalf of the real party in interest. In citizens suits filed under the Rules of Procedure for Environmental Cases, the
real parties in interest are the minors and the generations yet unborn. Section 5 of the Rules of Procedure for
Environmental Cases provides:chanroblesvirtuallawlibrary
SEC. 5. Citizen suit. Any Filipino citizen in representation of others, including minors or generations yet unborn may
file an action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall
issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all
interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The
plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order.

The expansion of what constitutes real party in interest to include minors and generations yet unborn is a recognition
of this courts ruling in Oposa v. Factoran.15 This court recognized the capacity of minors (represented by their parents)
to file a class suit on behalf of succeeding generations based on the concept of intergenerational responsibility to
ensure the future generations access to and enjoyment of countrys natural resources. 16chanRoblesvirtualLawlibrary

To allow citizens suits to enforce environmental rights of others, including future generations, is dangerous for three
reasons:chanroblesvirtuallawlibrary
First, they run the risk of foreclosing arguments of others who are unable to take part in the suit, putting into question
its representativeness. Second, varying interests may potentially result in arguments that are bordering on political
issues, the resolutions of which do not fall upon this court. Third, automatically allowing a class or citizens suit on
behalf of minors and generations yet unborn may result in the oversimplification of what may be a complex issue,
especially in light of the impossibility of determining future generations true interests on the matter.17

In citizens suits, persons who may have no interest in the case may file suits for others. Uninterested persons will
argue for the persons they represent, and the court will decide based on their evidence and arguments. Any decision
by the court will be binding upon the beneficiaries, which in this case are the minors and the future generations. The
courts decision will be res judicata upon them and conclusive upon the issues presented.

Thus, minors and future generations will be barred from litigating their interests in the future, however different it is
from what was approximated for them by the persons who alleged to represent them. This may weaken our future
generations ability to decide and argue for themselves based on the circumstances and concerns that are actually
present in their time.

Expanding the scope of who may be real parties in interest in environmental cases to include minors and generations
yet unborn opened a dangerous practice of binding parties who are yet incapable of making choices for themselves,
either due to minority or the sheer fact that they do not yet exist. 18chanRoblesvirtualLawlibrary

This courts ruling in Oposa should, therefore, be abandoned or at least should be limited to situations when:

(1) There is a clear legal basis for the representative suit;

(2) There are actual concerns based squarely upon an existing legal right;

(3) There is no possibility of any countervailing interests existing within the population represented or those that are
yet to be born; and

(4) There is an absolute necessity for such standing because there is a threat or catastrophe so imminent that an
immediate protective measure is necessary.19chanRoblesvirtualLawlibrary

Representative suits are different from class suits. Rule 3, Section 12 of the Rules of Court
provides:chanroblesvirtuallawlibrary
SEC. 12. Class suit. When the subject matter of the controversy is one of common or general interest to many persons
so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently
numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all.
Any party in interest shall have the right to protect his individual interest.

Thus, class suits may be filed when the following are present:chanroblesvirtuallawlibrary
a) When the subject matter of the controversy is of common or general interest to many persons;

b) When such persons are so numerous that it is impracticable to join them all as parties; and

c) When such persons are sufficiently numerous as to represent and protect fully the interests of all concerned.

A class suit is a representative suit insofar as the persons who institute it represent the entire class of persons who have
the same interest or who suffered the same injury. However, unlike representative suits, the persons instituting a class
suit are not suing merely as representatives. They themselves are real parties in interest directly injured by the acts or
omissions complained of. There is a common cause of action in a class. The group collectively not individually
enjoys the right sought to be enforced.
The same concern in representative suits regarding res judicata applies in class suits. The persons bringing the suit may
not be truly representative of all the interests of the class they purport to represent, but any decision issued will bind all
members of the class.

However, environmental damage or injury is experienced by each person differently in degree and in nature depending
on the circumstances. Therefore, injuries suffered by the persons brought as party to the class suit may not actually be
common to all. The representation of the persons instituting the class suit ostensibly on behalf of others becomes
doubtful. Hence, courts should ensure that the persons bringing the class suit are truly representative of the interests
of the persons they purport to represent.

In addition, since environmental cases are technical in nature, persons who assert environment-related rights must be
able to show that they are capable of bringing reasonably cogent, rational, scientific, well-founded arguments as a
matter of fairness to those they say they represent. Their beneficiaries would expect that they would argue for their
interests in the best possible way.20chanRoblesvirtualLawlibrary

The court should examine the cogency of a petitioners or complainants cause by looking at the allegations and
arguments in the complaint or petition. Their allegations and arguments must show at the minimum the scientific
cause and effect relationship between the act complained of and the environmental effects alleged. The threat to the
environment must be clear and imminent and of such magnitude21 such that inaction will certainly redound to
ecological damage.

Casio, et al. argued that they were entitled to the issuance of a Writ of Kalikasan because they alleged that
environmental damage would affect the residents of Bataan and Zambales if the power plant were allowed to
operate. They based their allegations on documents stating that coal combustion would produce acid rain and that
exposure to coal power plant emissions would have adverse health effects.

However, Casio, et al. did not present an expert witness whose statements and opinion can be relied on regarding
matters relating to coal technology and other environmental matters. Instead, they presented a partylist
representative, a member of an environmental organization, and a vice governor. These witnesses possess no technical
qualifications that would render their conclusions sufficient as basis for the grant of an environmental relief.

The scientific nature of environmental cases requires that scientific conclusions be taken from experts or persons with
special knowledge, skill, experience or training.22chanRoblesvirtualLawlibrary

Expert opinions are presumed valid though such presumption is disputable. In the proper actions, courts may evaluate
the experts credibility. Credibility, when it comes to environmental cases, is not limited to good reputation within their
scientific community. With the tools of science as their guide, courts should also examine the internal and external
coherence of the hypothesis presented by the experts, recognize their assumptions, and examine whether the
conclusions of cause and effect are based on reasonable inferences from scientifically sound
experimentation. Refereed academic scientific publications may assist to evaluate claims made by expert
witnesses. With the tools present within the scientific community, those whose positions based on hysteria or
unsupported professional opinion will become obvious.

Casio, et al.s witnesses admit that they are not experts on the matter at hand. None of them conducted a study to
support their statements of cause and effect. It appears that they did not even bother to educate themselves as to the
intricacies of the science that would support their claim.

Casio, et al. only presented documents and articles taken from the internet to support their allegations on the
environmental effects of coal power plants. They also relied on a final report on Subic Bay Metropolitan Authoritys
social acceptability policy considerations. There were statements in the report purportedly coming from Dr. Rex Cruz,
U.P. Chancellor, Los Baos, Dr. Visitacion Antonio, a toxicologist, and Andre Jon Uychianco, a marine biologist, stating
that conditions were not present to merit the operation of a coal-fired power plant. The report also stated that the
coal plant project would pose a wide range of negative impacts on the environment. Casio, et al., however, did not
present the authors of these documents so their authenticity can be verified and the context of these statements could
be properly understood. There was no chance to cross-examine their experts because they could not be cross-
examined. In other words, their case was filed with their allegations only being supported by hearsay evidence that did
not have the proper context. Their evidence could not have any probative value.

In contrast, RP Energy presented expert witnesses answering detail by detail Casio, et al.s allegations. They
categorically stated that the predicted temperature changes would have only minimal impact. 23 Their witnesses also
testified on the results of the tests conducted to predict the emissions that would be produced by the power
plant. They concluded that the emissions would be less than the upper limit set in the Clean Air Act.24 They also
testified that the gas emissions would not produce acid rain because they were dilute. 25chanRoblesvirtualLawlibrary
There was no rebuttal from petitioners. The strength of their claim was limited only to assertions and allegations. They
did not have the evidence to support their claims or to rebut the arguments of the project proponents.

This case quintessentially reveals the dangers of unrestricted standing to bring environmental cases as class suits. The
lack of preparation and skill by petitioners endangered the parties they sought to represent and even foreclosed the
remedies of generations yet unborn.

In my view, the standing of the parties filing a Petition for the Issuance of a Writ of Kalikasan may be granted when
there is adequate showing that: (a) the suing party has a direct and substantial interest; (b) there is a cogent legal basis
for the allegations and arguments; and (3) the person suing has sufficient knowledge and is capable of presenting all
the facts that are involved including the scientific basis.26chanRoblesvirtualLawlibrary
II

The issuance of the ECCs was irregular. Substantial amendments to applications for ECCs require a new environmental
impact statement.

However, a Petition for the Issuance of a Writ of Kalikasan is not the proper remedy to raise this defect in courts. ECCs
issued by the Department of Environment and Natural Resources may be the subject of a motion for reconsideration
with the Office of the Secretary. The Office of the Secretary may inform himself or herself of the science necessary to
evaluate the grant or denial of an ECC by commissioning scientific advisers or creating a technical panel of experts. The
same can be done at the level of the Office of the President where the actions of the Office of the Secretary of the
DENR may be questioned. It is only after this exhaustion of administrative remedies which embeds the possibility of
recruiting technical advice that judicial review can be had of the legally cogent standards and processes that were used.

A Petition for a Writ of Kalikasan filed directly with this court raising issues relating to the Environmental Compliance
Certificate or compliance with the Environmental Impact Assessment Process denies the parties the benefit of a fuller
technical and scientific review of the premises and conditions imposed on a proposed project. If given due course, this
remedy prematurely compels the court to exercise its power to review the standards used without exhausting all the
administrative forums that will allow the parties to bring forward their best science. Rather than finding the cogent and
reasonable balance to protect our ecologies, courts will only rely on our own best guess of cause and effect. We
substitute our judgement for the science of environmental protection prematurely.

Besides, the extraordinary procedural remedy of a Writ of Kalikasan cannot supplant the substantive rights involved in
the Environmental Impact Assessment Process.

Presidential Decree No. 1151 provides for our environmental policy to primarily create, develop, and maintain
harmonious conditions under which persons and nature can exist. 27chanRoblesvirtualLawlibrary

Pursuant to this policy, it was recognized that the general welfare may be promoted by achieving a balance between
environmental protection, and production and development. 28 Exploitation of the environment may be permitted, but
always with consideration of its degrading effects to the environment and the adverse conditions that it may cause to
the safety of the present and future generations.29 The Environmental Impact Assessment System compels those who
would propose an environmentally critical project or conduct activities in an environmentally critical area to consider
ecological impact as part of their decision-making processes. By law and regulation, it is not only the costs and profit
margins that should matter.

Presidential Decree No. 1151 established a duty for government agencies and instrumentalities, and private entities to
submit a detailed environmental impact statement for every proposed action, project, or undertaking affecting the
quality of the environment. Section 4 of Presidential Decree No. 1151 provides:chanroblesvirtuallawlibrary
Section 4. Environmental Impact Statements. Pursuant to the above enunciated policies and goals, all agencies and
instrumentalities of the national government, including government-owned or controlled corporations, as well as
private corporations firms and entities shall prepare, file and include in every action, project or undertaking which
significantly affects the quality of the environment a detail statement on

(a) the environmental impact of the proposed action, project or undertaking[;]

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented;

(c) alternative to the proposed action;

(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance
and enhancement of the long-term productivity of the same; and
(e) whenever a proposal involve[s] the use of depletable or non-renewable resources, a finding must be made that such
use and commitment are warranted.

Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over, or special
expertise on, the subject matter involved shall comment on the draft environmental impact statement made by the
lead agency within thirty (30) days from receipt of the same.

Based on the required environmental impact statement under Presidential Decree No. 1151, Presidential Decree No.
1586 was promulgated establishing the Environmental Impact Statement System. 30

Under this system, the President may proclaim certain projects as environmentally critical.31 An environmentally critical
project is a project or program that has high potential for significant negative environmental impact. 32 Proposals for
environmentally critical projects require an environmental impact statement. 33chanRoblesvirtualLawlibrary

On December 14, 1981, the President of the Philippines issued Proclamation No. 2146 declaring fossil-fueled power
plants as environmentally-critical projects. This placed fossil-fueled power plants among the projects that require an
environmental impact statement prior to the issuance of an ECC.

In this case, the Department of Environment and Natural Resources issued an Environmental Compliance Certificate to
RP Energy after it had submitted an environmental impact statement for its proposed 2 x 150 MW coal-fired power
plant.34chanRoblesvirtualLawlibrary

However, when RP Energy requested for amendments of its application to the Department of Environmental and
Natural Resources at least twice, amended ECCs were issued without requiring the submission of new environmental
impact statements.

RP Energys first request for amendment was due to its decision to change the project design to include a barge wharf,
seawater intake breakwater, subsea discharge pipeline, raw water collection system, drainage channel improvement,
and a 230kV double-circuit transmission line.35 RP Energy submitted only an Environmental Performance Report and
Management Plan (EPRMP) to support its request. 36chanRoblesvirtualLawlibrary

RP Energys second request for amendment was due to its desire to construct a 1 x 300 MW coal-fired power plant
instead of a 2 x 150 MW coal-fired power plant.37 For this request, RP Energy submitted a Project Description Report
(PDR).38chanRoblesvirtualLawlibrary

Later, RP Energy changed the proposal to 2 x 300 MW coal-fired power plant.39 It submitted an EPRMP to support its
proposal.40chanRoblesvirtualLawlibrary

Department of Environment and Natural Resources and RP Energy argued that the ECC was valid because it was issued
in accordance with the DAO 2003-30 or the Implementing Rules and Regulations for the Philippine environmental
impact statement system (IRR).41 Department of Environment and Natural Resources also argued that since the
environmental impact statement submitted by RP Energy was still valid, there was no need for the submission of a new
environmental impact statement.42 Further, a change in the configuration of the proposed coal-fired power plant from
2 x 150 MW to 1 x 150 MW was not substantial to warrant the submission of a new environmental impact
statement.43chanRoblesvirtualLawlibrary

The Department of Environment and Natural Resources and RP Energys arguments are not tenable.

The issuance of an ECC without a corresponding environmental impact statement is not valid. Section 4 of Presidential
Decree No. 1151 specifically requires the filing of environmental impact statements for every action that significantly
affects environmental quality. Presidential Decree No. 1586, the law being implemented by the IRR, recognizes and is
enacted based on this requirement.44chanRoblesvirtualLawlibrary

Presidential Decree Nos. 1151 and 1586 do not authorize the Department of Environment and Natural Resources to
allow exemptions to this requirement in the guise of amended project specifications.

The only exception to the environmental impact statement requirement is when the project is not declared as
environmentally critical, as provided later in Presidential Decree No. 1586, thus:chanroblesvirtuallawlibrary
Section 5. Environmentally Non-Critical Projects. All other projects, undertakings and areas not declared by the
Presidents as environmentally critical shall be considered as non-critical and shall not be required to submit an
environmental impact statement. The Environmental Protection Council, thru the Ministry of Human Settlements may
 however require non-critical projects and undertakings to provide additional environmental safeguards as it may deem
necessary.

Since fossil-fuelled power plants are already declared as environmentally critical projects in Proclamation No. 2146,45 an
environmental impact statement is required. An EPMRP or a project description is not enough.

An EPMRP and a project description are different from an environmental impact statement. The IRR itself describes the
differences between the features of each documentation, as well as eachs appropriate uses. The most detailed among
the three is the environmental impact statement, which is required under the law for all environmentally critical
projects.

An environmental impact statement is a document of scientific opinion that serves as an application for an ECC. It is a
comprehensive study of the significant impacts of a project on the environment. 46It is predictive to an acceptable
degree of certainty. It is an assurance that the proponent has understood all of the environmental impacts and that the
measures it proposed to mitigate are both effective and efficient.

Section 4 of Presidential Decree No. 1151 requires the following detailed information in the environmental impact
statement:chanroblesvirtuallawlibrary
Section 4. Environmental Impact Statements. . . .

(a) the environmental impact of the proposed action, project or undertaking[;]

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented;

(c) alternative to the proposed action;

(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance
and enhancement of the long-term productivity of the same; and

(e) whenever a proposal involve the use of depletable or non-renewable resources, a finding must be made that such
use and commitment are warranted.

The IRR was more specific as to what details should be included in the environmental impact
statement:chanroblesvirtuallawlibrary
5.2.1 Environmental Impact Statement (EIS).

The EIS should contain at least the following:

a. EIS Executive Summary;
b. Project Description;
c. Matrix of the scoping agreement identifying critical issues and concerns, as validated by EMB;
d. Baseline environmental conditions focusing on the sectors (and resources) most significantly affected by the proposed
action;
e. Impact assessment focused on significant environmental impacts (in relation to project construction/commissioning,
operation and decommissioning), taking into account cumulative impacts;
f. Environmental Risk Assessment if determined by EMB as necessary during scoping;
g. Environmental Management Program/Plan;
h. Supporting documents, including technical/socio-economic data used/generated; certificate of zoning viability and
municipal land use plan; and proof of consultation with stakeholders;
i. Proposals for Environmental Monitoring and Guarantee Funds including justification of amount, when required;
j. Accountability statement of EIA consultants and the project proponent; and
k. Other clearances and documents that may be determined and agreed upon during scoping.

Not all the details required in an environmental impact statement can be found in an EPRMP. An EPRMP only
requires:chanroblesvirtuallawlibrary
5.2.5 Environmental Performance Report and Management Plan (EPRMP).
The EPRMP shall contain the following:
a. Project Description;
b. Baseline conditions for critical environmental parameters;
c. Documentation of the environmental performance based on the current/past environmental management measures
implemented;
d. Detailed comparative description of the proposed project expansion and/or process modification with corresponding
material and energy balances in the case of process industries; and
e. EMP based on an environmental management system framework and standard set by EMB.
An EPRMP is not a comprehensive study of environmental impacts, unlike an environmental impact statement. It is, in
essence, a description of the project and documentation of environmental performance. Based on Section 5.2.5 of the
IRR, it contains no identification of critical issues. There is also no assessment of the environmental impact and risks
that the project may cause.

The ponencia finds that the EIS requirement was complied with. According to the ponencia, the law does not expressly
state that applications for amendments of ECCs require an EIS. Therefore, the EIS submitted prior to the amendment of
the projects features was sufficient compliance with the EIS requirement under our laws.

Presidential Decree Nos. 1151 and 1586 require an EIS for every project that will substantially affect our environment.
These laws do not exempt amended projects from the EIS requirement. The ponencias finding presumes that for
purposes of compliance with this EIS requirement, the project as originally described was identical with the project
after the amendment such that no new EIS was necessary to determine if the environmental impact would be different
after the amendment. This is a dangerous and premature conclusion.

Any finding that the original project and the modified project are the same or different from each other in terms of
environmental impact is itself a conclusion that must have scientific basis. Thus, to determine the environmental
impact of projects, a different EIS should be submitted to reflect substantial modifications.

Our law requires the EIS for a purpose. It ensures that business proponents are sufficiently committed to mitigate the
full environmental impacts of their proposed projects. It also ensures that the proposed mitigating measures to be
applied are appropriate for the operations of an environmentally critical project. Dispensing with the appropriate EIS
encourages businesses to treat the EIS requirement as a mere formality that may be obtained and later conveniently
amend without the need to conduct the appropriate studies. It discourages full responsibility and encourages
businesses to resort to expedient measures to secure the proper environmental clearances.

The ponencia ruled that a holistic reading of the IRR shows that the environmental impact assessment process allows
for flexibility in the determination of the appropriate documentary requirements. The ponencia cites Section 8.3 of the
IRR which states that the processing requirements for ECC amendments are focused only on necessary information.
Thus:chanroblesvirtuallawlibrary
8.3 Amending an ECC

Requirements for processing ECC amendments shall depend on the nature of the request but shall be focused on the
information necessary to assess the environmental impact of such changes.

8.3.1. Requests for minor changes to ECCs such as extension of deadlines for submission of post-ECC requirements
shall be decided upon by the endorsing authority.

8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding authority.

8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of the amendment application shall not
exceed thirty (30) working days; and for ECCs issued pursuant to an EIS, the processing shall not exceed sixty (60)
working days. Provisions on automatic approval related to prescribed timeframes under AO 42 shall also apply for the
processing of applications to amend ECCs.

The ponencia also cites the Revised Procedural Manual for DAO 03-30s (Revised Manual) Flowchart on Request for
ECC Amendments (flowchart) and the Decision Chart for Determination of Requirements for Project Modification
(decision chart).47chanRoblesvirtualLawlibrary

The first step in the flowchart states that [w]ithin three (3) years from ECC issuance (for projects not started) OR at any
time during project implementation, the Proponent prepares and submits to the ECC-endorsing DENR-EMB office a
LETTER-REQUEST for ECC amendments including data information, reports or documents to substantiate the requested
revisions.

Meanwhile, the decision chart states that an EPRMP will be required for [i]ncrease in capacity or auxiliary component
of the original project which will either exceed PDR (non-covered project) thresholds, or EMP & ERA cannot address
impacts and risks arising from modification.48chanRoblesvirtualLawlibrary

According to the ponencia, these portions of the flowchart and the decision chart show that the ECC amendment
process also applies to non-operating projects, and that the Department of Environment and Natural Resources
correctly required an EPRMP to support the first of RP Energys requested amendment.
 However, to interpret the rules in a manner that would give the Department of Environment and Natural Resources the
discretion whether to require or not to require an environmental impact statement renders the rules void. As an
administrative agency, the Department of Environment and Natural Resources power to promulgate rules is limited by
the provisions of the law it implements. It has no power to modify the law, or reduce or expand its provisions. The
provisions of the law prevail if there is inconsistency between the law and the rules promulgated by the administrative
agency.

In United BF Homeowners Association v. BF Homes, Inc.:49chanRoblesvirtualLawlibrary

As early as 1970, in the case of Teoxon vs. Members of the Board of Administrators (PVA), we ruled that the power to
promulgate rules in the implementation of a statute is necessarily limited to what is provided for in the legislative
enactment. Its terms must be followed for an administrative agency cannot amend an Act of Congress. The rule-
making power must be confined to details for regulating the mode or proceedings to carry into effect the law as it has
been enacted, and it cannot be extended to amend or expand the statutory requirements or to embrace matters not
covered by the statute. If a discrepancy occurs between the basic law and an implementing rule or regulation, it is the
former that prevails.

....

The rule-making power of a public administrative body is a delegated legislative power, which it may not use either to
abridge the authority given it by Congress or the Constitution or to enlarge its power beyond the scope intended.
Constitutional and statutory provisions control what rules and regulations may be promulgated by such a body, as well
as with respect to what fields are subject to regulation by it. It may not make rules and regulations which are
inconsistent with the provisions of the Constitution or a statute, particularly the statute it is administering or which
created it, or which are in derogation of, or defeat the purpose of a statute.

Moreover, where the legislature has delegated to an executive or administrative officers and boards authority to
promulgate rules to carry out an express legislative purpose, the rules of administrative officers and boards, which have
the effect of extending, or which conflict with the authority-granting statute, do not represent a valid exercise of the
rule-making power but constitute an attempt by an administrative body to legislate. A statutory grant of powers
should not be extended by implication beyond what may be necessary for their just and reasonable execution. It is
axiomatic that a rule or regulation must bear upon, and be consistent with, the provisions of the enabling statute if
such rule or regulation is to be valid.50

In this case, the IRR implements Presidential Decree No. 1586 which in turn is based on Presidential Decree No. 1151. In
Presidential Decree No. 1151, an environmental impact statement is required for all projects that have a significant
impact on the environment. The IRR cannot provide for exemptions from the requirement of environmental impact
statement for all environment-related actions or projects more than those covered by the exception provided in
Presidential Decree No. 1586.

Thus, a project description also does not supplant the requirement of an environmental impact statement. RP Energy
only submitted a project description to support its request for second amendment of the ECC to change the design of
the coal plant from 2 x 150 MW to 1 x 300 MW.

A project description is described in the IRR as follows:chanroblesvirtuallawlibrary

x. Project Description (PD) - document, which may also be a chapter in an EIS, that describes the nature,
configuration, use of raw materials and natural resources, production system, waste or pollution generation and
control and the activities of a proposed project. It includes a description of the use of human resources as well as
activity timelines, during the pre-construction, construction, operation and abandonment phases. It is to be used for
reviewing co-located and single projects under Category C, as well as for Category D projects.

It shall contain the following information:ChanRoblesVirtualawlibrary

5.2.6. Project Description (PD)

The PD shall be guided by the definition of terms and shall contain the following:
a. Description of the project;
b. Location and area covered;
c. Capitalization and manpower requirement;
d. For process industries, a listing of raw materials to be used, description of the process or manufacturing technology, type
and volume of products and discharges;
e. For Category C projects, a detailed description on how environmental efficiency and overall performance improvement
will be attained, or how an existing environmental problem will be effectively solved or mitigated by the project;
f. A detailed location map of the impacted site showing relevant features (e.g. slope, topography, human settlements);
[and]
g. Timelines for construction and commissioning

Based on the IRR, therefore, the project description also does not contain the features of an environmental impact
statement. It is merely a descriptive of the projects nature and use of resources. It does not contain details of the
projects environmental impact, critical issues, and risks.

We usually defer to the findings of fact and technical conclusions of administrative agencies because of their specialized
knowledge in their fields. However, such findings and conclusions must always be based on substantial evidence, which
is the relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 51 Because of the
risks involved in environmental cases, the evidence requirement may be more than substantial. The court has more
leeway to examine the evidences substantiality.

Judicial review of administrative findings or decisions is justified if the conclusions are not supported by the required
standard of evidence. It is also justified in the following instances as enumerated in Atlas Consolidated Mining v.
Factoran, Jr.:52chanRoblesvirtualLawlibrary
. . . findings of fact in such decision should not be disturbed if supported by substantial evidence, but review is
justified when there has been a denial of due process, or mistake of law or fraud, collusion or arbitrary action in the
administrative proceeding. . . where the procedure which led to factual findings is irregular; when palpable errors are
committed; or when a grave abuse of discretion, arbitrariness, or capriciousness is manifest. 53 (Emphasis supplied)

Thus, when there are procedural irregularities that lead to the conclusions or factual findings, the court may exercise
their power of judicial review. In this case, the Department of Environment and Natural Resources issued an amended
ECC based on an environmental impact assessment that does not correspond to the new design of the project.

An environmental impact statement is a comprehensive assessment of the possible environmental effects of a project.
The study and its conclusions are based on projects components, features, and design. Design changes may alter
conclusions. It may also have an effect on the cumulative impact of the project as a whole. Design changes may also
have an effect on the results of an environmental impact assessment.

For these reasons, the amended ECCs issued without a corresponding environmental impact statement is void. A new
ECC should be issued based on an environmental impact statement that covers the new design proposed by RP Energy.

However, a Writ of Kalikasan is not the proper remedy to question the irregularities in the issuance of an ECC. Casio,
et al. should have first exhausted administrative remedies in the Department of Environment and Natural Resources
and the Office of the President before it could file a Petition for certiorari with our courts. Essentially, it could not have
been an issue ripe for litigation in a remanded Petition for Issuance of a Writ of Kalikasan. Thus, the Court of Appeals
committed grave abuse of discretion in acting on the nullification of the ECC. More so, it is improper for us to make any
declaration on the validity of the amended ECCs in this action.cralawred
III

Local government consent under Sections 26 and 27 of the Local Government Code is not a requisite for the issuance of
an ECC. The issuance of an ECC and the consent requirement under the Local Government Code involve different
considerations.

The Department of Environment and Natural Resources issues an ECC in accordance with Presidential Decree Nos. 1151
and 1586. It is issued after a proposed projects projected environmental impact is sufficiently assessed and found to be
in accordance with the applicable environmental standards. A Department of Environment and Natural Resources valid
finding that the project complies with environmental standards under the law may result in the issuance of the ECC. In
other words, an ECC is issued solely for environmental considerations.

Although Section 26 of the Local Government Code requires prior consultation with local government units,
organizations, and sectors, it does not state that such consultation is a requisite for the issuance of an ECC. Section 27
of the Local Government Code provides instead that consultation, together with the consent of the local government is
a requisite for the implementation of the project. This shows that the issuance of the ECC is independent from the
consultation and consent requirements under the Local Government Code. Sections 26 and 27 of the Local Government
Code provide:chanroblesvirtuallawlibrary
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of
every national agency or government-owned or controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable
resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the
local government units, nongovernmental organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the community in terms of environmental or
ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. No project or program shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall
not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution. (Emphases supplied)

Further, the results of the consultations under Sections 26 and 27 do not preclude the local government from taking
into consideration concerns other than compliance with the environmental standards. Section 27 does not provide that
the local governments prior approval must be based only on environmental concerns. It may be issued in light of its
political role and based on its determination of what is economically beneficial for the local government unit.

The issuance of the ECC, therefore, does not guarantee that all other permits for a project will be granted. It does not
bind the local government unit to give its consent for the project. Both are necessary prior to a projects
implementation.

Similarly, the requirement of certificate of non-overlap under Section 59 of the Indigenous Peoples Rights Act 54 is
independent from the issuance of an ECC. This requirement is a property issue. It is not related to environmental
concerns under the Department of Environment and Natural Resources jurisdiction.cralawred
IV

The question relating to the validity of the agreement between the SBMA and RP Energy is independent from the
questions relating to whether the proper permits have been issued as well as whether the consent of the local
government units have been properly secured.

The ponencia makes the claim that the SBMAs power to approve or disapprove projects in territories covered by the
SBMA is superior over the local government units. This is based on Section 14 of Republic Act No. 7227, 55 which
provides:chanroblesvirtuallawlibrary
Sec. 14. Relationship with the Conversion Authority and tthe Local Government Units.

(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic Authority shall
exercise administrative powers, rule-making and disbursement of funds over the Subic Special Economic Zone in
conformity with the oversight function of the Conversion Authority.

(b) In case of conflict between Subic Authority and the local government units concerned on matters affecting the Subic
Special Economic Zone other than defense and security, the decision of the Subic Authority shall prevail.

I disagree.

Interpreted this way, this provision may not be in accordance with our Constitution. It violates the provisions relating to
the Presidents supervision over local governments and the principle of local government autonomy.

It is our basic policy to ensure the local autonomy of our local government units. 56 Under the Constitution, these local
government units include only provinces, cities, municipalities, barangays, and the autonomous regions of Muslim
Mindanao and the Cordilleras.57 Provinces, cities, municipalities, and political subdivisions are created by law based on
indicators such as income, population, and land area.58 Barangays are created through ordinances.59 Aside from the law
or ordinance creating them, a local government unit cannot be created without the approval by a majority of the votes
case in a plebiscite in the political units directly affected. 60chanRoblesvirtualLawlibrary

The Subic Bay Metropolitan Authority is not a local government unit. It is a corporate body created by a law.61 No
plebiscite or income, land area, and population requirements need to be reached for its creation. SBMA is merely the
implementing arm of the Bases Conversion Development Authority, which is under the Presidents control and
supervision.62 It does not substitute for the President. It is not even the alter ego of the Chief Executive.

Article X, Section 4 of the Constitution provides that the Presidents power over our local government units is limited to
general supervision, thus:chanroblesvirtuallawlibrary
Section 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with
respect to component cities and municipalities, and cities and municipalities with respect to component barangays,
shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.
In The National Liga ng mga Barangay v. Paredes,63 this court differentiated between control and
supervision:chanroblesvirtuallawlibrary
In the early case of Mondano v. Silvosa, et al., this Court defined supervision as overseeing, or the power or authority
of an officer to see that subordinate officers perform their duties, and to take such action as prescribed by law to
compel his subordinates to perform their duties. Control, on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for that of the latter. In Taule v. Santos, the Court held that the Constitution permits the
President to wield no more authority than that of checking whether a local government or its officers perform their
duties as provided by statutory enactments. Supervisory power, when contrasted with control, is the power of mere
oversight over an inferior body; it does not include any restraining authority over such body. 64

Section 14 of Republic Act No. 7227 cannot be interpreted so as to grant the Subic Bay Metropolitan Authority the
prerogative to supplant the powers of the local government units.

Local autonomy ensures that local government units can fully developed as self-reliant communities. The evolution of
their capabilities to respond to the needs of their communities is constitutionally guaranteed. In its implementation and
as a statutory policy, national agencies must consult the local government units regarding projects or programs to be
implemented in their jurisdictions. Article X, Section 2 of the Local Government Code
provides:chanroblesvirtuallawlibrary
Section 2. Declaration of Policy.

(a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities
and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for
a more responsive and accountable local government structure instituted through a system of decentralization
whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the national government to the local government units.

(b) It is also the policy of the State to ensure the accountability of local government units through the institution of
effective mechanisms of recall, initiative and referendum.

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with
appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective jurisdictions.

In San Juan v. Civil Service Commission,65 this court emphasized that laws should be interpreted in favor of local
autonomy:chanroblesvirtuallawlibrary
Where a law is capable of two interpretations, one in favor of centralized power in Malacaang and the other beneficial
to local autonomy, the scales must be weighed in favor of autonomy.

....

The exercise by local governments of meaningful power has been a national goal since the turn of the century. And yet,
inspite of constitutional provisions and, as in this case, legislation mandating greater autonomy for local officials,
national officers cannot seem to let go of centralized powers. They deny or water down what little grants of autonomy
have so far been given to municipal corporations.

....

In his classic work Philippine Political Law Dean Vicente G. Sinco stated that the value of local governments as
institutions of democracy is measured by the degree of autonomy that they enjoy. Citing Tocqueville, he stated that
local assemblies of citizens constitute the strength of free nations. x x x A people may establish a system of free
government but without the spirit of municipal institutions, it cannot have the spirit of liberty. (Sinco, Philippine
Political Law, Eleventh Edition, pp. 705-706).

Our national officials should not only comply with the constitutional provisions on local autonomy but should also
appreciate the spirit of liberty upon which these provisions are based.66

Thus, Republic Act No. 7227 has not granted the SBMA with powers superior to those of local government units. The
power of local governments that give consent to national government projects has not been supplanted.
Final note
The states duty to protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature67 can be accomplished in many ways. Before an environmentally critical project can be
implemented or prior to an activity in an environmentally critical area, the law requires that the proponents undergo
environmental impact assessments and produce environmental impact statements. On this basis, the proponents must
secure an ECC which may outline the conditions under which the activity or project with ecological impact can be
undertaken. Prior to a national government project, local government units, representing communities affected, can
weigh in and ensure that the proponents take into consideration all local concerns including mitigating and remedial
measures for any future ecological damage. Should a project be ongoing, our legal order is not lacking in causes of
actions that could result in preventive injunctions or damages arising from all sorts of environmental torts.

The function of the extraordinary and equitable remedy of a Writ of Kalikasan should not supplant other available
remedies and the nature of the forums that they provide. The Writ of Kalikasan is a highly prerogative writ that issues
only when there is a showing of actual or imminent threat and when there is such inaction on the part of the relevant
administrative bodies that will make an environmental catastrophe inevitable. It is not a remedy that is availing when
there is no actual threat or when imminence of danger is not demonstrable. The Writ of Kalikasan thus is not an excuse
to invoke judicial remedies when there still remain administrative forums to properly address the common concern to
protect and advance ecological rights. After all, we cannot presume that only the Supreme Court can conscientiously
fulfill the ecological duties required of the entire state.

Environmental advocacy is primarily motivated by care and compassion for communities and the environment. It can
rightly be a passionately held mission. It is founded on faith that the world as it is now can be different. It implies the
belief that the longer view of protecting our ecology should never be sacrificed for short-term convenience.

However, environmental advocacy is not only about passion. It is also about responsibility. There are communities
with almost no resources and are at a disadvantage against large projects that might impact on their livelihoods. Those
that take the cudgels lead them as they assert their ecological rights must show that they have both the
professionalism and the capability to carry their cause forward. When they file a case to protect the interests of those
who they represent, they should be able to make both allegation and proof. The dangers from an improperly managed
environmental case are as real to the communities sought to be represented as the dangers from a project by
proponents who do not consider their interests.

The records of this case painfully chronicle the embarrassingly inadequate evidence marshalled by those that initially
filed the Petition for a Writ of Kalikasan. Even with the most conscientious perusal of the records and with the most
sympathetic view for the interests of the community and the environment, the obvious conclusion that there was not
much thought or preparation in substantiating the allegations made in the Petition cannot be hidden. Legal advocacy
for the environment deserves much more.

ACCORDINGLY, I vote to DENY the Petition in G.R. No. 207282. I also vote to DENY the Petitions in G.R. No. 207257 and
207276 insofar as the issue of the validity of the ECCs is concerned.
Endnotes:

1
RULES OF PROCEDURE FOR ENVIRONMENTAL CASE, Rule 7, sec. 1.

2
Pres. Decree No. 1151 (1979), Philippine Environmental Policy.

3
Pres. Decree No. 1586 (1978), Establishing an Environmental Impact System, Including Other Environmental
Management Related Measures and for Other Purposes.

4
DENR Adm. Order No. 2003-30 (2003), Implementing Rules and Regulations of Presidential Decree No. 1586.

5
Rep. Act No. 7160 (1991), An Act Providing for a Local Government Code of 1991.

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of
every national agency or government-owned or controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable
resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the
local government units, nongovernmental organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the community in terms of environmental or
ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

6
Rep. Act No. 7160 (1991), An Act Providing for a Local Government Code of 1991.
Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall
not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.

7
Rep. Act No. 8371 (1997), An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural
Communities/Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing
Mechanisms, Appropriating Funds Therefor, and for Other Purposes.

8
RULES OF COURT, Rule 3, sec. 2; See also Stronghold Insurance Company Inc., v. Cuenca, G.R. No. 173297, March 6,
2013, 692 SCRA 473 [Per J. Bersamin, First Division].

9
See Consumido v. Ros, 555 Phil. 652, 658 (2007) [Per J. Tinga, Second Division].

10
See Stronghold Insurance Company Inc., v. Cuenca, G.R. No. 173297, March 6, 2013, 692 SCRA 473 [Per J. Bersamin,
First Division].

11
Id. See also De Leon v. Court of Appeals, 343 Phil. 254 (1997) [Per J. Davide, Jr., Third Division], citing Columbia
Pictures, Inc. v. Court of Appeals, 329 Phil. 875, 900902 (1996) [Per J. Regalado, En Banc].

12
See Consumido v. Ros, 555 Phil. 652, 658 (2007) [Per J. Tinga, Second Division]; See also Ang v. Ang, G.R. No. 186993,
August 22, 2012, 678 SCRA 699, 707 [Per J. Reyes, Second Division].

13
De Leon v. Court of Appeals, 343 Phil. 254 (1997) [Per J. Davide, Jr., Third Division] citing 1 M. Moran, Commentaries
on the Rules of COurt 154 (1979).

14
Concurring Opinion of J. Leonen in Arigo v. Swift, G.R. No. 206510, September 16, 2014, [Per J. Villarama, Jr., En
Banc].

15
G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide, Jr., En Banc].

16
Id. at 802-803.

17
Concurring Opinion of J. Leonen in Arigo v. Swift, G.R. No. 206510, September 16, 2014, [Per J. Villarama, Jr., En
Banc].

18
Id.

19
Id.

20
Concurring Opinion of J. Leonen in Arigo v. Swift, G.R. No. 206510, September 16, 2014, [Per J. Villarama, Jr., En
Banc].

21
Rules of Procedure for Environmental Cases, Rule 7, sec.1.

22
RULES OF COURT, Rule 130, sec. 49.

23
Decision, pages 29-30.

24
Id. at 32-33.

25
Id. at 38.

26
Concurring Opinion of J. Leonen in Arigo v. Swift, G.R. No. 206510, September 16, 2014, [Per J. Villarama, Jr., En
Banc].

27
Pres. Decree No. 1151 (1977), sec. 1.

28
Pres. Decree No. 1151 (1977), sec. 2.

29
Pres. Decree No. 1151 (1977), sec. 2.
30
Pres. Decree No. 1586 (1978), sec. 2.

31
Pres. Decree No. 1586 (1978), sec. 4.

32
DENR Adm. Order No. 2003-30 (2003), sec. 3(f).

33
Pres. Decree No. 1586 (1978), sec. 5.

34
Ponencia, pp. 5-6.

35
Id. at p. 6.

36
Id.

37
Id.

38
Id.

39
Id.

40
Id. at 7.

41
Id. at 14 and 16.

42
Id. at 14.

43
Id.

44
DENR Adm. Order No. 2003-30 (2003), sec. 2.

45
Proc. No. 2146 (1981), Proclaiming Certain Areas and Types of Projects as Environmentally Critical and Within the
Scope of the Environmental Impact Statement System Established under Presidential Decree No. 1586.

46
DENR Adm. Order No. 2003-30 (2003), sec. 3(k).

47
Ponencia, 66-671.

48
Ponencia, p. 70.

49
369 Phil. 568 (1999) [Per J. Pardo, First Division].

50
Id. at 579580.

51
Ang Tibay v. Court of Industrial Relations, 69 Phil. 635, 642-645 (1940) [Per J. Laurel, En Banc].

52
238 Phil. 48 (1987) [Per J. Paras, First Division].

53
Id. at 57.

54
Rep. Act No. 8371 (1997), An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural
Communities/Indigenous Peoples, Creating an National Commission on Indigenous Peoples, Establishing Mechanisms,
Appropriating Funds Therefor, and for Other Purposes. Indigenous Peoples Rights Act.

Section 59 Certification Precondition. All departments and other governmental agencies shall henceforth be strictly
enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production sharing
agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral
domain. Such certification shall only be issued after a field based investigation is conducted by the Ancestral Domains
Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior
informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or
government-owned or controlled corporation may issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to
stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation
process.
55
Rep. Act No. 7227 (1992), An Act Accelerating the Conversion of Military Reservations into Other Productive Uses,
Creating the Bases Conversion and Development Authority for this Purpose, Providing Funds Therefor and for Other
Purposes.

56
Const. (1987), art. II, sec. 25. The State shall ensure the autonomy of local governments; art. X, sec. 2. The territorial
and political subdivisions shall enjoy local autonomy.

57
Const. (1987), art. X, sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the
provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.

58
Rep. Act No. 7160 (1991), An Act Providing for a Local Government Code of 1991.

Section 6. Authority to Create Local Government Units. - A local government unit may be created, divided, merged,
abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city,
municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang
panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and
requirements prescribed in this Code.

Section 7. Creation and Conversion. - As a general rule, the creation of a local government unit or its conversion from
one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services,
to wit:

(a) Income. - It must be sufficient, based on acceptable standards, to provide for all essential government facilities and
services and special functions commensurate with the size of its population, as expected of the local government unit
concerned;
(b) Population. - It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local
government unit concerned; and
(c) Land Area. - It must be contiguous, unless it comprises two or more islands or is separated by a local government
unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to
provide for such basic services and facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National
Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural
Resources (DENR).

59
Rep. Act No. 7160 (1991), sec. 6.

60
Const. (1987), art. X, sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished,
or its boundary substantially altered, except in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

61
Rep. Act No. 7227(1992), sec. 13.

62
Rep. Act No. 7227(1992), sec. 13 and 17.

63
482 Phil. 331 [Per J. Tinga, En Banc].

64
Id. at 355356.

65
G.R. No. 92299, April 19, 1991, 196 SCRA 69 [Per J. Gutierrez, Jr., En Banc].

66
Id. at 7580.

67
CONST. (1987), art. II, sec. 16.
 SECOND DIVISION
MILAGROS ILAO-QUIANAY G.R. No. 154087
and SERGIO ILAO, as Joint
Administrator of the Intes- Present:
tate Estate of Simplicio
Ilao, and AMBROSIA ILAO. PUNO, J.,
Petitioners, Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
- versus - CHICO-NAZARIO, JJ.
Promulgated:
RODOLFO MAPILE,
Respondent.
October 25, 2005

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

DECISION

TINGA, J.:
This Petition for Review on Certiorari[1] assails the Decision[2] of the Court of Appeals in CA-G.R. CV 50923 which
sustained the trial court decision in declaring that the property subject of this case rightfully belongs to respondent
herein.

The following facts are condensed from the decisions of the Court of Appeals and the trial court.

Subject of this case is a parcel of land situated in Sta. Cruz, Manila and covered by Transfer Certificate of Title
No. 48529 (TCT No. 48529) in the name of the deceased Simplicio Ilao (Ilao). In the course of the judicial settlement of
Ilaos estate, his heirs found out that the title of the subject property had an annotation of adverse claim filed by a
certain Juanito Ibarra (Ibarra). Respondent herein, Atty. Rodolfo Mapile (respondent), filed a motion to exclude the
property from the inventory on the ground that the same no longer formed part of Ilaos estate having been disposed of
during the latters lifetime in favor of Ibarra. Acting upon respondents allegation, the heirs of Ilao, through petitioners
herein, promptly filed on December 8, 1976 a civil case for Quieting of Title and Damages, docketed as Civil Case No.
105865 of the Regional Trial Court (RTC) of Manila, Branch 37.

The Court of First Instance of Manila, Branch 12, in Special Proceedings No. 93674, denied respondents motion
and, in an order dated February 7, 1978, authorized the sale of the subject property to Virgilio Sevilla subject to the
outcome of Civil Case No. 105865.

Relevantly, it appears that in 1974, Ibarra filed a petition for the issuance of a new owners duplicate copy of the title of
the subject property, claiming that he was in possession of said owners duplicate but that he lost the same in a fire that
took place in Bo. Sta. Ignacia, Camiling, Tarlac on April 26, 1974. The case was docketed as LRC Cad. Rec. No. 271 of the
RTC of Manila. This allegation was, however, uncovered by the trial court to be false when, upon the courts subpoena,
Ilaos heirs appeared and presented the certificate of title Ibarra claimed to have been lost.

On October 3, 1983, respondent filed Civil Case No. 83-20520 for Specific Performance and Declaration of Nullity of
Contract, claiming that the subject property had been sold by Ilao to Ibarra pursuant to a Deed of Absolute Sale (deed
of sale) dated February 7, 1972, and that Ibarra, in turn, sold the property to him.

Civil Case No. 105865 and Civil Case No. 83-20520 were consolidated. After trial, the court rendered judgment in favor
of respondent, finding that the deed of sale was genuine and ordering, among others, that petitioners herein surrender
the owners duplicate copy of TCT No. 48529 and all documents appurtenant thereto in their possession. [3] The decision
was primarily anchored on the trial courts finding that the conflicting testimonies of the handwriting
experts[4] presented by both parties left it no choice but to favor the notarized deed of sale and to rule that the same is
genuine.

Petitioners filed a motion for reconsideration, which respondent countered with an omnibus motion to strike
out the motion for reconsideration for being pro forma and to seek the issuance of a writ of execution. The trial court
denied petitioners motion for reconsideration, granted respondents omnibus motion, and ordered the issuance of a
writ of execution.[5]

The decision was appealed to the Court of Appeals. Meanwhile, the order denying the motion for
reconsideration became the subject of a petition for certiorari also with the appellate court. The petition for certiorari,
docketed as CA-G.R. SP. No. 38421, was denied because the trial court had already ordered the elevation of the records
of the case to the appellate court, and in view of respondents manifestation that he would not move for execution
pending appeal.

The errors assigned on appeal dwell on the twin findings that the deed of sale between Ilao and Ibarra was
genuine and that the subject property was validly transferred to respondent. As previously mentioned, the Court of
Appeals affirmed the decision of the trial court and denied petitioners motion for reconsideration.

Petitioners[6] herein argue that the appellate court erred in disregarding the testimonies of the expert
witnesses allegedly to the effect that Ilaos signature on the deed of sale was forged. While the two experts initially
disagreed in that whereas petitioners witness categorically declared that the signature on the deed of sale was a
forgery based on the specimen signatures, respondents witness expressed doubts whether the specimen signatures
were themselves genuine, the latter allegedly agreed to exclude the specimen signatures to which he expressed
reservation and came up with the same conclusion that the signature in the deed of sale was indeed forged.

Moreover, petitioners question the probative value given by the trial court and the Court of Appeals to the
notarized deed of sale. They stress that the trial court even went to the extent of admitting in evidence the transcript of
the testimony of the notary public who purportedly notarized the document taken in LRC Cad. Rec. No. 271 in which
petitioners were not named parties, while the appellate court for its part sustained the lower courts action.

They assail as hearsay the factual findings of the trial court on the circumstances surrounding the sale of the
property to Ibarra which were based only on respondents narration, without Ibarra actually testifying thereon. These
circumstances, i.e., that it was Ibarras father who paid for the property allegedly to induce Ibarra to marry a girl his
father had wanted for him; that instead of marrying the girl, Ibarra fled to Mindanao; and that he later returned and
was advised by a lawyer, who turned out to be an impostor, to file a petition claiming that the certificate of title had
been destroyed by fire, which petition was the subject of LRC Cad. Rec. No. 271, were adopted by the appellate court as
the factual backdrop of the case.

The trial court and the Court of Appeals also allegedly erred in certain matters crucial to the case, such as the
fact that Ibarra neither took possession of the subject property nor of the certificate of title covering it; that Ibarra
never paid the real estate taxes on the property as the tax declarations have remained in the name of Ilao; and that no
capital gains tax, documentary stamps tax and other transfer taxes were ever paid pursuant to the supposed deed of
sale. These circumstances are allegedly known to respondent who has never denied knowledge thereof.

Notably, these arguments are the very same ones raised before the Court of Appeals albeit petitioners
purposively rearranged the order in which they made their assignment of errors in this petition.

Respondent[7] avers at the outset that the instant petition should be denied because it raises questions of fact
not proper in a petition for review.

On the objection to the admission in evidence of the testimony of the notary public taken in another case and
as regards the hearsay nature of his testimony on the circumstances surrounding the sale of the property to Ibarra,
respondent cites the decision of the appellate court ruling that these testimonies may be admitted as independently
relevant evidence and as part of respondents narration.

Respondent further claims that the disagreement of the expert witnesses on the matter of whether the
specimen signatures are themselves authentic is insurmountable such that both testimonies should be disregarded as
was done in this case.

Finally, he claims that he is a buyer in good faith because he bought the property after procuring a certified
true copy of the deed of sale from the clerk of court of the then Court of First Instance of Manila and ascertaining from
the transcript taken of the testimony of the notary public who notarized the document that Ibarras claim of ownership
is valid.

The question of whether Ilaos signature on the deed of sale is a forgery is a question of fact which requires an
appraisal and re-evaluation of the evidence presented by the parties. As a rule, however, such a procedure is beyond
the Courts dominion because factual findings of trial courts, especially when affirmed by the Court of Appeals, as in this
case, are binding on the Supreme Court. The review of such findings is not a function that this Court normally
undertakes.

Under the 1997 Rules of Civil Procedure, only questions of law may be raised in a petition for review before
this Court. However, this Rule is not absolute; it admits of exceptions, such as: (1) when the findings of a trial court
are grounded entirely on speculation, surmises or conjectures; (2) when a lower courts inference from its factual
findings is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion in the appreciation of
facts; (4) when the findings of the appellate court go beyond the issues of the case, run contrary to the admissions of
the parties to the case, or fail to notice certain relevant facts which, if properly considered, will justify a different
conclusion; (5) when there is a misappreciation of facts; (6) when the findings of fact are conclusions without mention
of the specific evidence on which they are based, are premised on the absence of evidence, or are contradicted by
evidence on record.[8]

Petitioners argue that the trial court and the appellate court failed to take into account the fact that the
handwriting expert presented by respondent as his witness, after agreeing to exclude the specimen signatures which he
doubted, finally agreed with the finding of petitioners own expert witness that Ilaos signature on the deed of sale was
forged. Allegedly, both courts misappreciated the evidence and consequently came up with the erroneous conclusion
affirming the validity of the deed of sale.

We find, however, that petitioners contention is not entirely accurate. The trial court and the Court of
Appeals did take into account the entirety of the testimonies of the handwriting experts and reckoned that neither
should be accorded probative value because the expert witnesses have conflicting opinions on the genuineness of the
signatures used as standards against which the alleged forged signature on the deed of sale would be measured. The
assailed Decision succinctly summarizes:

Both experts agree, as logic and commons sense demand, with one absolute proposition. A
conclusion that the specimen signatures and the questioned signature were not signed by the same person is
based on the assumption that all the exemplars were written by one and the same person. Otherwise, the
conclusion does not deserve a scant consideration.

Constantino testified he was sure that all the standard signatures W-5, W-11, W-13 and W-14,
included were written by one and the same person.

Cruz, however, disagreed. He doubted that the signatures marked as W-5, W-11, W-13 and W-14 by
the same author of the rest of the exemplars. To him, the specimen signatures consisted of two sets signed by
two different persons. Worse, he does not know which of the two sets of specimen signatures is the authentic
signature to serve as the standard. If on the exemplars alone, there is already an unbridgeable divergence of
opinion when there should be none, it is safe to expect greater polarization, in fact, confusion to use Cruzs
term, of conclusions with respect to the questioned signature.

With this irreconcilable stand, it is a superfluity to further discuss the appellants arguments on the
claim of forgery. Constantino and Cruz, sincere in their espousal of their respective opinion, disparaged,
discredited and neutralized each other completely that the assistance experts are supposed to extend to
courts is nowhere in sight. The appellants stratagem to FIRST DISREGARD the doubtful signatures and THEN
ADD additional specimens in order for Cruz to conclude that the questioned signature and the exemplars were
not written by one person amuses but does not relieve the confusion. Constantino remains sure that the four
signatures were signed by the author of all the exemplars. The doubtful signatures cannot be removed without
impeaching Constantino. Neither could the latter be believed without making Cruz look ludicrous and
unskilled. Experts are presented to enlighted not confuse the courts and for this reason, We do not fault the
lower court for disregarding, in its exasperation, their testimony on record, no doubt, relying on the leeway
extended to all courts that they are not bound to submit their findings necessarily to such testimony; they are
FREE to weigh them and they can give or REFUSE to give them any value as proof (Salonga, Philippine Law on
Evidence, p. 507, emphasis supplied).[9]

Indeed, courts are not bound by expert testimonies. They may place whatever weight they choose upon such
testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is
peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his
actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his
possible bias in favor of the side for whom he testifies, and any other matters which serve to illuminate his statements.
The opinion of an expert should be considered by the court in view of all the facts and circumstances of the case. The
problem of the evaluation of expert testimony is left to the discretion of the trial court whose ruling thereupon is not
reviewable in the absence of an abuse of that discretion.[10]

We find that the trial court and the Court of Appeals did not commit an error in their evaluation of the
testimonies of the handwriting experts. In fact, we quite agree that the conflicting testimonies should be completely
disregarded.

The validity of the deed of sale should, therefore, be recognized, the only opposition thereto being the alleged
forgery of Ilaos signature which, as discussed above, was not satisfactorily demonstrated. There is no doubt that the
deed of sale was duly acknowledged before a notary public. As a notarized document, it has in its favor the
presumption of regularity and it carries the evidentiary weight conferred upon it with respect to its due execution. It is
admissible in evidence without further proof of its authenticity and is entitled to full faith and credit upon its face. [11]

In this connection, we have to say that petitioners objection to the admission in evidence of the testimony of
the notary public who supposedly notarized the deed of sale taken in another case in which petitioners were not
parties is persuasive. Such testimony does not qualify as an exception to the hearsay rule under Sec. 47, Rule 130 of the
Rules of Court, which provides:

Sec. 47. Testimony or deposition at a former proceeding.The testimony or deposition of a witness

deceased or unable to testify, given at a former case or proceeding, judicial or administrative, involving the
same parties and subject matter, may be given in evidence against the adverse party who had the opportunity
to cross-examine him.

None of the circumstances for the admission of the testimony given at a former proceeding obtains in this
case. Not only were petitioners not parties to the former proceeding and hence without opportunity to cross-examine
the notary public, there was also no proof that the notary public was already deceased or unable to testify. Hence, the
testimony should not have been accorded any probative weight.

The same cannot be said, however, of the testimony of respondent relevant to the circumstances surrounding
the execution of the deed of sale between Ilao and Ibarra. It should be noted that what was sought to be admitted in
evidence, and what was actually admitted in evidence, was the fact that the statements were made by Ibarra, not
necessarily that the matters stated were true. The utterances are in the nature of independently relevant statements
which may be admitted in evidence as such, but not necessarily to prove the truth thereof. [12]

It has been said that where, regardless of the truth or falsity of a statement, the fact that it has been made is
relevant, the hearsay rule does not apply, and the statement may be shown. Evidence as to the making of such
statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially
relevant as to the existence of such a fact.[13] On this basis, the statements attributed to Ibarra regarding the
circumstances surrounding the execution of the deed of sale related to the court by respondent are admissible if only
to establish the fact that such statements were made and the tenor thereof.

As regards petitioners contention that at no time did Ibarra exercise ownership over the subject property as
neither the property nor the certificate of title covering it were delivered to Ibarra, these circumstances do not
necessarily warrant a conclusion that the property was not validly transferred to Ibarra.

It has been held that ownership of the thing sold is acquired only from the delivery thereof, either actual or
constructive. Article 1498 of the Civil Code provides that when the sale is made through a public instrument, as in this
case, the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract, if from
the deed the contrary does not appear or cannot clearly be inferred. The execution of the public instrument, even
without actual delivery of the thing, transfers the ownership from the vendor to the vendee, who may thereafter
exercise the rights of an owner over the same.[14]

In this case, a public instrument was executed through which constructive delivery of the subject property was
made transferring ownership thereof to Ibarra. As the new owner, Ibarra acted perfectly within his rights when he sold
the property to respondent.

IN VIEW OF THE FOREGOING, the petition is hereby DENIED. Costs against petitioners.

SO ORDERED.

DANTE O. TINGA Associate Justice

 [1]
Rollo, pp. 10-36.

[2]
Id. at 37-54; Penned by Associate Justice Bernardo P. Abesamis and concurred in by Associate Justices Eubulo
G. Verzola and Perlita J. Tria Tirona.

[3]
RTC Records, pp. 81-101; The dispositive portion of the decision states:

WHEREFORE, judgment is hereby rendered declaring the deed of sale executed in favor of the
Sevillas null and void and the Deed of Sale executed by Simplicio Ilao in favor of Juanito Ibarra and the deed
of Sale executed by Juanito Ibarra in favor of the plaintiff to be valid and legally binding.

This court orders the defendants as follows:

1. To surrender the owners duplicate copy of TCT No. 48529 and all other documents appurtenant
thereto;
2. To cause the peaceable and smooth turn over of the subject property to the plaintiff;
3. To remit to the plaintiff all rentals of the premises at the rate of P6,500.00 per month or P78,000.00 a year
commencing from October 1976 up to the time the premises are actually surrendered to the plaintiff.
Defendant Milagros Ilao-Quianay is hereby ordered to refund to the defendant heirs of Virgilio Sevilla the
sum of P225,000.00 representing the purchase price they paid to the former for the property subject of this
suit without interest.

No pronouncement as to costs.

SO ORDERED.

[4]
Petitioners presented Eleodoro Constantino, a fingerprint and handwriting expert from the National Bureau
of Investigation, while respondent presented, as rebuttal witness, Francisco Cruz, Jr., Chief of the Questioned
Documents Division of the PNP Crime Laboratory Services.

[5]
RTC Records, pp. 160-164; Order dated May 29, 1995.
[6]
Rollo, pp. 245-272; Memorandum for the Petitioners dated March 17, 2003.
[7]
Id. at 212-244; Memorandum for the Respondent dated March 10, 2003.
[8]
Philippine Rabbit Bus Lines, Inc. v. Macalinao, G.R. No. 141856, February 11, 2005, 451 SCRA 63.
[9]
Rollo, pp. 45-46.
[10]
Salomon v. Intermediate Appellate Court, G.R. No. 70263, May 14, 1990, 185 SCRA 352.
[11]
Dela Cruz v. Dela Cruz, G.R. No. 146222, January 15, 2004, 419 SCRA 648.
[12]
Bon v. People, G.R. No. 152160, January 13, 2004, 419 SCRA 101.
[13]
D.M. Consunji, Inc. v. Court of Appeals, G.R. No. 137873, April 20, 2001, 357 SCRA 249.
[14]
Balatbat v. Court of Appeals, G.R. No. 109410, August 28, 1996, 261 SCRA 128.
 FIRST DIVISION
G.R. No. 209264, July 05, 2016
DAMASO T. AMBRAY AND CEFERINO T. AMBRAY, JR.,* Petitioners, v. SYLVIA A. TSOUROUS, CARMENCITA AMBRAY-
LAUREL, HEDY AMBRAY-AZORES, VIVIEN AMBRAY-YATCO, NANCY AMBRAY-ESCUDERO, MARISTELA AMBRAY-
ILAGAN, ELIZABETH AMBRAY-SORIANO, MA. LUISA FE AMBRAY-ARCILLA, AND CRISTINA AMBRAY-
LABIT, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated April 25, 2013 and the Resolution3 dated
September 24, 2013 rendered by the Court of Appeals (CA) in CA-G.R. CV No. 95606, affirming the Decision 4 dated June
11, 2010 of the Regional Trial Court of San Pablo City, Branch 32 (RTC) in Civil Case No. SP-5831(01).
The Facts

The subject matter of the present controversy is a parcel of land described as Lot 2-C of subdivision plan Psd-04-
009554, covered by Transfer Certificate of Title (TCT) No. T-413825 of the Register of Deeds of San Pablo City (Lot 2-C) in
the name of petitioners Damaso T. Ambray (Damaso) and Ceferino T. Ambray, Jr. (Ceferino, Jr.; collectively, petitioners).

Petitioners and respondents Sylvia A. Tsourous,6 Carmencita Ambray-Laurel, Hedy Ambray-Azores, Vivien Ambray-
Yatco, Nancy Ambray-Escudero, Maristela Ambray-Ilagan (Maristela), Elizabeth Ambray-Soriano, Ma. Fe Luisa Ambray-
Arcilla (Ma. Fe Luisa),7 and Cristina Ambray-Labit are siblings. With the exception of Sylvia,8 they are the children of the
late Ceferino Ambray (Ceferino, Sr.) and Estela Trias (Estela), who passed away on February 5, 1987 and August 15,
2002, respectively.

During their lifetime, Ceferino, Sr. and Estela owned several properties, one of which was a parcel of land located in San
Pablo City, Laguna denominated as Lot 2 of subdivision plan Pcs-12441, with an area of 4,147 square meters, more or
less, covered by TCT No. T-112599 of the Register of Deeds of San Pablo City (Lot 2). On December 28, 1977, Ceferino,
Sr. mortgaged Lot 2 with Manila Bank for the amount of P180,000.00. The mortgage was discharged on September 16,
1984.10chanrobleslaw

Prior to the discharge of the mortgage or sometime in August 1984, Lot 2 was subdivided into three (3) lots: Lot 2-A, Lot
2-B, and the subject property, Lot 2-C, resulting in the cancellation of TCT No. T-11259. Lot 2-C was registered in
Ceferino, Sr.'s name in accordance with his letter11 dated August 29, 1984 requesting the Register of Deeds of San Pablo
City to register Lot 2-C in his name. Thus, TCT No. T-2274912 was issued covering the said parcel under the name of
Ceferino, Sr., married to Estela.13chanrobleslaw

In June 1996, Maristela discovered that TCT No. T-22749 covering Lot 2-C had been cancelled and in its stead, TCT No.
T-41382 was issued in the name of petitioners. It appears that by virtue of a notarized Deed of Absolute Sale14 (Deed of
Sale) dated January 16, 1978, Ceferino, Sr., with the consent of Estela, allegedly sold "a portion of lot 2 of the
consolidation subd. plan (LRC) Pcs-12441"15to petitioners for a consideration of P150,000.00. The Deed of Sale was
registered with the Register of Deeds of San Pablo City only on February 5, 1996. 16chanrobleslaw

This prompted respondents to file a criminal case for falsification of public document against petitioners, entitled
"People of the Philippines v. Damaso T. Ambray and Ceferino T. Ambray" and docketed as Criminal Case No. 39153
(falsification case) before the Municipal Trial Court in Cities (MTCC) of San Pablo City. In a Decision 17 dated October 30,
2000, the MTCC acquitted petitioners of the charge for failure of the prosecution to prove their guilt beyond reasonable
doubt.

Thereafter, respondents filed the instant complaint18 for annulment of title, reconveyance, and damages against
petitioners and Estela (defendants), docketed as Civil Case No. SP-5831(01), alleging that TCT No. T-41382 and the Deed
of Sale were null and void because the signatures of Ceferino, Sr. and Estela thereon were forgeries.

In a motion to dismiss,19 defendants claimed that the issue on the authenticity of the signatures of Ceferino, Sr. and
Estela on the Deed of Sale had already been passed upon in the falsification case where petitioners were eventually
acquitted; hence, the matter was res judicata. In an Order20 dated June 6, 2002, the RTC granted the motion and
dismissed the case on said ground.

On appeal,21 however, the CA reversed the said disposition in a Decision 22 dated September 29, 2005 in CA-G.R. CV No.
75507, finding that res judicata does not apply. Thus, it remanded the case to the RTC for further proceedings.

Before the RTC, petitioners filed their answer23 and disclosed the death of their co-defendant and mother, Estela, who
passed away on August 15, 2002.24 By way of defense, they averred, inter alia, that respondents were aware of the
conveyance of Lot 2-C to them through the Deed of Sale. They also claimed that respondents' action has prescribed,
and maintained that it was barred by prior judgment and res judicata.25cralawredchanrobleslaw
Subsequently, citing an Affidavit26 dated February 18, 2008 executed by Ma. Fe Luisa, the rest of the respondents
moved27 that she be dropped as a plaintiff, which the RTC granted.28 Thereafter, she was ordered29 impleaded as a
party-defendant in respondents' supplemental complaint. Later, she adopted 30 petitioners' answer with counterclaim in
response thereto.
The RTC Ruling

In a Decision31 dated June 11, 2010, the RTC nullified the Deed of Sale as well as TCT No. T-41382 in the name of
petitioners and rendered judgment in favor of respondents as follows:ChanRoblesVirtualawlibrary
a. Declaring Lot 2-C, Psd-04-009554, covered by Transfer Certificate of Title No. T-41382, as common property of the
Heirs of Ceferino Ambray, Sr. and Estela Trias, to be divided equally among the heirs;

b. Declaring as null and void the Deed of Absolute Sale dated January 16, 1978, purportedly executed between Ceferino
Ambray and Estela Trias, as vendors, and Damaso T. Ambray and Ceferino Ambray, Jr., as vendees, of the portion of Lot
2, Pcs-12441, covered by Transfer Certificate of Title No. T-11259;

c. Declaring as null and void Transfer Certificate of Title No. T- 41382 in the name of Damaso T. Ambray, married to
Mary Ann Loyola, and Ceferino T. Ambray, Jr.;

d. Directing the defendants Damaso T. Ambray and Ceferino T. Ambray, Jr. to reconvey Lot 2-C, Psd-04-009554 covered
by Transfer Certificate of Title No. T-41382 to the co-ownership of the Heirs of Ceferino Ambray, Sr. and Estela Trias, for
distribution in equal shares among the said heirs; and cralawlawlibrary

e. Directing the Register of Deeds of San Pablo City, to cancel Transfer Certificate of Title No. T-41382 in the name of
Damaso T. Ambray and Ceferino Ambray, Sr., and cause the issuance of a new Transfer Certificate of Title, in the name
of the Heirs of Ceferino Ambray, Sr. and Estela Trias.
The RTC found that respondents were able to prove, by a preponderance of evidence, that the Deed of Sale executed
by Ceferino, Sr. conveying Lot 2-C in favor of petitioners was spurious and of dubious origin.32 It held that at the time of
its execution in 1978, Ceferino, Sr. could not have sold a specific portion of Lot 2 to petitioners, considering that it was
subdivided only in 1984. Moreover, after the subdivision of Lot 2 in 1984, Ceferino, Sr. requested the Register of Deeds
of San Pablo City to register Lot 2-C in his name, which he would not have done had he already sold Lot 2-C to
petitioners.33chanrobleslaw

Furthermore, Ceferino, Sr. leased Lot 2-C to MB Finance Corporation from 1986 to 1989 in his capacity as the owner of
the subject property. Subsequent thereto, as administrator of Ceferino, Sr.'s properties upon the latter's death, Damaso
executed a contract renewing the lease of Lot 2-C to MB Finance Corporation. The RTC opined that the foregoing facts
militate against petitioners' purported ownership of Lot 2-C pursuant to the Deed of Sale.34chanrobleslaw

Finally, when confronted with the belated registration of the Deed of Sale in 1996, petitioners could only offer the
excuse that their mother, Estela, kept the copy thereof until she became sickly and finally gave the same to Damaso.
The RTC declared the same to be a mere afterthought.35chanrobleslaw

With respect to the issue of forgery of the signatures of Ceferino, Sr. and Estela on the subject Deed of Sale, the RTC
took note of the CA's opinion in CA-G.R. CV No. 75507 that the MTCC, in the falsification case, made no categorical
finding as to the existence of falsification. Instead, the MTCC merely concluded that the prosecution failed to establish
petitioners' participation in the alleged falsification.36chanrobleslaw

Petitioners and respondents separately appealed37 to the CA. Petitioners imputed error upon the RTC in declaring null
and void the subject Deed of Sale and TCT No. T-41382,38 while respondents questioned the RTC's refusal to grant
damages and attorney's fees in their favor.39chanrobleslaw
The CA Ruling

In a Decision40 dated April 25, 2013, the CA affirmed the RTC Decision and found that respondents were able to
sufficiently discharge the required burden of proof that the subject Deed of Sale is spurious.

The CA also denied the award of moral damages for lack of factual basis. Consequently, without moral damages, it
found that no exemplary damages may be given.41 Finally, the CA held that the award of attorney's fees was not
warranted under the circumstances of the case, the same being an exception and not the general rule. 42chanrobleslaw

Both petitioners43 and respondents44 moved for reconsideration of the CA's Decision, which were denied in a
Resolution45 dated September 24, 2014; hence, this petition.
The Issue Before the Court
The sole issue for the Court's resolution is whether or not the CA erred in affirming the RTC's nullification of the Deed of
Sale dated January 16, 1978 and TCT No. T-41382 covering Lot 2-C in the name of petitioners.
The Court's Ruling

The petition is meritorious.

At the outset, it should be pointed out that, as a general rule, a re-examination of factual findings cannot be done by
the Court acting on a petition for review on certiorari because it is not a trier of facts and only reviews questions of
law.46 This rule, however, admits of certain exceptions, namely: (1) when the findings are grounded entirely on
speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3)
when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case,
or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary
to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed
by the parties, which, if properly considered, would justify a different conclusion. 47 Finding a confluence of certain
exceptions in this case, the general rule that only legal issues may be raised in a petition for review on certiorari under
Rule 45 of the Rules of Court does not apply, and the Court retains the authority to pass upon the evidence presented
and draw conclusions therefrom.48chanrobleslaw

At the core of the present controversy is the validity of the Deed of Sale, the execution of which purportedly conveyed
Lot 2-C in favor of petitioners. To gauge the veracity thereof, it is imperative to pass upon the genuineness of the
signatures of the seller, Ceferino, Sr., and his wife, Estela, who gave her consent to the sale, as appearing thereon,
which respondents, in the present complaint, assert to be forgeries.

As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence, and the burden
of proof lies on the party alleging forgery. One who alleges forgery has the burden to establish his case by a
preponderance of evidence, or evidence which is of greater weight or more convincing than that which is offered in
opposition to it. The fact of forgery can only be established by a comparison between the alleged forged signature and
the authentic and genuine signature of the person whose signature is theorized to have been forged. 49chanrobleslaw

Under Rule 132, Section 22 of the Rules of Court, the genuineness of handwriting may be proved in the following
manner: (1) by any witness who believes it to be the handwriting of such person because he has seen the person write;
or he has seen writing purporting to be his upon which the witness has acted or been charged; (2) by a comparison,
made by the witness or the court, with writings admitted or treated as genuine by the party, against whom the
evidence is offered, or proved to be genuine to the satisfaction of the judge.50 Corollary thereto, jurisprudence states
that the presumption of validity and regularity prevails over allegations of forgery and fraud. As against direct evidence
consisting of the testimony of a witness who was physically present at the signing of the contract and who had personal
knowledge thereof, the testimony of an expert witness constitutes indirect or circumstantial evidence at
best.51chanrobleslaw

In this case, the only direct evidence presented by respondents to prove their allegation of forgery is Questioned
Documents Report No. 266-39752 dated March 24, 1997 issued by National Bureau of Investigation (NBI) Document
Examiner II Antonio R. Magbojos (Magbojos), stating that the signatures of Ceferino, Sr. and Estela on the Deed of Sale,
when compared to standard sample signatures, are not written by one and the same person.

In refutation, petitioners offered in evidence, inter alia, the testimony of their mother, Estela, in the falsification case
where petitioners were previously acquitted. In the course thereof, she identified53the signatures on the Deed of Sale
as hers and Ceferino, Sr.'s, which was fully corroborated 54 by Atty. Zosimo Tanalega (Atty. Tanalega), the notary public
who notarized the subject Deed of Sale and was present at the time the Ambray spouses affixed their signatures
thereon.

Between the Questioned Documents Report presented by respondents and the testimony given by Estela in the
falsification case in support of petitioners' defense, the Court finds greater evidentiary weight in favor of the latter.
Hence, respondent's complaint for annulment of title, reconveyance, and damages in Civil Case No. SP-5831(01) should
be dismissed.

While the principle of res judicata in the concept of conclusiveness of judgment, as espoused by petitioners,55 is of
doubtful application in this case - considering that the MTCC, in the falsification case, failed to categorically pronounce
that the Deed of Sale was not falsified and merely concluded that petitioners had no participation in any alleged
falsification - the Court nonetheless observes that petitioners, through the testimony of Estela thereat, were able to
establish the genuineness and due execution of the subject Deed of Sale which effectively conveyed title over Lot 2-C to
them. Estela's testimony constitutes direct evidence of the authenticity of the signatures on the Deed of Sale, having
personal knowledge thereof, which undeniably prevails over the written findings of a purported handwriting expert
that can only be considered indirect or circumstantial evidence.

Notably, the admissibility of Estela's former testimony in the present case finds basis in Section 47, Rule 130 of the
Rules on Evidence or the "rule on former testimony" which provides:ChanRoblesVirtualawlibrary
Section 47. Testimony or deposition at a former proceeding. - The testimony or deposition of a witness deceased or
unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject
matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.
Case law holds that for the said rule to apply, the following requisites must be satisfied: (a) the witness is dead or
unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative,
between the same parties or those representing the same interests; (c) the former case involved the same subject as
that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former
trial is the same issue involved in the present case and (e) the adverse party had an opportunity to cross-examine the
witness in the former case.56 The reasons for the admissibility of testimony taken at a former trial or proceeding are the
necessity for the testimony and its trustworthiness. However, before the former testimony can be introduced in
evidence, the proponent must first lay the proper predicate therefor, i.e., the party must establish the basis for the
admission of testimony in the realm of admissible evidence. 57chanrobleslaw

Records show that Estela died during the pendency of these proceedings before the RTC or on August 15, 2002. Her
death transpired before the presentation of the parties' evidence could ensue. However, she was able to testify on
direct and cross-examination in the falsification case and affirmed that the alleged forged signatures appearing on the
Deed of Sale were, indeed, hers and her deceased husband, Ceferino, Sr.'s. The parties in the falsification case involved
respondents and petitioners herein, and the subject matter therein and in this case are one and the same, i.e., the
genuineness and authenticity of the signatures of Ceferino, Sr. and Estela.

Clearly, the former testimony of Estela in the falsification case, being admissible in evidence in these proceedings,
deserves significant consideration. She gave positive testimony that it was Ceferino, Sr. himself who signed the Deed of
Sale that conveyed Lot 2-C to petitioners. She likewise verified her signature thereon. By virtue of these declarations,
she confirmed the genuineness and authenticity of the questioned signatures. Thus, it follows that the Deed of Sale
itself is valid and duly executed, contrary to the finding of the RTC, as affirmed by the CA, that it was of spurious nature.

Further lending credence to the validity of the Deed of Sale is the well-settled principle that a duly notarized contract
enjoys the prima facie presumption of authenticity and due execution as well as the full faith and credence attached to
a public instrument. To overturn this legal presumption, evidence must be clear, convincing, and more than merely
preponderant to establish that there was forgery that gave rise to a spurious contract. 58chanrobleslaw

Hence, for the above-state reasons, whatever inferences the RTC had observed tending to defeat the existence of a
valid sale in favor of petitioners are rendered inconsequential.

In particular, the RTC noted, and found it puzzling, that the Deed of Sale did not specifically mention the exact area that
was being sold to petitioners, disposing only of "a portion of lot 2" without specifying the metes and bounds thereof. As
such, the RTC concluded that Ceferino, Sr. could not have sold a specific portion of Lot 2 to petitioners, having been
subdivided only in 1984. However, Article 1463 of the Civil Code expressly states that "[t]he sole owner of a thing may
sell an undivided interest therein." As Ceferino, Sr. was the sole owner of the original Lot 2 from whence came Lot 2-C,
he is therefore allowed by law to convey or sell an unspecified portion thereof. Hence, the disposition of Lot 2-C to
petitioners, a portion of Lot 2 yet to be subdivided in 1978, was therefore valid.

That Ceferino, Sr. requested the registration of the title of Lot 2-C in his name in 1984, while the property was supposed
to have already been sold to petitioners in 1978, was likewise fully explained during trial. Damaso clarified 59 that their
parents were apprehensive that he and Ceferino might mortgage or squander the property while they were still alive.
Moreover, despite knowledge of the sale, they did not demand for its immediate registration because during their
father's lifetime, they never questioned his decisions. This further explains why, despite the disposition in petitioners'
favor, it was Ceferino, Sr. himself who leased Lot 2-C to third parties, which Damaso renewed in his father's name after
the latter's death. The delay in the transfer of the title over Lot 2-C to petitioners was also occasioned by the fact that
Estela kept the Deed of Sale in her custody and gave it to petitioners only later on, by reason of her poor health. 60 Be
that as it may, and to reiterate, the delay in the registration of the sale in favor of petitioners neither affects nor
invalidates the same, in light of the authenticity of the Deed of Sale itself.

In fine, the CA and the RTC both erred in finding that the Deed of Sale was of spurious origin. The authenticity and due
execution of the Deed of Sale must be upheld against the assumptions made by the RTC in its Decision. Accordingly, TCT
No. T-41382 covering Lot 2-C in the name of petitioners remain valid.

WHEREFORE, the petition is GRANTED. The assailed April 25, 2013 Decision and the September 24, 2013 Resolution of
the Court of Appeals in CA-G.R. CV No. 95606 are hereby REVERSED and SET ASIDE. The instant complaint for
annulment of title, reconveyance, and damages is DISMISSED.

SO ORDERED.chanRoblesvirtualLawlibrary

Sereno, C.J., on official leave.

Leonardo-De Castro,*** (Acting Chairperson), Bersamin, and Caguioa, JJ., concur.
Endnotes:

*
Estela T. Ambray had already died on August 15, 2002. See rollo p. 9.

***
Per Special Order No. 2358 dated June 28, 2016.

1
Rollo, pp. 7-29.

2
Id. at 32-40. Penned by Associate Justice Amelita G. Tolentino with Associate Justices Ramon R. Garcia and Danton Q.
Bueser concurring.

3
Id. at 42-43. Penned by Associate Justice Amelita G. Tolentino with Associate Justices Ramon R. Garcia and Manuel M.
Barrios concurring.

4
Id. at 44-67. Penned by Judge Agripino G. Morga.

5
Folder of Exhibits, p. 6, including dorsal portion thereof.

6
Sylvia A. Tsourous died during the pendency of the case before the RTC and was substituted by her heirs, namely:
Kristina Tsourous-Reyes, Mark Tsourous, Keith Tsourous, and Steven Tsourous. See records, Vol. 1, pp. 156-159 and
163-164.

7
Also referred to in the records as "Ma. Luisa Fe" During the proceedings before the RTC, she withdrew as plaintiff, and
the complaint was amended to implead her as co-defendant of Damaso and Ceferino, Jr. Id. at 181-186.

8
See id. at 4.

9
Folder of Exhibits, pp. 2-3.

10
Rollo, p. 34.

11
Folder of Exhibits, p. 4.

12
Folder of Exhibits, p. 5, including dorsal portion thereof.

13
Rollo, p. 34.

14
Id. at 79-80.

15
Id. at 79.

16
Id. at 34-35.

17
Id. at 81-86. Penned by Judge Iluminado C. Monzon.

18
Records, Vol. I, pp. 3-10.

19
Id. at 47-53.

20
Id. at 99-102. Penned by Judge Zorayda Herradura-Salcedo.

21
See Notice of Appeal dated June 19, 2002; id. at 103.
22
Id. at 105-117. Penned by Associate Justice Mariflor P. Punzalan Castillo with Associate Justices Elvi John S. Asuncion
and Mariano C. Del Castillo (now a member of this Court).

23
Id. at 123-128.

24
See Order dated January 30, 2007; id. at 145-146.

25
cralawred Id. at 124.

26
Id. at 184-185.

27
Id. at 181-186.

28
See Order dated April 28, 2008; id. at 201-203.

29
Id. at 263-265.

30
Id. at 287.

31
Rollo, pp. 44-67.

32
Id. at 66.

33
Id. at 61.

34
Id. at 61-62.

35
Id. at 62.

36
Id. at 63-64.

37
CA rollo, pp. 82-106 and 136-152.

38
Id. at 139.

39
Id. at 87.

40
Rollo, pp. 32-40.

41
Id. at 38-39.

42
Id. at 39.

43
CA rollo, pp. 236-243.

44
Id. at 246-255.

45
Rollo, pp. 42-43.

46
See Maersk-Filipinas Crewing Inc. v. Avestruz, G.R. No. 207010, February 18, 2015, 751 SCRA 161, 171, citing Jao v.
BCC Products Sales, Inc.,686 Phil. 36, 41 (2012).

47
New City Builders, Inc. v. NLRC, 499 Phil. 207, 212-213 (2005), citing Insular Life Assurance Company, Ltd. v. CA, G.R.
No. 126850, April 28, 2004, 428 SCRA 79, 86.

48
Maersk-Filipinas Crewing Inc.,v. Avestruz, supra note 46, at 172.

49
Gepulle-Garbo v. Garabato, G.R. No. 200013, January 14, 2015, 746 SCRA 189, 198-199.

50
Section 22. How genuineness of handwriting proved. - The handwriting of a person may be proved by any witness
who believes it to be the handwriting of such person because he has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the
witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered,
or proved to be genuine to the satisfaction of the judge.

51
Bautista v. CA, 479 Phil. 787, 792-793 (2004), citing Vda. de Bernardo v. Restauro, 452 Phil. 745, 751-752 (2003).

52
Folder of Exhibits, pp. 9-10.

53
See Transcript of Stenographic Notes (TSN) dated September 10, 1998; rollo, pp 107-108.

54
Id. at 89-91.

55
Id. at 19-21.

56
Samalio v. CA, 494 Phil. 456, 463 (2005).

57
See Republic v. Sandiganbayan, 678 Phil. 358, 414 (2011).

58
Bautista v. CA, supra note 51. See also Bernardo v. Ramos, 433 Phil. 8 (2002); and Manzano v. Perez, Sr., 414 Phil. 728
(2001).

59
TSN, August 3, 2009, pp. 14-15.

60
Id. at 19-21.
G.R. No. 198240 July 3, 2013
LUISA NAVARRO MARCOS*, Petitioner,
vs.
THE HEIRS OFTHE LATE DR. ANDRES NAVARRO, JR., namely NONITA NAVARRO, FRANCISCA NAVARRO MALAPITAN,
SOLEDAD NAVARRO BROCHLER, NONITA BARRUN NAVARRO, JR., IMELDA NAVARRO, ANDRES NAVARRO III,
MILAGROS NAVARRO YAP, PILAR NAVARRO, TERESA NAVARRO-TABITA, and LOURDES BARRUN-
REJUSO, Respondents.
DECISION
VILLARAMA, JR., J.:
Petitioner Luisa Navarro Marcos appeals the Decision1 dated February 28, 2011 and Resolution2 dated July 29, 2011 of
the Court of Appeals (CA) in CA-G.R. SP No. 92460.
The antecedent facts follow:
Spouses Andres Navarro, Sr. and Concepcion Medina-Navarro died in 1958 and 1993, respectively. They left behind
several parcels of land including a 108.3997-hectare lot (subject lot) located in Cayabon, Milagros, Masbate. 3
The spouses were survived by their daughters Luisa Navarro Marcos, herein petitioner, and Lydia Navarro Grageda, and
the heirs of their only son Andres Navarro, Jr. The heirs of Andres, Jr. are the respondents herein. 4
Petitioner and her sister Lydia discovered that respondents are claiming exclusive ownership of the subject lot.
Respondents based their claim on the Affidavit of Transfer of Real Property dated May 19, 1954 where Andres, Sr.
donated the subject lot to Andres, Jr. 5
Believing that the affidavit is a forgery, the sisters, through Assistant Fiscal Andres Marcos, requested a handwriting
examination of the affidavit. The PNP handwriting expert PO2 Mary Grace Alvarez found that Andres, Sr.s signature on
the affidavit and the submitted standard signatures of Andres, Sr. were not written by one and the same person.6
Thus, the sisters sued the respondents for annulment of the deed of donation before the Regional Trial Court (RTC) of
Masbate, where the case was docketed as Civil Case No. 5215.7
After the pre-trial, respondents moved to disqualify PO2 Alvarez as a witness. They argued that the RTC did not
authorize the handwriting examination of the affidavit. They added that presenting PO2 Alvarez as a witness will violate
their constitutional right to due process since no notice was given to them before the examination was
conducted.8 Thus, PO2 Alvarezs report is a worthless piece of paper and her testimony would be useless and
irrelevant.9
In its Order10 dated August 19, 2004, the RTC granted respondents motion and disqualified PO2 Alvarez as a witness.
The RTC ruled that PO2 Alvarezs supposed testimony would be hearsay as she has no personal knowledge of the
alleged handwriting of Andres, Sr. Also, there is no need for PO2 Alvarez to be presented, if she is to be presented as an
expert witness, because her testimony is not yet needed.
The sisters sought reconsideration of the order but the RTC denied their motion in an Order 11 dated October 11, 2005.
Aggrieved, the sisters filed a petition for certiorari before the CA, which however, dismissed their petition in the
assailed Decision dated February 28, 2011 on the ground that the dismissal of Civil Case No. 5215 has mooted the issue
of PO2 Alvarezs disqualification as a witness.
Later, the CA likewise denied their motion for reconsideration in its Resolution dated July 29, 2011. The CA refused to
take judicial notice of the decision of another CA Division which reinstated Civil Case No. 5215. The CA held that a CA
Justice cannot take judicial notice of decisions or matters pending before another Division of the appellate court where
he or she is not a member. The CA also held that the sisters were negligent for belatedly informing it that Civil Case No.
5215 was reinstated.
Hence, this appeal.
Petitioner argues that the CA erred in refusing to reconsider the assailed decision in light of the reinstatement of Civil
Case No. 5215. Petitioner adds that the CA erred in not ruling that the RTC committed grave abuse of discretion in
disqualifying PO2 Alvarez as a witness.12 They stress that PO2 Alvarez will be presented as an expert witness to render
an opinion on whether the disputed handwriting was indeed made by Andres, Sr. or whether it is a forgery. 13
In their comment,14 respondents counter that the CA properly disqualified PO2 Alvarez. They also agreed with the CA
that her disqualification was mooted by the dismissal of Civil Case No. 5215.
We find in favor of petitioner.
The CA ruling that the dismissal of Civil Case No. 5215 has mooted the issue of PO2 Alvarezs disqualification as a
witness can no longer be justified. Hence, we reverse the CA ruling. While we agree with the CA in considering the
RTCs Orders15 which dismissed Civil Case No. 5215, we are unable to agree with its refusal to take judicial notice of the
Decision16 of another CA Division which reinstated Civil Case No. 5215. Subsequent proceedings were even held in the
reinstated Civil Case No. 5215 per Orders17 issued by the RTC which were already submitted to the CA. That Civil Case
No. 5215 was reinstated is a fact that cannot be ignored.
We also agree with petitioner that the RTC committed grave abuse of discretion in disqualifying PO2 Alvarez as a
witness. Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law,
as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. 18 Grave abuse
of discretion arises when a lower court or tribunal violates the Constitution or grossly disregards the law or existing
jurisprudence.19
In Armed Forces of the Philippines Retirement and Separation Benefits System v. Republic of the Philippines, 20we said
that a witness must only possess all the qualifications and none of the disqualifications provided in the Rules of Court.
Section 20, Rule 130 of the Rules on Evidence provides:
SEC. 20. Witnesses; their qualifications.Except as provided in the next succeeding section, all persons who can
perceive, and perceiving, can make known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by
law, shall not be a ground for disqualification.
Specific rules of witness disqualification are provided under Sections 21 to 24, Rule 130 of the Rules on Evidence.
Section 21 disqualifies a witness by reason of mental incapacity or immaturity. Section 22 disqualifies a witness by
reason of marriage. Section 23 disqualifies a witness by reason of death or insanity of the adverse party. Section 24
disqualifies a witness by reason of privileged communication.
In Cavili v. Judge Florendo,21 we have held that the specific enumeration of disqualified witnesses excludes the
operation of causes of disability other than those mentioned in the Rules. The Rules should not be interpreted to
include an exception not embodied therein. We said:
The generosity with which the Rule allows people to testify is apparent. Interest in the outcome of a case, conviction of
a crime unless otherwise provided by law, and religious belief are not grounds for disqualification.
Sections 19 and 20 of Rule 130 provide for specific disqualifications. Section 19 disqualifies those who are mentally
incapacitated and children whose tender age or immaturity renders them incapable of being witnesses. Section 20
provides for disqualification based on conflicts of interest or on relationship. Section 21 provides for disqualification
based on privileged communications. Section 15 of Rule 132 may not be a rule on disqualification of witnesses but it
states the grounds when a witness may be impeached by the party against whom he was called.
There is no provision of the Rules disqualifying parties declared in default from taking the witness stand for non-
disqualified parties. The law does not provide default as an exception. The specific enumeration of disqualified
witnesses excludes the operation of causes of disability other than those mentioned in the Rules. It is a maxim of
recognized utility and merit in the construction of statutes that an express exception, exemption, or saving clause
excludes other exceptions. x x x As a general rule, where there are express exceptions these comprise the only
limitations on the operation of a statute and no other exception will be implied. x x x The Rules should not be
interpreted to include an exception not embodied therein. (Emphasis supplied; citations omitted.)
As a handwriting expert of the PNP, PO2 Alvarez can surely perceive and make known her perception to
others.1wphi1 We have no doubt that she is qualified as a witness. She cannot be disqualified as a witness since she
possesses none of the disqualifications specified under the Rules. Respondents motion to disqualify her should have
been denied by the RTC for it was not based on any of these grounds for disqualification. The RTC rather confused the
qualification of the witness with the credibility and weight of her testimony.
Moreover, Section 49, Rule 130 of the Rules of Evidence is clear that the opinion of an expert witness may be received
in evidence, to wit:
SEC. 49. Opinion of expert witness.The opinion of a witness on a matter requiring special knowledge, skill, experience
or training which he is shown to possess, may be received in evidence.
For instance, in Tamani v. Salvador,22 we were inclined to believe that Tamanis signature was forged after considering
the testimony of the PNP document examiner that the case involved simulated or copied forgery, such that the
similarities will be superficial. We said that the value of the opinion of a handwriting expert depends not upon his mere
statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out
distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which
would ordinarily escape notice or detection from an unpracticed observer.
Thus, we disagree with the RTC that PO2 Alvarezs testimony would be hearsay. Under Section 49, Rule 130 of the Rules
on Evidence, PO2 Alvarez is allowed to render an expert opinion, as the PNP document examiner was allowed in
Tamani. But the RTC already ruled at the outset that PO2 Alvarezs testimony is hearsay even before her testimony is
offered and she is called to the witness stand. Under the circumstances, the CA should have issued a corrective writ of
certiorari and annulled the RTC ruling.
True, the use of the word "may" in Section 49, Rule 130 of the Rules on Evidence signifies that the use of opinion of an
expert witness is permissive and not mandatory on the part of the courts. 23 Jurisprudence is also replete with instances
wherein this Court dispensed with the testimony of expert witnesses to prove forgeries. 24 However, we have also
recognized that handwriting experts are often offered as expert witnesses considering the technical nature of the
procedure in examining forged documents.25 More important, analysis of the questioned signature in the deed of
donation executed by the late Andres Navarro, Sr. in crucial to the resolution of the case.
In sum, the RTC should not have disqualified P02 Alvarez as a witness. She has the qualifications of witness and possess
none of the disqualifications under the Rules. The Rules allow the opinion of an expert witness to be received as
evidence. In Tamani, we used the opinion of an expert witness. The value of P02 Alvarez's expert opinion cannot be
determined if P02 Alvarez is not even allowed to testify on the handwriting examination she conducted.
WHEREFORE, we GRANT the petition. We SET ASIDE the (1) Decision dated February 28, 2011 and Resolution dated July
29, 2011 of the Court of Appeals in CA-G.R. SP No. 92460, and (2) Orders dated August 19, 2004 and October II, 2005 of
the Regional Trial Court in Civil Case No. 5215. We DENY respondents' motion to disqualify P02 Mary Grace Alvarez as a
witness.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
Footnotes
* Rollo, pp. 14, 42. While Lydia Navarro Grageda is named as co-petitioner in the title of the petition, only Luisa Navarro
Marcos has verified it.
1
Id. at 47-52. Penned by Associate Justice Mario V. Lopez with the concurrence of Associate Justices Magdangal M. De
Leon and Franchito N. Diamante.
2
Id. at 54-57.
3
Id. at 48. 4 Id. 5 Id. 6 Id.
7
Id. 8 Id. at 48-49.
9
Id. at 211.
10
CA rollo, pp. 24-25.
11
Id. at 26.
12
Rollo, p. 29.
13
Id. at 35.
14
Id. at 530-532.
15
CA rollo, pp. 262, 267-268.
16
Id. at 297-306.
17
Id. at 307-308.
18
Deutsche Bank AG v. Court of Appeals, G.R. No. 193065, February 27, 2012, 667 SCRA 82, 100.
19
Republic of the Philippines v. Hon. Ramon S. Caguioa, et al., G.R. No. 174385, February 20, 2013, p. 10.
20
G.R. No. 188956, March 20, 2013, p. 5.
21
238 Phil. 597, 602-603 (1987).
22
G.R. No. 171497, April 4, 2011, 647 SCRA 132, 144.
23
Tabao v. People, G.R. No. 187246, July 20,2011,654 SCRA 216,237.
24
Manzano, Jr. v. Garcia, G.R. No. 179323, November 28,2011, 661 SCRA 350, 357.
25
Mendez v. Court of Appeals, G.R. No. 174937, June 13,2012, 672 SCRA 200,209.
 SECOND DIVISION

EDWIN TABAO y PEREZ, G.R. No. 187246

Petitioner,
Present:

CARPIO, J.,
Chairperson,
- versus - LEONARDO-DE CASTRO,*
BRION,
PERALTA,** and
PEREZ, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. July 20, 2011

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

RESOLUTION

BRION, J.:

Edwin Tabao (petitioner) seeks reconsideration of our Resolution, dated June 8, 2009, denying his petition for
review on certiorari for failure to show any reversible error in the assailed Court of Appeals (CA) decision to warrant the
exercise of this Courts discretionary appellate jurisdiction, and for raising substantially factual issues.

The evidence for the prosecution reveals the following facts:

At around 10:00 p.m. of January 21, 1993, the petitioner was driving his Toyota Corolla car bearing plate
number PCH-111 along Governor Forbes corner G. Tuazon Streettowards Nagtahan when it suddenly ramped on an
island divider, bumping Rochelle Lanete who was crossing the street. As a result of the impact, Rochelle was thrown
into the middle of the road on her back.[1] Thereafter, Leonardo Mendez speeding blue Toyota Corona car with plate
number PES-764 ran over Rochelles body. Bystanders armed with stones and wooden clubs followed Mendez car until
it stopped near the Nagtahan Flyover.[2] Francisco Cielo, a newspaper delivery boy, pleaded with the bystanders not to
hurt Mendez. Cielo went inside Mendez car, sat beside him, got his drivers license, and ordered him to move the car
backwards. Mendez followed his order, but his car hit the center island twice while backing up. [3] Cielo went out of the
car and approached the sprawled body of Rochelle; he and the petitioner brought Rochelles body inside Mendez car.
The three of them (the petitioner, Cielo and Mendez) brought Rochelle to the UST Hospital,[4] where she died on
February 6, 1993 due to septicemia secondary to traumatic injuries.[5]

The defense presented a different version of the incident.

The petitioner narrated that at around 10:00 p.m. of January 21, 1993, he was driving along Governor Forbes
corner G. Tuazon Street when his car ramped on an island at the foot of the Nagtahan Flyover. He tried to move the car
backwards, but failed to do so. He alighted from his car and then saw that its two rear wheels had been elevated. [6] He
returned inside his car to turn off its engine; he then noticed that many people were approaching his car. [7] He again
alighted from his vehicle and saw a person lying on the road. [8] He looked at his left side and saw a car that was running
fast like a wind pass by. He approached the person lying on the road, and noticed that she was still breathing and
moaning. Afterwards, he saw Mendez car backing up; he carried the victim towards that car. [9] Thereafter, he, Mendez
and Cielo brought the victim to the UST Hospital.[10]

Mendez, for his part, testified that at around 9:00 to 9:30 p.m. of January 21, 1993, he left his girlfriends house
in Blumentritt, Sta. Cruz, Manila. As he was driving along Governor Forbes corner G. Tuazon Street on his way home, he
saw a vehicle that had ramped on an island divider. Suddenly, another vehicle overtook his car from the right and cut
his lane. He slowed down his car when he saw a rug-like object fall from the car that overtook him,[11] and stopped
when he realized that what had fallen was a persons body. When he moved his car backwards to help this person,
 many people approached his car. He alighted from his car and inquired from them what had happened. The people
replied that someone was run over; some of them pointed to him as the culprit. He denied having run over the victim
when they tried to hurt him. The petitioner carried the victim and placed her inside Mendez car. Thereafter, the two of
them brought the victim to the UST Hospital.[12]

The Office of the City Prosecutor found probable cause and thereafter charged the petitioner and Mendez with
reckless imprudence resulting to homicide before the Regional Trial Court (RTC), Branch 39, Manila.[13] The RTC, in its
decision[14] dated September 15, 2003, found that it was very clear that both accused are responsible for the death of
Rochelle Lanete,[15] and convicted the two (2) accused of the crime charged. It found that the petitioners car first hit the
victim, causing her to be thrown into the road on her back, and that Mendez car ran over her as she was lying down. It
held that the two failed to observe the necessary precaution and due care in operating their respective vehicles, to wit:
the petitioner was not attentive to his driving such that he failed to see the island divider and bumped Rochelle;
Mendez was driving his car too fast at nighttime such that he was unable to avoid running over her as her body lay
prone on the street. The RTC sentenced them to suffer the indeterminate penalty of four months and one day
of arresto mayor, as minimum, to two years, 10 months and 20 days of prision correccional, as maximum. It also
ordered them to pay the heirs of the victim the following amounts: (a) P478,434.12 as actual damages; (b) P50,000.00
as civil indemnity; and (c) P50,000.00 as moral damages.[16]

The petitioner filed an appeal before the CA, docketed as CA-G.R. CR. No. 28401. The CA, in its
decision[17] dated July 27, 2007, agreed with the factual findings of the RTC, and affirmed its decision with the
modification that the petitioner be sentenced to suffer an indeterminate penalty of four months and one day of arresto
mayor, as minimum, to four years, nine months and 10 days of prision correccional, as maximum.

The petitioner moved to reconsider this decision, but the CA denied his motion in its resolution [18] of March 17, 2009.

The petitioner filed before this Court a petition for review on certiorari alleging that the courts a quo erred in
convicting him of the crime charged. As earlier stated, we denied this petition for failure to show any reversible error in
the assailed CA decision to warrant the exercise of our discretionary appellate jurisdiction, and for raising substantially
factual issues.

The petitioner now comes to us via the present motion for reconsideration, raising the following arguments:

I. THE FINDINGS OF FACTS OF BOTH THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ARE HIGHLY
SPECULATIVE, MANIFESTLY MISTAKEN AND UNSUPPORTED BY THE EVIDENCE [ON RECORD;]

II. [THE] COURT OF APPEALS [ERRED IN UPHOLDING HIS] CONVICTION [ON THE BASIS OF THE] INCREDIBLE AND
UNRELIABLE TESTIMONY OF x x x VICTOR SORIANO[; and]

III. THE [SUPREME] COURT DISREGARDED [HIS CONSTITUTIONAL] PRESUMPTION OF INNOCENCE. [19]

In its Comment, the People of the Philippines, through the Office of the Solicitor General, prays that the
motion be denied for being pro forma; the petitioner merely advanced the same arguments which he raised in his
appellants brief and motion for reconsideration before the CA.

After due consideration, we resolve to DENY the motion.

As a general rule, findings of fact of the trial court, especially when affirmed by the CA, are binding and
conclusive upon this Court; we will not normally disturb these factual findings unless they are palpably unsupported by
the evidence on record or unless the judgment itself is based on a misapprehension of facts. [20] After a careful review of
the records, we see no reason to overturn the lower courts factual findings that found the petitioner guilty of the crime
charged.

Reckless imprudence, generally defined by our penal law, consists in voluntarily, but without malice, doing or failing to do
an act from which material damage results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence,
physical condition and other circumstances regarding persons, time and place. Imprudence connotes a deficiency of
action. It implies a failure in precaution or a failure to take the necessary precaution once the danger or peril becomes
foreseen.[21] Thus, in order for conviction to be decreed for reckless imprudence, the material damage suffered by the
victim, the failure in precaution on the part of the accused, and the direct link between material damage and failure in
precaution must be established beyond reasonable doubt. We are morally convinced that all three were established in this
case in accordance with the required level of evidence in criminal cases.
 The petitioner was positively identified by an eyewitness

The fact of Rochelle Lanetes death was stipulated during pre-trial, as well as duly established during trial.[22] What
remain to be proven beyond reasonable doubt are the inexcusable lack in precaution on the part of the petitioner and
the direct link of his negligence to the victims death.

An eyewitness account established that the petitioners vehicle actually hit Rochelle Lanete. Eyewitness
identification is vital evidence, and, in most cases, decisive of the success or failure of the prosecution.[23] One of the
prosecution witnesses, Victor Soriano, unfortunately for the petitioners cause, saw the incident in its
entirety; Victor thus provided direct evidence as eyewitness to the very act of the commission of the crime. [24] In his
September 1, 1994 testimony, Victor positively identified the petitioner as the person who drove the car that ramped
on an island divider along Governor Forbes corner G. Tuazon Street, and hit Rochelle. To directly quote from the
records:

ATTY. ALICIA SERRANO:

Q: Mr. Soriano, do you remember where were you on or about 10:00 oclock (sic) of January 21, 1993?

VICTOR SORIANO:

A: Yes, maam.

Q: Where were you?

A: I was at the corner of Governor Forbes and G. Tuazon.

Q: What were you doing at the corner of Governor Forbes and G. Tuazon at that time?
A: My sidecar was parked there because I was waiting for my wife, maam.

Q: And when you were there at the corner of G. Tuazon and Governor Forbes at the said time and place, was there any
unusual incident that happened?
A: Yes, sir.

Q: And what was that unusual incident?

A: I saw an accident involving a speeding car which ramped over the island and bumped a woman who was crossing
the street.

Q: When you saw that the car ramped over the island and hit and bumped a woman, what happened to the woman
that was hit and bumped by the car which you said ramped over the island?
A: The woman was thrown at the middle of the road on her back, maam.

Q: When you saw this woman after being hit and bumped by the car that ramped over the island and was thrown at
the middle of the road, what else happened?

xxxx

A: The woman was no longer moving at that time when I saw another car coming.

xxxx

Q: What else happened when you saw the car coming very fast?
A: The woman sprawled at the middle of the road was ran over by the speeding car and that car stopped while going up
to the flyover.

xxxx

Q: You said you saw a car that ramped over the island and that the car that ramped over the island was the car that
hit and bumped the victim that was thrown at the middle of the street. Now, will you be able to identify
before this court the driver of that car that ramped over the island and hit and bumped the victim?
A: Yes, maam.
Q: If that driver of the car that hit and bumped the victim is inside the courtroom, would you be able to point to him
before this Honorable Court?
A: Yes, maam, he is here.

Q: Will you kindly point before this courtroom who is that driver of the car that hit and bumped the victim? Although,
Your Honor, there was already a stipulation at the start of the pre-trial admitting that the accused Tabao is the
driver of the car which ramped at the divider.

INTERPRETER:

Witness approaching a man seated inside the courtroom and who stood up and identified as Edwin Tabao, the
accused in this case.[25] [emphases ours]

On cross-examination, Victor further elaborated on what he saw of the incident:

ATTY. ESTEBAN NANCHO:

Q: Mr. Soriano, you said that the first car ramped over the island and bumped a woman, and as a result of that, the
woman was thrown at the middle of Forbes Street. Do you confirm that?

VICTOR SORIANO:

A: Yes, sir, that is true.

Q: And can you tell us how the woman was hit, was bumped by the car that ramped over the island?
A: The woman was crossing the street and when she saw the on-coming car, she tried to avoid that but the car [which]
ramped over the island bumped the woman.

Q: In other words, the car first ramped over the island before it hit the woman?
A: Yes, sir.

Q: What part of the car bumped the woman?

A: The bumper of the car, the left side of the bumper.

Q: What part of the body of the victim was hit by the car?
A: Her left side of the body.

Q: Are you saying that the victim was facing the car when the car bumped her.
A: Yes, sir, she was facing the car. She was about to avoid that car.

Q: How was the woman thrown at the middle of Forbes Street?

A: She was thrown backwards.

Q: And what part of the body of the victim first hit the pavement?
A: The back of her head.

xxxx

Q: And you said after the woman was thrown at the middle of the street[,] another speeding car ran over the body of
the woman?
A: Yes, sir.

xxxx

Q: Now, from the time the body of the victim was thrown at the middle of the street, how much time had lapsed when
the second car ran over the body of the victim?
A: Not more than one minute. When I saw the car, it was a little bit far then I saw the car running very fast. It did not
take more than a minute.

xxxx
Q: Now, did you point at any person gathered at the scene of the accident that it were (sic) the 2 accused who were
responsible for the accident?
A: I told Cielo about that and I told him that whoever brought the victim to the hospital is the one who ran over the
victim.[26]

The petitioner nonetheless claims that Victor is not a credible witness due to inconsistencies between his affidavit and
court testimony. He harps on the fact that Victor declared in his affidavit that the petitioners car first hit Rochelle before
it ramped on an island divider; while he testified in court that the petitioners vehicle ramped on the island divider before
hitting the victim.

We find these arguments unmeritorious.

Discrepancies and/or inconsistencies between a witness affidavit and testimony in open court do not impair
credibility as affidavits are taken ex parte and are often incomplete or inaccurate for lack or absence of searching
inquiries by the investigating officer.[27] At any rate, Victor was able to sufficiently explain the discrepancies between his
affidavit and court statements. Victor reasoned out that the secretary who typed his affidavit made a mistake; and
explained that he signed the affidavit despite the inaccuracies in paragraph 2 because the secretary told him, kasi ho
magugulo ang naimakinilya na.[28] Accordingly, when Victor informed his lawyer during the first day of the hearing
about the inaccuracy, the latter told him to state the truth regardless of what was written in his affidavit.

The general rule that contradictions and discrepancies between the testimony of a witness and his statements
in an affidavit do not necessarily discredit him is not without exception, as when the omission in the affidavit refers to a
very important detail of the incident that one relating the incident as an eyewitness would not be expected to fail to
mention, or when the narration in the sworn statement substantially contradicts the testimony in court.[29] In the
present case, we see no substantial contradiction in Victors affidavit and in his court statements as he declared in both
that he saw the petitioners car ramp on the island divider and bump Rochelle. As to whether the car ramped on the
center island before or after it bumped the victim does not detract from the fundamental fact that Victor saw and
identified the petitioner as the driver of the car that ramped on the island divider and hit Rochelle. As earlier
discussed, Victor sufficiently explained this inconsistency during the trial.

Victor, who stood only seven meters from the incident, clearly and in a straightforward manner described how
the petitioners car had bumped the victim. We thus see no reason to overturn the lower courts finding regarding
Victors credibility, more so since the petitioner did not impute any ill motive that could have induced Victor to testify
falsely.The fundamental and settled rule is that the trial court's assessment regarding the credibility of witnesses is
entitled to the highest degree of respect and will not be disturbed on appeal, especially when the assessment is
affirmed by the CA.

The positive identification in this case, coupled with the failure of the defense to impute any ill-motive on the
eyewitness, to our mind, works to dispel reasonable doubt on the fact that the petitioners car had in fact hit Rochelle.
The eyewitness account provides the necessary link between the petitioners failure to exercise precaution in operating
his vehicle and Rochelle Lanetes death.

The petitioner failed to exercise precaution in operating his vehicle

The right of a person using public streets and highways for travel in relation to other motorists is mutual, coordinate and
reciprocal.[30] He is bound to anticipate the presence of other persons whose rights on the street or highway are equal
to his own.[31] Although he is not an insurer against injury to persons or property, it is nevertheless his duty to operate
his motor vehicle with due and reasonable care and caution under the circumstances for the safety of others as well as
for his own.[32]

The petitioner repeatedly admitted that as he drove his vehicle on his way home from work on January 21,
1993, he did not notice the island divider at the foot of the Nagtahan Flyover. As a result, his car ramped on the island
so that both its rear wheels became elevated from the road and he could no longer maneuver the vehicle. [33] The
petitioner even testified that his car had to be towed.[34] Later, during cross-examination, he admitted that all four
wheels of his car, not just the two rear wheels mentioned in his earlier testimony, lost contact with the
ground.[35] The entire vehicle, therefore, ended up on top of the island divider. He puts the blame for the ramping and,
essentially, his failure to notice the island on the darkness of nighttime and the alleged newness of the island. [36]

To our mind, the fact that the petitioners entire vehicle ended up ramped on the island divider strongly indicates what
actually happened in the unfortunate incident. The vehicle could not have ended up in that condition had the petitioner
 been driving at a reasonable speed. We are not persuaded by the petitioners rather simplistic account that mere
darkness, coupled with the traffic islands alleged newness, caused his car to veer off the traffic trajectory of Governor
Forbes Street and to end up jumping on top of the traffic island intended to channel vehicular traffic going to the
Nagtahan Flyover.

A motorist is expected to exercise ordinary care and drive at a reasonable rate of speed commensurate with all the
conditions encountered,[37] to enable him to keep the vehicle under control and, whenever necessary, to put the vehicle
to a full stop to avoid injury to others using the highway.[38] It has not escaped our notice that
the intersection of Governor Forbes Street and G. Tuazon Street is adjacent to the vicinity of the incident. A driver
approaching an intersection is generally under duty, among others, to keep and maintain his vehicle under control so
he can, if needed, stop at the shortest possible notice.[39] Ordinary or reasonable care in the operation of a motor
vehicle at an intersection would naturally require more precaution than is necessary when driving elsewhere in a street
or highway.[40]

The fact that the petitioner was driving near the Governor Forbes Street and G. Tuazon Street intersection gives rise to
the expectation that he would drive at a speed that anticipated or would have anticipated that other persons are on the
road, whether as pedestrians or as motorists. The facts show, however, that the petitioner was driving his car at an
inappropriate speed for a vehicle crossing an intersection. Otherwise, he should have been able to put his vehicle to a
complete stop or, at the very least, at a speed that would have prevented his car from climbing entirely on top of the
island divider. That the petitioners entire vehicle landed on top of the traffic island body, chassis, four wheels and all
sufficiently indicates his speed at that time. The force that propels an entire car off the street and on top of a traffic
island could only have been inordinate speed, or at least speed beyond that of a motorist coming from or going to an
intersection. In short, the ramping of his vehicle demonstrably indicates to us that the petitioner failed to observe the
duty to maintain a reasonable speed. We therefore believe Victors testimony that the petitioner was speeding when he
bumped the victim.[41]

We are likewise not persuaded by the petitioners claim that darkness and the traffic islands alleged newness justify his
failure to notice the island. The petitioners admission that he did not notice the traffic island is in itself an indication of
his failure to observe the vigilance demanded by the circumstances. Ultimately, it shows the criminal recklessness for
which he has been convicted. The record shows that pedestrians were present in the vicinity at the time of the incident.
The CA even pointed out that the vicinity is near residential areas, while we pointed out its proximity to an intersection.
The darkness and these circumstances should have caused the petitioner to be more alert and more vigilant, to say
nothing of slowing his car down. Newly constructed or not, the island divider should have received the petitioners due
attention. His bare allegation that the island lacked markers or reflectorized marks is likewise not persuasive. As the
trial court correctly observed, many other vehicles passed the same road that night but only the petitioner failed to
notice the island divider.[42] We thus find the trial court to be correct when it held that the petitioner failed to exercise
precaution in operating his vehicle on the night of the incident.

The location of the victims injuries vis--vis

the position of the petitioners vehicle

The petitioner insists that his car could not have bumped the victim because his car was coming from the right
side (i.e., from Espaa), while the victim was hit on the left side of her body. He argues that if the victim was on her way
to her house on Mabini Street coming from the corner of Governor Forbes Street and G. Tuazon Street (where she
alighted), then the responsible vehicle could only have come from the left (i.e., from Nagtahan) as only those vehicles
coming from this direction could hit the victim on the left side of her body. He further claims that his car had no dents
or scratches.

The petitioners arguments are misleading.

Dr. Sergio Alteza, Jr., the attending physician, testified that the victim suffered multiple injuries compatible and
consistent with a vehicular accident.[43] He did not state that the injuries suffered by the victim were only on her left
side. In fact, a perusal of Dr. Altezas initial medical report shows that the victim suffered injuries both on the left and
right sides of her body. In addition, Dr. Floresto Arizala, Jr., the National Bureau of Investigation medico-legal officer
who conducted an autopsy on Rochelles body, confirmed that the victim suffered injuries on various parts of her lower
right and left extremities as a result of the initial or primary impact.

The petitioner relies heavily on Dr. Altezas statement allegedly declaring that the victims injuries on her lower
left leg and left thigh were the primary impact injuries. However, this statement was not based on the actual incident
but on Dr. Altezas presumptions. For clarity, we reproduce Dr. Altezas testimony:

ATTY. SERRANO:
Q: Now doctor, you said that these injuries you found x x x on the body of the victim are compatible and consistent with
a vehicular accident. Would you tell this court how these injuries were sustained?

xxxx

Doctor, what would be the possible situation when you use compatible and consistent vehicular accident?

DR. ALTEZA:

A: If I would be allowed to make some presumptions, if the patient was standing up at that time he was hit by a
vehicle, I would presume that the primary impact injuries, injuries hit first by the vehicle are the injuries of
the lower leg and the left thigh considering that the height of the injuries are approximately the height of the
bumper as well as the hood of the car.

Q: There are several kinds of vehicles, doctor?

A: Yes, Your Honor, I was thinking of a car. Now, after being hit by [a] car, under normal condition, the victim is
normally thrown at the surface of the street.[44] [emphases ours]

From this exchange, we find it clear that Dr. Alteza was merely making a hypothetical statement that a person
who is presumed to be standing when hit by a vehicle would suffer primary impact injuries on his lower leg and left thigh.
He never declared that Rochelle suffered primary impact injuries on her lower left extremities. At any rate, it was not
improbable for the victim to have been hit on the left side of her body as Victor testified that she (victim) tried to avoid the
petitioners car, and was in fact facing the car when she was hit.

We likewise do not believe the petitioners claim that his vehicle was not involved in the incident due to the
absence of dents or scratches. As the petitioner himself admitted, his vehicle was not subjected to any investigation
after the incident. Moreover, the pictures of the car, presented by the petitioner in court, were taken long after the
incident and after a repair had already been done to the vehicle. There was therefore no way of verifying petitioners
claim that his car did not have any dent or scratch after the incident. At any rate, the absence of a dent or a scratch on
the petitioners car, assuming it to be true, does not conclusively prove his non-participation in the incident. The
absence of any dent or scratch is influenced by several factors: the type of paint, the speed of the car, the points of
impact, and the material used on the cars exteriors.

Weight of expert testimony

The petitioner likewise claims that the CA violated Section 49, Rule 130 of the Revised Rules of Court when it
disregarded the testimony of defense witness Police Senior Inspector Danilo Cornelio who testified that the petitioners
car could not have bumped the victim because the latters body was not thrown in line with the car, but on its side. The
petitioner argues that P/Sr. Insp. Cornelio is highly qualified in the field of traffic accident investigation, and as such, his
statements are backed-up by [the] principles of applied physics, engineering, and mathematics. [45]

The petitioners arguments fail to convince us.

Section 49, Rule 130 of the Revised Rules of Court states that the opinion of a witness on a matter requiring
special knowledge, skill, experience or training, which he is shown to possess, may be received in evidence. The use of
the word may signifies that the use of opinion of an expert witness is permissive and not mandatory on the part of the
courts. Allowing the testimony does not mean, too, that courts are bound by the testimony of the expert witness. The
testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the
parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt
depending on its appreciation of the attendant facts and the applicable law. It has been held of expert testimonies:

Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they may
choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency
of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and
character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which
he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a
paid witness, the relative opportunities for study and observation of the matters about which he testifies, and
any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily
rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when
common knowledge utterly fails, the expert opinion may be given controlling effect.The problem of the
credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court
whose ruling thereupon is not reviewable in the absence of abuse of discretion. [46]
 We emphasize that P/Sr. Insp. Cornelio was not an eyewitness to the incident; his testimony was merely based
on the Traffic Accident Report prepared by SPO4 Edgar Reyes who himself did not witness the incident. At any rate,
nowhere in P/Sr. Insp. Cornelios testimony did he conclusively state that the petitioner could not have been involved in
the incident. For clarity, we reproduce the pertinent portions of P/Sr. Insp. Cornelios testimony:

ATTY. SERRANO:

Q: When you said in line with the motor vehicle that bumped the victim, is it that when a victim is bumped by the
motor vehicle, the victim would be thrown in line with the vehicle?

P/SR. INSP. CORNELIO:

A: Yes, Maam. Usually, that is the outcome of the incident.

Q: He cannot be thrown sideward?

A: Maybe if another vehicle would hit the pedestrian because that also happened. When a pedestrian is hit by a vehicle
and another vehicle hit the pedestrian, it will be thrown somewhere else.

Q: Mr. Witness, you are testifying as far as the vehicle of Tabao is concerned. You said that the line of vehicle that
bumped the victim would be in line. Are you telling us that it is not possible that when the vehicle of Tabao hit
the victim, the victim would be thrown sidewards?
A: Yes, Maam.

Q: What do you mean, yes, Maam?

A: He can be thrown either in front of the vehicle that hit the victim or slightly offset with the car of Tabao. It [may be]
but not far from the side.

Q: But he would be thrown sidewise[,] not frontal?

A: Slightly to the side but not considerable length of distance away from the car. It is sidewards.

Q: In your Mathematics, do you consider that if a vehicle is speeding fast, he could have thrown anything that is
bumped by that vehicle far away from the vehicle?
A: Yes, Maam, possible.

Q: So, that probability is also possible aside from the probability that you said the victim is thrown in line or in front.
So, you are now saying it could be said that the victim can be thrown sidewise?
A: It [may be] thrown sidewise. As I said [a while] ago, it might be slightly offset with the vehicle that hit the pedestrian
but not too far from the side of the bumping vehicle.

Q: So, it could depend on the speed of the vehicle that bumped the object bumped?
A: Yes, Maam.

Q: Whether it is forward or sidewise, the distance of the object thrown would depend on the speed of the vehicle
that bumped?
A: Yes, Maam.

Q: So, if it is speeding, it could be thrown farther?

A: Yes, Maam.
Q: Sidewise or frontal?
A: It should be frontal.

Q: You said it could be thrown sidewise do I take it correct[ly,] it can be thrown sidewise also?
A: Maybe. As I have said [a while] ago, it [may be] slightly offset with the line of the vehicle.

xxxx

Q: So, do we take it from you that your basis only of telling the court that Tabao is not in [any way] responsible is the
distance of the victim from the car that bumped?
A: I am not saying categorically that the car of Tabao is not responsible. But as I can see in the sketch presented today
in this Honorable Court, the position of the victim is too far from the vehicle of Mr. Tabao. If I were the
investigator in this particular case, I should indicate the measurement of the victim from the car and this
sketch [does] not indicate the distance.
Q: Now, failure of the investigator to indicate the distance, would that show that it was not Tabao who bumped the victim?
A: I cannot say categorically that the car of Tabao indeed, hit the victim. Because the distance is very significant in this
sketch for proper evaluation.

xxxx

Q: So, it cannot be said that when an object is bumped by a vehicle, it will be thrown forward. It will all depend on
which portion of the bumper hit by object bumped?
A: Yes, Maam.[47]

From the foregoing, it is clear that P/Sr. Insp. Cornelio did not discount the possibility that the victim could have
been thrown on the side. He likewise admitted that the location of an accident victim in relation to the vehicle would
also depend on the speed of the vehicle and the point of impact.

The defense of denial

The petitioner denied that his car had bumped the victim, and insists that he just saw the victims body
sprawled on the road after his car had already ramped on the island divider.

The petitioners defense of denial must crumble in light of Victors positive and specific testimony. We reiterate that the
petitioner, aside from merely alleging the inconsistency between Victors affidavit and court testimony, did not impute
any ill motive on Victors part to falsely testify against him. The petitioner, in fact, admitted that he and Victor did not
know each other prior to the incident. We have consistently held that positive identification of the accused, when
categorical and consistent, and without any showing of ill-motive on the part of the testifying eyewitness, should prevail
over the denial of the accused whose testimony is not substantiated by clear and convincing evidence.[48] A denial is
negative evidence. To be believed, it must be buttressed by strong evidence of non-culpability; otherwise, the denial is
purely self-serving and has no evidentiary value.[49]

We significantly note that the petitioner claimed for the first time in his present petition that he saw a rug-like
thing[50] being thrown out of a passing car as he was about to alight from his car after turning off its engine; he later
discovered that the thing thrown was a persons body. He reiterated this claim in his motion for reconsideration before
this Court. This assertion was a clear rip-off from his co-accused Mendez version who likewise claimed to have seen the
same thing. To our mind, the modification of the petitioners story was a belated attempt to cover up his failure to
convincingly explain the presence of the victims slumped body on the road near his car and a last-ditch effort to
exculpate himself. Nowhere in his affidavit or earlier court testimonies, or even in his previous pleadings with the lower
courts, did he ever state that a passing car had thrown a rug-like thing[51] on the street. The petitioners sudden change
of story at this stage of the proceedings casts doubt on the veracity of his claim.

In addition, we are baffled by the petitioners act of frequenting the hospital after the incident. Amanda Ycong,
the victims aunt, testified that she saw the petitioner several times at the hospital when the victim was confined there;
but would immediately leave whenever he saw members of the victims family. We find it highly unusual for a person
who allegedly had no participation in the incident to be overly concerned with the victims well-being. What puzzles us
even more is why the petitioner would evade members of the victims family whenever he was seen by them at the
hospital.

All told, we see no reason to overturn the lower courts findings of fact and conclusions of law finding the
petitioner guilty beyond reasonable doubt of the crime charged.

WHEREFORE, premises considered, the Court resolves to DENY the motion with FINALITY, no substantial
argument having been adduced to warrant the reconsideration sought. Costs against the petitioner.

SO ORDERED.

ARTURO D. BRION
Associate Justice

*
Designated as Acting Member of the Second Division per Special Order No. 1006 dated June 10, 2011.
 **
Additional member in lieu of Associate Justice Maria Lourdes P. A. Sereno per Special Order No. 1040 dated July 6,
2011.
[1]
TSN, September 1, 1994, pp. 12-13. [2] Id. at 15-16; TSN, November 8, 1993, pp. 14-15.
[3]
TSN, November 8, 1993, pp. 4-5. [4] Id. at 6 and 18; TSN, January 24, 1994, p. 3.
[5]
Records, p. 6.[6] TSN, March 28, 2001, pp. 6-9. [7] Id. at 10.
[8]
Id. at 10 and 15; TSN, May 20, 2002, pp. 31-35; records, p. 282.
[9]
TSN, March 28, 2001, pp. 10-17. [10] Id. at 10-11 and 18-19; TSN, May 20, 2002, pp. 39-41.
[11]
TSN, September 16, 1996, pp. 4-6; TSN, February 11, 1997, p. 11.
[12]
TSN, September 16, 1996, pp. 7-8.
[13]
The inculpatory portion of the Information reads:
That on or about January 21, 1993, in the City of Manila, Philippines, the said accused LEONARDO MENDEZ Y MENDEZ,
being then the driver and person in charge of a Toyota Corona Sedan with plate [sic] No. PES-764, and accused EDWIN
TABAO Y PEREZ, being then the driver and person in charge of a Toyota Corolla with plate [sic] No. PHC-111, did then
and there unlawfully and feloniously drive, manage and operate the same along Governor Forbes intersection of G.
Tuazon Streets, Sampaloc, in said City, in a careless, reckless, negligent and imprudent manner, by then and there
making the said vehicle run at a speed greater than was reasonable and proper, without taking the necessary
precaution to avoid accident to person considering the condition of traffic at said place at the time, causing as a
consequence of such carelessness, negligence, recklessness, imprudence and lack of precaution, the said vehicle so
driven, managed and operate [sic] by them in the manner above setforth, said vehicle driven by accused EDWIN TABAO
Y PEREZ hit and bumped one ROCHELLE LANETE Y MATAAC, a pedestrian, causing her to be thrown on the pavement,
and thereafter was ran [sic] over by the vehicle driven by accused LEONARDO MENDEZ Y MENDEZ, and as a result of
the said impact, said ROCHELLE LANETE Y MATAAC sustained physical injuries which were the cause of her death
thereafter.
CONTRARY TO LAW. [Records, p. 1.]
[14]
Penned by Judge Reynaldo G. Ros; rollo, pp. 61-92. [15] Records, p. 735.
[16]
The dispositive portion of the RTC decision reads:
WHEREFORE, the prosecution having established the guilt of both accused, LEONARDO MENDEZ Y MENDEZ and EDWIN
TABAO Y PEREZ, beyond reasonable doubt of the offense charged in the Information which is for Reckless Imprudence
Resulting to Homicide, they are hereby sentenced to suffer the indeterminate penalty of FOUR (4) MONTHS and ONE
(1) DAY of arresto mayor as minimum, to TWO (2) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of prison
correctional as maximum.
Both accused are ordered to jointly and solidarity [sic] pay the heirs of the victim Rochelle Lanete Y Mataac the amount
of P478,434.12 as actual damages; P50,000.00 as civil indemnity; and P50,000.00 as moral damages, and the costs of
suit.
SO ORDERED. [Id. at 736.]
[17]
Penned by Associate Justice Vicente S.E. Veloso, and concurred in by Associate Justices Juan Q. Enriquez, Jr. and
Marlene Gonzales-Sison; rollo, pp. 41-60.
[18]
Id. at 119-120. [19] Id. at 188-201.
[20]
Austria v. Court of Appeals, 384 Phil. 408, 415 (2000).
[21]
Caminos, Jr. v. People, G.R. No. 147437, May 8, 2009, 587 SCRA 348, 357, citing THE REVISED PENAL CODE, REYES, LUIS
B., 15th ed. (2001), pp. 994-995.
[22]
Order dated August 5, 1993; records, p. 51. The Certificate of Death of Rochelle Lanete was presented during trial as
Exhibit P; records, p. 216.
[23]
People v. Meneses, 351 Phil. 331, 334 (1998), citing People v. Teehankee, Jr., 319 Phil. 128, 179 (1995).
[24]
People v. Gallarde, 382 Phil. 718, 736 (2000).
[25]
TSN, September 1, 1994, pp. 12-18. [26] Id. at 37-41.
[27]
See People v. Villadares, 406 Phil. 530, 540 (2001).
[28]
TSN, September 1, 1994, p. 47.
[29]
See People v. Narvaez, 425 Phil. 381, 402-403 (2002); and People v. Castillo, 330 Phil. 205, 212 (1996).
[30]
Caminos, Jr. v. People, supra note 21, at 350, citing Richards v. Begenstos, 21 N.W.2d 23, Hodges v. Smith, 298 S.W.
1023, and Lawson v. Fordyce, 12 N.W.2d 301.

[31]
Id., citing Magnolia Petroleum Co. v. Owen, 101 S.W.2d 354.
[32]
Id., citing Atlantic Greyhound Corp. v. Lyon, 107 F.2d 157, Oklahoma Natural Gas Co. v. McKee, 121 F.2d 583, Burdick v.
Powell Bros. Truck Lines, 124 F.2d 694, Dixie Motor Coach Corp. v. Lane, 116 F.2d 264, Shipley v. Komer, 154 F.2d 861,
and Magnolia Petroleum Co. v. Owen, 101 S.W.2d 354.
[33]
TSN, March 28, 2001, pp. 5-7. [34] TSN, January 22, 2002, p. 35.
[35]
TSN, July 18, 2002, pp. 26-27.
[36]
The pertinent portion from the March 28, 2001 TSN (pp. 6-7) reads:
[Direct Examination of Witness Edwin Tabao. Emphasis ours.]
xxxx
Q. After you dropped off your friend to the UST Hospital, what unusual incident happened on this night of January 21,
1993?
A. I was heading for home and that I did not notice an island.
Q. This island is located at the foot of the Nagtahan flyover at the corner of Forbes and G. Tuazon?
A. Yes, sir.
Q. So, what happened on your way home to this particular location?
A. My car was ramped on the island, sir.
Q. Why did you not notice the island divider on that location, Mr. Witness?
A. Because it was already nighttime and it was dark so I did not notice the island and mukhang parang bago.
[37]
Caminos, Jr. v. People, supra note 21, at 361, citing Foster v. ConAgra Poultry Co., 670 So.2d 471.
[38]
Id., citing Nunn v. Financial Indem. Co., 694 So.2d 630. Duty of reasonable care includes duty to keep the vehicle under
control and to maintain proper lookout for hazards.
[39]
Id. at 361-362, citing Reppert v. White Star Lines, 106 A.L.R. 413, and Riccio v. Ginsberg, 62 A.L.R. 967.
[40]
Id. at 361, citing Roberts v. Leahy, 214 P.2d 673.
[41]
TSN, September 1, 1994, p. 13. [42] Records, p. 736.
[43]
TSN, July 11, 1994, p. 12. [44] TSN, July 11, 1994, pp. 15-16.
[45]
Rollo, p. 204.
[46]
See People v. Basite, 459 Phil. 197, 206-207 (2003), citing People v. Baid, G.R. No. 129667, July 31, 2000, 336 SCRA 656,
675.
[47]
TSN, April 3, 2003, pp. 25-28 and 33-35.
[48]
See Tapdasan, Jr. v. People, 440 Phil. 864, 877 (2002).
[49]
Tan v. Pacuribot, A.M. Nos. RTJ-06-1982-1983, December 14, 2007, 540 SCRA 246, 300.
[50]
Rollo, p. 7. [51] Ibid.
G.R. No. 182356 December 4, 2013
DRA, LEILA A DELA LLANO, Petitioner,
vs.
REBECCA BIONG, doing business under the name and style of Pongkay Trading, Respondent.
DECISION
BRION, J.:
Very case essentially turns on two basic questions: questions of fact and questions of law. Questions of fact are the
parties and their counsel to respond to, based on what supporting facts the legal questions require; the court can only
draw conclusion from the facts or evidence adduced. When the facts are lacking because of the deficiency of presented
evidence, then the court can only draw one conclusion: that the cause must fail for lack of evidentiary support.
The present case is one such case as Dra. Leila A dela Llanas(petitioner) petition for review on certorari 1challenging the
February 11, 2008 Decision2 and the March 31, 2008 resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 89163.
The Factual Antecedents
On March 30, 2000, at around 11:00 p.m., Juan dela Llana was driving a 1997 Toyota Corolla car along North Avenue,
Quezon City.4
His sister, Dra. dela Llana, was seated at the front passenger seat while a certain Calimlim was at the backseat. 5
Juan stopped the car across the Veterans Memorial Hospital when the signal light turned red. A few seconds after the
car halted, a dump truck containing gravel and sand suddenly rammed the cars rear end, violently pushing the car
forward. Due to the impact, the cars rear end collapsed and its rear windshield was shattered. Glass splinters flew,
puncturing Dra. dela Llana. Apart from these minor wounds, Dra. dela Llana did not appear to have suffered from any
other visible physical injuries.6
The traffic investigation report dated March 30, 2000 identified the truck driver as Joel Primero. It stated that Joel was
recklessly imprudent in driving the truck.7
Joel later revealed that his employer was respondent Rebecca Biong, doing business under the name and style of
"Pongkay Trading" and was engaged in a gravel and sand business.8
In the first week of May 2000, Dra. dela Llana began to feel mild to moderate pain on the left side of her neck and
shoulder. The pain became more intense as days passed by. Her injury became more severe. Her health deteriorated to
the extent that she could no longer move her left arm. On June 9, 2000, she consulted with Dr. Rosalinda Milla, a
rehabilitation medicine specialist, to examine her condition. Dr. Milla told her that she suffered from a whiplash injury,
an injury caused by the compression of the nerve running to her left arm and hand. Dr. Milla required her to undergo
physical therapy to alleviate her condition. Dra. dela Llanas condition did not improve despite three months of
extensive physical therapy.9
She then consulted other doctors, namely, Drs. Willie Lopez, Leonor Cabral-Lim and Eric Flores, in search for a cure. Dr.
Flores, a neuro-surgeon, finally suggested that she undergo a cervical spine surgery to release the compression of her
nerve. On October 19, 2000, Dr. Flores operated on her spine and neck, between the C5 and the C6 vertebrae. 10
The operation released the impingement of the nerve, but incapacitated Dra. dela Llana from the practice of her
profession since June 2000 despite the surgery.11
Dra. dela Llana, on October 16, 2000, demanded from Rebecca compensation for her injuries, but Rebecca refused to
pay.12
Thus, on May 8, 2001, Dra. dela Llana sued Rebecca for damages before the Regional Trial Court of Quezon City (RTC).
She alleged that she lost the mobility of her arm as a result of the vehicular accident and claimed P150,000.00 for her
medical expenses (as of the filing of the complaint) and an average monthly income of P30,000.00 since June 2000. She
further prayed for actual, moral, and exemplary damages as well as attorneys fees. 13
In defense, Rebecca maintained that Dra. dela Llana had no cause of action against her as no reasonable relation
existed between the vehicular accident and Dra. dela Llanas injury. She pointed out that Dra. dela Llanas illness
became manifest one month and one week from the date of the vehicular accident. As a counterclaim, she demanded
the payment of attorneys fees and costs of the suit.14
At the trial, Dra. dela Llana presented herself as an ordinary witness15 and Joel as a hostile witness.16
Dra. dela Llana reiterated that she lost the mobility of her arm because of the vehicular accident. To prove her claim,
she identified and authenticated a medical certificate dated November 20, 2000 issued by Dr. Milla. The medical
certificate stated that Dra. dela Llana suffered from a whiplash injury. It also chronicled her clinical history and physical
examinations.17
Meanwhile, Joel testified that his truck hit the car because the trucks brakes got stuck. 18
In defense, Rebecca testified that Dra. dela Llana was physically fit and strong when they met several days after the
vehicular accident. She also asserted that she observed the diligence of a good father of a family in the selection and
supervision of Joel. She pointed out that she required Joel to submit a certification of good moral character as well as
barangay, police, and NBI clearances prior to his employment. She also stressed that she only hired Primero after he
successfully passed the driving skills test conducted by Alberto Marcelo, a licensed driver-mechanic.19
Alberto also took the witness stand. He testified that he checked the truck in the morning of March 30, 2000. He
affirmed that the truck was in good condition prior to the vehicular accident. He opined that the cause of the vehicular
accident was a damaged compressor. According to him, the absence of air inside the tank damaged the compressor. 20
RTC Ruling
The RTC ruled in favor of Dra. dela Llana and held that the proximate cause of Dra. dela Llanas whiplash injury to be
Joels reckless driving.21
It found that a whiplash injury is an injury caused by the sudden jerking of the spine in the neck area. It pointed out that
the massive damage the car suffered only meant that the truck was over-speeding. It maintained that Joel should have
driven at a slower pace because road visibility diminishes at night. He should have blown his horn and warned the car
that his brake was stuck and could have prevented the collision by swerving the truck off the road. It also concluded
that Joel was probably sleeping when the collision occurred as Joel had been driving for fifteen hours on that fateful
day. The RTC further declared that Joels negligence gave rise to the presumption that Rebecca did not exercise the
diligence of a good father of a family in Joel's selection and supervision of Joel. Rebecca was vicariously liable because
she was the employer and she personally chose him to drive the truck. On the day of the collision, she ordered him to
deliver gravel and sand to Muoz Market, Quezon City. The Court concluded that the three elements necessary to
establish Rebeccas liability were present: (1) that the employee was chosen by the employer, personally or through
another; (2) that the services were to be rendered in accordance with orders which the employer had the authority to
give at all times; and (3) that the illicit act of the employee was on the occasion or by reason of the functions entrusted
to him. The RTC thus awarded Dra. dela Llana the amounts of P570,000.00 as actual damages, P250,000.00 as moral
damages, and the cost of the suit.22
CA Ruling
In a decision dated February 11, 2008, the CA reversed the RTC ruling. It held that Dra. dela Llana failed to establish a
reasonable connection between the vehicular accident and her whiplash injury by preponderance of evidence. Citing
Nutrimix Feeds Corp. v. Court of Appeals,23 it declared that courts will not hesitate to rule in favor of the other party if
there is no evidence or the evidence is too slight to warrant an inference establishing the fact in issue. It noted that the
interval between the date of the collision and the date when Dra. dela Llana began to suffer the symptoms of her illness
was lengthy. It concluded that this interval raised doubts on whether Joels reckless driving and the resulting collision in
fact caused Dra. dela Llanas injury. It also declared that courts cannot take judicial notice that vehicular accidents cause
whiplash injuries. It observed that Dra. dela Llana did not immediately visit a hospital to check if she sustained internal
injuries after the accident. Moreover, her failure to present expert witnesses was fatal to her claim. It also gave no
weight to the medical certificate. The medical certificate did not explain how and why the vehicular accident caused the
injury.24
The Petition
Dra. dela Llana points out in her petition before this Court that Nutrimix is inapplicable in the present case. She stresses
that Nutrimix involved the application of Article 1561 and 1566 of the Civil Code, provisions governing hidden defects.
Furthermore, there was absolutely no evidence in Nutrimix that showed that poisonous animal feeds were sold to the
respondents in that case. As opposed to the respondents in Nutrimix, Dra. dela Llana asserts that she has established by
preponderance of evidence that Joels egligent act was the proximate cause of her whiplash injury. First, pictures of her
damaged car show that the collision was strong. She posits that it can be reasonably inferred from these pictures that
the massive impact resulted in her whiplash injury. Second, Dr. Milla categorically stated in the medical certificate that
Dra. dela Llana suffered from whiplash injury. Third, her testimony that the vehicular accident caused the injury is
credible because she was a surgeon.
Dra. dela Llana further asserts that the medical certificate has probative value. Citing several cases, she posits that an
uncorroborated medical certificate is credible if uncontroverted.25
She points out that expert opinion is unnecessary if the opinion merely relates to matters of common knowledge. She
maintains that a judge is qualified as an expert to determine the causation between Joels reckless driving and her
whiplash injury. Trial judges are aware of the fact that whiplash injuries are common in vehicular collisions.
The Respondents Position
In her Comment,26 Rebecca points out that Dra. dela Llana raises a factual issue which is beyond the scope of a petition
for review on certiorari under Rule 45 of the Rules of Court. She maintains that the CAs findings of fact are final and
conclusive. Moreover, she stresses that Dra. dela Llanas arguments are not substantial to merit this Courts
consideration.
The Issue
The sole issue for our consideration in this case is whether Joels reckless driving is the proximate cause of Dra. dela
Llanas whiplash injury.
Our Ruling We find the petition unmeritorious.
The Supreme Court may review questions of fact in a petition for review on certiorari when the findings of fact by the
lower courts are conflicting
The issue before us involves a question of fact and this Court is not a trier of facts. As a general rule, the CAs findings of
fact are final and conclusive and this Court will not review them on appeal. It is not the function of this Court to
examine, review or evaluate the evidence in a petition for review on certiorari under Rule 45 of the Rules of Court. We
can only review the presented evidence, by way of exception, when the conflict exists in findings of the RTC and the
CA.27
We see this exceptional situation here and thus accordingly examine the relevant evidence presented before the trial
court.
Dra. dela Llana failed to establish her case by preponderance of evidence
Article 2176 of the Civil Code provides that "[w]hoever 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 a quasi-delict." Under this provision, the elements necessary to establish a quasi-delict
case are:
(1) damages to the plaintiff;
(2) negligence, by act or omission, of the defendant or by some person for whose acts the defendant must respond,
was guilty; and
(3) the connection of cause and effect between such negligence and the damages. 28
These elements show that the source of obligation in a quasi-delict case is the breach or omission of mutual duties that
civilized society imposes upon its members, or which arise from non-contractual relations of certain members of society
to others.29
Based on these requisites, Dra. dela Llana must first establish by preponderance of evidence the three elements of
quasi-delict before we determine Rebeccas liability as Joels employer.
She should show the chain of causation between Joels reckless driving and her whiplash injury.
Only after she has laid this foundation can the presumption - that Rebecca did not exercise the diligence of a good
father of a family in the selection and supervision of Joel - arise.30
Once negligence, the damages and the proximate causation are established, this Court can then proceed with the
application and the interpretation of the fifth paragraph of Article 2180 of the Civil Code. 31
Under Article 2176 of the Civil Code, in relation with the fifth paragraph of Article 2180, "an action predicated on an
employees act or omission may be instituted against the employer who is held liable for the negligent act or omission
committed by his employee."32
The rationale for these graduated levels of analyses is that it is essentially the wrongful or negligent act or omission
itself which creates the vinculum juris in extra-contractual obligations.33
In civil cases, a party who alleges a fact has the burden of proving it.
He who alleges has the burden of proving his allegation by preponderance of evidence or greater weight of credible
evidence.34
The reason for this rule is that bare allegations, unsubstantiated by evidence, are not equivalent to proof.
In short, mere allegations are not evidence.35
In the present case, the burden of proving the proximate causation between Joels negligence and Dra. dela Llanas
whiplash injury rests on Dra. dela Llana. She must establish by preponderance of evidence that Joels negligence, in its
natural and continuous sequence, unbroken by any efficient intervening cause, produced her whiplash injury, and
without which her whiplash injury would not have occurred.36
Notably, Dra. dela Llana anchors her claim mainly on three pieces of evidence:
(1) the pictures of her damaged car,
(2) the medical certificate dated November 20, 2000, and
(3) her testimonial evidence. However, none of these pieces of evidence show the causal relation between the
vehicular accident and the whiplash injury. In other words,
Dra. dela Llana, during trial, did not adduce the factum probans or the evidentiary facts by which the factum
probandum or the ultimate fact can be established, as fully discussed below. 37
A.
The pictures of the damaged
car only demonstrate the
impact of the collision
Dra. dela Llana contends that the pictures of the damaged car show that the massive impact of the collision caused her
whiplash injury. We are not persuaded by this bare claim. Her insistence that these pictures show the causation grossly
belies common logic. These pictures indeed demonstrate the impact of the collision. However, it is a far-fetched
assumption that the whiplash injury can also be inferred from these pictures.
B.
The medical certificate cannot be
considered because it was
not admitted in evidence
Furthermore, the medical certificate, marked as Exhibit "H" during trial, should not be considered in resolving this case
for the reason that it was not admitted in evidence by the RTC in an order dated September 23, 2004. 38
Thus, the CA erred in even considering this documentary evidence in its resolution of the case. It is a basic rule that
evidence which has not been admitted cannot be validly considered by the courts in arriving at their judgments.
However, even if we consider the medical certificate in the disposition of this case, the medical certificate has no
probative value for being hearsay. It is a basic rule that evidence, whether oral or documentary, is hearsay if its
probative value is not based on the personal knowledge of the witness but on the knowledge of another person who is
not on the witness stand.39
Hearsay evidence, whether objected to or not, cannot be given credence 40 except in very unusual circumstance that is
not found in the present case. Furthermore, admissibility of evidence should not be equated with weight of evidence.
The admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to
evidence already admitted and its tendency to convince and persuade. Thus, a particular item of evidence may be
admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the Rules of
Court.41
During trial, Dra. dela Llana testified:
"Q: Did your physician tell you, more or less, what was the reason why you were feeling that pain in your left arm?
A: Well, I got a certificate from her and in that certificate, she stated that my condition was due to a compression of the
nerve, which supplied my left arm and my left hand.
Court: By the way, what is the name of this physician, Dra.?
Witness: Her name is Dra. Rosalinda Milla. She is a Rehabilitation Medicine Specialist. Atty. Yusingco: You mentioned
that this Dra. Rosalinda Milla made or issued a medical certificate. What relation does this medical certificate, marked
as Exhibit H have to do with that certificate, you said was made by Dra. Milla?
Witness: This is the medical certificate that Dra. Milla made out for me.
Atty. Yusingco: Your Honor, this has been marked as Exhibit H.
Atty. Yusingco: What other medical services were done on you, Dra. dela Llana, as a result of that feeling, that pain that
you felt in your left arm?
Witness: Well, aside from the medications and physical therapy, a re-evaluation of my condition after three months
indicated that I needed surgery.
Atty. Yusingco: Did you undergo this surgery?
Witness: So, on October 19, I underwent surgery on my neck, on my spine.
Atty. Yusingco: And, what was the result of that surgical operation?
Witness: Well, the operation was to relieve the compression on my nerve, which did not resolve by the extensive and
prolonged physical therapy that I underwent for more than three months." 42(emphasis ours)
Evidently, it was Dr. Milla who had personal knowledge of the contents of the medical certificate. However, she was not
presented to testify in court and was not even able to identify and affirm the contents of the medical certificate.
Furthermore, Rebecca was deprived of the opportunity to cross-examine Dr. Milla on the accuracy and veracity of her
findings. We also point out in this respect that the medical certificate nonetheless did not explain the chain of causation
in fact between Joels reckless driving and Dra. dela Llanas whiplash injury. It did not categorically state that the
whiplash injury was a result of the vehicular accident. A perusal of the medical certificate shows that it only attested to
her medical condition, i.e., that she was suffering from whiplash injury. However, the medical certificate failed to
substantially relate the vehicular accident to Dra. dela Llanas whiplash injury. Rather, the medical certificate
only chronicled
her medical history and physical examinations.
C.
Dra. dela Llanas opinion that
Joels negligence caused her
whiplash injury has no probative value
Interestingly, the present case is peculiar in the sense that Dra. dela Llana, as the plaintiff in this quasi-delict case, was
the lone physician-witness during trial. Significantly, she merely testified as an ordinary witness before the trial court.
Dra. dela Llana essentially claimed in her testimony that Joels reckless driving caused her whiplash injury. Despite the
fact that Dra. dela Llana is a physician and even assuming that she is an expert in neurology, we cannot give weight to
her opinion that Joels reckless driving caused her whiplash injury without violating the rules on evidence. Under the
Rules of Court, there is a substantial difference between an ordinary witness and an expert witness. The opinion of an
ordinary witness may be received in evidence regarding:
(a) the identity of a person about whom he has adequate knowledge;
(b) a handwriting with which he has sufficient familiarity; and
(c) the mental sanity of a person with whom he is sufficiently acquainted. Furthermore, the witness may also testify on
his impressions of the emotion, behavior, condition or appearance of a person. 43
On the other hand, the opinion of an expert witness may be received in evidence on a matter requiring special
knowledge, skill, experience or training which he shown to possess.44
However, courts do not immediately accord probative value to an admitted expert testimony, much less to an
unobjected ordinary testimony respecting special knowledge. The reason is that the probative value of an expert
testimony does not lie in a simple exposition of the expert's opinion. Rather, its weight lies in the assistance that the
expert witness may afford the courts by demonstrating the facts which serve as a basis for his opinion and the reasons
on which the logic of his conclusions is founded.45
In the present case, Dra. dela Llanas medical opinion cannot be given probative value for the reason that she was not
presented as an expert witness. As an ordinary witness, she was not competent to testify on the nature, and the cause
and effects of whiplash injury. Furthermore, we emphasize that Dra. dela Llana, during trial, nonetheless did not
provide a medical explanation on the nature as well as the cause and effects of whiplash injury in her testimony.
The Supreme Court cannot take
judicial notice that vehicular
accidents cause whiplash injuries.
Indeed, a perusal of the pieces of evidence presented by the parties before the trial court shows that Dra. Dela Llana
did not present any testimonial or documentary evidence that directly shows the causal relation between the
vehicular accident and Dra. Dela Llanas injury. Her claim that Joels negligence causes her whiplash injury was not
established because of the deficiency of the presented evidence during trial. We point out in this respect that courts
cannot take judicial notice that vehicular ccidents cause whiplash injuries. This proportion is not public knowledge, or is
capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. 46 We
have no expertise in the field of medicine. Justices and judges are only tasked to apply and interpret the law on the
basis of the parties pieces of evidence and their corresponding legal arguments.
In sum, Dra. dela Llana miserably failed to establish her cause by preponderance of evidence. While we commiserate
with her, our solemn duty to independently and impartially assess the merits of the case binds us to rule against Dra.
dela Llanas favor. Her claim, unsupported by prepondernace of evidence, is merely a bare assertion and has no leg to
stand on.
WHEREFORE, presmises considered, the assailed Decision dated February 11, 2008 and Resolution dated March 31,
2008 of the Court of Appeals are hereby AFFIRMED and the petition is hereby DENIED for lack of merit.
SO ORDERED.
ARTURO D. BRION
Associate Justice

Footnotes
1
Dated May 20, 2008 and filed under Rule 45 of the Rules of Court; rollo pp. 8-30.
2
Id. at 39-55; penned by Associate Justice Remedios A. Salazar-Fernando, and concurred in by Associate Justices
Rosalinda Asuncion-Vicente and Enrico A. Lanzanas.
3
Id. at 56-59.
4
Id. at 40.
5
Id. at 42-43.
6
Id. at 43.
7
RTC rollo, p. 117.
8
Rollo, p. 43.
9
Id. at 44-45.
10
RTC rollo, pp. 121-122.
11
Rollo, p. 45.
12
RTC rollo, p. 139.
13
Id. at 2-4.
14
Id. at 10-14.
15
Id. at 254.
16
Id. at 640.
17
Id. at 121-123.
18
Rollo, p. 47.
19
Id. at 47-49.
20
Id. at 49-50.
21
Dated April 19, 2007; id. at 36.
22
Id. at 31-37.
23
484 Phil. 330-349 (2004).
24
Supra note 2.
25
Citing GSIS v. Ibarra, 562 Phil. 924-938 (2009); Ijares v. Court of Appeals, 372 Phil. 9-21 (1999); and Loot v. GSIS, G.R.
No. 86994, June 30, 1993, 224 SCRA 54-61.
26
Rollo, pp. 102-109.
27
Carvajal v. Luzon Development Bank and/or Ramirez, G.R. No. 186169, August 1, 2012, 678 SCRA 132, 140-141.
28
Vergara v. CA, 238 Phil. 566, 568 (1987).
29
Cangco v. Manila Railroad Co., 38 Phil. 775 (1918).
30
Syki v. Begasa, 460 Phil. 386 (2003).
31
The fifth paragraph of Article 2180 of the Civil Code provides: 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.
32
Filcar Transport Services v. Espinas, G.R. No. 174156, June 20, 2012, 674 SCRA 118, 128.
33
Supra note 29.
34
Eulogio v. Spouses Apeles, G.R. No. 167884, January 20, 2009, 576 SCRA 562, 571-572, citing Go v. Court of Appeals,
403 Phil. 883, 890-891 (2001).
35
Real v. Belo, 542 Phil. 111, 122 (2007), citing Domingo v. Robles, G.R. No. 153743, March 18, 2005, 453 SCRA 812,
818; and Ongpauco v. CA, G.R. No. 134039, December 21, 2004, 447 SCRA 395, 400.
36
Vda. de Bataclan v. Medina, 102 Phil. 186 (1957).
37
Gomez v. Gomez-Samson, 543 Phil. 468 (2007).
38
RTC rollo, p. 145.
39
RULES OF COURT, Rule 130, Section 36.
40
Benguet Exploration, Inc. v. CA, 404 Phil. 287 (2001), citing PNOC Shipping and Transport Corp. v. CA, 358 Phil. 41, 60
(1998).
41
Tating v. Marcela, 548 Phil. 19, 28 (2007).
42
RTC rollo, pp. 277-281.
43
RULES OF COURT, Rule 130, Section 50.
44
RULES OF COURT, Rule 130, Section 49.
45
People of the Philippines v. Florendo, 68 Phil. 619, 624 (1939), citing United States v. Kosel, 24 Phil 594 (1913).
46
RULES OF COURT, Rule 129, Section 2.
SECOND DIVISION
[G.R. Nos. 134074-75. January 16, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMILIANO DURANAN, a.k.a. Kalbo,accused-appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision[i][1] of the Regional Trial Court, xxx, finding accused-appellant Emiliano Duranan,
a.k.a. Kalbo, guilty beyond reasonable doubt of two counts of rape and sentencing him to suffer the penalty of reclusion
perpetua for each count of rape and to indemnify private complainant AAA in the amount of P50,000.00.
The information in Criminal Case No. Q-94-55711 alleged
That on or about the 8th of March 1994, in xxx, Philippines, said accused with lewd designs and by means of force and
intimidation, to wit, by then and there, willfully, unlawfully and feloniously taking advantage of undersigned
complainant, AAAs feeblemindedness and thereafter have carnal knowledge with (sic) the undersigned complainant
against her will and without her consent.
Contrary to law.[ii][2]
The information in Criminal Case No. Q-94-55712 averred
That on or about the 7th of March 1994, in xxx, Philippines, the said accused with lewd designs and by means of force
and intimidation, to wit, did then and there, willfully, unlawfully and feloniously taking (sic) advantage of the
undersigned (sic) feeblemindedness, and thereafter have carnal knowledge with (sic) the undersigned complainant
against her will and without her consent.
Contrary to law.[iii][3]
Upon arraignment, accused-appellant pleaded not guilty to each charge of rape against him, whereupon he was tried.
The prosecution presented three witnesses, namely, complainant AAA, complainants mother BBB, and the attending
medico-legal officer at Camp Crame, Dr. Rosalina O. Cosidon.
Complainant AAA, who was 25 years old at the time of the incidents in question, is considered to be retarded and
finished up to the sixth grade only. She is unemployed and simply does household chores for her family. Accused-
appellant lived with the complainants family in the same apartment in xxx where he rented a room that he shared with
several other people.
The first rape took place in the afternoon of March 7, 1994.[iv][4] AAA was standing by the door of her grandfathers
house when accused-appellant suddenly placed his arm on her neck and dragged her inside the common
bathroom.[v][5] Complainant said that accused-appellant kissed her and then removed her shorts and underwear as he
held her hands with his other hand. She did not cry for help because accused-appellant threatened her that he would
get angry if she did.[vi][6] She claimed that accused-appellant was able to rape her while standing up despite her
resistance.[vii][7] After the incident, complainant was sent out of the bathroom and went directly home.[viii][8]
The second incident occurred in the early morning of March 8, 1994,[ix][9] according to complainant. She said she was
cleaning the premises of her family residence when accused-appellant pulled her from her house and took her to his
room. According to complainant, accused-appellant asked his brother, who was then cooking, to leave the room. As
soon as his brother had left, accused-appellant laid her on the floor and raped her.[x][10] Complainant said she was
forced to submit to accused-appellants lust because of his threats.[xi][11] After the incident, accused-appellant sent her
letters professing love for her and telling her how beautiful she was. Complainant said she tore up the letters after
reading them.[xii][12]
In another incident, on March 12, 1994, accused-appellant asked complainant to let him use their bathroom. However,
after being given permission, he grabbed complainant by the hand, pulled her inside the bathroom, and started kissing
her on the lips and neck after closing the door behind them. He only stopped molesting her when he heard somebody
coming.[xiii][13]
BBB testified that she saw her daughter leave the bathroom, quickly followed by accused-appellant. BBB noticed that
her daughters lower lip was bruised. When she confronted her daughter about it, the latter revealed for the first time
what had happened to her. BBB went to Camp Karingal, together with complainant and her other children, CCC and
DDD, where they filed affidavits and two informations.They then took complainant to Camp Crame for
examination.[xiv][14] Dr. Rosalina O. Cosidon, who examined complainant, submitted a report which contained the
following findings:
GENERAL AND EXTRAGENITAL:
Fairly developed, fairly nourished and coherent female subject. Breasts are hemispherical with pale brown areola and
nipples from which no secretions could be pressed out. Abdomen is flat and soft. There is injury noted at the head;
Contusion, mucosa of the lower lip, measuring 1.2 x 0.3 cm, and 1 cm left of the anterior midline.
GENITAL
There is an abundant growth of pubic hair. Labia minora are full, convex and gaping with the pinkish brown and
congested labia minor presenting in between. On separating, the same is disclosed an abraded posterior fourchette and
an elastic, fleshy type hymen with shallow healing laceration at 5 oclock position. External vaginal orifice offers strong
resistance to the introduction of the examining index finger and the virgin-sized vaginal speculum. Vaginal canal is
narrow with prominent rugosities.
CONCLUSION
Cervix is normal in size, color and consistency.
Findings are compatible with recent loss of virginity.
Barring unforeseen complications, it is estimated that the above injury will resolve in 7 to 9 days
REMARKS
Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa.[xv][15]
Dr. Cosidon explained that the term congested used in reference to the labia minora meant that there was some
inflammation that could have been caused by friction due to intercourse.[xvi][16] Taken together with the presence of
a shallow hymenal laceration, this finding indicates the possibility of intercourse that caused complainants loss of
virginity within the last five days.[xvii][17]
Accused-appellant filed a demurrer to the evidence, but the trial court denied it in its November 17, 1995
order.[xviii][18] The defense thereafter presented its witnesses, namely, accused-appellant Emiliano Duranan, accused-
appellants alleged roommates, Rico Bariquit and Carlito Catubig, and his wife Carlita Duranan.
With respect to the first incident of rape, which allegedly took place in the afternoon of March 7, 1994, it is contended
that accused-appellant could not have committed such, because his daily schedule was such that he was not at home at
that time. He said that because of his work, he used to leave the house at 3 a.m., arrive home at 1 p.m., and leave for
work again at 3 p.m. and arrive home at 6:30 p.m.[xix][19]He also alleged that on March 7, 1994 he left and was with
Rico Bariquit throughout the day.[xx][20] As to the second incident of rape, accused-appellant contends that it was
impossible for him to commit rape in his room because there were at least six other people there at the time (i.e.,
morning of March 8, 1994) of the alleged rape.[xxi][21] He charged that the complaints were filed against him because
complainants family wanted to evict him and his housemates from their house.[xxii][22]
Rico Bariquit and Carlito Catubig confirmed accused-appellants schedule.[xxiii][23] Bariquit claimed that he was always
with accused-appellant and knew where he was all the time. Both witnesses said rape could not have been committed
in a room where at least five other people were sleeping.[xxiv][24]
BBB and complainant denied seeing Rico Bariquit and Carlito Catubig before the two testified in court.[xxv][25]
Based on the evidence of the parties, the trial court rendered a decision on April 22, 1998, finding the accused-
appellant guilty of two counts of rape. The dispositive portion of its decision reads:[xxvi][26]
WHEREFORE, in view of all the foregoing, the Court finds the accused guilty beyond reasonable doubt as principal for
two (2) counts of rape punishable under Article 335 of the Revised Penal Code, as amended by Section 11 of R. A. 7659,
and sentences him to suffer the penalty of imprisonment of two (2) counts of reclusion perpetua with all its accessory
penalties and to indemnify the private complainant the amount of FIFTY THOUSAND PESOS (P50, 000.00).
SO ORDERED.
Hence this appeal.
Accused-appellant assigns two errors as having been allegedly committed by the trial court:
I. THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE PRIVATE OFFENDED PARTY IS DEPRIVED OF REASON
DESPITE THE ABSENCE OF TESTIMONY BY A COMPETENT MEDICAL EXPERT TO THAT EFFECT AND DESPITE STRONG
EVIDENCE ON THE RECORD TO THE CONTRARY.
II. THE TRIAL COURT GRAVELY ERRED IN ALTERNATIVELY HOLDING THAT THE ACCUSED IS GUILTY OF RAPING THE
PRIVATE OFFENDED WOMAN THROUGH FORCE AND INTIMIDATION.
First. Accused-appellant contends that he cannot be convicted of rape since the victims mental age was not proven. He
argues that under Art. 335(2) of the Revised Penal Code, an essential element for the prosecution for rape of a mental
retardate is a psychiatric evaluation of the complainants mental age to determine if her mental age is under
twelve.[xxvii][27] He further claims that only in cases where the retardation is apparent due to the presence of physical
deformities symptomatic of mental retardation can the mental evaluation be waived.
The contention has no merit.
Rule 130, 50 of the Revised Rules on Evidence provides:
Opinion of Ordinary witnesses. -- The opinion of a witness for which proper basis is given may be received in evidence
regarding ---
(a) the identity of a person about whom he has adequate knowledge;
(b) a handwriting with which he has sufficient familiarity; and
(c) the mental sanity of a person with whom he is sufficiently acquainted.
Discussing this provision of the Rules on Evidence, Sen. Vicente J. Francisco writes in his treatise:
The mother of an offended party in a case of rape, though not a psychiatrist, if she knows the physical and mental
condition of the party, how she was born, what she is suffering from, and what her attainments are, is competent to
testify on the matter.
....
It is competent for the ordinary witness to give his opinion as to the sanity or mental condition of a person, provided
the witness has had sufficient opportunity to observe the speech, manner, habits, and conduct of the person in
question. Generally, it is required that the witness details the factors and reasons upon which he bases his opinion
before he can testify as to what it is. As the Supreme Court of Vermont said: A non-expert witness may give his opinion
as to the sanity or insanity of another, when based upon conversations or dealings which he has had with such person,
or upon his appearance, or upon any fact bearing upon his mental condition, with the witness own knowledge and
observation, he having first testified to such conversations, dealings, appearance or other observed facts, as the basis
for his opinion.[xxviii][28]
In the case at bar, BBB testified on the mental condition of her daughter, thus:
Q: How would you described your daughter? (sic)
A: When she was still a child while walking she accidentally bumped her head and then on she acted quite not normal
from then on we noticed changes because she acted like a child.
Q: How old is (sic) AAA when this happened?
A: 3 to 4 years old.
Q: At the age of 25, how would you described? (sic)
A: She still thinks like a child but from her narration or statement we can see that her declaration are (sic) true or
believable.
Q: You mean to say that she could be intelligent.
A: Yes, ma'am. She finished her elementary and I can say she is quite intelligent.
Q: So she can somewhat understand what is happening around us?
A: Yes, she can understand things around as along as she would be provided some basis and some reference inorder
(sic) to establish time, places and incident (sic).
Q: At your house do you still assigned (sic) household chores(?)
A: Yes, ma'am.
Q: Could she relied (sic) upon madam witness?
A: Yes maam.[xxix][29]
To rebut this, accused-appellant points to the mothers statement that complainant is quite intelligent. The statement
that complainant is quite intelligent must be read in the context of BBBs previous statement that complainant thinks
like a child but from her narration or statement we can see that her declaration are (sic) true or believable. Thus, what
complainants mother meant was that complainant, although she thought like a child, nevertheless could tell others
what happened to her. Indeed, even the trial court admonished the defense counsel not to use inculpatory questions
because complainant might give inculpatory answers.[xxx][30] At another stage of the trial, the trial court reminded
counsel, The witness [complainant] is not very intelligent. I think the witness cannot even distinguish dates.[xxxi][31]
Thus, the trial court itself found in dealing with complainant that she was mentally deficient. The rule that findings of
fact of the trial court should not be disturbed since the trial court is in the best position to determine the findings of
fact[xxxii][32]cannot be more apt than in this case.
Accused-appellant cites the medico-legal report which describes complainant as coherent and contends that this is an
evaluation of the mental state of complainant. This contention is totally without basis. The medicolegal report
categorically states that the purpose of the medical examination is limited to determining whether the complainant had
been sexually abused.[xxxiii][33] In other words, the purpose of the examination was to determine her physical, not her
mental, state.
Second. On the alternative, accused-appellant argues that indeed, complainant could not be a competent witness if she
is a retardate. Under Rule 130, 20, any person who can perceive and make known his/her perception is qualified to be a
witness. In this case, although complainant is a retardate, she was nevertheless able to tell the court what accused-
appellant had done to her and to answer the questions of both the prosecutor and the defense counsel. This is clear
from her testimony, thus:
Q: Now, you said that you were raped by Emiliano Duranan. Where did this happen?
A: In the bathroom of my Tiya Ineng.
Q: Where is this bathroom of your Tiya Ineng?
A: This bathroom is located at an alley, a pasillo towards our house.
Q: Where is your house, Miss Witness?
A: Our house is located at xxx.
Q: You said that you were raped inside the bathroom of your Tiya Ineng. How were you able to get inside that
bathroom of your Tiya Ineng?
A: I was able to get inside the bathroom of Tiya Ineng because Emiliano Duranan pulled me inside.
Q: How did Emiliano Duranan pulled you? (sic)
A: He pulled me inside the bathroom by holding his arm against my neck, pulling me towards the bathroom.
....
Q: When Emiliano Duranan pulled you inside the bathroom, what happened after that?
A: He kissed me.
(Witness is gesturing his (sic) hands towards her neck)
And he had my panty removed.
Q: Now, you said that when you were inside the bathroom of your Tiya Ineng, Emiliano Duranan kissed you in (sic) your
lips?
A: Yes, maam.
Q: Aside from kissing you, what did Emiliano do, if any?
A: Aside from kissing me on my lips and my neck, he removed my underwear, my panty and he inserted his sex organ
into my sex organ.
Q: When Kalbo inserted his sex organ in your sex organ, what position were you then?
A: We were standing.
Q: Inside the bathroom?
A: Yes, maam.
Q: AAA, do you know how to tell the days of the week?
A: No, maam.
Q: How about the dates?
A: No, maam.
Q: Do you know what day is today?
A: Wednesday.
Q: How about yesterday, what date was that?
A: Tuesday.
Q: Do you know what date is today?
COURT:
She knows that today is Wednesday but she doesnt know the exact date.[xxxiv][34]
....
Q: You also testified before that you were rape (sic) by Kalbo twice, is that correct?
A: Yes, Maam.
Q: When was the second time?
A: The second time at their house that was Tuesday.
Q: Is that the next day? After the incident in the bathroom?
A: Yes, Maam.
....
Q: So you said that you were laid down by Kalbo on the floor and then Kalbo kissed you, where did Kalbo kiss you?
A: From (sic) my lips.
Q: After that what did Kalbo do if any?
A: Proceeded to removed (sic) my panty and inserted his organ to mine.[xxxv][35]
At all events, any objection to the competency of complainant to testify should have been raised by the defense at the
outset. It cannot be raised for the first time in this appeal. It has been held:
A party may waive his objections to the competency of a witness and permit him to testify.... [I]f, after such
incompetency appears, there is failure to make timely objection, by a party having knowledge of the incompetency, the
objection will be deemed waived, whether it is on the ground of want of mental capacity or for some other reason. If
the objection could have been taken during the trial, a new trial will be refused and the objection will not be available
on writ of error.[xxxvi][36]
Third. Accused-appellant contends that the absence of injury sustained by complainant negates the presence of any
force and intimidation. This contention is likewise without merit. The presence or absence of injuries is not essential in
proving rape. What is essential is proof that sexual intercourse with a woman was accomplished without her consent. In
this case, the absence of consent is shown by the fact that complainant is a mental retardate vulnerable to intimidation
by accused-appellant.
Indeed, the degree of force or intimidation required for the act to constitute rape is relative, and must be viewed in the
light of the complainants perception and judgment at the time of the commission of the offense.[xxxvii][37] What is
vital is that such force or intimidation be sufficient to consummate the purpose that accused-appellant had in
mind.[xxxviii][38] In this case, due to the complainants mental retardation, the force or intimidation required is not very
great since it does not take much to force a child into submission. Indeed, complainant said she submitted to accused-
appellants demands because she was afraid he would get angry at her if she refused them. In People v.
Rosare,[xxxix][39] it was held that, in the instances where the victim is so weak in intellect that she is incapable of
rational consent, the force applied may be constructive.
In sum, the mental retardation of the complainant is proven by the testimony of her mother,[xl][40] the trial courts
observations during the trial of her demeanor, behavior, and her intelligence,[xli][41] while the fact of sexual
intercourse is proven by the medico-legal certificate.[xlii][42] In addition, the prosecution proved the presence of force
and intimidation, and the court appreciated such.[xliii][43] The intimidation, in this case, is constituted by the threats
that accused-appellant made to the complainant,[xliv][44] not to mention the force employed by accused-appellant in
placing his arm on the complainants neck[xlv][45] and holding her hands while undressing her.[xlvi][46]
However, the award of P50,000.00 as civil indemnity should be doubled because there are two counts of rape. In
addition, complainant should also be awarded P50,000.00 as moral damages for each count of rape, or a total
of P100,000.00 in accordance with our rulings.[xlvii][47]
WHEREFORE, the decision of the Regional Trial Court, xxx, finding accusedappellant guilty beyond reasonable doubt of
the crime of rape is AFFIRMED, with the modification that the award of P50,000.00 as civil indemnity is increased
to P100,000.00 and, in addition, accused-appellant is ordered to pay complainant AAA the further sum of P100,000.00
as moral damages.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.
[i][1] Per Judge EEE.
[ii][2] Rollo, pp. 2-3.
[iii][3] Id., pp. 4-5.
[iv][4] TSN, p. 8, Jan. 30, 1995.
[v][5] Id., p. 14.
[vi][6] TSN, pp. 11-12, Jan. 30, 1995.
[vii][7] TSN, pp. 9-10, Sept. 21, 1994.
[viii][8] Id., p. 12.
[ix][9] TSN, p. 3, Oct. 5, 1994.
[x][10] Id., pp. 6-7.
[xi][11] TSN, p. 18, Feb. 22, 1995.
[xii][12] TSN, p. 9-10, Oct. 5, 1994
[xiii][13] Id., pp. 10-13.
[xiv][14] TSN, pp. 22-25, Aug. 3, 1994.
[xv][15] Exhibit A; Records, p. 66.
[xvi][16] TSN, p. 9. Aug. 3, 1994.
[xvii][17] Id., pp. 14-15.
[xviii][18] Records, p. 80.
[xix][19] TSN, pp. 9-13, Feb. 28, 1996.
[xx][20] Id., p. 10.
[xxi][21] Id., pp. 13-15.
[xxii][22] Id., p. 18.
[xxiii][23] TSN (Rico Bariquit), pp. 13-14, March 11, 1996; TSN (Carlito Catubig), p. 6, June 5, 1996.
[xxiv][24] Id., p. 16; id., p. 8.
[xxv][25] TSN (BBB), p. 5, Jan. 29, 1997; TSN (AAA), p. 22, Jan. 29, 1997.
[xxvi][26] RTC Decision, p. 10; Records, p. 183.
[xxvii][27] Appellants Brief, pp. 4-7.
[xxviii][28] 7 V. J. FRANCISCO, THE REVISED RULES OF COURT OF THE PHILIPPINES 735-736 (1997).
[xxix][29] TSN, pp. 1819. Aug. 3, 1995.
[xxx][30] TSN, p. 8. Feb. 22, 1995.
[xxxi][31] Id., p. 10.
[xxxii][32] People v. Atop, 286 SCRA 157 (1998).
[xxxiii][33] Exhibit A; Records, p. 66.
[xxxiv][34] TSN, pp. 6-11, Sept. 21, 1994.
[xxxv][35] TSN, pp. 2-7, Oct. 5, 1994.
[xxxvi][36] Whartons Criminal Evidence 1149, p. 1988, cited in People v. Francisco, 78 Phil. 694, 706 (1947). See also
People v. Cruz, 208 SCRA 326 (1992).
[xxxvii][37] People v. Corea, 336 Phil 72 (1997); People v. Edualino, 337 Phil. 639 (1997).
[xxxviii][38] People vs. Antonio, 233 SCRA 283 (1994)
[xxxix][39] 332 Phil 435 (1996).
[xl][40] TSN, p. 19, Aug. 3, 1994.
[xli][41] TSN, p. 8, Feb. 22, 1995.
[xlii][42] Exhibit A; Records. p. 66.
[xliii][43] RTC Decision p. 10, Records, p. 183.
[xliv][44] TSN, p. 11, Sept. 21, 1994; TSN, p. 15, Feb. 22, 1995.
[xlv][45] TSN, p. 14, Jan. 30, 1995.
[xlvi][46] TSN, p. 6, Oct. 5, 1994.
[xlvii][47] E.g., People v. Ramos, G. R. No. 136398, November 23, 2000; People v. Napiot 311 SCRA 772 (1999); People v.
Gementiza, 285 SCRA 478 (1998).
 FIRST DIVISION

CECILIO C. HERNANDEZ, G.R. No. 166470

MA. VICTORIA C. HERNANDEZ-
SAGUN, TERESA C. HERNANDEZ-
VILLA ABRILLE[1] and NATIVIDAD Present:
CRUZ-HERNANDEZ,
Petitioners, PUNO, C.J., Chairperson,
CARPIO,
CORONA,
LEONARDO-DE CASTRO and
- v e r s u s - BERSAMIN, JJ.

JOVITA SAN JUAN-SANTOS,

Respondent.

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

CECILIO C. HERNANDEZ, G.R. No. 169217

MA. VICTORIA C. HERNANDEZ-
SAGUN and TERESA C.
HERNANDEZ-VILLA ABRILLE,
Petitioners,

-versus-

JOVITA SAN JUAN-SANTOS,[2]

Respondent. Promulgated:
August 7, 2009

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

DECISION
CORONA, J.:

Maria Lourdes San Juan Hernandez (or Lulu) was born on February 14, 1947 to the spouses Felix Hernandez and Maria
San Juan Hernandez. Unfortunately, the latter died due to complications during childbirth. After Maria's death, Felix left
Lulu in the care of her maternal uncle, Sotero C. San Juan.

On December 16, 1951, Felix married Natividad Cruz. The union produced three children, petitioners Cecilio C.
Hernandez, Ma. Victoria C. Hernandez-Sagun and Teresa C. Hernandez-Villa Abrille.

Meanwhile, as the only child of Maria and the sole testate heir of Sotero, Lulu inherited valuable real properties from
the San Juan family (conservatively estimated at P50 million in 1997).

Sometime in 1957, Lulu went to live with her father and his new family. She was then 10 years old and
studying at La Consolacion College. However, due to her violent personality, Lulu stopped schooling when she reached
Grade 5.

In 1968, upon reaching the age of majority, Lulu was given full control of her estate. [3] Nevertheless, because
Lulu did not even finish her elementary education, Felix continued to exercise actual administration of Lulus properties.
Upon Felix's death in 1993, petitioners took over the task of administering Lulu's properties.
 During the period of their informal administration (from 1968 until 1993), Felix and petitioners undertook
various projects involving Lulus real properties. In 1974, Felix allegedly purchased one of Lulus properties for an
undisclosed amount to develop the Marilou Subdivision. [4] In 1995, Ma. Victoria informed Lulu that her 11-hectare
Montalban, Rizal property[5] was under litigation. Thus, Lulu signed a special power of attorney [6] (SPA) believing that
she was authorizing Ma. Victoria to appear in court on her behalf when she was in fact unknowingly authorizing her
half-sister to sell the said property to the Manila Electric Company for P18,206,400.[7] Thereafter, Cecilio asked Lulu to
authorize him to lease her 45-hectare property in Montalban, Rizal to Oxford Concrete Aggregates for P58,500 per
month so that she could have a car and driver at her disposal.

In September 1998, Lulu sought the assistance of her maternal first cousin, respondent Jovita San Juan-Santos,
after learning that petitioners had been dissipating her estate. She confided to Jovita that she was made to live in the
basement of petitioners Montalban, Rizal home and was receiving a measly daily allowance of P400 for her food and
medication.

Respondent was appalled as Lulu was severely overweight, unkempt and smelled of urine. She later found out
that Lulu was occupying a cramped room lit by a single fluorescent lamp without running water. Since she had not been
given a proper toilet, Lulu urinated and defecated in the garden. Due to Lulu's poor hygiene, respondent brought her to
several physicians for medical examination. Lulu was found to be afflicted with tuberculosis, rheumatism and diabetes
from which she was suffering several complications.[8]

Thereafter, the San Juan family demanded an inventory and accounting of Lulus estate from
petitioners.[9] However, the demand was ignored.

On October 2, 1998, respondent filed a petition for guardianship [10] in the Regional Trial Court (RTC) of San
Mateo, Rizal, Branch 76. She alleged that Lulu was incapable of taking care of herself and managing her estate because
she was of weak mind.

Subsequently, petitioners moved to intervene in the proceedings to oppose the same.

Natividad denied that Marilou Subdivision belonged to Lulu. Since she and her late husband were the
registered owners of the said property, it was allegedly part of their conjugal partnership.

Cecilio, Teresa and Ma. Victoria, for their part, claimed that the issue of Lulus competency had been settled in
1968 (upon her emancipation) when the court ordered her legal guardian and maternal uncle, Ciriaco San Juan, to
deliver the properties for her to manage.

They likewise asserted that Lulu was literate and, for that reason, aware of the consequences of executing an
SPA. Furthermore, whether or not Cecilio and Ma. Victoria acted within the scope of their respective authorities could
not be determined in a guardianship proceeding, such matter being the proper subject of an ordinary civil action.

Petitioners also admitted that the property developed into the Marilou Subdivision was among those parcels
of land Lulu inherited from the San Juan family. However, because the sale between Felix and Lulu had taken place in
1974, questions regarding its legality were already barred by the statute of limitations. Thus, its validity could no longer
be impugned, or so they claimed.
During the hearing, Lulu was presented and asked to testify on her genealogy and experiences with the San
Juan and Hernandez families. Lulu identified and described her parents, stepmother, half-siblings and maternal
relatives. She claimed inheriting tracts of land from the San Juan family. However, these properties were dissipated by
the Hernandez family as they lived a luxurious lifestyle. When asked to explain this allegation, Lulu said that her
stepmother and half-siblings rode in cars while she was made to ride a tricycle.

Medical specialists testified to explain the results of Lulus examinations which revealed the alarming state of
her health.[11] Not only was Lulu severely afflicted with diabetes mellitus and suffering from its complications, [12] she
also had an existing artheroselorotic cardiovascular disease (which was aggravated by her obesity). Furthermore, they
unanimously opined that in view of Lulus intelligence level (which was below average) and fragile mental state, she
would not be able to care for herself and self-administer her medications.

In a decision dated September 25, 2001,[13] the RTC concluded that, due to her weak physical and mental
condition, there was a need to appoint a legal guardian over the person and property of Lulu. Thus, it declared Lulu an
incompetent and appointed respondent as guardian over the person and property of Lulu on a P1 million bond.
Petitioners moved for reconsideration asserting that the P1 million bond was grossly insufficient to secure
Lulus P50-million estate against fraudulent loss or dissipation.[14] The motion, however, was denied.[15]

On July 2, 2002, petitioners appealed the September 25, 2001 decision of the RTC to the Court of Appeals
(CA).[16] The appeal was docketed as CA-G.R. CV No. 75760.
 On December 29, 2004, the CA issued a decision affirming the September 25, 2001 decision of the RTC (in the
petition for guardianship) in toto.[17] It held that respondent presented sufficient evidence to prove that Lulu, because
of her illnesses and low educational attainment, needed assistance in taking care of herself and managing her affairs
considering the extent of her estate. With regard to the respondents appointment as the legal guardian, the CA found
that, since Lulu did not trust petitioners, none of them was qualified to be her legal guardian. Because guardianship was
a trust relationship, the RTC was bound to appoint someone Lulu clearly trusted.

Petitioners now assail the December 29, 2004 decision of the CA in this Court in a petition for review on
certiorari docketed as G.R. No. 166470.[18]

Meanwhile, Lulu moved into 8 R. Santos St., Marikina City (Marikina apartment) and was provided with two
housemaids tasked to care for her. Sometime in November 2003, Lulu was abducted from her Marikina apartment.
Jovita immediately sought the assistance of the Police Anti-Crime Emergency Response (PACER) division of the
Philippine National Police.

The PACER subsequently discovered that petitioners were keeping Lulu somewhere in Rodriguez, Rizal. Despite
their initial hostility to the investigation, Ma. Victoria and Cecilio subsequently contacted the PACER to inform them
that Lulu voluntarily left with Natividad because her guardian had allegedly been maltreating her.[19]

On December 15, 2003, respondent filed a petition for habeas corpus[20] in the CA alleging that petitioners
abducted Lulu and were holding her captive in an undisclosed location in Rodriguez, Rizal.

On April 26, 2005, the CA granted the petition for habeas corpus, ruling that Jovita, as her legal guardian, was
entitled to her custody. [21]

Petitioners moved for the reconsideration of the said decision but it was denied in a resolution dated July 12,
2005.[22] Aggrieved, they filed this petition for review on certiorari docketed as G.R. No. 169217. This was consolidated
with G.R. No. 166470.
The basic issue in petitions of this nature is whether the person is an incompetent who requires the
appointment of a judicial guardian over her person and property.

Petitioners claim that the opinions of Lulu's attending physicians [23] regarding her mental state were
inadmissible in evidence as they were not experts in psychiatry. Respondent therefore failed to prove that Lulu's
illnesses rendered her an incompetent. She should have been presumed to be of sound mind and/or in full possession
of her mental capacity. For this reason, Lulu should be allowed to live with them since under Articles 194 to 196 of the
Family Code,[24] legitimate brothers and sisters, whether half-blood or full-blood are required to support each other
fully.

Respondent, on the other hand, reiterated her arguments before the courts a quo. She disclosed that Lulu had
been confined in Recovery.com, a psychosocial rehabilitation center and convalescent home care facility in Quezon
City, since 2004 due to violent and destructive behavior. She also had delusions of being physically and sexually abused
by Boy Negro and imaginary pets she called Michael and Madonna. [25] The November 21, 2005 medical report[26] stated
Lulu had unspecified mental retardation with psychosis but claimed significant improvements in her behavior.

We find the petition to be without merit.

Under Section 50, Rule 103 of the Rules of Court, an ordinary witness may give his opinion on the mental sanity of a
person with whom he is sufficiently acquainted.[27] Lulu's attending physicians spoke and interacted with her. Such
occasions allowed them to thoroughly observe her behavior and conclude that her intelligence level was below average
and her mental stage below normal. Their opinions were admissible in evidence.
Furthermore, where the sanity of a person is at issue, expert opinion is not necessary. [28] The observations of the trial
judge coupled with evidence[29] establishing the person's state of mental sanity will suffice. [30] Here, the trial judge was
given ample opportunity to observe Lulu personally when she testified before the RTC.

Under Section 2, Rule 92 of the Rules of Court, [31] persons who, though of sound mind but by reason of age, disease,
weak mind or other similar causes are incapable of taking care of themselves and their property without outside aid,
are considered as incompetents who may properly be placed under guardianship. The RTC and the CA both found that
Lulu was incapable of taking care of herself and her properties without outside aid due to her ailments and weak mind.
Thus, since determining whether or not Lulu is in fact an incompetent would require a reexamination of the evidence
presented in the courts a quo, it undoubtedly involves questions of fact.
 As a general rule, this Court only resolves questions of law in a petition for review. We only take cognizance of
questions of fact in exceptional circumstances, none of which is present in this case. [32] We thus adopt the factual
findings of the RTC as affirmed by the CA.

Similarly, we see no compelling reason to reverse the trial and appellate courts finding as to the propriety of
respondent's appointment as the judicial guardian of Lulu. [33] We therefore affirm her appointment as such.
Consequently, respondent is tasked to care for and take full custody of Lulu, and manage her estate as well. [34]

Inasmuch as respondents appointment as the judicial guardian of Lulu was proper, the issuance of a writ of habeas
corpus in her favor was also in order.

A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the rightful custody of
person is withheld from the one entitled thereto. [35]Respondent, as the judicial guardian of Lulu, was duty-bound to
care for and protect her ward. For her to perform her obligation, respondent must have custody of Lulu. Thus, she was
entitled to a writ of habeas corpus after she was unduly deprived of the custody of her ward.[36]

WHEREFORE, the petitions are hereby DENIED.

Petitioners are furthermore ordered to render to respondent, Lulus legal guardian, an accurate and faithful accounting
of all the properties and funds they unlawfully appropriated for themselves from the estate of Maria Lourdes San Juan
Hernandez, within thirty (30) days from receipt of this decision. If warranted, the proper complaints should also be filed
against them for any criminal liability in connection with the dissipation of Maria Lourdes San Juan Hernandezs estate
and her unlawful abduction from the custody of her legal guardian.
Treble costs against petitioners.
SO ORDERED.

RENATO C. CORONA
Associate Justice

[1]
Ma. Teresa Hernandez-Villa Abrille in some parts of the records.
[2]
The Court of Appeals was impleaded as respondent but was excluded as party in these cases pursuant to Section 4, Rule 45 of
the Rules of Court.
[3]
Order dated July 31, 1968 in SP No. 1127 penned by Judge Andres Reyes of the Court of First Instance of Pasig, Rizal, Branch
VI. Rollo (G.R. No. 166470), p. 128.
[4]
Referred to as Marylou Subdivision or Marilou Village Subdivision in some parts of the records.
[5]
Covered by TCT No. 248784. Rollo (G.R. No. 166470), p. 109.
[6]
Id., pp. 110-111.
[7]
Deed of Sale. Id., pp. 112-115.
[8]
Medical report dated September 18, 1998. Id., pp. 118-121.
[9]
Letter dated September 20, 1998. Id., pp. 116-117.
[10]
Docketed as Sp. Proc. No. 250. Id., pp. 99-102.
[11]
Lulu was examined by cardiologist-internist Perfecto Palafox, diabetologist-internist Rosa Allyn Sy and general practitioner
Eliza Mei Perez. Surgeon Jacinto Bautista removed a mass from Lulus ear lobe and skin.
[12]
Lulu was nearly blind due to cataract and suspected to have gallstones in her kidneys.
[13]
Penned by Judge Jose C. Reyes, Jr. Rollo, pp. 87-98.
[14]
Id., pp. 143-147.
[15]
Order dated April 26, 2002. Id., pp. 154-155.
[16]
Docketed as CA-G.R. CV No. 75760.
[17]
Penned by Associate Justice Delilah Vidallon-Magtolis (retired) and concurred in by Associate Justices Eliezer R. de los Santos
(retired) and Monina Arevalo-Zearosa of the Special Fourth Division of the Court of Appeals. Dated December 29,
2004. Rollo (G.R. No. 166470), pp. 61-86.
[18]
Under Rule 45 of the Rules of Court.
[19]
Signed by Police Superintendent Nicolas M. Gregorio. Rollo (G.R. No. 169217), pp. 81-82.
[20]
Id., pp. 58-63.
[21]
Penned by Associate Justice Amelita G. Tolentino and concurred in by Associate Justices Roberto A. Barrios and Vicente S.E.
Veloso of the Ninth Division of the Court of Appeals. Id., pp. 39-54.
[22]
Id., pp. 56-57.
[23]
Supra note 11.
[24]
FAMILY CODE, Arts. 194, 195 and 196 provide:
Article 194. Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial capacity of the family.
 The education of the person entitled to be supported referred to in the preceding paragraph shall include his
schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall
include expenses in going to and from school, or to and from place of work.
Article 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the
whole extent set forth in the preceding article:
1. The spouses;
2. Legitimate ascendants and descendants;
3. Parents and their legitimate children and the legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and
5. Legitimate brothers and sisters, whether of full or half-blood.
Article 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to
support each other to the full extent set forth in Article 194, except only when the need for support of the brother or
sister, being of age, is due to a cause imputable to the claimant's fault or negligence.
[25]
Report [the Court of Appeals] on the Condition of the Ward, Ma. Lourdes S.J. Fernandez, Annex A. Rollo (G.R. No. 166470),
pp. 248-249.
[26]
Prepared by attending physician Edison C. Galindez, pp. 250-254.
[27]
Section 50, Rule 130, RULES OF COURT, provides:
Section 50. Opinion of an Ordinary Witness. The opinion of a witness for which proper basis is given shall be received in evidence
regarding--
(a) The identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c ) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impression of the emotion, behavior, condition or appearance of a person.
(emphasis supplied)
[28]
People v. Bacaling, 447 Phil. 197, 204 (2003). (citations omitted)
[29]
The opinions of Lulu's attending physicians have been verified by the 2001 medical report of Recovery.com which diagnosed
Lulu's condition as unspecified mental retardation with psychoses.
[30]
People v. Bacaling, supra note 28.
[31]
Section 2, Rule 92, RULES OF COURT, provides:
Section 2. Meaning of word "incompetent." Under this rule, the word "incompetent" includes persons suffering the
penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write,
those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by
reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and
manage their property, becoming thereby an easy prey for deceit and exploitation.

[32]
Goyena v. Ledesma-Gustilo, 443 Phil. 150, 158-160 (2003). (citations omitted)
[33]
See RULES OF COURT, Rule 93 for the qualifications of a judicial guardian.
[34]
Section 1, Rule 96, RULES OF COURT, provides:
Section 1. To what guardianship shall extend. -- A guardian appointed shall have care and custody of the person of his ward,
and the management of his estate, or the management of his estate only, as the case may be. The guardian of the
estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court
other than that in which such guardian was appointed shall have jurisdiction over the guardianship. (emphasis supplied)
[35]
Ilusorio v. Bildner, 387 Phil. 915, 922 (2000).
[36]
See Tijing v. Court of Appeals, 406 Phil. 449 (2001).
 SECOND DIVISION
[G.R. No. 161861. March 11, 2005]
SPS. WILLIAM and JULIE LIM, SPS. EDGAR and JUDY LIM, STEVENS C. LIM, EDWIN C. LIM, JOSEPH C. LIM, RAFAEL Y.
CHUATOCO, TERESITA Y. CHUATOCO and the REGISTER OF DEEDS MANILA, petitioners, vs. EDUARDO, JORGE, FELIPE
and FRANCISCO, all surnamed CHUATOCO, respondents.
DECISION
TINGA, J.:
Petitioners assail the Decision[1] of the Court of Appeals, ordering herein petitioners Lim (Spouses Willim and Julie
Lim, Spouses Edgar and Judy Lim, Stevens C. Lim, Edwin C. Lim and Joseph C. Lim) to reconvey to the extent of four-
fifths (4/5) of the property in dispute to the respondents and directing all petitioners (the Lims, Rafael Y. Chuatoco and
Tereista Y. Chuatoco) to pay to respondents moral damages in the amount of P100,000.00 and attorneys fees in the
amount of P50,000.00.
As culled from the records, the factual antecedents which spawned the filing of the instant petition follow.
Spouses Jose Chuatoco and Leoncia Yap were the registered owners of a 365-square meter land with
improvements located at Calle Veronica St., Binondo, Manila. On the property, the spouses established the Binondo
Maternity Hospital and School of Midwifery, reserving the buildings second floor as the family residence.
In November 1972, Jose died. His wife Leoncia and five sonsEduardo, Jorge, Rafael, Felipe and Francisco (herein
respondents) proceeded to execute a deed of adjudication and partition. On 20 January 1981, Transfer Certificate of
Title (TCT) No. 13935 in the name of the spouses Jose and Leoncia was replaced by TCT No. 142406 in the names of
Leoncia and their children. Soon thereafter, Leoncia died. Jorge then took over as sole administrator of the school until
1984 when he was joined in this task by Rafaels wife, Teresita.
Respondents alleged that their brother Rafael had in the meantime succeeded in obtaining title to the property in
his own name by using a fictitious deed of sale dated 27 February 1979, purportedly executed by them and their
deceased mother Leoncia in favor of Rafael. It would later be claimed by respondents that their signatures, as they
appeared on the deed of sale, were forged. On 15 April 1982, TCT No. 142406 was cancelled and TCT No. 148821 was
issued in the name of Rafael.
In 1986, respondent Jorge Chuatoco allegedly discovered that the title to the property had been transferred to
Rafaels name and in order to protect his interest as well as those of his brothers who were then residing in the United
States, he convinced Rafael to surrender the certificate of title to him for safekeeping and Rafael agreed. However, on 8
May 1986, Rafael through his wife filed a petition for reconstitution of the owners duplicate of TCT No. 148821, alleging
therein that their owners duplicate of the title had been lost.
After obtaining the reconstituted title, Rafael, acting through his wife and attorney-in-fact, Teresita, executed
a Deed of Absolute Sale dated 6 June 1986 to petitioners Lim covering the disputed property for the sum
of P600,000.00. The Lims subsequently caused the cancellation of TCT No. 148821 in the name of Rafael and TCT No.
169859 was issued in their names.
In 1991, after the Lims refused to heed the demands of respondents for the reconveyance of the property, a
complaint was filed with the Regional Trial Court (RTC), Branch 22, of Manila. Respondents prayed for the declaration of
nullity of the deed of sale[2] purportedly executed by them in favor of Rafael, as well as the deed of sale[3] executed by
Rafael in favor of the Lims; the cancellation of TCT No. 169859 in the name of the Lims; and for the return of the
property to them.
Traversing the complaint, the Lims in their Answer with Compulsory Counterclaim[4] averred that the property they
purchased from Rafael had already been sold to the latter by Leoncia and respondents sometime in 1979, and that
upon execution the deed of sale in favor of Rafael became the exclusive owner thereof. They alleged that respondents
were fully aware of the sale of the property to them and some of respondents who lived in the premises voluntarily
vacated the place right after the execution of the deed of sale in their favor. Citing respondents failure to question the
registration of the property in Rafaels name for quite a long period of time and the subsequent sale thereof to them,
the Lims averred that at most, respondents claim over the property should be deemed barred by laches and estoppel.
On the other hand, Rafael and Teresita filed their Answer,[5] denying the material allegations of the complaint.
They asseverated that the property had been sold to Rafael by Leoncia and respondents herein two years prior to
Leoncias death in 1981. They argued that respondents have no cause of action against them and assuming that they
have, the cause of action is already barred by prescription.
Assessing the evidence before it, the RTC rendered its Decision[6] on 21 November 2000 dismissing the complaint.
It declared that the deed of sale dated 27 February 1979 was void only with respect to the undivided shares of Eduardo,
Jorge, and Felipe Chuatoco, whose signatures on the questioned deed were proven to be forged. However, the trial
court ruled that since the property was already titled in the name of Rafael before it was sold to petitioners, the latter
had the right to rely upon what appeared on the certificate of title otherwise the efficacy and conclusiveness of the
Torrens Certificate of Title would be rendered illusory. The trial court also debunked respondents contention that they
had no knowledge of the sale of the property to the Lims in view of their admission that in 1989 they met with Jaime
Lim, the father of petitioners, and asked the latter to return the property to them and in exchange, they would return
the price paid by the Lims for the property.
The Court of Appeals in its now assailed Decision[7] reversed the trial courts decision. The appellate court found
that the Lims were not buyers in good faith as the evidence showed that in 1985 the Lims went to the United States to
make an offer to buy the property to Eduardo, Francisco, and Rafael. This effort of the Lims to negotiate with the
Chuatoco brothers was met with initial reluctance by Eduardo, the eldest of the siblings, and the latter then instructed
Jaime Lim to make a formal offer for the property. The court also noted Jaimes testimony that he saw the title to the
property in the name of Rafael only in 1986 when he started negotiating with Teresita but he should have realized that
while the title of Rafael was issued in 1982, the Chuatocos were still treating the property under their collective
ownership.
The appellate court disagreed with the trial courts conclusion that the Chuatocos were aware of the deed of sale
in favor of Rafael in 1979 and did not do anything about it until after the property was sold to the Lims. It ruled that the
conclusion failed to consider that Rafael had assured his brothers that he would hold the title in trust for them and
downplayed the fact that the brothers never intended to relinquish their interest in the property. Thus, the appellate
court ordered the Lims to reconvey the property to the respondents to the extent of four-fifths (4/5) thereof and to pay
respondents moral damages and attorneys fees.
Petitioners raise the following errors allegedly committed by the appellate court:
I.
THE COURT OF APPEALS ERRED AS A MATTER OF LAW AND JURISPRUDENCE IN NOT HOLDING THAT THE LIMS ARE
BUYERS IN GOOD FAITH AND FOR VALUE, HENCE THEY ARE PROTECTED BY LAW.
II.
THE COURT OF APPEALS ERRED IN MAKING THE LIMS SOLIDARILY LIABLE TO PAY RESPONDENTS MORAL DAMAGES AND
ATTORNEYS FEES.[8]
Petitioners impute error on the Court of Appeals in holding that they were not buyers in good faith and for value.
They argue that they were not required to go beyond the four corners of the certificate of title to ascertain its
authenticity and regularity because there was nothing on it that would have put them on notice of any defect in their
sellers title. Still, they saw it fit to go to the Register of Deeds to make further verification on the actual ownership of
the property. They stressed that as innocent purchasers for value they were entitled to protection under the law.
Petitioners likewise pounce on respondents delay in seeking legal redress despite the fact that they had
knowledge of the transfer of the title in Rafaels name as early as 1981. They argued that respondents should be
deemed estopped by laches from disputing their ownership of the property because they filed their action only in 1991.
Respondents, on the other hand, point out that the issue of whether petitioners were buyers in good faith is one
of fact and not of law and the instant petition deserves to be dismissed. At any rate, they cite several facts and
circumstances which should have put petitioners on guard and required them to make further inquiries regarding the
ownership of the property.
Among others, they argue that the Lims had initially negotiated for the sale of the property with them but after
failing to obtain a favorable response, the Lims instead saw an opportunity of acquiring the property by buying it
directly from Rafael despite the Lims actual knowledge that the property was owned by them in common. They claim
that the Lims should have been put on guard by the fact that the property was titled solely in the name of Rafael,
despite the fact that the annotations appearing on TCT No. 142406 indicated that all of Leoncias sons are the
beneficiaries of the property. They also note the alleged haste in the sale of the property to petitioners only one day
after the order of reconstitution of Rafaels title was issued by the trial court, and the fact that title to the property was
issued only two years after the date of the Deed of Sale.
Respondents also rebuff petitioners contention that their action is barred by laches arguing that the moment they
learned that Rafael sold the property, they lost no time and asked him to explain his side. The delay in filing the action,
if any, was merely because Rafael had assured them that he was holding the title in trust for all his brothers and Rafael
in fact surrendered the duplicate original of the certificate of title to Jorge. They add that since Rafaels reconstituted
title was obtained by fraud, the same is void, and did not transmit valid and legal title to petitioners.
Both the RTC and the Court of Appeals concluded that forgery had attended the execution of the Deed of Sale,
albeit in varying degrees. The Court is persuaded by the appellate courts conclusion that all of the signatures therein
were forged, and not just that of Eduardo, Jorge, and Felipe. The RTC had declared that the forgeries of these three
signatures had been established by the document examiner of the National Bureau of Investigation (NBI). [9] While the
NBI expert had not formed an opinion on the genuineness of the signatures of Leoncia and Francisco, it was merely
because the specimen signatures submitted to him were insufficient. However, the Court of Appeals correctly ruled
that even in the absence of expert testimony, the falsity of the signatures of Leoncia and Francisco had been sufficiently
established by Franciscos direct repudiation of his signature, as well as the denials by Eduardo and Jorge of their
mothers signature.
While the testimony of a person, disavowing the genuineness of his signature may seem self-serving at first blush,
such as that proferred by Francisco, it cannot be ignored that such person is in the best position to know whether or
not the signature on the check was his, and averments he would have on the matter, if adjudged as truthful, deserve
primacy in consideration.[10] On the other hand, the denials of Eduardo and Jorge of their mothers signature may be
properly appreciated in evidence, as Section 50, Rule 130 allows the opinion of an ordinary witness to be received in
evidence regarding a handwriting with which he has sufficient familiarity. [11] The appellate court committed no error in
ruling that Eduardo would probably be the most reliable witness to testify on the handwriting of his mother because he
had worked closely with and exchanged papers and communications with Leoncia on a regular basis, the latter being
then the administrator of the properties left by Jose.
The fraudulent registration of the property in Rafaels name using the forged deed of sale is not sufficient to vest
title to the entire property in him. Settled is the rule that a certificate is not conclusive evidence of title;[12] registration
does not vest title, it is merely evidence of such title over a particular property. [13] Certificates of title merely confirm or
record title already existing and vested. They cannot be used to protect a usurper from the true owner, nor can they be
used as a shield for the commission of fraud, nor to permit one to enrich himself at the expense of others. [14] The
Torrens sytem has never been recognized as a mode of acquiring ownership.[15]
However, it is a familiar doctrine that a forged or fraudulent document may become the root of a valid title, [16] if
the property has already been transferred from the name of the owner to that of the forger. This doctrine serves to
emphasize that a person who deals with registered property in good faith will acquire good title from a forger and be
absolutely protected by a Torrens title. In the final analysis, the resolution of this case depends on whether the
petitioners are purchasers in good faith.
In analyzing this question, the initial premise should be that the Lims had acted in good faith and therefore they
are innocent purchasers for value. As previously held:
Guided by previous decisions of this Court, good faith consists in the possessor's belief that the person from whom he
received the thing was the owner of the same and could convey his title. Good faith, while it is always to be presumed
in the absence of proof to the contrary, requires a well founded belief that the person from whom title was received
was himself the owner of the land, with the right to convey it. There is good faith where there is an honest intention to
abstain from taking any unconscientious advantage from another. Otherwise stated, good faith is the opposite of fraud
and it refers to the state of mind which is manifested by the acts of the individual concerned.[17]
Consistently, this Court has ruled that every person dealing with registered land may safely rely on the correctness
of the certificate of title issued therefor and the law will in no way oblige him to go beyond the certificate to determine
the condition of the property. A person is charged with notice only of such burdens and claims as are annotated on the
title.[18] Thus, where there is nothing in the certificate of title to indicate any cloud or vice in the ownership of the
property, or any encumbrance thereon, the purchaser is not required to explore further than what the Torrens Title
upon its face indicates in quest for any hidden defects or inchoate right that may subsequently defeat his right
thereto.[19]
This presumption receives primacy in consideration, given the fact that the Court of Appeals and the RTC arrive at
wholly disparate conclusions on this question of fact. The Court of Appeals disagreed with the RTCs conclusion that the
Lims were innocent purchasers for value, based on circumstances which we now proceed to review. It is settled that
this Court has to inquire into questions of fact if the courts below have conflicting findings. [20]
The Court of Appeals noted that in 1985:
[T]he Lims went to the United States on purpose to offer to buy the property from the Chuatoco brothers, Eduardo,
Francisco and Rafael. The efforts of the Lims to negotiate with the brothers was met with initial reluctance by Eduardo,
the eldest of the siblings, and then by his final instruction to Jaime Lim to make a formal offer to the family. If we follow
Jaimes testimony that he saw the title the next year when he was negotiating with Teresita, he would have seen that
Rafaels title was issued way back in 1982. He could put two and two together and realize that even as the title to the
property was already in Rafaels name, the Chuatocos were treating it under their collective ownership. A reasonably
prudent and careful person would have under these circumstances taken steps to make further inquiry into the actual
ownership of the property. If the Lims had done so, they would have found out that Rafaels title was fake and that the
true owners of the property were still the heirs of Jose and Leoncia Chuatoco. [21]
Apparently, the Court of Appeals concluded that in 1985, the Lims were already intent on purchasing the property,
even embarking on a trip to the United States for that purpose. However, there is nothing in the records that indicates
that the Lims had gone to the United States precisely for that purpose. Even Francisco Chuatoco, testifying as to the
alleged meeting in the United States, claimed that the Lims had been there on vacation. [22]
This circumstance proves material given the appreciation made by the Court of Appeals that the Lims had
purposely gone to the United States as the eldest of the Chuatoco brothers who purportedly owned the properties,
Eduardo, was a resident thereof.[23] If such were the case, then credence could be adduced to the claim that the Lims
had known that the Chuatocos collectively owned the property and that the consent of Eduardo to the sale thereof was
essential. However, given the fact that the Lims did not go to the United States on purpose to meet with Eduardo, but
were apparently only there on vacation, it becomes less clear that their frame of mind at that time was that the
Chuatoco siblings owned the property.
Thus, even though the Lims apparently concede having met with Eduardo in the United States in 1985, [24] it is not
evident that they did so with the intent of negotiating with Eduardo, with the perception that he was the co-owner of
the property whose consent was indispensable to the sale. The Court is less prepared than the Court of Appeals to
deem with any conclusiveness the fact of this meeting. Indeed, it is rather bothersome that this was the only
circumstance, flimsy and self-serving as it is, drawn upon by the Court of Appeals to conclude that the Lims were not
innocent purchasers in good faith. Certainly, the presumption of good faith cannot be overcome by haphazard
conjectures premised on a disputed fact.
Given the failure to establish that the Lims had known the Chuatoco siblings as the collective owners of the
property prior to 1986, it was error on the Court of Appeals to declare that Jaime should have become suspicious
enough when he discovered a year after his visit to the United States that title over the property had been issued way
back in 1982 to Rafael. There was no demand on the part of the Lims that they become privy to whatever arrangements
or transfers the Chuatocos may have had among themselves. The Lims had no obligation to look beyond the face of the
Torrens title.
Section 39 of the Land Registration Act, as amended, is explicit that "every person receiving a certificate of title in
pursuance of a decree of registration, and every subsequent purchaser of registered land who takes certificate of title
for value in good faith shall hold the same free of all encumbrance except those noted on said certificate...."
It has been held:
Every person dealing with registered land may safely rely on the correctness of the certificate of title issued therefor
and the law will in no way oblige him to go behind the certificate to determine the condition of the property.
Thus, in order that a purchaser may be considered a purchaser in good faith, it is enough that he examine[s] the latest
certificate of title.
In line with this principle, all that Tajonera had to do was to examine his transferor's title which was then in the name of
Juanita David. He did not have to go behind this title and scrutinize each and every title that preceded it.
Not being required under the law to check on the validity of the sale to the original buyer and being without knowledge
of any defect in the title appearing on its face, Tajonera falls under the definition of a purchaser in good faith and
entitled to protection under the Land Registration Act.[25]
It likewise does not escape our attention that the Lims nonetheless exerted efforts beyond a facial examination of
the title to verify the ownership thereof. As admitted by respondents, William and Edgar Lim, along with Atty. Apolonio
Rivera, went to the Register of Deeds of Manila to verify Rafaels claim over the property, and saw therein the Deed of
Sale executed by respondents and their mother in favor of Rafael, as well as the certificates of title. They discovered
that indeed, TCT No. 148821 was issued solely in the name of Rafael, canceling TCT No. 142406 issued in the name of
Leoncia Chuatoco and her sons.
Respondents make issue of the fact that TCT No. 142406 has an annotation of an encumbrance noting the probate
of the will of Leoncia Chuatoco dated in 1952 and denominating her children as the heirs to the said property. Such
probate proceeding was an ante mortem probate undertaken during the lifetime of Leoncia Chuatoco, [26] and it should
be remembered that an order of probate is conclusive only as to the due execution and capacity of the testator, and
not the status and rights of persons to inherit. It cannot be denied that during her lifetime, and notwithstanding her
probated will, Leoncia had the capacity to dispose of her shares in her property, as the rights thereto of her heirs
remain inchoate until the time of her death, which is the only instance when succession to her properties opens.
Respondents also argue that TCT No. 142406 in the name of the Chuatocos was released only on 20 January 1981,
while the deed of sale was dated February of 1979. Had there truly been a deed of sale, according to respondents, then
why was the annotation of Leoncias last will and testament still carried over in the title issued in 1981? This fact is
understandable, considering that the deed of sale was registered only in 1982, or after the issuance of TCT No. 142406.
Prior to such registration of the deed of sale, there would not have been cause for the Register of Deeds to cancel this
annotation of Leoncias last will and testament. In fact, the registration of this deed of sale caused the cancellation of
TCT No. 142406 and the corresponding issuance of TCT No. 148821 in the name of Rafael.
The Court of Appeals, in disputing the validity of the deed of sale, makes reference to the fact that the deed of
sale was registered only in 1982, or three years after its execution and one year after the death of Leoncia.
Respondents cite this circumstance in further maintaining that the Lims should have been sufficiently alerted as to the
validity of the transfer, so as to require the Lims to inquire from the respondents on this matter.
If we adopt this suggestion, however practical it may sound, it would unduly raise the legal bar by which an
innocent purchaser for value will be adjudged. The general rule remains that the purchaser is not obligated to look
beyond the title. This long entrenched rule cannot be dispensed with by the occasion of a mere shadow of a doubt. It
may be gainsaid that there is nothing unusually suspicious with the mere fact that a deed of transfer or conveyance
over titled property is registered three years after the execution of the deed. In fact, there is nothing in our land
registration law that requires the registration or recording of such deeds within a definite prescribed period of time.
The only legal effect of such non-registration is that implied under Section 51 of the Property Registration Decree,
which provides that the act of registration becomes the operative act to convey or affect the land insofar as third
persons are concerned, though prior to registration, it operates as a contract between the parties and as evidence of
authority to the Register of Deeds to make registration.[27]
Thus, the mere fact that the deed of sale was recorded with the Register of Deeds only three years after its date of
execution did not, in itself, impugn the validity of the instrument. Those aspects of the deed of sale which did affect its
validity, involving as they did the forgery of the signatures thereupon, could not have been ascertained by the Lims
upon examination of the deed of sale. In fact, it required a full blown trial and the testimony of NBI experts, among
others, to conclusively rule that the signatures on the deed of sale were forged.
Moreover, even as the deed of sale was subsequently proven a forgery, the Lims had every reason to rely upon it
due to the fact that it is a notarized document. Notarized documents, as public documents, are entitled to full faith and
credit upon these face when appreciated by the courts,[28] and so much more when relied upon by the layman.
Thus, when the Lims endeavored to look beyond the title shown to them by Teresita Chuatoco, they discovered at
the Registry of Deeds the following: (1) cancelled TCT No. 142406 which while in the name of Leoncia and her sons, was
cancelled by reason of the registration of a deed of sale in favor of Rafael; (2) existing TCT No. 148821, in the name of
Rafael and deriving from the cancelled TCT No. 142406; and (3) the deed of sale dated February of 1979 and duly
notarized on 27 February 1979. These three documents are public documents imbued with the presumption of
regularity. There is no inconsistency with these documents and the dates of conveyance evidenced therein, as well as
with the identities of the parties effecting the conveyance.
 Accordingly, the Court concludes that the Lims were innocent purchasers for value, as the allegation to the
contrary is based merely on conjecture and, therefore, cannot overcome the presumption of good faith. In fact, a good
deal of respondents claims on this matter rest upon the proposition that the Lims should have known that the transfer
to Rafael was not valid, rather than proof of actual knowledge of its supposed invalidity. We are satisfied that the Lims
had exerted perhaps a greater effort than that required by law to ascertain the validity of TCT No. 148821, and that
nothing on the face of the documents they examined should have led to indubitable knowledge that TCT No. 148821
was derived from an infirm or spurious source.
It may not be a pleasant task for the Court to uphold the effects of a transaction that is rooted in falsity. Yet
whatever sympathies may be judicially appreciated for the deceived party must be balanced in deference to the
protection afforded by law to the innocent purchaser for value. If such innocence or good faith is established by the
evidence, or insufficiently rebutted by the disputant, then the corresponding duty of the Court is simply to affirm the
rights of the purchaser in good faith. It is mischief at worse, and error at least, for a court to misread or inflate the facts
to justify a ruling for the defrauded party, no matter how wronged he or she may be. Relief for such injury should be
obtainable instead in a proper proceeding against the malfeasant transferor, and not the innocent transferee.
The other significantly debated proposition in this petition is whether the Chuatoco siblings had actually known
well beforehand before the sale to the Lims that the property had been transferred in the name of Rafael. In light of our
previous disquisitions, there is no need to delve into this question, as it will not affect the central question as to
whether the Lims were innocent purchasers for value. This matter may be relevant in possible litigation that may be
lodged against Rafael by his siblings in relation to the fraudulent transfer of the property, but is of no moment for the
matter currently at hand.
WHEREFORE, the instant petition is hereby GRANTED. The appealed Decision of the Court of Appeals Seventeenth
Division, is hereby REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 22 is REINSTATED. Costs
against respondents.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

[1]
Penned by Mr. Justice Mario L. Guaria III, concurred in by Justices Martin S. Villarama, Jr. and Jose C. Reyes, Jr.
[2]
Records, pp. 10-11.
[3]
Id. at 18-22.
[4]
Id. at 26-34.
[5]
Id. at 59-62.
[6]
CA Rollo, pp. 89-128.
[7]
Rollo, pp. 43-52.
[8]
Id. at 18.
[9]
TSN, May 20, 1993, at pp. 8-10.
[10]
Samsung Construction v. FEBTC, G.R. No. 129015, 13 August 2004.
[11]
See Section 50, Rule 130, Rules of Court.
[12]
Mathay v. Court of Appeals, 356 Phil. 869 (1998).
[13]
Vda. de Cabrera v. Court of Appeals, 335 Phil. 19 (1997).
[14]
Esquivias v. Court of Appeals, 339 Phil. 184 (1997).
[15]
Heirs of Teodoro dela Cruz v. Court of Appeals, 358 Phil. 652 (1998).
[16]
Fule v. Legare, 117 Phil. 367 (1963).
[17]
Metropolitan Bank and Trust Company v. Tan Chuan Leong, et. al., 226 Phil. 264 (1986); citing Arriola v. Gomez dela Serna, 16
Phil. 627; Santiago v. Cruz, 19 Phil. 145; Fule v. Legare, 7 SCRA 351.
[18]
Legarda v. Court of Appeals, G.R. No. 94457, 16 October 1997, 280 SCRA 642; Cruz v. Court of Appeals, 346 Phil. 506 (1997);
Halili v. Court of Industrial Relations, 326 Phil. 982 (1996); Sandoval v. Court of Appeals, 329 Phil. 48 (1996).
[19]
State Investment House, Inc. v. Court of Appeals, 324 Phil. 642 (1996).
[20]
See Sacay v. Sandiganbayan, 226 Phil. 496, 510 (1986).
[21]
Rollo, p. 50.
[22]
See TSN dated 17 June 1993, p. 16.
[23]
See TSN dated 11 June 1993, p. 4.
[24]
See TSN dated 4 August 1993, p. 59.
[25]
Heirs of Tajonera v. Court of Appeals, G.R. No. L-26677, 27 March 1981, 103 SCRA 467, 473-474; citing Tiongco v. de la
Merced, L-24426, 25 July 1974.
[26]
See Article 148, Civil Code.
[27]
See Section 51, P.D. No. 1529, amending Section 50, Act No. 496.
[28]
Aznar Brothers Realty Co. v. Court of Appeals, 384 Phil. 95 (2000).
 EN BANC
[G.R. No. 139070. May 29, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL LEE, accused-appellant.
DECISION
PUNO, J.:
On automatic review is the decision of the Regional Trial Court, Caloocan City, Branch 127 in Criminal Case No. C-
54012 (98), which sentenced accused-appellant Noel Lee to death for the murder of Joseph Marquez.
On May 27, 1998, an Information was filed against accused-appellant charging him with the crime of murder
committed as follows:
That on or about the 29th day of September 1996, in Kalookan City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation did then and
there willfully, unlawfully and feloniously attack and shoot one JOSEPH MARQUEZ y LAGANDI, with the use of a
handgun, thereby inflicting upon the latter serious physical injuries, which ultimately caused the victims death.
CONTRARY TO LAW.[1]
Accused-appellant pleaded not guilty to the charge. At the trial, the prosecution presented the following
witnesses: (a) Herminia Marquez, the mother of the victim; (b) Dr. Darwin Corpuz, a resident doctor at the Manila
Caloocan University (MCU) Hospital; (c) PO2 Rodelio Ortiz, a police officer who examined the crime scene; and (d) Dr.
Rosaline Cosidon, a medico-legal officer of the Philippine National Police (PNP) Crime Laboratory.
The prosecution established the following facts: At 9:00 in the evening of September 29, 1996, Herminia Marquez,
46 years of age and her son, Joseph, 26 years of age, were in the living room of their house located at No. 173 General
Evangelista St., Bagong Barrio, Caloocan City. The living room was brightly lit by a circular fluorescent lamp in the
ceiling. Outside their house was an alley leading to General Evangelista Street. The alley was bright and bustling with
people and activity. There were women sewing garments on one side and on the other was a store catering to
customers. In their living room, mother and son were watching a basketball game on television. Herminia was seated
on an armchair and the television set was to her left. Across her, Joseph sat on a sofa against the wall and window of
their house and the television was to his right. Herminia looked away from the game and casually glanced at her son. To
her complete surprise, she saw a hand holding a gun coming out of the open window behind Joseph. She looked up and
saw accused-appellant Noel Lee peering through the window and holding the gun aimed at Joseph. Before she could
warn him, Joseph turned his body towards the window, and simultaneously, appellant fired his gun hitting Josephs
head. Joseph slumped on the sofa. Herminia stood up but could not move as accused-appellant fired a second shot at
Joseph and three (3) shots more two hit the sofa and one hit the cement floor. When no more shots were fired,
Herminia ran to the window and saw accused-appellant, in a blue sando, flee towards the direction of his house.
Herminia turned to her son, dragged his body to the door and shouted for help. With the aid of her neighbor
and kumpare, Herminia brought Joseph to the MCU Hospital where he later died.
Police investigators arrived at the hospital and inquired about the shooting incident. Herminia told them that her
son was shot by Noel Lee. From the hospital, Herminia went to the St. Martin Funeral Homes where Josephs body was
brought. Thereafter, she proceeded to the Caloocan City Police Headquarters where she gave her sworn statement
about the shooting.[2]
Upon request of the Caloocan City police, a post-mortem examination was made on Josephs body. Dr. Rosaline O.
Cosidon, a medico-legal officer of the PNP Crime Laboratory Service made the following findings:
FINDINGS:
Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity at the dependent portions of
the body. Conjunctiva are pale, Lips and nailbeds are cyanotic. A needle puncture mark was noted at the dorsum of the
right hand.
HEAD:
(1) Gunshot wound, frontal region, measuring 0.5 x 0.5 cm, just right of the anterior midline, 161 cm from heel, with an
upbraded collar, measuring 0.2 cm superiorly and laterally, 0.1 cm medially and inferiorly directed posteriorwards,
downwards and to the left fracturing the frontal bone, lacerating the brain. A deformed slug was recovered embedded
at the left cerebral hemisphere of the brain.
(2) Gunshot wound, occipital region, measuring 0.5 x 0.5 cm, 2 cm left of the posterior midline, 162 cm from heel, with
a uniform 0.2 cm upbraded collar, directed slightly anteriorwards, downwards and lateralwards, fracturing the occipital
bone and lacerating the brain. A deformed slug was recovered at the left auricular region.
(3) Contusion, right eyebrow, measuring 3 x 2 cm, 3 cm from the anterior midline.
There are subdural and subarachnoidal hemorrhages.
Stomach is full of partially digested food particles and positive for alcoholic odor.
CONCLUSION:
Cause of death is intracranial hemorrhage as a result of gunshot wounds. Head. [3]
At the time of his death, Joseph was employed as driver by the Santos Enterprises Freight Services earning
P250.00 a day.[4] He left behind two children by his live-in partner who are now under his mothers care and support.
Herminia spent approximately P90,000.00 for the funeral and burial expenses of her deceased son. The expenses were
supported by receipts[5] and admitted by the defense.[6]
Herminia filed a complaint for murder against accused-appellant. The complaint, docketed as I.S. No. 96-3246, was
however dismissed for insufficiency of evidence in a Resolution dated December 4, 1996 by Prosecutor Dionisio C. Sison
with the approval of Caloocan City Prosecutor Rosauro J. Silverio. [7] Herminia appealed the order of dismissal to the
Secretary of Justice. In a letter dated March 16, 1998, Secretary of Justice Silvestre Bello III reversed and set aside the
appealed Resolution and ordered the City Prosecutor of Caloocan City to file an information for murder against the
accused-appellant.[8]Accordingly, the Information was filed and a warrant of arrest issued against accused-appellant on
June 8, 1998. On October 16, 1998, appellant was arrested by agents of the National Bureau of Investigation (NBI).
Appellant is a well-known figure in their neighborhood and has several criminal cases pending against him in
Caloocan City. He was charged with frustrated homicide in 1984 and attempted murder in 1989.[9]
For his defense, accused-appellant presented two witnesses: (a) Orlando Bermudez, a neighbor; and (b) himself.
He denies the killing of Joseph Marquez. He claims that from 8:00 to 10:00 in the evening of September 29, 1996, he
was in his house located at 317 M. de Castro St., Bagong Barrio, Caloocan City. He was having some drinks with his
neighbor, Orlando Bermudez, and his driver, Nelson Columba. They were enjoying themselves, drinking and singing
with the videoke. Also in the house were his wife, children and household help. At 10:00 P.M., Orlando and Nelson
went home and accused-appellant went to sleep. He woke up at 5:30 in the morning of the following day and learned
that Joseph Marquez, a neighbor, was shot to death. To appellants surprise, he was tagged as Josephs killer. [10]
Accused-appellant had known the victim since childhood and their houses are only two blocks apart. Joseph had a
bad reputation in their neighborhood as a thief and drug addict. Six days before his death, on September 23, 1996,
accused-appellant caught Joseph inside his car trying to steal his car stereo. Joseph scampered away. As proof of the
victims bad reputation, appellant presented a letter handwritten by his mother, Herminia, addressed to Mayor
Reynaldo Malonzo of Caloocan City, and sent through PO3 Willy Tuazon and his wife, Baby Ruth. In the letter, Herminia
was surrendering her son to the Mayor for rehabilitation because he was hooked on shabu, a prohibited drug, and was
a thief. Herminia was scared that eventually Joseph might not just steal but kill her and everyone in their household
because of his drug habit.[11]
The accused-appellant likewise explained the two criminal cases filed against him in 1984 and 1989. The
information for attempted murder was dismissed as a result of the victims desistance while in the frustrated homicide
case, the real assailant appeared and admitted his crime.[12]
In a decision dated June 22, 1999, the trial court found accused-appellant guilty and sentenced him to the penalty
of death. The court also ordered appellant to pay the heirs of the victim civil indemnity of P50,000.00, actual damages
of P90,000.00, moral damages of P60,000.00 and exemplary damages of P50,000.00 and the costs of the suit. Thus:
WHEREFORE, foregoing premises considered and the prosecution having established beyond an iota of doubt the guilt
of accused NOEL LEE of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code as
amended by R.A. 7659, this court, in view of the presence of the generic aggravating circumstance of dwelling and
without any mitigating circumstance to offset it, hereby sentences the said accused to suffer the extreme penalty of
DEATH; to indemnify the legal heirs of the deceased civil indemnity of P50,000.00; to pay the private complainant
actual damages of P90,000.00 plus moral and exemplary damages of P60,000.00 and P50,000.00, respectively; and to
pay the costs.
Consistent with the provisions of Section 10, Rule 122 of the 1985 Rules on Criminal Procedure, as amended, let the
entire records hereof including the complete transcripts of stenographic notes be forwarded to the Supreme Court for
automatic review and judgment, within the reglementary period set forth in said section.
SO ORDERED.[13]
Hence, this appeal. Before us, accused-appellant assigns the following errors:
I
THE COURT A QUO GRAVELY ERRED IN RELYING HEAVILY ON THE SELF-SERVING AND CONTRADICTORY TESTIMONY OF
THE MOTHER OF THE VICTIM, HERMINIA MARQUEZ, WHOSE NARRATION OF THE CHAIN OF OCCURRENCE THAT LED TO
THE DEATH OF JOSEPH MARQUEZ WAS BEYOND BELIEF.
II
THE TRIAL COURT GRAVELY ERRED IN HASTILY TAGGING THE ACCUSED-APPELLANT, NOEL LEE, AS THE ASSAILANT
BASED MERELY ON THE BIASED DECLARATION OF THE MOTHER WITHOUT CONSIDERING THE SHADY CHARACTER OF
THE VICTIM AGAINST WHOM OTHERS MIGHT HAVE AN AXE TO GRIND.
III
THE TRIAL COURT GRAVELY ERRED IN ITS DECISION OF FINDING GUILT ON THE ACCUSED-APPELLANT WITHOUT EVEN
RAISING A FINGER IN SATISFYING ITSELF THAT THE PHYSICAL EVIDENCE OBTAINING IN 1996 ARE STILL PREVAILING IN
1999 WHEN THE CASE WAS TRIED ON THE MERITS SO AS TO ESTABLISH THE IDENTITY OF THE ASSAILANT BEYOND
DOUBT.
IV
THE COURT A QUO GRIEVOUSLY ERRED IN TREATING WITH LENIENCY HERMINIA MARQUEZS VACILLATION WITH
RESPECT TO THE BUTAS NG BINTANA AS CONTAINED IN HER SWORN STATEMENT AND THE BUKAS NA BINTANA AS PER
HER REPAIRED TESTIMONYA SERIOUS PROCEDURAL ANOMALY THAT ASSAULTED THE SUBSTANTIAL RIGHT OF THE
ACCUSED-APPELLANT.
V
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH UPON ACCUSED-APPELLANT
DESPITE OBVIOUS REASONABLE DOUBT.[14]
 The assigned errors principally involve the issue of the credibility of Herminia Marquez, the lone prosecution
eyewitness. Accused-appellant claims that the trial court should not have accepted Herminias testimony because it is
biased, incredible and inconsistent.
Herminias testimony on direct examination is as follows:
xxx
ATTY. OPENA: Now who was your companion, if any, at that time?
WITNESS: Me and my son, Joseph Marquez, and the wife upstairs putting the baby to sleep.
Q: What were you and your son, Joseph, doing then?
A: Watching TV.
Q: Will you please tell us your position, I am referring to you and your son in relation to the television set where you are
watching the show.
A: We were facing each other while watching television which is on the left side.
Q: Will you please tell us where exactly was your son, Joseph, seated while watching television?
A: At the end most of the sofa.
Q: The sofa you are referring to is the one near the window.
A: Yes, sir. Dikit lang po.
Q: Will you give us an idea or describe to us that window which you mentioned awhile ago?
A: Transparent glass.
Q: How high is it from the ground?
COURT: Which one?
ATTY. OPENA: The window glass?
WITNESS: About three feet from the ground.
ATTY. OPENA TO WITNESS:
Q: You said three feet. What do you mean by that? Is that window elevated from the ground?
A: The same height as this court window which is about three feet from the ground, and from one another about four by
four window [sic], three feet by the ground.
Q: Now, you demonstrated by showing a portion, you mean to tell us that window was mounted on a concrete or hollow
block?
A: Hollow block, po.
Q: How high is that hollow block that you were referring to?
COURT: She said three feet.
ATTY. OPENA TO WITNESS:
Q: Which is higher, that sofa which is posted near the window or the hollow block?
A: Hollow block.
Q: By how many inches or feet?
A: About half a foot.
Q: You said the sofa was long. Will you please tell us in what portion of your sofa your son Joseph was seated?
ATTY. VARGAS: Already answered, your Honor. She said dulo, end of the sofa.
COURT: Sustained.
ATTY. OPENA TO WITNESS:
Q: When you said end of sofa which portion, the left side or the right side?
A: The right.
Q: Now, while you and your son were watching television, was there anything unusual that transpired?
A: Yes, sir.
Q: Tell us what was that all about.
A: Mayroon po akong napansin na kamay na nakatutok sa anak ko. Nakita ko po si Noel Lee na nakatayo sa may bintana.
Q: What do you mean by the word kamay?
A: Hawak hawak po niya iyong baril, nakatutok po sa anak ko.
Q: What did you do with what you saw?
A: Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok ng baril. Tumingin po siya sa may bintana, ganoon po,
sabay putok ng baril.
COURT: You said he turned the head. Who turned the head? Sino ang gumanyan sa sinabi mo?
A: (Witness demonstrating that the victim peeped through the window).
Q: And then?
A: At the same time the firing of the gun [sic] and I saw my son slumped.
ATTY. OPENA TO THE WITNESS:
Q: And after your son was slumped, what did you do?
A: I went to my son and carried him to take him to the hospital.
Q: How many shots did you hear?
A: Five shots.
Q: That was prior to helping your son?
A: Yes, sir.
Q: And how many times was your son hit?
ATTY. VARGAS:
Q: Objection, your honor. It was already answered. Because according to her it was five shots.
COURT: It does not follow that the victim was hit. So, the witness may answer.
WITNESS: Twice, Two shots hit my son, two shots on the sofa and one shot on the cement.
COURT: How about the other one?
A: Doon po sa semento.
ATTY. OPENA TO WITNESS:
Q: And who fired these shots?
A: Noel Lee.
Q: That Noel Lee that you are referring to, will you please point at him if he is around?
A: (Witness going down the witness stand and pointing to accused Noel Lee).
Q: How do you know that it was Noel Lee who shot your son?
A: Kitang kita ko po. Magkatapat po kami.
Q: Will you please describe to us?
A: Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may nananahi doon. Nandoon po kaming dalawa ng anak ko
nanonood ng television. (Witness sobbing in tears). Napakasakit sa akin. Hindi ko man lang naipagtanggol and anak ko.
COURT: She was emotionally upset.
ATTY. OPENA: Ill just make it on record that the witness was emotionally upset. May I ask if she can still testify?
xxxxxxxxx
WITNESS: Masakit lang po sa loob ko ang pagkawala ng anak ko.
ATTY. OPENA TO WITNESS:
Q: You saw that the light was bright. Where were those lights coming from?
A: Maliwanag po sa loob ng bahay namin dahil may fluorescent na bilog. Saka sa labas may nananahi po doon sa alley
katapat ng bahay namin. At saka po doon sa kabila, tindahan po tapat po namin, kaya maliwanag ang ilaw.
Q: After trying to help your son, what happened?
A: I was able to hold on to my son up to the door. Upon reaching the door, I asked the help of my kumpare.
Q: Meanwhile, what did the accused do after shooting five times?
A: He ran to the alley to go home.
Q: Now you said he ran to an alley towards the direction of their house. Do you know where his house is located?
A: Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City.
Q: How far is that from your residence?
A: More or less 150 to 200 meters.
Q: Where did you finally bring your son?
A: MCU.
Q: When you say MCU, are you referring to MCU Hospital?
A: Yes, sir. MCU Hospital.
Q: At MCU, life-saving devices were attached to my son. Later, after reaching 11:00, he died.
COURT: 11:00 P.M.?
A: Yes, maam.
Q: Same day?
A: Yes, maam.
x x x x x x x x x.[15]
Herminias testimony is positive, clear and straightforward. She did not waver in her narration of the shooting
incident, neither did she waffle in recounting her sons death. She was subjected by defense counsel to rigorous cross
and re-cross examinations and yet she stuck to her testimony given in the direct examination. She readily gave specific
details of the crime scene, e.g., the physical arrangement of the sofa and the television set, the height of the sofa, the
wall and the window, because the crime happened right in her own living room. She explained that she was unable to
warn Joseph because she was shocked by the sight of accused-appellant aiming a gun at her son. The tragic events
unfolded so fast and by the time she took hold of herself, her son had been shot dead.
A sons death in his mothers house and in her presence is a painful and agonizing experience that is not easy for a
mother to forget, even with the passing of time. Herminias testimony shows that she was living with a conscience that
haunted and blamed her own self for failing to protect her son or, at least, save him from death.
Nonetheless, accused-appellant points out inconsistencies in the eyewitness testimony. In her affidavit of
September 30, 1996 given before PO2 Rodelio Ortiz, Herminia declared that while she and Joseph were watching
television, she saw a hand holding a gun pointed at her son. The hand and the gun came out of a hole in the window,
i.e., butas ng bintana. On cross-examination, Herminia stated that she saw a hand holding a gun in the open window,
i.e., bukas na bintana. According to accused-appellant, this inconsistency is a serious flaw which cannot be repaired by
her statement on the witness stand.
The inconsistency between her affidavit and her testimony was satisfactorily explained by Herminia on cross-
examination:
xxxxxxxxx
ATTY. VARGAS
Q: You said that you saw a hand from a hole in the window with a gun, is that correct?
A: Bukas na bintana. Not from a hole but from an open window.
Q: Madam witness, do you recall having executed a sworn statement before the police, right after the shooting of your son?
A: Yes, sir.
Q: I will read to you paragraph 8 of your statement which is already marked as your Exhibit A in which is stated as follows:
Isalaysay mo nga sa akin ang buong pangyayari? Answer: Sa mga oras ng alas 9:00 ng gabi petsa 29 ng Setyembre 1996
habang ang aking anak ay nanonood ng palabas sa TV ng basketball malapit sa kanyang bintana sa labas at ako naman
ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng konti sa kanya, mayroon akong napansin na kamay na may
hawak ng baril at nakaumang sa aking anak sa may butas ng bintana, do you recall that?
A: Opo.
Q: What you saw from that butas is a hand with a gun, is that correct?
A: Opo.
Q: Madam witness, your window is just like the window of this courtroom?
A: Yes, sir.
Q: In your testimony, you did not mention what part of the window was that hand holding a gun that you saw? Is that
correct?
A: Hindi naman po butas, kundi bukas na bintana. Nakabukas iyong bintana namin.
Q: So in your sinumpaang salaysay in the statement that you said butas na bintana is not correct?
A: Mali ho kasi, hindi ko na napansin iyan, kasi ito napansin ko, kinorect ko.
COURT: You show to the witness. There, butas na bintana.
WITNESS: Mali po ang letra, Bukas hindi butas.
x x x x x x x x x.[16]
Herminia corrected her affidavit by saying in open court that she saw the hand and the gun coming out of the
open window, not from a hole in the window. In her direct testimony, Herminia presented a photograph of her living
room just the way it looked from her side on the night of the shooting. [17] The sofa on which Joseph was seated is
against the wall, with the window a few inches above the wall. The window is made of transparent glass with six (6)
vertical glass panes pushing outwards. The entire window is enclosed by iron grills with big spaces in between the grills.
The living room is well-lit and the area outside the house is also lit by a fluorescent lamp.
Between Herminias testimony in open court and her sworn statement, any inconsistency therein does not
necessarily discredit the witness.[18] Affidavits are generally considered inferior to open court declarations because
affidavits are taken ex-parte and are almost always incomplete and inaccurate. [19] Oftentimes, they are executed when
the affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident
that transpired.[20] They are usually not prepared by the affiant himself but by another who suggests words to the
affiant, or worse, uses his own language in taking the affiants statements.[21]
Accused-appellant argues that since Herminia declared in her affidavit that she saw a hand coming from the
window, she did not see the person holding the gun, let alone who fired it.[22] A complete reading of the pertinent
portion of Herminias affidavit will refute appellants arguments, viz:
xxxxxxxxx
T- Isalaysay mo nga sa akin and buong pangyayari?
S Sa mga oras ng alas 9:00 ng gabi, petsa 29 ng Setyembre 1996, habang ang aking anak ay nanonood ng palabas sa T.V.
ng basketball malapit sa aming bintanan [sic] sa labas, at ako naman ay nakaupo sa sopa katapat ko siya subalit medyo
malayo ng kaunti sa kanya, mayroon akong napansin akong [sic] kamay na hawak-hawak na baril na nakaumang sa
aking anak sa butas na bintana na nakaawang, maya-maya ng kaunti ay nakarinig na ako ng putok at ang unang putok
ay tumama sa ulo ng aking anak kaya napayuko siya, pagkatapos noon ay sunod-sunod na ang putok na narinig ko, mga
limang beses, kaya kitang kita ko siya ng lapitan ko ang aking anak at nakita ko itong si NOEL LEE, pagkatapos noon ay
tumakbo na ito papalabas ng iskinita papunta sa kanila.
x x x x x x x x x.[23]
It is thus clear that when Herminia approached her son, she saw that the person firing the gun was accused-
appellant. Appellant continued firing and then ran away towards the direction of his house. This account is not
inconsistent with the witness testimony in open court.
Herminias declarations are based on her actual account of the commission of the crime. She had no ill motive to
accuse appellant of killing her son, or at least, testify falsely against appellant. Accused-appellant himself admitted that
he and Herminia have been neighbors for years and have known each other for a long time. Appellant is engaged in the
business of buying and selling scrap plastic and Herminia used to work for him as an agent. [24] She would not have
pointed to appellant if not for the fact that it was him whom she saw shoot her son.
Indeed, the Solicitor General points out that it was appellant himself who had strong motive to harm or kill
Joseph.[25] Appellant revealed that six days before the shooting, he caught Joseph inside his car attempting to steal the
stereo. The alibi that appellant was drinking with his friends that fateful night of September 29, 1996 does not rule out
the possibility that he could have been at the scene of the crime at the time of its commission. The victims house is
merely two blocks away from appellants house and could be reached in several minutes. [26]
The lone eyewitness account of the killing finds support in the medico-legal report. Dr. Rosalie Cosidon found that
the deceased sustained two gunshot woundsone to the right of the forehead, and the other, to the left side of the back
of the victims head.[27] Two slugs were recovered from the victims head. Judging from the location and number of
 wounds sustained, Dr. Cosidon theorized that the assailant could have been more than two feet away from the
victim.[28] Both gunshot wounds were serious and fatal.[29]
Accused-appellant makes capital of Josephs bad reputation in their community. He alleges that the victims drug
habit led him to commit other crimes and he may have been shot by any of the persons from whom he had stolen.[30] As
proof of Josephs bad character, appellant presented Herminias letter to Mayor Malonzo seeking his assistance for
Josephs rehabilitation from drugs. On rebuttal, Herminia admitted that she wrote such letter to Mayor Malonzo but
denied anything about her sons thievery.[31]
Character evidence is governed by Section 51, Rule 130 of the Revised Rules on Evidence, viz:
Section 51. Character evidence not generally admissible; exceptions:--
(a) In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in
the offense charged.
(3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree
the probability or improbability of the offense charged.
x x x x x x x x x.
Character is defined to be the possession by a person of certain qualities of mind and morals, distinguishing him
from others. It is the opinion generally entertained of a person derived from the common report of the people who are
acquainted with him; his reputation.[32] Good moral character includes all the elements essential to make up such a
character; among these are common honesty and veracity, especially in all professional intercourse; a character that
measures up as good among people of the community in which the person lives, or that is up to the standard of the
average citizen; that status which attaches to a man of good behavior and upright conduct. [33]
The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a
controversy, so that evidence relating thereto is not admissible. Ordinarily, if the issues in the case were allowed to be
influenced by evidence of the character or reputation of the parties, the trial would be apt to have the aspects of a
popularity contest rather than a factual inquiry into the merits of the case. After all, the business of the court is to try
the case, and not the man; and a very bad man may have a righteous cause. [34] There are exceptions to this rule
however and Section 51, Rule 130 gives the exceptions in both criminal and civil cases.
In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused may prove his good moral
character which is pertinent to the moral trait involved in the offense charged. When the accused presents proof of his
good moral character, this strengthens the presumption of innocence, and where good character and reputation are
established, an inference arises that the accused did not commit the crime charged. This view proceeds from the theory
that a person of good character and high reputation is not likely to have committed the act charged against him.[35] Sub-
paragraph 2 provides that the prosecution may not prove the bad moral character of the accused except only in
rebuttal and when such evidence is pertinent to the moral trait involved in the offense charged. This is intended to
avoid unfair prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a
person of bad character.[36] The offering of character evidence on his behalf is a privilege of the defendant, and the
prosecution cannot comment on the failure of the defendant to produce such evidence. [37] Once the defendant raises
the issue of his good character, the prosecution may, in rebuttal, offer evidence of the defendants bad character.
Otherwise, a defendant, secure from refutation, would have a license to unscrupulously impose a false character upon
the tribunal.[38]
Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of the accused.[39] And this
evidence must be pertinent to the moral trait involved in the offense charged, meaning, that the character evidence
must be relevant and germane to the kind of the act charged, [40] e.g., on a charge of rape, character for chastity; on a
charge of assault, character for peacefulness or violence; on a charge for embezzlement, character for honesty and
integrity.[41] Sub-paragraph (3) of Section 51 of the said Rule refers to the character of the offended party.[42] Character
evidence, whether good or bad, of the offended party may be proved if it tends to establish in any reasonable degree
the probability or improbability of the offense charged. Such evidence is most commonly offered to support a claim of
self-defense in an assault or homicide case or a claim of consent in a rape case. [43]
In the Philippine setting, proof of the moral character of the offended party is applied with frequency in sex
offenses and homicide.[44] In rape and acts of lasciviousness or in any prosecution involving an unchaste act perpetrated
by a man against a woman where the willingness of a woman is material, the womans character as to her chastity is
admissible to show whether or not she consented to the mans act.[45] The exception to this is when the womans
consent is immaterial such as in statutory rape[46] or rape with violence or intimidation.[47] In the crimes of qualified
seduction[48] or consented abduction,[49]the offended party must be a virgin, which is presumed if she is unmarried and
of good reputation,[50] or a virtuous woman of good reputation.[51] The crime of simple seduction involves the seduction
of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age x x x. [52] The
burden of proof that the complainant is a woman of good reputation lies in the prosecution, and the accused may
introduce evidence that the complainant is a woman of bad reputation. [53]
In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1) as evidence of the
deceaseds aggression; and (2) as evidence of the state of mind of the accused.[54] The pugnacious, quarrelsome or
trouble-seeking character of the deceased or his calmness, gentleness and peaceful nature, as the case may be, is
relevant in determining whether the deceased or the accused was the aggressor. [55] When the evidence tends to prove
self-defense, the known violent character of the deceased is also admissible to show that it produced a reasonable
belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was
necessary.[56]
In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or
improbability of his killing. Accused-appellant has not alleged that the victim was the aggressor or that the killing was
made in self-defense. There is no connection between the deceaseds drug addiction and thievery with his violent death
in the hands of accused-appellant. In light of the positive eyewitness testimony, the claim that because of the victims
bad character he could have been killed by any one of those from whom he had stolen, is pure and simple speculation.
Moreover, proof of the victims bad moral character is not necessary in cases of murder committed with treachery
and premeditation. In People v. Soliman,[57] a murder case, the defense tried to prove the violent, quarrelsome or
provocative character of the deceased. Upon objection of the prosecution, the trial court disallowed the same. The
Supreme Court held:
x x x While good or bad moral character may be availed of as an aid to determine the probability or improbability of
the commission of an offense (Section 15, Rule 123),[58] such is not necessary in the crime of murder where the killing
is committed through treachery or premeditation. The proof of such character may only be allowed in homicide
cases to show that it has produced a reasonable belief of imminent danger in the mind of the accused and a
justifiable conviction that a prompt defensive action was necessary (Moran, Comments on the Rules of Court, 1952
ed., Vol. 3, p. 126). This rule does not apply to cases of murder.[59]
In the case at bar, accused-appellant is charged with murder committed through treachery and evident
premeditation. The evidence shows that there was treachery. Joseph was sitting in his living room watching television
when accused-appellant peeped through the window and, without any warning, shot him twice in the head. There was
no opportunity at all for the victim to defend himself or retaliate against his attacker. The suddenness and
unexpectedness of the attack ensured his death without risk to the assailant. Following the ruling in People v. Soliman,
where the killing of the victim was attended by treachery, proof of the victims bad character is not necessary. The
presence of this aggravating circumstance negates the necessity of proving the victims bad character to establish the
probability or improbability of the offense charged and, at the same time, qualifies the killing of Joseph Marquez to
murder.
As to the aggravating circumstance of evident premeditation, this cannot be appreciated to increase the penalty in
the absence of direct evidence showing that accused-appellant deliberately planned and prepared the killing of the
victim.[60]
Neither can the aggravating circumstance of dwelling found by the trial court be applied in the instant case. The
Information alleges only treachery and evident premeditation, not dwelling. Under Sections 8 and 9, Rule 110 of the
Revised Rules of Criminal Procedure, a complaint or Information must specify the qualifying and aggravating
circumstances in the commission of the offense.[61] The Revised Rules of Criminal Procedure took effect on December 1,
2000, and Section 8, Rule 110 is favorable to the accused. It may be applied retroactively to the instant case.
Accordingly, without the aggravating circumstance of dwelling, the penalty of death was erroneously imposed by
the trial court. There being no aggravating circumstance, there is no basis for the award of exemplary damages. [62]
IN VIEW WHEREOF, the decision dated June 22, 1999 of the Regional Trial Court, Caloocan City, Branch 127 in
Criminal Case No. C-54012 (98) is affirmed insofar as accused-appellant Noel Lee is found guilty of murder for the death
of Joseph Marquez. The death sentence imposed by the trial court is however reduced to reclusion perpetua, there
having been no aggravating circumstance in the commission of said crime. Except for the award of exemplary damages,
the award of civil indemnity, other damages and costs are likewise affirmed.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De Leon,
Jr., Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.

[1]
Information, Records, p. 1.
[2]
Exhibit A, also Exhibit 2, Folder of Exhibits, p. 5.
[3]
Exhibit L, Medico-Legal Report, Folder of Exhibits , p. 29.
[4]
Exhibit B, Identification Card, Folder of Exhibits, p. 2; TSN of January 19, 1999, p. 20.
[5]
Exhibits D, D-1 to D-17, Folder of Exhibits, pp. 4-21.
[6]
TSN of January 25, 1999, p. 4.
[7]
Exhibit 5, Folder of Exhibits, pp. 40-45.
[8]
Exhibit O, Folder of Exhibits, pp. 32-34.
[9]
Informations in Criminal Cases Nos. C-23084 (84) and C-32351 (89), Exhibits G and H, Folder of Exhibits, pp. 23, 24.
[10]
TSN of April 7, 1999, pp. 3-5.
[11]
Exhibit 3, Folder of Exhibits, p. 36.
[12]
TSN of April 7, 1999, p. 13.
[13]
Decision, p. 16, Rollo, p. 34.
[14]
Accused-Appellants Brief, pp. 1-2, Rollo, pp. 89-90.
[15]
TSN of January 19, 1999, pp. 5-11.
[16]
TSN of January 26, 1999, pp. 10-12.
[17]
Exhibit F, Folder of Exhibits, p. 22-A.
[18]
People v. Templo, 346 SCRA 626, 641 [2000]; People v. Ferrer, 255 SCRA 19, 34 [1996]; People v. Abrenica, 252 SCRA
54, 61 [1996].
[19]
People v. Jaberto, 307 SCRA 93, 100 [1999]; People v. Silvestre, 307 SCRA 68, 83 [1999]; People v. Mercado, 304
SCRA 504, 527 [1999]; People v. Botona, 304 SCRAS 712, 733 [1999].
[20]
People v. Ortiz, 266 SCRA 641, 650 [1997].
[21]
People v. Panela, 346 SCRA 308, 315-316 [2000]; People v. Ortiz, supra.
[22]
Reply Brief, p. 4, Rollo, p. 339.
[23]
Exhibit A, also marked as Exhibit 2, Folder of Exhibits, p. 5; emphasis supplied.
[24]
TSN of April 14, 1999, pp. 6-7.
[25]
Plaintiff-Appellees Brief, p. 20; Rollo, p. 20.
[26]
TSN of April 7, 1999, pp. 9-10.
[27]
TSN of February 15, 1999, pp. 6, 9; Exhibit M, Sketch of human body, Folder of Exhibits, p. 30.
[28]
TSN of February 15, 1999, pp. 6-7.
[29]
Id., at p. 8.
[30]
Appellants Brief, p. 18, Rollo, p. 106.
[31]
TSN of May 5, 1999, p. 12.
[32]
Bouviers Law Dictionary, vol. I, 3rd revision, p. 457 [1914]. Strictly speaking, character is not synonymous with
reputation. Character is the nature of a person, his disposition generally, or his disposition in respect to a particular trait
such as peacefulness or truthfulness. Reputation is the community estimate of him. Under the Federal Rules of
Evidence in the United States, failure to make the distinction may result in confusion. Character evidence is governed
by Rule 404 while reputation is a method of proving character in Rules 405 and 608M. Graham, Federal Rules of
Evidence in a Nutshell Series, 2nd ed., p. 94 [1987].
[33]
14 C.J.S. Character p. 400 [1939]; also cited in V. Francisco, Revised Rules of Court of the Philippines, vol. VII, Part I,
p. 743. The concept of character has acquired strong moral overtones over the years owing perhaps to the far greater
frequency with which it is encountered in criminal cases. Inquiry into the nature of the person has largely been
confined to considerations which can be characterized as either goodness or badness. As psychiatry and psychology
progress and win increasing acceptance in the law, the concept seems destined to encompass a broadened view of
human nature-- Graham, supra, at 94-95.
[34]
Jones on Evidence, Civil and Criminal, vol. I, 5th ed., Sec. 165, p. 294 [1958] citing Thompson v. Church, 1 Root (Conn)
312, and other cases; also cited in O. Herrera, Remedial Law, vol. V, p. 834 [1999].
[35]
29 Am Jur 2d, Evidence, Sec. 367 [1994 ed.].
[36]
McCormick on Evidence, vol. I, 4th ed., Sec. 190, p. 797 [1992]; 29 Am Jur 2d, Evidence, Sec. 365 [1994 ed.]; see
also People v. Rabanes, 208 SCRA 768, 780 [1992].
[37]
Whartons Criminal Evidence, vol. I, 12th ed., Sec. 221, p. 456 [1955].
[38]
Wigmore on Evidence, vol. I, 3rd ed., Sec. 58, p. 458 [1940]; see footnotes for English and American cases.
[39]
In the case at bar, it was the prosecution that first presented evidence of the bad moral character of the accused-
appellant by citing the two criminal cases pending against him. The presentation of this evidence, however, was not
objected to by the accused-appellant.
[40]
Francisco, supra, at 746; see also Whartons Criminal Evidence, vol. I, 12th ed., Sec. 221, pp. 459-461 [1955].
[41]
Francisco, supra citing Wigmore on Evidence (Stud. Txt) 62.
[42]
With respect to a witness in both criminal and civil cases, his bad moral character may be proved by either party as
provided under Section 11, Rule 132 of the Revised Rules on Evidence see Regalado, Remedial Law Compendium, vol. II,
p. 631 [1995].
[43]
R. Lempert & S. Saltzburg, A Modern Approach to Evidence, American Casebook Series, p. 238 [1982]; McCormick on
Evidence, vol. I, 4th ed., Sec. 193, pp. 820-822 [1992] at Sec. 193, pp. 820-822. In the American jurisdiction, courts in the
past generally admitted evidence of the victims character for chastity. In the 1970s however, nearly all jurisdictions
enacted rape shield laws. The reforms range from barring all evidence of the victims character for chastity to merely
requiring a preliminary hearing to screen out inadmissible evidence on the issue. Federal Rule of Evidence 412 lies
between these extremes Reversing the traditional preference for proof of character by reputation, it bars reputation
and opinion evidence of the victims past sexual conduct, but permits evidence of specific incidents if certain substantive
and procedural conditions are met.--McCormick on Evidence, supra, Sec. 193, p. 822.
[44]
Francisco, supra, at 751.
[45]
Naval v. Panday, 321 SCRA 290, 302 [1999].
[46]
Ibid., at 302 citing Wigmore on Evidence (Stud. Text) 63; see also Whartons Criminal Evidence, vol. 1, 12th ed, Sec.
229 [1955].
[47]
People v. Taduyo, 154 SCRA 349, 361 [1987]; People v. Blance, 45 Phil. 113, 116 [1923].
[48]
Article 337, Revised Penal Code.
[49]
Article 343, Revised Penal Code.
[50]
II L. Reyes, The Revised Penal Code 862 [1981].
[51]
Ibid., at 882.
[52]
Article 338, Revised Penal Code.
[53]
Francisco, supra, at 752.
[54]
Whartons Criminal Evidence, vol. I, 12th ed., Sec. 228, p. 474 [1955]; also cited in Francisco, supra, at 752; see
also Herrera, supra, at 839-840.
[55]
In People v. Gungob, 108 Phil. 1174 [1960], it was found that the character of the deceased as reflected by his
criminal record of theft and physical injuries was consistent with the provocative acts ascribed to him by the witnesses.
[56]
In People v. Sumicad, 56 Phil. 645 [1932], the deceased was a bully of known violent character, although himself
unarmed, he attempted to take from the accused a bolo, the only means of defense possessed by the latter. Under the
circumstances, it was observed that it would have been an act of suicide for the accused to allow the bolo to pass into
the hands of the victim.
[57]
101 Phil. 767 [1957].
[58]
Now Section 51 (a) (3), Rule 130.
[59]
People v. Soliman, supra, at 772; emphasis supplied.
[60]
People v. Platilla, 304 SCRA 339, 354 [1999]; People v. Basao, 310 SCRA 743, 778-779 [1999].
[61]
People v. Edgar Legaspi, G.R. Nos. 136164-65, April 20, 2001, pp. 14-16; People v. Joel Bragat, G.R. No. 134490,
September 4, 2001, pp. 16-17; People v. Melecio Sagarino, G.R. Nos. 135356-58, September 4, 2001, pp. 10-11;
People v. Noel Feliciano, G.R. Nos. 127759-60, September 24, 2001, pp. 15-16.
[62]
Civil Code, Article 2230.
 SECOND DIVISION
[G.R. No. 125356. November 21, 2001]
SUPREME TRANSLINER INC., FELIPE SIA and NOVENCIO FLORES, petitioners, vs. HON. COURT OF APPEALS, GLORIA BRAZAL
and minor LOTIS BRAZAL, represented by her father, NOEL BRAZAL, respondents.
DECISION
QUISUMBING, J.:
This petition seeks to annul the decision[1] dated September 21, 1995, of the Court of Appeals in CA G.R. No.
39784, and its resolution[2] dated June 18, 1996 denying petitioners motion for reconsideration.
Petitioners Supreme Transliner Inc. and Felipe Sia are the registered owners of a bus driven by co-petitioner
Novencio Flores. On September 24, 1990, the bus collided with a passenger jeepney carrying private respondents Gloria
and Lotis Brazal. At the time of the incident, the jeepney was owned and registered in the name of Marcelino Villones
and driven by Reynaldo Decena.
As a result of the collision, private respondents suffered injuries. They instituted Civil Case No. SP-3312 for
damages against petitioners based on quasi-delict and against Villones and Decena for breach of contract. Petitioners,
in turn, filed a third-party complaint against Country Bankers Insurance Company, insurer of the Supreme Transliner
bus.
During the trial, Gloria Brazal testified that on September 24, 1990, she and her daughter Lotis were on board the
passenger jeepney when the Supreme Transliner bus hit it, causing them injuries that required medical treatment.
Decena and Villones testified on their own behalf and presented Luzviminda Malabanan and Sgt. Nicolas M. Roxas
as witnesses. Decena recounted that on September 24, 1990, at about 2:00 P.M., he was driving a passenger jeepney
bound for Candelaria, Quezon. On board, the jeepney was about fifteen passengers, including private respondents
Gloria and Lotis Brazal. Upon reaching Sampaloc, Sariaya, Quezon, a Supreme Transliner bus coming from the opposite
direction, suddenly appeared on a curved portion of the road and overtook another jeepney, which it was then
following. Thereafter, the bus collided with Decenas jeepney.
Petitioners presented Novencio Flores and Moises Alvarez, the Manager of Supreme Transliner. Both testified that
the passenger jeepney was running very fast when the accident occurred. On the third-party complaint, petitioners
showed that they already submitted the required documents for insurance claim and that Country Bankers Insurance
Company promised to settle the claim, but did not.
On October 28, 1992, the trial court rendered its judgment, the dispositive portion of which reads:
WHEREFORE, finding that the plaintiffs [have] established by preponderance of evidence the allegations of the
complaint, judgment is hereby rendered:
ON THE COMPLAINT:
1. Ordering the defendants Felipe Sia, as registered owner of the Supreme Bus, and Novencio Flores primarily liable for
the damages of the plaintiffs and directing them to jointly and severally pay plaintiffs the following:
a. The amount of TWENTY FIVE THOUSAND PESOS (P25,000.00) by way of actual damages;
b. The amount of P10,000.00 by way of moral damages;
c. The amount of P5,000.00 as attorneys fees.
On the third-party complaint, judgment is hereby rendered ordering the third-party defendant to pay the third-party
plaintiffs any and all amounts that they have paid to the plaintiffs by reason of this decision provided it does not exceed
P50,000.00.
Third-party defendant is also ordered to pay the costs.
SO ORDERED.[3]
The trial court declared that Flores was negligent in operating the bus, while Sia failed to exercise the diligence of
a good father of a family in the choice, supervision and direction of his employees.
On the third-party complaint, the trial court found that Supreme Transliner had insured the bus with Country
Bankers, paid the premiums for the period covering the accident, and made an insurance claim by notifying the insurer
and submitting the required documents. However, until the filing of the complaint, Country Bankers had not acted
upon Supreme Transliners claim. The trial court ordered Country Bankers to pay third-party plaintiffs an amount not
exceeding P50,000.
Petitioners appealed to the Court of Appeals where they maintained that the trial court erred in: (a) pronouncing
them liable to private respondents; (b) awarding the amount of P25,000 as actual damages; and (c) finding Sia solidarily
liable with driver Flores. Country Bankers Insurance Company filed on July 5, 1994, a manifestation and motion wherein
it stated that it had already settled its maximum liability under the policy, and therefore prayed for its exclusion from
the case.
On September 21, 1995, the Court of Appeals promulgated its decision, decreeing as follows:
WHEREFORE, the appealed judgment is AFFIRMED subject to the Manifestation and Motion filed by third-party
defendant as discussed in the text of herein decision.
Costs against defendant-third party appellant Felipe Sia and defendant-appellant Novencio C. Flores.
SO ORDERED.[4]
The Court of Appeals found that there was competent and preponderant evidence which showed that driver
Novencio Flores negligence was the proximate cause of the mishap and that Felipe Sia failed to perform the required
degree of care in the selection and supervision of the bus driver. It also found that the actual damages representing the
medical expenses incurred by private respondents were properly supported by receipts.
 Petitioners filed a motion for reconsideration but this was denied. Hence, this petition, where petitioners raise the
following issues:
I
ARE EVIDENCES (SIC) IN THE RECORDS OF THE CASE BUT NOT OFFERED BY A PARTY LITIGANT BE CONSIDERED IN
THE LATTERS FAVOR?
II
ARE EVIDENCES (SIC) ADDUCED BY A CO-DEFENDANT BE CONSIDERED AS EVIDENCES (SIC) OF THE PLAINTIFF AS
AGAINST THE OTHER DEFENDANT?[5]
Petitioners aver that the Court of Appeals erred in affirming the trial courts decision which was mainly based on
the evidence proffered by their co-defendants Decena and Villones. Petitioners contend that this evidence, which
proved their liability for quasi-delict, could not be appreciated against them because the same was not adopted, much
less offered in evidence by private respondents. Neither did Decena and Villones file a cross-claim against
them. Consequently, in accordance with Section 1,[6] Rule 131 and Sections 34[7] and 35[8], Rule 132 of the Rules of
Court, said evidence was placed beyond the courts consideration, hence they could not be held liable on the basis
thereof.
Private respondents contend that Philippine courts are not only courts of law but of equity and justice as well. The
Court of Appeals, being a court of record, has to appreciate all the facts and evidence before it in determining the
parties rights and liabilities regardless of who among the litigants actually presented the same. Further, they point out
that the issue is being raised for the first time, thus it is highly improper to nullify or reverse the Court of Appeals
decision based solely on a completely new and foreign ground.
For our resolution are the following issues: (a) Who has the burden of proving herein petitioners liability? (b) May
the evidence presented by Decena and Villones be considered in determining preponderance of evidence against
herein petitioners?
Burden of proof is the duty of a party to present evidence to establish his claim or defense by the amount of
evidence required by law, which is preponderance of evidence in civil cases. [9] The party, whether plaintiff or defendant,
who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment. For the defendant, an
affirmative defense is one which is not a denial of an essential ingredient in the plaintiffs cause of action, but one
which, if established, will be a good defense i.e. an avoidance of the claim. [10]
In this case, both private respondents as well as the jeepney driver Reynaldo Decena and its owner Marcelino
Villones claim that the bus driver, Novencio Flores, was liable for negligently operating the bus. For private
respondents, the claim constitutes their cause of action against petitioners which said private respondents must prove
by preponderance of evidence. At the same time, the same claim is a matter of affirmative defense on the part of
Decena and Villones who are impleaded as co-defendants of petitioners. Therefore, both private respondents as well as
the said co-defendants had the burden of proving petitioners negligence by the quantum of proof required to establish
the latters liability, i.e. by preponderance of evidence.
On the second issue, we rule in the affirmative. The evidence presented by the jeepney owner and its driver,
Villones and Decena, forms part of the totality of the evidence concerning the negligence committed by petitioners as
defendants in quasi-delict case. Preponderance of evidence is determined by considering all the facts and
circumstances of the case, culled from the evidence, regardless of who actually presented it. [11] Petitioners liability were
proved by the evidence presented by Decena and Villones at the trial, taken together with the evidence presented by
the victims of the collision, namely herein private respondents Gloria and Lotis Brazal.
We find petitioners reliance on Sections 34 and 35 of Rule 132 of the Rules of Court misplaced. Petitioners cited
these rules to support their allegation that evidence by Decena and Villones should not be considered in private
respondents favor since the latter did not adopt much less offer them in evidence. Nothing in Section 34 requires that
the evidence be offered or adopted by a specific party before it could be considered in his favor. It is enough that the
evidence is offered for the courts consideration. We find, moreover, no pertinence in petitioners invocation of Rule 35,
on when to make an offer, except to indicate to us petitioners reliance on inapplicable technicalities that betray the
lack of merit of their petition.
WHEREFORE, the instant petition is DENIED. The decision and resolution dated September 21, 1995 and June 18,
1996, respectively, of the Court of Appeals are hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[1]
Rollo, pp. 24-39.
[2]
Id. at 41
[3]
Records, pp. 128-129.
[4]
Rollo, p. 38.
[5]
Id. at 13.
[6]
Section 1. Burden of proof. Burden of proof is the duty of a party to present evidence on the facts in issue necessary
to establish his claim or defense by the amount of evidence required by law.
[7]
Section 34. Offer to evidence. the court shall consider no evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified.
[8]
Section 35. When to make offer. As regards the testimony of a witness, the offer must be made at the time the
witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a partys testimonial evidence. Such offer
shall be done orally unless allowed by the court to be done in writing.
[9]
See note 6.
[10]
Paras, Rules of Court 448 ( 3rd ed. 1996).
[11]
Sec. 1, Rule 133, Revised Rules on Evidence. Preponderance of evidence, how determined. - In civil cases, the party
having the burden of proof must establish his case by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same
may legitimately appear upon the trial. The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number.