1

THIRD DIVISION

G.R. No. 200013, January 14, 2015

BETTY GEPULLE-GARBO, REPRESENTED BY ATTORNEY-IN-FACT, MINDA G. ROSALES(NOW REPRESENTED BY HER

NEW ATTORNEY-IN-FACT, GARY LLOYD G. ROSALES), Petitioner, v.SPOUSES VICTOREY ANTONIO GARABATO AND
JOSEPHINE S. GARABATO, Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition1 for review on certiorari seeking to reverse and set aside the May 20, 2011 Decision2and January 5,
2012 Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 87912 affirming the August 7, 2006 Decision4 of the
Regional Trial Court (RTC) of Pasay City, Branch 108 dismissing the petition5 for cancellation of certificate of title filed by
petitioner Betty Gepulle-Garbo against respondents Victorey and Josephine Garabato, for insufficiency of evidence.

The facts of the case follow.

Nick Garbo6 (Nick) was married to Eduviges Garabato (Eduviges) sometime before 1978. During their marriage, they had a
daughter named Florence Garabato (Florence) who in turn had a son out of wedlock, respondent Victorey Antonio Garabato
(Victorey). During the subsistence of Nick and Eduviges’ marriage, Nick cohabited with petitioner Betty Gepulle-Garbo
(Betty).

On June 17, 1977, a Deed of Sale7 was executed between Eduviges and Florence whereby the former sold to the latter a
303-square meter parcel of land, covered by Transfer Certificate of Title (TCT) No. 17986, in Pasay City. The deed of sale
was signed by Nick Garbo.

On May 12, 1978, Eduviges passed away. Three months after, on August 12, 1978, Nick married Betty. On October 26,
1988, Florence registered the property in her name and was issued TCT No. 126959.8 Florence died on March 4, 1992 while
Nick died on February 28, 1996.

In 1996, respondent Victorey, married to co-respondent Josephine, registered the subject property in his name by virtue of a
Deed of Sale9 executed by Florence in his favor. On October 15, 1996, respondent was issued TCT No. 136900.10

On August 2, 2001, petitioner filed a petition11 for cancellation of TCT No. 136900 against respondents. She impugns the
validity of the June 17, 1977 Deed of Sale on the ground that the signatures of Nick and Eduviges were forged by Florence.
Petitioner also assailed the deed of sale between Florence and Victorey.

Petitioner claimed that Nick had previously sought the examination of his alleged signature on the June 17, 1977 Deed of
Sale by the National Bureau of Investigation (NBI). The NBI examiner allegedly found that the questioned signature and the
standard signatures of Nick were not written by one and the same person. Petitioner further alleged that Nick had filed a
criminal complaint for falsification against Florence though the case was dismissed due to lack of probable cause. In addition,
petitioner averred that on February 6, 1993, Nick wrote a letter12 to respondent Victorey reminding him that the subject
property was his despite the transfer of title. Petitioner prayed for the cancellation of TCT No. 136900 and the issuance of a
new certificate of title in her name.

Victorey and Josephine denied the allegation of forgery. They raise that the action had prescribed and/or barred by laches.
Further they claimed that Betty has no cause of action as the subject property is the paraphernal property of Eduviges.
Lastly, they assert that the sale was regular, valid and genuine. They asserted that the signatures appearing on the deeds of
sale are true and genuine signatures of the parties including Nick Garbo.13

During the trial,petitioner asserted that Nick left real properties including the property covered by TCT No. 136900. She
claimed that by virtue of a holographic will14 executed by Nick on December 30, 1980, the subject property was bequeathed
to her. In the same will, he disinherited his daughter, Florence. Petitioner admitted that the said holographic will was never
probated.

In addition, to support her claim that Florence is not entitled to the property, she presented an Agreement of
Partition15 where Florence is one of the parties.Petitioner contended that Florence is thus not entitled to the subject property
since she already received her share. Petitioner also admitted that said agreement was never signed by Florence.

Petitioner presented as witness,Mr. Bienvenido Albacea, a handwriting expert and retired employee of the NBI, who at the
time of the conduct of the examination of the subject deed of sale was a Document Examiner II of the NBI. Albacea stated
that in 1992, he was requested to examine the signatures of Nick appearing in the deeds of sale dated June 17, 1977 and
June 15, 1977 and compared it with the specimen signatures appearing in the Alien Registration Form No. 3,16 a
document17 from the Treasurer’s Office of Pasay City and several receipts18 issued by Nick to his lessees. After he conducted
an examination of the signatures in these documents, he concluded that the questioned and the standard signatures of Nick
 2

were not written by one and the same person.

Petitioner also presented as witness Mr. Reynaldo Buenaventura who testified that he has leased the subject property since
1972 and has paid the rent to petitioner.

On the other hand, respondent Victorey denied that Florence forged the signature of Nick Garbo. He admitted that he
purchased the property from Florence for a valid consideration and registered it late because he had no money. Respondent
Victorey presented a document entitled Affidavit of Waiver19dated June 17, 1977 executed by Nick stating that Eduviges
acquired a parcel of land covered by TCT No. 17986 and that Nick did not contribute a single centavo to buy the parcel of
land. It further stated that Nick waived all his rights, title and interest and possession to land in favor of his wife, Eduviges.

In its August 7, 2006 Decision,20 the RTC dismissed the complaint for cancellation of title filed by petitioner. The dispositive
portion of the decision states, to wit:
chanro blesvi rt uallawli bra ry

WHEREFORE, PREMISES CONSIDERED, after study of the evidence presented, this Court finds that plaintiff failed to prove by
a preponderance of evidence her cause of action. Accordingly, the complaint for cancellation of certificate of title is hereby
DISMISSED for insufficiency of evidence.

Defendant’s counterclaim is dismissed for lack of merit.

No pronouncement as to costs.

SO ORDERED.21
The RTC held that petitioner failed to prove that the signatures of Nick and Eduviges Garbo were forgeries.The RTC did not
give credence to the testimony of Albacea, holding that courts are not bound by expert testimonies and that the relative
weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide. There was no evidence
presented to prove Nick’s ownership over the subject land. The RTC also noted that from the time the assailed deed of sale
and the affidavit of waiver were executed on June 17, 1977 until the subject property was registered in Florence Garabato’s
name on October 26, 1988, Nick never instituted a civil case to question the alleged forgery by his daughter. It was only
after Nick’s death that petitioner filed the civil suit.

The RTC, likewise, did not find any legal ground to declare the deed of sale between Florence and respondent Victorey
invalid. Petitioner merely questioned the validity of the deed of sale without any allegations. Petitioner failed to present any
evidence to show why said document should be nullified.

On appeal, the CA affirmed the RTC ruling that petitioner failed to prove by clear, positive and convincing proof of forgery in
Nick’s signature in the deed of sale. The CA also held that Mr. Albacea’s opinion as to the truth or falsity of the signature of
Nick Garbo is not binding and conclusive upon the court since the request for examination of the deed of sale was not upon
the order of the trial court but at the instance of the petitioner. Such examination brings suspicion as to the bias or prejudice
of the examining party. Moreover, while it was concluded that there was variance in the compared signatures, such mere
variance cannot be considered conclusive proof that the signature was forged. The CA also emphasized that the deed of sale
being a notarized document bears the presumption of regularity in its execution.

As to the deed of sale between Florence and Victorey, the CA agreed with the trial court that aside from presenting the xerox
copy of the deed of sale, petitioner failed to present any evidence to show why said document should be nullified. The
appellate court stated that petitioner merely questioned the fact that the document was notarized long after the death of
Florence. However, the fact that the document was notarized long after Florence’s death does not mean that her signature
was a forgery, absent any evidence showing such.

Hence, this petition.

Petitioner insists that the signatures of Nick and Eduviges Garbo on the June 17, 1977 Deed of Sale executed in favor of
Florence were forged.To support her claim, petitioner reproduced for reference the signatures of Nick in the earlier deed of
sale dated June 15, 1977 and compared it with Nick’s signature in the assailed Deed of Sale and the Affidavit of Waiver both
dated June 17, 1977. She pointed out that Nick’s signatures in the three documents are congruent and exactly alike in all
details and are products of a tracing process from his alleged signature in the Deed of Sale dated June 15, 1977. As
evidence, petitioner presented the findings of the handwriting expert, Bienvenido Albacea in the Questioned Documents
Report No. 109-29222 dated February 26, 1992 stating that the questioned and the standard signatures of Nick Garbo were
not written by one and the same person. In addition, petitioner avers that since 1972, Nick was the one collecting the rentals
on the subject premises and after his death, herein petitioner.

Petitioner also asserts that a close comparison of the alleged signature of Eduviges Garbo in the questioned Deed of Sale
dated June 17, 1977 and her alleged signature in the Deed of Sale dated June 15, 1977 would show that the said two
signatures are exactly alike in all details which would also show that the alleged signature of Eduviges Garbo in the
questioned Deed of Sale dated June 17, 1977 is a product of a tracing process from that of her alleged signature in the June
15, 1977 Deed of Sale and which would show by clear and convincing evidence that the alleged signature of Eduviges Garbo
in the questioned Deed of Sale dated June 17, 1977 is fake or a forgery.

Petitioner also assailed the validity of the subsequent deed of sale executed between Florence and respondent Victorey and
notarized in 1996. Petitioner claims that the said deed of sale although notarized is a mere private document because
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Florence could not appear before the notary public in 1996 because she died in 1992.

Respondents assert that in a petition for review on certiorari, only questions of law may be raised by the parties and passed
upon by this Court. Respondents submit that the trial court and the CA did not err in their observation that there is nothing
in petitioner’s testimony which showed forgery committed by the respondents. Respondents aver that the CA did not err
when it found failure on the part of the petitioner to meet the criteria for determining whether a signature was forged.
Respondents stress that Albacea who though claimed to have found variance in the compared signatures did not however
point out distinguishing marks, characteristics and discrepancies in and between the genuine and false specimens of writing
which would ordinarily escape notice or detection by an untrained observer. According to respondents, petitioner failed to
present evidence or justification to show why the subject document should be nullified.

The Court is essentially presented the question of whether the signatures of Nick and Eduviges appearing on the instruments
were forged.

Petition is without merit.

The issue raised by petitioner is essentially factual in nature, the determination of which is best left to the courts below. Well
settled is the rule that the Supreme Court is not a trier of facts.23The function of the Court in petitions for review on certiorari
is limited to reviewing errors of law that may have been committed by the lower courts.24 As a matter of sound practice and
procedure, the Court defers and accords finality to the factual findings of trial courts, more so, when as here, such findings
are undisturbed by the appellate court.25Stated otherwise, the Court refrains from further scrutiny of factual findings of trial
courts, more so when those findings are affirmed by the CA. To do otherwise would defeat the very essence of Rule 45 and
would convert the Court into a trier of facts, which is not meant to be. Certainly the rule admits exceptions26 none, however,
is applicable to the case at bar. Absent any application of any of the recognized exceptions, this Court is bound by the
findings of fact by the lower courts.27

In any event, Section 1, Rule 131 of the Rules of Court provides that the burden of proof is the duty of a party to prove the
truth of his claim or defense, or any fact in issue by the amount of evidence required by law.28

As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence, the burden of proof
lies on the party alleging forgery.29 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.30 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.31

In Jimenez v. Commission on Ecumenical Mission, United Presbyterian Church, USA,32 the Court identified and explained the
factors involved in the examination and comparison of handwritings: chan rob lesvi rtual lawlib rary

x x x [T]he authenticity of a questioned signature cannot be determined solely upon its general characteristics, similarities or
dissimilarities with the genuine signature. Dissimilarities as regards spontaneity, rhythm, pressure of the pen, loops in the
strokes, signs of stops, shades, etc., that may be found between the questioned signature and the genuine one are not
decisive on the question of the former’s authenticity. The result of examinations of questioned handwriting, even with the
benefit of aid of experts and scientific instruments, is, at best, inconclusive. There are other factors that must be taken into
consideration. The position of the writer, the condition of the surface on which the paper where the questioned signature is
written is placed, his state of mind, feelings and nerves, and the kind of pen and/or paper used, play an important role on
the general appearance of the signature. Unless, therefore, there is, in a given case, absolute absence, or manifest dearth, of
direct or circumstantial competent evidence on the character of a questioned handwriting, much weight should not be given
to characteristic similarities, or dissimilarities, between that questioned handwriting and an authentic one.33
The opinion of handwriting experts are not necessarily binding upon the court, the expert’s function being to place before the
court data upon which the court can form its own opinion.34 This principle holds true especially when the question involved is
mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned
signatures with those of the currently existing ones.35A finding of forgery does not depend entirely on the testimonies of
handwriting experts, because the judge must conduct an independent examination of the questioned signature in order to
arrive at a reasonable conclusion as to its authenticity.36

Here, both the RTC and CA found that Albacea did not explain the manner of examination of the specimen signatures in
reaching his conclusion. Albacea did not point out distinguishing marks, characteristics and discrepancies in and between
genuine and false specimens of writing which would ordinarily escape notice or detection by an untrained observer. The Court
also aptly ruled that courts are not bound by expert testimonies especially that the examination was upon the initiative of
Nick and Betty and they had complete control on what documents and specimens to be examined by the NBI. Betty, in
coming before us, had the onus of showing that the signatures were forged. She fell short of demonstrating that her case fell
within the limited exceptions for disturbing conclusiveness of factual findings of lower courts.

The petitioner having not shown any reason for us to disturb the ruling of the courts a quo, we are constrained to affirm the
decision of the CA.

WHEREFORE, the petition for review on certiorari is DENIED. The May 20, 2011 Decision and the January 5, 2012
Resolution of the Court of Appeals in CA-G.R. CV No. 87912 are AFFIRMED.

With costs against the petitioner.

 4

SO ORDERED.

Velasco, Jr., (Chairperson), Peralta, Reyes, and Jardeleza, JJ., concur.

EN BANC

A.C. No. 8235, January 27, 2015

JOSELITO F. TEJANO, Complainant, v. ATTY. BENJAMIN F. BATERINA, Respondent.

DECISION

CARPIO, J.:

The Case

Before the Court is a verified administrative complaint for disbarment against Atty. Benjamin F. Baterina.

The Facts

On 26 March 2009, Joselito F. Tejano filed an Affidavit-Complaint1 before the Office of the Court Administrator (OCA) of the
Supreme Court against Judge Dominador LL. Arquelada, Presiding Judge of the Regional Trial Court (RTC), Vigan City, Ilocos
Sur, Branch 21, and Tejano’s own counsel, Atty. Baterina.

Tejano accused Judge Arquelada of acting in conspiracy with Atty. Baterina for the former to take possession of his (Tejano)
property, which was the subject matter of litigation in the judge’s court.

The case stems from Civil Case No. 4046-V, a suit for recovery of possession and damages filed by Tejano, his mother and
sisters against the Province of Ilocos Sur. The property involved in the suit is a strip of land located at the northern portion of
Lot No. 5663 in Tamag, Vigan City. The lot was wholly owned by Tejano’s family, but the Province of Ilocos Sur constructed
an access road stretching from the provincial highway in the east to the provincial government’s motor pool in the west
without instituting the proper expropriation proceedings.2

The case was raffled off to Branch 21 of the Vigan City RTC in October 1988. Four judges would hear the case before Judge
Arquelada became the branch’s presiding judge in 2001.3 Prior to his appointment to the bench, however, Judge Arquelada
was one of the trial prosecutors assigned to Branch 21, and in that capacity represented the Province of Ilocos Sur in Civil
Case No. 4046-V.4

In his Affidavit-Complaint, Tejano accused Judge Arquelada of colluding with Atty. Baterina in the former’s bid to “take
possession” of their property and was “collecting rentals from squatters who had set up their businesses inside the whole of
Lot [No.] 5663.” In support of his accusations, Tejano attached a copy of Transfer Certificate of Title No. T-430045 covering
Lot No. 5663 in the name of Karen Laderas, purportedly the daughter of Judge Arquelada; receipts of rents paid to Terencio
Florendo,6 sheriff at Judge Arquelada’s sala at the Vigan City RTC; receipts of rents paid to Aida Calibuso,7 who was expressly
designated by Laderas as her attorney-in-fact8 in collecting said rents; and receipts of rents paid to Edgar Arquelada, Judge
Arquelada’s brother.9

As to his counsel, Tejano claims that Atty. Baterina “miserably failed to advance [his] cause.” Specifically, Tejano alleged
that Atty. Baterina (1) failed to object when the trial court pronounced that he and his co-plaintiffs had waived their right to
present evidence after several postponements in the trial because his mother was ill and confined at the hospital;10 (2)
manifested in open court that he would file a motion for reconsideration of the order declaring their presentation of evidence
terminated but failed to actually do so;11 (3) not only failed to file said motion for reconsideration, but also declared in open
court that they would not be presenting any witnesses without consulting his clients;12and (4) failed to comply with the trial
court’s order to submit their formal offer of exhibits.13

In a letter dated 27 March 2009, then Court Administrator (now Supreme Court Associate Justice) Jose P. Perez informed
Tejano that the OCA has no jurisdiction over Atty. Baterina since it only has administrative supervision over officials and
employees of the judiciary. However, Tejano was informed to file the complaint against his counsel at the Office of the Bar
Confidant, and that the complaint against Judge Arquelada was already “being acted upon” by the OCA.14

In a Resolution dated 6 July 2009, the Court required Atty. Baterina to file a Comment on the complaint within 10 days from
notice.15 Failing to comply with the Court’s order, Atty. Baterina was ordered to show cause why he should not be
disciplinarily dealt with and once again ordered to comply with the Court’s 6 July 2009 Order.16

In his Compliance dated 28 March 2010, Atty. Baterina explained that he had been recuperating from a kidney transplant
 5

when he received a copy of the complaint. He begged the Court’s indulgence and said that his failure to comply was “not at
all intended to show disrespect to the orders of the Honorable Tribunal.”17

Atty. Baterina also denied the allegation of bad faith and negligence in handling the Tejano case. He explained that the
reason he could not attend to the case was that in 2002, after the initial presentation of the plaintiffs’ case, he was
suspended by the Court from the practice of law for two years.18 He alleged that this fact was made known to Tejano’s
mother and sister. However, the trial court did not order plaintiffs to secure the services of another lawyer. On the contrary,
it proceeded to hear the case, and plaintiffs were not represented by a lawyer until the termination of the case.19 Atty.
Baterina instead points to the “displayed bias” and “undue and conflict of interest”20 of Judge Arquelada as the culprit in
Tejano’s predicament.

The Court, in its 19 July 2010 Resolution, found Atty. Baterina’s explanation “not satisfactory” and admonished him “to be
more heedful of the Court’s directives in order to avoid delay in the disposition of [the] case.” The Court also referred the
case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

IBP Investigation, Report and Recommendation

After the proceedings, the IBP’s Commission on Bar Discipline promulgated its Report and Recommendation,21 part of which
reads:chan roblesv irtuallaw lib rary

First, it appears that respondent’s failure to appear in representation of his clients in the said civil case before the RTC was
due to his two-year suspension from the practice of law in 2001. While this is a justified reason for his non-appearance,
respondent, however, manifestly failed to properly inform the RTC of this fact. That way, the RTC would have, in the
meantime, ordered plaintiffs to seek the services of another lawyer. Respondent’s contention that the fact of his suspension
was nonetheless circularized to all courts of the Philippines including the RTC is unavailing. Still, respondent should have
exerted prudence in properly informing the RTC of his suspension in order to protect the interests of his clients.

Moreover, while he relayed such fact of suspension to his clients, there is no showing that he explained the consequences to
them, or that he advised them to seek another counsel’s assistance in the meantime. Clearly therefore, respondent’s inaction
falls short of the diligence required of him as a lawyer.

Second, it must be recalled that the RTC in the said case required the plaintiffs therein to submit their formal offer of
evidence. However, respondent did not bother to do so, in total disregard of the RTC’s Order dated 8 November 2004.
Respondent’s bare excuse that he remembers making an oral offer thereof deserves no merit because the records of this
case clearly reveal the contrary. Because of the said inaction of respondent, his clients’ case was dismissed by the RTC.

xxxx

From the foregoing, it is clear that respondent’s acts constitute sufficient ground for disciplinary action against him. His gross
negligence under the circumstances cannot be countenanced. It is, therefore, respectfully recommended that respondent be
suspended from the practice of law for two (2) years, and be fined in the amount of Fifty Thousand Pesos (P50,000.00),
considering that this is his second disciplinary action. x x x.22
On 20 March 2013, the IBP Board of Governors adopted the following resolution:
RESOLUTION NO. XX-2013-237
Adm. Case No. 8235
Joselito F. Tejano vs.
Atty. Benjamin F. Baterina

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution as Annex
“A”, and finding the recommendation fully supported by the evidence on record and the applicable laws and rules and
considering that Respondent is guilty of gross negligence, Atty. Benjamin F. Baterina is hereby SUSPENDED from the practice
of law for two (2) years. However, the Fine of Fifty Thousand Pesos imposed on respondent is herebydeleted.23
The Court’s Ruling

The Court adopts the IBP’s report and recommendation, with modification as to the penalty.

The Code of Professional Responsibility governing the conduct of lawyers states: chanroblesv irt uallawl ibra ry

CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

xxxx

RULE 18.03 – A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall
render him liable.

RULE 18.04 – A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to
the client’s request for information.
Lawyers have a “fourfold duty to society, the legal profession, the courts and their clients,” and must act “in accordance with
the values and norms of the legal profession as embodied in the Code of Professional Responsibility.”24
 6

When a lawyer agrees to take up a client’s cause, he makes a commitment to exercise due diligence in protecting the latter’s
rights. Once a lawyer’s services are engaged, “he is duty bound to serve his client with competence, and to attend to his
client’s cause with diligence, care and devotion regardless of whether he accepts it for a fee or for free. He owes fidelity to
such cause and must always be mindful of the trust and confidence reposed on him.”25 A lawyer’s acceptance to take up a
case “impliedly stipulates [that he will] carry it to its termination, that is, until the case becomes final and executory.”26

Atty. Baterina’s duty to his clients did not automatically cease with his suspension. At the very least, such suspension gave
him a concomitant responsibility to inform his clients that he would be unable to attend to their case and advise them to
retain another counsel.

A lawyer – even one suspended from practicing the profession – owes it to his client to not “sit idly by and leave the rights of
his client in a state of uncertainty.”27 The client “should never be left groping in the dark” and instead must be “adequately
and fully informed about the developments in his case.”28

Atty. Baterina practically abandoned this duty when he allowed the proceedings to run its course without any effort to
safeguard his clients’ welfare in the meantime. His failure to file the required pleadings on his clients’ behalf constitutes gross
negligence in violation of the Code of Professional Responsibility29 and renders him subject to disciplinary action.30 The
penalties for a lawyer’s failure to file the required brief or pleading range from warning, reprimand, fine, suspension, or in
grave cases, disbarment.31

Further, Atty. Baterina’s reckless disregard for orders and directives of the courts is unbecoming of a member of the Bar. His
conduct has shown that he has little respect for rules, court processes, and even for the Court’s disciplinary authority. Not
only did he fail to follow the trial court’s orders in his clients’ case, he even disregarded court orders in his own disciplinary
proceedings.

Considering Atty. Baterina’s medical condition at that time, a simple explanation to the Court would have sufficed. Instead,
however, he simply let the orders go unheeded, neglecting his duty to the Court.

Lawyers, as this Court has previously emphasized, “are particularly called upon to obey court orders and processes and are
expected to stand foremost in complying with court directives being themselves officers of the court.”32 As such, Atty.
Baterina should “know that a resolution of this Court is not a mere request but an order which should be complied with
promptly and completely.”33

Proper Penalty

In Spouses Soriano v. Reyes, the Court held that “the appropriate penalty on an errant lawyer depends on the exercise of
sound judicial discretion based on the surrounding facts.”34

The Court notes that in 2001, Atty. Baterina was also suspended for two years after being found guilty of gross
misconduct.35 In that case, Araceli Sipin-Nabor filed a complaint against Atty. Baterina for failing to file her Answer with
Counterclaim in a case for quieting of title and recovery of possession where she and her siblings were defendants. Because
of such failure, Sipin-Nabor was declared by the trial court to be in default and unable to present her evidence, and which, in
turn, resulted in a decision adverse to her.

Atty. Baterina was also found to have “convert[ed] the money of his client to his own personal use without her consent” and
“deceiv[ed] the complainant into giving him the amount of P2,000.00 purportedly to be used for filing an answer with
counterclaim,” which he never did.

The Court likewise noted in that case Atty. Baterina’s “repeated failure to comply with the resolutions of the Court requiring
him to comment on the complaint [which] indicates a high degree of irresponsibility tantamount to willful disobedience to the
lawful orders of the Supreme Court.”36

These two disciplinary cases against Atty. Baterina show a pattern of neglecting his duty to his clients, as well as a
propensity for disrespecting the authority of the courts. Such incorrigible behavior is unacceptable and will not be tolerated
among the members of the Bar.

For this reason, the Court deems it proper to impose on Atty. Baterina a longer suspension period of five (5) years.

WHEREFORE, Atty. Benjamin F. Baterina is found GUILTY of gross negligence. He is SUSPENDEDfrom the practice of law
for five (5) years. He is also STERNLY WARNED that a repetition of the same or a similar offense will be dealt with more
severely.

This decision shall take effect immediately and copies thereof furnished the Office of the Bar Confidant, to be appended to
respondent’s personal record, and the Integrated Bar of the Philippines.

The Office of the Court Administrator is directed to circulate copies of this decision to all courts.

SO ORDERED.
 7

Sereno, (Chief Justice), on leave.

Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe,
Leonen, and Jardeleza, JJ., concur.
Carpio, J., Acting Chief Justice per Special Order No. 1914 dated 27 January 2015.
Brion, J., on official leave.

EN BANC

A.M. No. 09-6-1-SC, January 21, 2015

RE: VIOLATION OF RULES ON NOTARIAL PRACTICE

DECISION

MENDOZA, J.:

This case stemmed from three (3) letter-complaints for Violation of Rules on Notarial Practice endorsed to the Office of the
Bar Confidant (OBC) for appropriate action. The first letter-complaint,1dated March 2, 2009, was filed by the commissioned
notaries public within and for the jurisdiction of Lingayen, Pangasinan, namely, Atty. Butch Cardinal Torio, Atty. Nepthalie
Pasiliao, Atty. Dominique Evangelista, and Atty. Elizabeth C. Tugade (complainants) before the Executive Judge of the
Regional Trial Court, Lingayen, Pangasinan (RTC-Lingayen) against Atty. Juan C. Siapno, Jr. (Atty. Siapno) for notarizing
documents without a commission.

In their letter, complainants alleged that Atty. Siapno was maintaining a notarial office along Alvear Street East, Lingayen,
Pangasinan, and was performing notarial acts and practices in Lingayen, Natividad and Dagupan City without the requisite
notarial commission. They asserted that Atty. Siapno was never commissioned as Notary Public for and within the jurisdiction
of Lingayen, Natividad and Dagupan City. Instead, he applied and was commissioned to perform notarial functions by
Executive Judge Anthony Sison of the RTC, San Carlos City, Pangasinan from March 22, 2007 to December 31, 2008. His
notarial commission, however, was never renewed upon expiration. Complainants presented evidence supporting their
allegations such as the pictures of Atty. Siapno’s law office in Lingayen, Pangasinan; and documents to prove that Atty.
Siapno performed acts of notarization in Lingayen, Natividad and Dagupan City, to wit: (1) Addendum to Loan and Mortgage
Agreement2 showing that the Promissory Note was notarized before Atty. Siapno in Lingayen, Pangasinan in 2007; (2) Deed
of Absolute Sale,3 dated January 24, 2008, notarized in Natividad, Pangasinan; (3) Joint Affidavit of Two Disinterested
Persons Re: Given Name and Date of Birth,4 dated January 6, 2009, notarized in Dagupan City; and (4) Acknowledgement of
Debt,5 dated January 24, 2008, notarized in Dagupan City.

Complainants also averred that Atty. Siapno had delegated his notarial authority to his secretaries, Mina Bautista (Bautista)
and Mary Ann Arenas (Arenas), who wrote legal instruments and signed the documents on his behalf.

On March 17, 2009, the RTC-Lingayen forwarded the said letter-complaint to the Office of the Court Administrator
(OCA)6 which, in turn, indorsed the same to the OBC.

The second letter-complaint7 was filed by Audy B. Espelita (Espelita) against Atty. Pedro L. Santos (Atty. Santos). It alleged
that in 2008, Espelita lost his driver’s license and he executed an affidavit of loss which was notarized by Atty. Santos. The
said affidavit, however, was denied for authentication when presented before the Notarial Section in Manila because Atty.
Santos was not commissioned to perform notarial commission within the City of Manila.

The third letter-complaint8 came from a concerned citizen reporting that a certain Atty. Evelyn who was holding office at
Room 402 Leyba Bldg., 381 Dasmariñas Street, Sta. Cruz, Manila, had been notarizing and signing documents for and on
behalf of several lawyers.

In its Resolution,9 dated June 9, 2009, the Court directed the Executive Judge of the RTC-Lingayen to conduct a formal
investigation on the complaint against Atty. Siapno and Executive Judge Reynaldo G. Ros (Judge Ros) of the RTC-Manila to
conduct a formal investigation on the alleged violation of the Notarial Law by Atty. Santos, and the illegal activities of a
certain Atty. Evelyn, and thereafter, to submit a report and recommendation thereon.

Re: Complaint against Atty. Siapno

With regard to the complaint against Atty. Siapno, the Executive Judge conducted a hearing wherein the complainants
affirmed the allegations in their letter-complaint. For his part, Atty. Siapno denied the accusations and averred that the law
office in Lingayen, Pangasinan, was not his and that Bautista and Arenas were not his secretaries.10

In her Report and Recommendation,11 the Executive Judge found that Atty. Siapno was issued a notarial commission within
the jurisdiction of Lingayen, Pangasinan, from January 20, 2003 to December 31, 2004 and February 8, 2005 to December 3,
2006. His commission, however, was cancelled on June 8, 2006 and he was not issued another commission thereafter. The
Executive Judge found Atty. Siapno to have violated the 2004 Rules on Notarial Commission when he performed notarial
 8

functions without commission and recommended that he be fined in the amount of Fifty Thousand Pesos (P50,000.00).

The Court agrees with the findings of the Executive Judge but not to the recommended penalty.

A review of the records and evidence presented by complainants shows that Atty. Siapno indeed maintained a law office in
Lingayen, Pangasinan, just beside the law office of one of the complainants, Atty. Elizabeth Tugade. It was also proven that
Atty. Siapno notarized several instruments with an expired notarial commission outside the territorial jurisdiction of the
commissioning court. Section 11, Rule III of the 2004 Rules on Notarial Practice provides that: chanro blesvi rt uallawli bra ry

Jurisdiction and Term – A person commissioned as notary public may perform notarial acts in any place within the territorial
jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year in which
the commissioning is made, unless earlier revoked or the notary public has resigned under these Rules and the Rules of
Court.
Under the rule, only persons who are commissioned as notary public may perform notarial acts within the territorial
jurisdiction of the court which granted the commission. Clearly, Atty. Siapno could not perform notarial functions in Lingayen,
Natividad and Dagupan City of the Province of Pangasinan since he was not commissioned in the said places to perform such
act.

Time and again, this Court has stressed that notarization is not an empty, meaningless and routine act. It is invested with
substantive public interest that only those who are qualified or authorized may act as notaries public.12 It must be
emphasized that the act of notarization by a notary public converts a private document into a public document making that
document admissible in evidence without further proof of authenticity. A notarial document is by law entitled to full faith and
credit upon its face, and for this reason, notaries public must observe with utmost care the basic requirements in the
performance of their duties.

By performing notarial acts without the necessary commission from the court, Atty. Siapno violated not only his oath to obey
the laws particularly the Rules on Notarial Practice but also Canons 1 and 7 of the Code of Professional Responsibility which
proscribes all lawyers from engaging in unlawful, dishonest, immoral or deceitful conduct and directs them to uphold the
integrity and dignity of the legal profession, at all times.13

In a plethora of cases, the Court has subjected lawyers to disciplinary action for notarizing documents outside their territorial
jurisdiction or with an expired commission. In the case of Nunga v. Viray,14 a lawyer was suspended by the Court for three
(3) years for notarizing an instrument without a commission. In Zoreta v. Simpliciano,15 the respondent was likewise
suspended from the practice of law for a period of two (2) years and was permanently barred from being commissioned as a
notary public for notarizing several documents after the expiration of his commission. In the more recent case
of Laquindanum v. Quintana,16 the Court suspended a lawyer for six (6) months and was disqualified from being
commissioned as notary public for a period of two (2) years because he notarized documents outside the area of his
commission, and with an expired commission.

Considering that Atty. Siapno has been proven to have performed notarial work in Ligayen, Natividad and Dagupan City in
the province of Pangasinan without the requisite commission, the Court finds the recommended penalty insufficient. Instead,
Atty. Siapno must be barred from being commissioned as notary public permanently and suspended from the practice of law
for a period of two (2) years.

Re: Complaints against Atty. Santos and Atty. Evelyn

In a letter,17 dated July 29, 2013, Judge Ros informed the Court that he could not have complied with the June 9, 2009 and
August 4, 2009 orders of the Court because he was no longer the Executive Judge of the RTC-Manila at that time. To date,
no formal investigation has been conducted on the alleged violation of Atty. Santos and the reported illegal activities of a
certain Atty. Evelyn.

With respect to the complaints against Atty. Santos and a certain Atty. Evelyn, the Clerk of Court is ordered to RE-DOCKET
the same as separate administrative cases.

The incumbent Executive Judge of the RTC-Manila, whether permanent or in acting capacity, is ordered to conduct a formal
investigation on the matter and to submit his Report and Recommendation within sixty (60) days from receipt of copy of this
decision.

WHEREFORE, respondent Atty. Juan C. Siapno, Jr. is hereby SUSPENDED from the practice of law for two (2) years
and BARRED PERMANENTLY from being commissioned as Notary Public, effective upon his receipt of a copy of this
decision.

Let copies of this decision be furnished all the courts of the land through the Office of the Court Administrator, the Integrated
Bar of the Philippines, the Office of the Bar Confidant, and be recorded in the personal files of the respondent.

With respect to the complaints against Atty. Pedro L. Santos and a certain Atty. Evelyn, the Clerk of Court is ordered to RE-
DOCKET them as separate administrative cases. The Executive Judge of the Regional Trial Court, Manila, is ordered to
conduct a formal investigation on the matter and to submit his Report and Recommendation within sixty (60) days from
receipt of a copy of this decision.
 9

SO ORDERED.

Sereno, (Chief Justice), Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez,
Reyes, Perlas-Bernabe, Leonen, and Jardeleza, JJ., concur.
Brion, J., on official leave.

FIRST DIVISION

G.R. No. 210634, January 14, 2015

NORIEL R. MONTIERRO, Petitioner, v. RICKMERS MARINE AGENCY PHILS., INC., Respondent.

DECISION

SERENO,C.J.:

Before this Court is a Petition for Review on certiorari1 seeking to nullify the Decision dated 8 August 20132 and the
Resolution dated 6 January 20143 issued by the Court of Appeals (CA) in CA-G.R. SP No. 126618.

Facts

On 26 February 2010, respondent Rickmers Marine Agency Phils., Inc. (Rickmers), on behalf of its foreign principal, Global
Management Limited, hired petitioner Noriel Montierro as Ordinary Seaman with a basic monthly salary of USD420. He was
assigned to work on board the vessel M/V CSAV Maresias.4

Sometime in May 2010, while on board the vessel and going down from a crane ladder, Montierro lost his balance and
twisted his legs, thus injuring his right knee.5 Thereafter, on 31 May 2010, he was examined in Livorno, Spain by Dr. Roberto
Santini, who recommended surgical treatment at home and found him unfit for duty.6 Thus, on 2 June 2010, Montierro was
repatriated to the Philippines for further medical treatment.7

On 4 June 2010, two days after his repatriation, Montierro reported to Dr. Natalio G. Alegre II, the company-designated
physician. He underwent a magnetic resonance imaging (MRI) scan of his right knee. The MRI showed he had “meniscal tear,
posterior horn of the medical meniscus, and minimal joint fluid.” Upon the recommendation of Dr. Alegre, Montiero
underwent arthroscopic partial medical meniscectomy of his right knee on 29 July 2010 at St. Luke’s Medical Center.8

On 20 August 2010, Montierro had his second check-up with Dr. Alegre, who noted that the former’s surgical wounds had
healed, but that there was still pain and limitation of motion on his right knee on gaits and squats. The doctor advised him to
undergo rehabilitation medicine and continue physical therapy.9

On 3 September 2010, the 91st day of Montierro’s treatment, Dr. Alegre issued an interim disability grade of 10 for
“stretching leg of ligaments of a knee resulting in instability of the joint.” He advised Montierro to continue with the latter’s
physical therapy and oral medications.10

Montierro further underwent sessions of treatment and evaluation between 17 September 2010 and 28 December 2010.11

On 3 January 2011, the 213th day of Montierro’s treatment, Dr. Alegre issued a final assessment as follows: chanroblesv irt uallawl ibra ry

Subjective Complaints:
Cannot flex the knee to 100%
No swelling noted
Limited range of motion of right knee

Assessment:
Medial Meniscal Tear, Knee Right
S/P Arthroscopic Meniscectomy

Plan:
Disability Grade of 10 is given
based on section 32 of the POEA
contract. Lower Extremities #20,
stretching leg of the ligaments of
a knee resulting in instability
of the joint. x x x12
Meanwhile, on 3 December 2010, one month before Dr. Alegre’s issuance of the final disability grading, Montierro filed with
the labor arbiter a complaint for recovery of permanent disability compensation in the amount of USD89,000, USD2,100 as
sickness allowance, plus moral and exemplary damages and attorney’s fees.13 To support his claim for total permanent
 10

disability benefits, Montierro relied on a Medical Certificate dated 3 December 2010 issued by his physician of choice, Dr.
Manuel C. Jacinto, recommending total permanent disability grading, and explaining the former’s medical condition as
follows:cha nro blesvi rtua llawli bra ry

Patient’s condition started at work when he accidentally fell from a ladder causing his (R) knee to be twisted. Patient’s
symptoms of pain and limited flexion of (R) knee persisted, thus he was assessed to be physically unfit to go back to work.14
LA AND NLRC RULINGS

In a Decision dated 29 June 2011, the LA held that Montierro was entitled to permanent total disability benefits under the
Philippine Overseas Employment Agency Standard Employment Contract (POEA-SEC). The LA relied on the 120-day rule
introduced by the 2005 case Crystal Shipping, Inc. v. Natividad.15 The rule equates the inability of the seafarer to perform
work for more than 120 days to permanent total disability, which entitles a seafarer to full disability benefits.16 The LA also
awarded one-month sickness allowance and attorney’s fees.

On 26 October 2011, Rickmers elevated the case to the National Labor Relations Commission (NLRC),17 which affirmed the
Decision of the LA on 5 June 2012. Rickmers filed a Motion for Reconsideration, which the NLRC denied.18 This denial
prompted Rickmers to file a Rule 65 Petition with the CA.19

CA Ruling

On 8 August 2013, the CA rendered a Decision partially granting the Petition. It affirmed the NLRC ruling insofar as the latter
awarded Montierro one-month sickness allowance.20 The CA held, however, that he was entitled merely to “Grade 10”
permanent partial disability benefits.21 It also dropped the award of attorney’s fees granted to him earlier.22

In its Decision downgrading the claim of Montierro to “Grade 10” permanent partial disability benefits only, the CA ruled that
his disability could not be deemed total and permanent under the 240-day rule established by the 2008 case Vergara v.
Hammonia Maritime Services, Inc.23Vergara extends the period to 240 days when, within the first 120-day period (reckoned
from the first day of treatment), a final assessment cannot be made because the seafarer requires further medical attention,
provided a declaration has been made to this effect.24

The CA pointed out that only 215 days had lapsed from the time of Montierro’s medical repatriation on 2 June 2010 until 3
January 2011, when the company-designated physician issued a “Grade 10” final disability assessment. It justified the
extension of the period to 240 days on the ground that Dr. Alegre issued an interim disability grade of “10” on 3 September
2010, the 91st day of Montierro’s treatment, which was within the initial 120-day period.

Further, the CA upheld the jurisprudential rule that, in case of conflict, it is the recommendation issued by the company-
designated physician that prevails over the recommendation of the claimant’s physician of choice.

On the deletion of the award of attorney’s fees, the CA reasoned that there was no sufficient showing of bad faith in
Rickmer’s persistence in the case other than an erroneous conviction of the righteousness of its cause based on the
recommendation of the company-designated physician.

RULE 45 PETITION

Hence, Montierro filed a Rule 45 Petition with this Court. He contends in the main that he is entitled to full disability benefits.
To support this thesis, he raises two arguments.

First, Montierro insists that the 120-day rule laid down in the 2005 case Crystal Shipping, and not the 240-day rule
introduced by the 2008 case Vergara, applies to this case. Montierro cites the more recent cases Wallem Maritime Services,
Inc., v. Tanawan,25Maersk Filipinas Crewing, Inc. v. Mesina,26and Valenzona v. Fair Shipping Corp.,27 all of which applied the
Crystal Shipping doctrine despite the fact that they were promulgated after Vergara.

Second, he claims that the medical assessment of his personal physician, to the effect that the former’s disability is
permanent and total, should be accorded more weight than that issued by the company-designated physician.28

Montierro also raises in his petition the issue of attorney’s fees, which he believes he is entitled to as he was compelled to
litigate.

ISSUES

The issues to be resolved are the following: (1) whether it is the 120-day rule or the 240-day rule that should apply to this
case; (2) whether it is the opinion of the company doctor or of the personal doctor of the seafarer that should prevail; and
(3) whether Montierro is entitled to attorney’s fees.

OUR RULING

120 day rule vs. 240 day rule

The Court has already delineated the effectivity of the Crystal Shipping and Vergara rulings in the 2013 case Kestrel Shipping
Co. Inc. v. Munar,29 by explaining as follows: chan roble svirtual lawlib rary
 11

Nonetheless, Vergara was promulgated on October 6, 2008, or more than two (2) years from the time Munar filed his
complaint and observance of the principle of prospectivity dictates that Vergara should not operate to strip Munar of his
cause of action for total and permanent disability that had already accrued as a result of his continued inability to perform his
customary work and the failure of the company-designated physician to issue a final assessment.
Thus, based on Kestrel, if the maritime compensation complaint was filed prior to 6 October 2008, the 120-day
rule applies; if, on the other hand, the complaint was filed from 6 October 2008 onwards, the 240-day rule
applies.

In this case, Montierro filed his Complaint on 3 December 2010, which was after the promulgation ofVergara on 6 October
2008. Hence, it is the 240-day rule that applies to this case, and not the 120-day rule.

Montierro cannot rely on the cases that he cited, a survey of which reveals that all of them involved Complaints
filed before 6 October 2008. Wallem Maritime Services30 involved a Complaint for disability benefits filed on 26 November
1998. In Maersk Filipinas Crewing,31 while the Decision did not mention the date the Complaint was filed, the LA’s Decision
was rendered on 14 April 2008. Lastly, inValenzona,32 the Complaint was filed sometime before 31 January 2003. It thus
comes as no surprise that the cases Montierro banks on followed the 120-day rule.

Applying the 240-day rule to this case, we arrive at the same conclusion reached by the CA. Montierro’s treatment by the
company doctor began on 4 June 2010. It ended on 3 January 2011, when the company doctor issued a “Grade 10” final
disability assessment. Counting the days from 4 June 2010 to 3 January 2011, the assessment by the company doctor was
made on the 213th day, well within the 240-day period. The extension of the period to 240 days is justified by the fact that
Dr. Alegre issued an interim disability grade of “10” on 3 September 2010, the 91st day of Montierro’s treatment, which was
within the 120-day period.

Thus, the CA correctly ruled that Montierro’s condition cannot be deemed a permanent total disability.

Company doctor vs. personal doctor

Vergara also definitively settled the question how a conflict between two disability assessments — the assessment of the
company-designated physician and that of the seafarer’s chosen physician — should be resolved.33 In that case, the Court
held that there is a procedure to be followed regarding the determination of liability for work-related death, illness or injury
in the case of overseas Filipino seafarers. The procedure is spelled out in the 2000 POEA-SEC, the execution of which is
a sine qua non requirement in deployments for overseas work.34

The procedure is as follows: when a seafarer sustains a work-related illness or injury while on board the vessel, his fitness
for work shall be determined by the company-designated physician. The physician has 120 days, or 240 days, if validly
extended, to make the assessment. If the physician appointed by the seafarer disagrees with the assessment of the
company-designated physician, the opinion of a third doctor may be agreed jointly between the employer and the seafarer,
whose decision shall be final and binding on them.35

Vergara ruled that the procedure in the 2000 POEA-SEC must be strictly followed; otherwise, if not availed of or followed
strictly by the seafarer, the assessment of the company-designated physician stands.36

In this case, Montierro and Rickmers are covered by the provisions of the same 2000 POEA-SEC. It is the law between them.
Hence, they are bound by the mechanism for determining liability for a disability benefits claim. Montierro,
however, preempted the procedure when he filed on 3 December 2010 a Complaint for permanent disability benefits based
on his chosen physician’s assessment, which was made one month before the company-designated doctor issued the final
disability grading on 3 January 2011, the 213th day of Montierro’s treatment.

Hence, for failure of Montierro to observe the procedure provided by the POEA-SEC, the assessment of the company doctor
should prevail.

Moreover, Rickmers exerted real efforts to provide Montierro with medical assistance. The company-designated physician
monitored Montierro’s case from beginning to end. Upon the former’s recommendation, Montierro even underwent
arthroscopic partial medical meniscectomy of his right knee. The company-doctor likewise gave him physical therapy. Lastly,
he issued his certification on the basis of the medical records available and the results obtained.

Further, a juxtaposition of the two conflicting assessments reveals that the certification of Montierro’s doctor of choice pales
in comparison with that of the company-designated physician. Fitting is the following discussion of the CA: chanroblesvi rt uallawl ibra ry

To contest the company-designated physician's disability assessment of “Grade 10”, Montierro relied on the total permanent
disability assessment of his physician of choice. In contrast to his physician's assessment embodied in a one-page
medical certificate dated December 3, 2010 which did not even indicate any test or procedure that may have
been performed or conducted when he examined and determined Montierro's disability, however, the company-
designated physician's finding is entitled to greater weight and respect because it was arrived at after Montierro was
regularly examined in coordination with other doctors, prescribed with medications, and given physical therapy and
rehabilitation sessions from June 4, 2010 until January 3, 2011. In the face of these well-defined facts, We find it only
reasonable, if not logical, to give credence to the company physician's finding rather than that of Montierro's physician of
choice.
 12

Having extensive personal knowledge of the seafarer's actual medical condition, and having closely, meticulously and
regularly monitored and treated his injury for an extended period, the company-designated physician is certainly in a better
position to give a more accurate evaluation of Montierro's health condition. The disability grading given by him should
therefore be given more weight than the assessment of Montierro's physician of choice.37
Attorney’s fees

On the premise that there was no showing of bad faith on the part of the employer, forcing Montierro to litigate, the CA
dropped the award of attorney’s fees. We arrive at the same conclusion by using another route.

Indeed, the general rule is that attorney's fees may not be awarded where there is no sufficient showing of bad faith in a
party's persistence in a case other than an erroneous conviction of the righteousness of one’s cause.38 The rule, however,
takes a turn when it comes to labor cases.

The established rule in labor law is that the withholding of wages need not be coupled with malice or bad faith to warrant the
grant of attorney’s fees under Article 111 of the Labor Code.39 All that is required is that lawful wages be not paid without
justification, thus compelling the employee to litigate.40

The CA thus relied on a wrong consideration in resolving the issue of attorney’s fees. Be that as it may, Montierro is not
entitled to attorney’s fees, even if we apply the correct rule to this case.

Montierro, as earlier mentioned, jumped the gun when he filed his complaint one month before the company-designated
doctor issued the final disability grading. Hence, there was no unlawful withholding of benefits to speak of. Precisely because
Montierro was still under treatment and awaiting the final assessment of the company-designated physician, the former’s act
was premature.

WHEREFORE, premises considered, the Petition is DENIED. The CA Decision dated 8 August 2013 and Resolution dated 6
January 2014 are AFFIRMED in toto.

SO ORDERED.

Leonardo-De Castro, Bersamin, Perez, and Perlas-Bernabe, JJ., concur.

THIRD DIVISION

G.R. No. 194499, January 14, 2015

MANUEL R. PORTUGUEZ, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VILLARAMA, JR., J.:

Before this Court is a petition for review on certiorari1 seeking the reversal of the Decision2 dated August 12, 2010 and the
Resolution3 dated November 9, 2010 of the Court of Appeals (CA) in CA-G.R. CR No. 32096. The CA affirmed in toto the
Decision4 dated August 29, 2008 of the Regional Trial Court (RTC) of Pasig City, Branch 70, finding petitioner Manuel R.
Portuguez (petitioner) guilty beyond reasonable doubt of violation of Section 11, Article II of Republic Act (R.A.) No. 9165.5

The case stemmed from the Information6 dated April 21, 2003, charging petitioner of the crime of violation of Section 11,
Article II of R.A. No. 9165 for illegal possession of five centigrams (0.05 gram) of methamphetamine hydrochloride or shabu,
the accusatory portion of which reads: chan roble svirtuallaw lib rary

On or about April 16, 2003, in Pasig City and within the jurisdiction of this Honorable Court, the said accused, not being
lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and feloniously have in his
possession and under his custody and control one (1) heat-sealed transparent plastic sachet containing five centigrams (0.05
gram) of white crystalline substance, which was found positive to the test for methamphetamine hydrochloride (shabu), a
dangerous drug, in violation of the said law.

Contrary to law.
Upon arraignment, petitioner pleaded not guilty to the charge.7 Thereafter, trial on the merits ensued.

During the pre-trial conference, the prosecution and the defense stipulated, among others, on the due execution and
genuineness of the Request for Laboratory Examination8 dated April 16, 2003 and Chemistry Report No. D-687-03E9 issued
by the Forensic Chemist, Police Senior Inspector Annalee R. Forro (P/Sr. Insp. Forro). The parties also stipulated on the
existence of the plastic sachet including its contents which had been the subject of the said Request except for its source or
origin.10 After entering into the aforementioned stipulations, the testimony of P/Sr. Insp. Forro was dispensed with.11
 13

Version of the Prosecution

The prosecution, through the testimonies of Police Officer 1 (PO1) Aldrin R. Mariano (PO1 Mariano) and PO1 Janet Sabo (PO1
Sabo), established the following:

On April 16, 2003, a confidential asset went to the Pasig City Police Station, City Hall Detachment, to report the illegal drug
activities of a certain alias Bobot at Balmores Street, Barangay Kapasigan, Pasig City. Upon receipt of the information, the
chief of said station formed a buy-bust team wherein PO1 Mariano was designated as the poseur-buyer. After coordinating
with the Philippine Drug Enforcement Agency (PDEA) and preparing the buy-bust money, the team and its asset proceeded
to Balmores Street. Arriving thereat, the asset pointed to Bobot as the target person. PO1 Mariano saw Bobot and petitioner
transacting illegal drugs. When PO1 Mariano and the asset met petitioner and Bobot on the road, the asset asked petitioner,
“P’re, meron pa ba?” At this point, petitioner looked at PO1 Mariano and thereafter, attempted to run. However, PO1 Mariano
was able to take hold of him. Then, the other police operatives arrived. Petitioner was asked to open his hand. Upon seeing
the suspected shabu on his hand, they arrested petitioner, informed him of his constitutional rights and boarded him on their
service vehicle. Before leaving the area, PO1 Mariano placed the markings “EXH A ARM 04-16-03” on the seized shabu.
Thereafter, the police operatives brought petitioner to the Rizal Medical Center for physical examination before they
proceeded to the police station for investigation.12

On cross-examination, PO1 Mariano testified that at a distance of seven to eight meters, he saw Bobot handing something to
petitioner. PO1 Mariano said that the intended buy-bust operation failed because of the commotion petitioner caused when
he tried to run away. PO1 Mariano also testified that he got hold of petitioner because he was nearer to him. He claimed that
the other police operatives ran after Bobot but they failed to arrest him.13

In addition, prosecution witness PO1 Sabo testified that on the same day of April 16, 2003, she delivered the
seized shabu and the Request for Laboratory Examination14 to the Philippine National Police (PNP) Crime Laboratory for
chemical analysis.15 Chemistry Report No. D-687-03E16 prepared by P/Sr. Insp. Forro revealed the following results: chanro blesv irt uallawl ibra ry

SPECIMEN SUBMITTED:

A – One (1) heat-sealed transparent plastic sachet with markings “EXH A ARM 04/16/03” containing 0.05 gram of white
crystalline substance.

xxxx

FINDINGS:

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for Methamphetamine
Hydrochloride, a dangerous drug.

xxxx

CONCLUSION:

Specimen A contains Methamphetamine Hydrochloride, a dangerous drug.

Version of the Defense

Petitioner testified that at the time of his arrest, he was fixing the katam and was eating infront of his house with his friends
Jonjon Reynoso, Jonjing Reynoso and Junior Da Silva. Two persons from the Pasig Police headquarters arrived and spoke to
his sister who used to work at the said headquarters. When his sister called him, he was mistaken to be Bobot and thus, they
arrested him. Petitioner denied that he was in possession of the shabu allegedly seized from him. He claimed that he saw the
said shabu for the first time at the headquarters. Petitioner also claimed that at the time he was arrested on April 16, 2003,
Bobot was actually detained at a jail in Bicutan.17

On cross-examination, petitioner admitted that his sister was a former errand girl at the police headquarters. He divulged
that at the time of his arrest, while he was then repairing a “katam,” two male persons whom petitioner identified as Efren
and Dennis approached his sister. Efren told petitioner that the target person of the police officers was Bobot. Petitioner
claimed that PO1 Mariano and PO1 Sabo arrived a few minutes thereafter and he was arrested in the presence of his sister,
Efren and Dennis. Petitioner also claimed that the target person Bobot is his younger brother, Jovito Portuguez. He admitted
that Bobot was admitted to a rehabilitation center in Bicutan since he used to sell illegal drugs. He maintained that the police
officers already had with them the sachet of shabuwhen they arrested him.18

Dawn Portuguez, daughter of petitioner, testified that in the afternoon of April 16, 2003, two male persons arrived at the
house of her aunt and asked for her father. She testified that petitioner was then sleeping in the nearby house of his friend,
Junior. She then called for her father and, upon their return, four persons, one of whom was in police uniform, approached
them and arrested petitioner. She informed her mother of what happened and the latter proceeded to the headquarters
where petitioner was brought.19

Last to testify for the defense was Maritess Portuguez, petitioner’s sister. She testified that her brother was then sleeping in
a nearby house when apprehended by the police officers. She averred that after her brother was arrested, they agreed not to
 14

file a complaint against the said police officers. On cross-examination, she said that she heard her niece shouting. Sensing a
commotion, she hurried infront of their house and there she saw the police officers accosting her brother.20

The RTC’s Ruling

On August 29, 2008, the RTC rendered a Decision21 finding petitioner guilty as charged. The RTC invoked the principle of the
presumption of regularity in the performance of official duty, gave credence to the testimony of PO1 Mariano, and rejected
the self-serving testimony of petitioner and the obviously manufactured testimonies of his witnesses. The fallo of the RTC
Decision reads: chan roble svirtual lawlib rary

WHEREFORE, premises considered, accused MANUEL PORTUGUEZ is hereby foundGUILTY beyond reasonable doubt of the
offense of Violation of Section 11, Article II of Republic Act 9165 and is hereby sentenced to Twelve (12) Years and One
(1) Day toTwenty (20) Years and to pay a FINE of Three Hundred Thousand Pesos (P300,000.00).

Pursuant to Section 21 of Republic Act 9165, any authorized representative of the Philippine Drug Enforcement Agency
(PDEA) is hereby ordered to take charge and have custody over the plastic sachet of shabu, object of this case, for proper
disposition.

Costs against the accused.

SO ORDERED.22
The CA’s Ruling

On August 12, 2010, the CA affirmed the decision of the RTC. The CA held that petitioner was deemed to have waived his
right to question the irregularity of his arrest since he failed to move to quash the Information on this ground and instead,
elected to proceed with the trial. The CA also held that petitioner was caught in flagrante delicto when he was arrested by the
police officers as PO1 Mariano saw him buying illegal drugs from Bobot. The CA agreed with the RTC that the police officers
were presumed to have regularly performed their official duties. The CA opined that the integrity of the seized shabu had
been preserved by the concerned police officers.

Petitioner’s Motion for Reconsideration23 was denied by the CA in its Resolution24 dated November 9, 2010. The CA held that
the lack of inventory or photographs taken after petitioner’s apprehension does not render the evidence inadmissible. The CA
stressed that the integrity of the evidence taken from petitioner was duly preserved.

Hence, this petition raising the sole assignment of error that the CA erred in affirming the conviction of petitioner by the RTC.

Petitioner avers that the prosecution failed to establish the identity of the corpus delicti, as well as the regularity of the chain
of custody. He submits that the testimony of PO1 Sabo was insufficient to establish the identity of the shabu seized and the
regularity of the chain of custody. Petitioner opines that the failure of the police officers to observe the proper procedure,
such as the lack of physical inventory and the non-taking of photographs, for the custody of the allegedly confiscated drug
compromised its integrity. Moreover, petitioner posits that the prosecution failed to establish a valid buy-bust operation as
there was no pre-operation report and coordination report filed with the PDEA. Finally, petitioner argues that, assuming that
the alleged shabu was recovered from him, the same is inadmissible in evidence for being a fruit of the poisonous tree.
Petitioner prays that he be acquitted.25

On the other hand, respondent People of the Philippines through the Office of the Solicitor General (OSG) asserts that the
totality of the evidence presented in this case clearly indicates that: (1) the sale of a prohibited drug had taken place; (2)
petitioner was caught in the act of buying the prohibited drug; (3) petitioner was immediately arrested by the police officers
upon consummation of the sale; and (4) the police officers found in petitioner’s possession a prohibited drug, which was later
confirmed through the chemistry examination as shabu. Moreover, the OSG argues that non-compliance with the procedure
laid down in R.A. No. 9165 and its Implementing Rules and Regulations (IRR) does not render void and invalid the seizure of
dangerous drugs, as long as the integrity and evidentiary value of the seized items are properly preserved by the
apprehending officers, as in this case. Lastly, the OSG relies on the CA’s ruling on the legality of petitioner’s arrest and the
admissibility of the confiscated evidence.26

Our Ruling

The petition is bereft of merit.

The essential elements in illegal possession of dangerous drugs are (1) the accused is in possession of an item or object that
is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously
possess the said drug.27

This Court holds that all the aforementioned essential elements in illegal possession of dangerous drugs were proven in this
case.

A close look at the sequence of events narrated by the prosecution witnesses particularly by PO1 Mariano indicates that an
intended buy-bust operation was about to be carried out against Bobot. Said operation was not successful as no sale took
place between the intended poseur-buyer, PO1 Mariano, and Bobot. Bobot was also able to evade arrest.
 15

Nonetheless, PO1 Mariano and the asset chanced upon an ongoing transaction between petitioner and Bobot. It bears
stressing that petitioner was particularly identified by PO1 Mariano as the person who bought the suspected sachet
of shabu from Bobot. When petitioner attempted to run, PO1 Mariano was able to grab him. And when petitioner was asked
to open his hand,28 found in his possession was the same sachet that he bought from Bobot. Through chemical analysis, the
contents of the same sachet were found to be shabu.

The Court gives full faith and credence to the testimonies of the police officers and upholds the presumption of regularity in
the apprehending officers’ performance of official duty. It is a settled rule that in cases involving violations of the Dangerous
Drugs Act, credence is given to prosecution witnesses who are police officers, for they are presumed to have performed their
duties in a regular manner, unless there is evidence to the contrary.29 However, petitioner failed to present clear and
convincing evidence to overturn the presumption that the arresting officers regularly performed their duties. Except for his
bare allegations of denial and frame-up, and that the police officers had mistakenly identified him as Bobot, his younger
brother, nothing supports his claim that the police officers were impelled by improper motives to testify against him.
Needless to stress, the integrity of the evidence is presumed to be preserved, unless there is a showing of bad faith, ill will,
or proof that the evidence has been tampered with.30 On petitioner’s claim that at the time of his arrest, Bobot was actually
confined in a rehabilitation center in Bicutan,31 we note that petitioner failed to fulfill his promise32 to prove it as fact.

Likewise, this Court has invariably viewed with disfavor the defenses of denial and frame-up. Such defenses can easily be
fabricated and are common ploy in prosecutions for the illegal sale and possession of dangerous drugs. In order to prosper,
such defenses must be proved with strong and convincing evidence.33

Moreover, it bears stressing that in weighing the testimonies of the prosecution witnesses vis-à-visthose of the defense, the
RTC gave more credence to the version of the prosecution. This Court finds no reason to disagree. Well-settled is the rule
that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the trial court’s evaluation of
the credibility of witnesses will not be disturbed on appeal.34 The reason for this is that the trial court is in a better position to
decide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying
during the trial. The rule finds an even more stringent application where said findings are sustained by the CA as in this
case.35

Lastly, petitioner claims that there were no inventory and photographs of the prohibited item allegedly seized from him. He
argues that as a result of this failure, there is doubt as to the identity and integrity of the drugs, and there was a break in the
chain of custody of the evidence.

The argument does not hold water.

Section 21 of the IRR of R.A. No. 9165 provides: chan roble svi rtual lawlib rary

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources
of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment.— The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such
items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be
given a copy thereof; Provided, that the physical inventory and photograph shall be conducted at the place where
the search warrant is served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance
with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized
items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures
of and custody over said items[.] (Emphasis supplied)
Based on the foregoing, this Court has held that non-compliance with the above-mentioned requirements is not fatal. Non-
compliance with Section 21 of the IRR does not make the items seized inadmissible. What is imperative is “the preservation
of the integrity and the evidential value of the seized items as the same would be utilized in the determination of the guilt or
innocence of the accused.”36

In this case, the chain of custody was established through the following link: (1) PO1 Mariano marked the seized sachet
subject of the in flagrante delicto arrest with “EXH A ARM 04-16-03” which stands for his full name, Aldrin Reyes
Mariano;37 (2) a request for laboratory examination of the seized item was signed by P/Sr. Insp. Rodrigo E. Villaruel;38 (3)
the request and the marked item seized were personally delivered by PO1 Sabo and received by the PNP Crime Laboratory
on the same day of the arrest on April 16, 2003; (4) Chemistry Report No. D-687-03E39 confirmed that the marked item
seized from petitioner was methamphetamine hydrochloride; and (5) the marked item was duly identified by PO1 Mariano in
court and offered in evidence.

Hence, it is clear that the integrity and the evidentiary value of the seized drugs were preserved. This Court, therefore, finds
no reason to overturn the findings of the RTC that the drugs seized from petitioner were the same ones presented during
trial. Accordingly, we hold that the chain of custody of the illicit drugs seized from petitioner remains unbroken, contrary to
the assertions of petitioner.
 16

In sum, we find no reversible error committed by the RTC and CA in convicting petitioner of illegal possession of drugs. It is
hornbook doctrine that the factual findings of the CA affirming those of the trial court are binding on this Court unless there
is a clear showing that such findings are tainted with arbitrariness, capriciousness or palpable error.40 This case is no
exception to the rule. All told, this Court thus sustains the conviction of petitioner for violation of Section 11, Article II of R.A.
No. 9165.

WHEREFORE, the petition is DENIED. The Decision dated August 12, 2010 and the Resolution dated November 9, 2010 of
the Court of Appeals in CA-G.R. CR No. 32096 are AFFIRMED.

Costs against petitioner.

SO ORDERED.

Velasco, Jr., (Chairperson), Peralta, Reyes, and Leonen,*JJ., concur.

THIRD DIVISION

G.R. No. 187892, January 14, 2015

UNGAY MALOBAGO MINES, INC. Petitioner, v. REPUBLIC OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

Assailed in this petition for review on certiorari is the Decision1 dated January 21, 2009 and the Resolution2 dated May 7,
2009 of the Court of Appeals (CA) in CA-G.R. CV No. 88210.

The antecedent facts are as follows:

On April 16, 2004, petitioner Ungay Malobago Mines, Inc. filed with the Regional Trial Court (RTC) of Legaspi City, a verified
petition3 seeking the reconstitution of Original Certificate of Title (OCT) No. 4784 of the Cadastral Survey of Albay, pursuant
to the provisions of Republic Act (RA) 264 and Presidential Decree (PD) No. 1529.5 The case was docketed as LRA Case No.
RT-2720 and raffled off to Branch 4. In its petition, petitioner alleged: that it is the registered owner of a mining patent
covered by OCT No. 4784 which was issued by then President Diosdado Macapagal on July 20, 1962 and entered in the
Registry of Deeds of the Province of Albay on September 4, 1962; that sometime in April 2004, it requested for a certified
true copy of OCT No. VH-4784 from the Register of Deeds of Albay, but despite a diligent search, the said copy could not be
located by the said office leading one to believe that the same was permanently lost or destroyed; that the property was free
from all liens and encumbrances of any kind whatsoever and there existed no deeds or instruments affecting the same which
had been presented for or pending registration with the Register of Deeds of Albay; and that the owner's duplicate of OCT
No. VH-4784 which would serve as a basis for the reconstitution, was attached thereto.

During the initial hearing, petitioner, through counsel, showed compliance with the jurisdictional requirements. Trial
thereafter ensued. The Republic opposed the petition.

On July 17, 2006, the RTC rendered its decision6 dismissing the petition.

The RTC found that there was no factual and legal basis to warrant the reconstitution of petitioner's alleged lost certificate of
title. It found that while petitioner submitted a purported owner's duplicate of OCT No. VH-4784, the same was not signed by
then Register of Deeds, Ramon Balana, both on the face and the dorsal side thereof; that the owner's duplicate certificate
being an original duplicate, should contain the original signature of the Register of Deeds just like the original certificate
which should have been on file with the Register of Deeds; that even if the said duplicate had the documentary seal of the
office, it was considered a scrap of paper without any probative value since the Register of Deeds as an ex-officio mining
recorder has no signature authenticating said duplicate; and to rule otherwise would make the signature of the Register of
Deeds a useless dispensable ceremony in a Torrens title which would open the floodgates to fraud which would destroy the
registration system. The RTC further ruled that since petitioner is not the owner of the surface land which had already been
titled to Rapu Rapu Minerals, Inc. and petitioner is claiming only the minerals underneath, it is not entitled to the certificate
of title over its mining patent.

Petitioner filed its appeal with the CA. After the parties had filed their respective pleadings, the case was then submitted for
decision.

On January 21, 2009, the CA issued its assailed decision, the dispositive portion of which reads: chan roblesv irt uallawl ibra ry
 17

WHEREFORE, in view of the foregoing, the 17 July 2006 decision of the Regional Trial Court of Legaspi City (Branch 4) in
LRA Case No. RT-2720 dismissing the petition of Ungay Malobago Mines, Inc. for the reconstitution of OCT No. VH-4784
is AFFIRMED.7
In so ruling, the CA found that since petitioner is not the registered owner of the land covered by OCT No. VH-4784 and
citing our earlier ruling in Ungay Malobago Mines, Inc v. Intermediate Appellate Court (IAC)8 where we declared that as a
grantee of a mining patent, petitioner did not become the owner of the land where the minerals are located, hence, it has no
personality to file for the reconstitution of lost or destroyed certificate of title. The CA ruled that petitioner's mining patent
did not qualify as an interest in property as contemplated by RA No. 26 so as to give petitioner the authority under the law to
initiate a petition for the reconstitution of said OCT. The CA affirmed the RTC's findings that the owner's duplicate of OCT No.
VH-4784 presented by petitioner was insufficient to serve as a basis for the reconstitution of the original of said OCT because
of the absence of the signature of the Register of Deeds.

Petitioner filed a motion for reconsideration, which the CA denied in its Resolution dated May 7, 2009.

Petitioner is now before us raising the following issues:chan roble svi rt uallawlib ra ry

WHETHER OR NOT THE COURT OF APPEALS, IN AFFIRMING THE DISMISSAL OF RECONSTITUTION, ERRED IN ITS
APPRECIATION OF THE SUBJECT OF RECONSTITUTION – WHICH IS PETITIONER'S MINING PATENT OR RIGHT TO EXPLORE
AND EXTRACT MINERALS WITHIN THE LAND DESCRIBED IN THE TITLE – THE TITLE ITSELF (OCT) SERVING MERELY AS AN
INSTRUMENT OF REGISTRATION AS THIS WAS THE PROCEDURE FOR REGISTRATION OF MINING PATENTS AT THE TIME.

WHETHER OR NOT THE ABSENCE OF THE SIGNATURE OF THE REGISTER OF DEEDS IN THE ORIGINAL CERTIFICATE OF
TITLE REGISTERING THE MINING PATENT – EVEN IF DUE ONLY TO OBVIOUS INADVERTENCE AND ABSENT ANY FRAUD –
HAS THE EFFECT OF RENDERING THE ENTIRE INSTRUMENT VOID, INCLUDING THE GRANT OF MINING PATENT ITSELF
CONTAINED THEREIN, AS TO PREVENT RECONSTITUTION OF THE SAME.9
Anent the first issue, petitioner claims that the CA erred in categorizing the reconstitution in this case as reconstitution of
ownership of the property itself (surface ownership), when in law and in fact, it is really a reconstitution of evidence of the
grant by the state in favor of petitioner of the right to explore and extract mineral deposits within the area described in the
original certificate of title; that the concept and nature of the right to explore and mine a piece of land (referred to as mining
patent) is separate and distinct from right and title of ownership over the property itself and are not inconsistent to and
exclusive of each other.

The Torrens title is conclusive evidence with respect to the ownership of the land described therein, and other matters which
can be litigated and decided in land registration proceedings.10 When the Torrens Certificate of Title has been lost or
destroyed, RA No. 26 provides for a special procedure for the reconstitution of such title. Sections 5 and 10 of RA No. 26
state:chanrob lesvi rtua llawlib ra ry

Section 5. Petitions for reconstitution from sources enumerated in sections 2(a), 2(b), 3(a), 3(b), and/or 4(a) of this Act may
be filed with the register of deeds concerned by the registered owner, his assigns, or other person having an interest in the
property. The petition shall be accompanied with the necessary sources for reconstitution and with an affidavit of the
registered owner stating, among other things, that no deed or other instrument affecting the property had been presented
for registration, or, if there be any, the nature thereof, the date of its presentation, as well as the names of the parties, and
whatever the registration of such deed or instrument is still pending accomplishment. If the reconstitution is to be made from
any of the sources enumerated in section 2(b) or 3(b), the affidavit should further state that the owner's duplicate has been
lost or destroyed and the circumstances under which it was lost or destroyed. Thereupon, the register of deeds shall, no valid
reason to the contrary existing, reconstitute the certificate of title as provided in this Act.

Section 10. Nothing hereinbefore provided shall prevent any registered owner or person in interest from filing the petition
mentioned in section five of this Act directly with the proper Court of First Instance, based on sources enumerated in sections
2(a), 2(b), 3(a), 3(b), and/or 4(a) of this Act: Provided, however, That the court shall cause a notice of the petition, before
hearing and granting the same, to be published in the manner stated in section nine hereof: And provided, further, That
certificates of title reconstituted pursuant to this section shall not be subject to the encumbrance referred to in section seven
of this Act.
Thus, the persons who can file the petition for reconstitution of a lost certificate are the registered owner, his assigns or
persons in interest in the property. In this case, petitioner admitted that it was not the owner of the land on which the
mining patent was issued as the same was owned and registered in the name of Rapu Rapu Minerals Inc. Thus said
petitioner's witness, Atty. Cela Magdalen A. Agpaoa, to wit: chan roble svi rtual lawlib rary

Q. Can you tell the [H]on. Court where is this mining patent situated or located, if you know?
A. This mining patent covers several parcels of land situated in the various barangays in Rapu Rapu, more concentrated in
[B]arangay Pagcolbon, Rapu Rapu, Albay.

Q. You want to tell the [H]on. Court that this mining patent cannot be seen on the surface? Is that what you want to tell the
[H]on. Court, Madam Witness?
A. That is right, because this mining patent is a right over minerals found beneath the surface.

Q. I see. I'm showing to you again the Report made by the Land Registration Authority which forms part of the records which
is now marked as Exhs “J” and “J-1” consisting of two (2) pages. A copy of which was sent to Atty. Cela Magdalen A. Agpaoa,
collaborating counsel.
My question to you is this, are you this Atty. Cela Magdalen Agpaoa, the collaborating counsel?
A. Yes, I am.
 18

Q. Did you receive a copy of this report?

A. Yes, I do (sic).

Q. Did you read the contents of this report?

A. Yes, I do (sic).

Q. I am inviting your attention to this Exh. “J”, par. (2) of the technical description of the parcel of land described on Plan
LP- 714-A inscribed on the certified xerox copy of the Original Certificate of Title No. VH-4784 appears to overlap Lot Nos.
984, 985, 986 1007, 1008, 1009, 1014, Pls-858-B, of the Rapu Rapu Public Land Subdivision.
My question to you is this, are you aware of these lots mentioned in this report?
A. Yes, I am sir.

Q. Why? Can you tell the [H]on. court why you are aware of all these lots, which this mining patent appears to overlap all
these lots, which I mentioned?
A. The various parcels of land mentioned in VH No. 4784 are actually surface lands, actual parcels of land which have already
been acquired by the petitioner's activated (sic) corporation for purposes of consolidating the surface rights and the mining
rights, referred to in VH No. 4784.

Q. Now, another question, you said that these lots mentioned here are the surface lots, am I correct?
A. Yes, sir.

Q. Tell the [H]on. Court since these are surface lots, do you know who owns now all these lots you mentioned in this report,
madam witness?
A. Yes sir, I do.

Q. Tell the [H]on. Court who is now the owner of these lots?
A. It is now owned by the petitioner's affiliated company, the Rapu Rapu Minerals, Incorporated.

Q. Do you know also this Rapu Rapu Minerals, Incorporated?

A. Yes, I do.

Q. Why do you know this corporation, Madam Witness?

A. I am also their legal counsel, sir.

Q. Have you seen these surface lots which are mentioned in this report?
A. Yes, I did sir.

Q. Why, for how many times have you seen these lots mentioned in this report, madam witness?
A. I started actually going to these particular parcels of land when I personally negotiated the sale between the original
owners and the company which I represented, the Rapu Rapu Minerals, Incorporated, as far as in 2002, sir.

Q. You want to tell the [H]on. court that you have seen these lots mentioned in this report personally?
A. Yes, sir. I go to the island in Rapu Rapu and during the negotiation time we met with the original owners, and I personally
inspect and take a look at that particular parcels of land covered by the mining patent.

xxxx

Q. Can you tell the court who is the President of this Rapu Rapu Minerals, Incorporated, Madam Witness?
A. The current duly-elected President of Rapu Rapu Minerals, Incorporated is Mr. Roderick R.C. Salazar III.

Q. Do you know also the president of Ungay Malobago Mines, Incorporated?

A. Yes, I do sir.

Q. Who is the president, if you know?

A. It is also Mr. Roderick R.C. Salazar III, sir.

Q. As far as you know, what is now the status of these several lots you mentioned in this report?
A. They are now registered under the name of Rapu Rapu Minerals, Inc. and presently being used for mining purpose.

Q. What do you mean that it is now registered in the name of Rapu Rapu Minerals, Inc.?
A. These surface lands are now owned by this corporation called Rapu Rapu Minerals, Inc., an affiliated company of Ungay
Malobago Mines, Inc.

Q. Do you know if these lots mentioned in this report are already titled properties?
A. Yes, these are titled properties.11
In Ungay Malobago Mines, Inc. v. IAC,12 herein petitioner filed a complaint for annulment and cancellation of free patents
against private respondents therein. Petitioner was claiming ownership over the surface land subject matter of its mining
patents which also included Lode Patent No. V-46 covered by OCT No. VH-4784, the title sought to be reconstituted in this
case. Petitioner did so as the Director of Lands had issued free patents on portions of the lots covered by petitioner's mining
 19

patent. We ruled in favor of private respondents. We found that the issuance of the lode patents on mineral claims by the
President of the Philippines in 1962 in favor of the petitioner granted to it only the right to extract or utilize the minerals
which may be found on or under the surface of the land. On the other hand, the issuance of the free patents by the
respondent Director of Lands in 1979 in favor of the private respondents granted to them the ownership and the right to use
the land for agricultural purposes but excluding the ownership of, and the right to extract or utilize, the minerals which may
be found on or under the surface.

The above-cited case, as well as petitioner's admission in this case, established that the surface land covered by its mining
patent under OCT No. VH-4784, which title is sought to be reconstituted, is not owned by petitioner. Thus, not having an
interest on the land amounting to a title to the same, petitioner is not possessed of a legal personality to institute a petition
for judicial reconstitution of the alleged lost OCT No. VH-4785.

Petitioner contends that Section 11 of RA No. 26 includes persons who are not the registered owners but who have registered
interest in the property covered by the Torrens title which was lost or destroyed who can file a petition for reconstitution of
title, to wit:
ch anro blesvi rt uallawli bra ry

Section 11. Petitions for reconstitution of registered interests, liens and other encumbrances, based on sources enumerated
in sections 4(b) and/or 4(c) of this Act, shall be filed, by the interested party, with the proper Court of First Instance. The
petition shall be accompanied with the necessary documents and shall state, among other things, the number of the
certificate of title and the nature as well as a description of the interest, lien or encumbrance which is to be reconstituted,
and the court, after publication, in the manner stated in section nine of this Act, and hearing shall determine the merits of
the petition and render such judgment as justice and equity may require.
A petition for judicial reconstitution of a registered interest, lien or encumbrance, may be filed only when the certificate of
title affected has not been totally destroyed, that is, when said certificate of title is composed of more than one sheet and
only the portion of the additional sheet, on which such interest, lien or encumbrance was noted is missing.13 The
reconstitution in this case does not only refer to a registered interest which was noted on an additional sheet of a certificate
of title but the reconstitution of a lost certificate. Therefore, petitioner's reliance on Section 11 to support its claim that it can
file for the reconstitution of OCT No. VH-4784 is misplaced.

Petitioner argues that what it actually sought is the reconstitution of evidence of the grant by the State in favor of petitioner
of the right to explore and extract mineral deposits within the area described in the original certificate of title. Petitioner's
filing of the reconstitution for that purpose is not within the purview of RA No. 26 which deals with lost or destroyed
certificates attesting title to a piece of land.

Based on our above discussion, we find no need to discuss petitioner's second assignment of error.

WHEREFORE, the petition for review is DENIED. The Decision dated January 21, 2009 and the Resolution dated May 7,
2009 of the Court of Appeals are hereby AFFIRMED.

SO ORDERED.

Velasco, Jr., (Chairperson), Villarama, Jr., Reyes, and Jardeleza, JJ., concur.

SECOND DIVISION

G.R. No. 203384, January 14, 2015

REPUBLIC OF THE PHILIPPINES, Petitioner, v. SPS. JOSE CASTUERA AND PERLA CASTUERA,Respondents.

DECISION

CARPIO, J.:

The Case

This is a petition1 for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 26 March 2012
Decision2 and 14 August 2012 Resolution3 of the Court of Appeals in CA-G.R. CV No. 85015, affirming the 31 January 2005
Decision4 of the Regional Trial Court (RTC), Branch 70, Iba, Zambales, in Land Registration Case No. RTC-N-92-I and
denying the motion for reconsideration, respectively.

The Facts

Andres Valiente owned a 3,135-square meter land in Barangay Siminublan, San Narciso, Zambales. In 1978, he sold the
property to respondents Jose and Perla Castuera (Spouses Castuera). On 21 May 2003, the Spouses Castuera filed with the
RTC an application5 for original registration of title over the property.
 20

The Spouses Castuera presented three witnesses to support their application. The three witnesses were (1) former barangay
captain and councilman Alfredo Dadural, (2) Senior Police Officer 2 Teodorico Cudal, and (3) Perla Castuera. All witnesses
testified that the Spouses Castuera owned the property.

The Spouses Castuera also presented documentary evidence to support their application. The documents included tax
receipts and an advance plan6 with a notation, “Checked and verified against the cadastral records on file in this office and is
for registration purposes. This survey is within the Alienable and Disposable land proj. No. 3-H certified by Director of
Forestry on June 20, 1927 per LC Map No. 669 Sheet 1.”

Petitioner Republic of the Philippines (petitioner), through the Office of the Solicitor General, filed an opposition to the
application for original registration.

The RTC’s Ruling

In its 31 January 2005 Decision, the RTC granted the application for original registration of title over the property. The RTC
held:cha nrob lesvi rtua llawli bra ry

From the evidence submitted by the applicants, they have shown preponderantly that they are the lawful owners in fee
simple and the actual possessors of Lot 6553 of the San Narciso Cadastre. They are entitled therefore to a judicial
confirmation of their imperfect title to the said land pursuant to the provisions of the new Property Registration Decree (PD
1529).7
Petitioner appealed the RTC Decision to the Court of Appeals. The Spouses Castuera attached to their appellees’ brief a
certification8 from the Community Environment and Natural Resources Office (CENRO), stating: chanrob lesvi rtua llawli bra ry

THIS IS TO CERTIFY that the tract of land situated at Brgy. Siminublan, San Narciso, Zambales containing an area of ONE
THOUSAND EIGHT HUNDRED FORTY SEVEN (1847.00) SQUARE METERS as shown and described in this sketch as verified by
Cart. Nestor L. Delgado for Sps. Jose Castuera and Perla Castuera was found to be within the Alienable or Disposable, Project
No. 3-H, certified by then Director of Forestry, manila [sic] on June 20, 1927 per LC Map No. 669, sheet No. 1.9
The Court of Appeals’ Ruling

In its 26 March 2012 Decision, the Court of Appeals affirmed the RTC Decision. The Court of Appeals held that: chanroblesvi rtuallawl ibra ry

Presidential Decree No. 1529, otherwise known as the Property Registration Decree, provides for the instances when a
person may file for an application for registration of title over a parcel of land: chanro blesvi rt uallawl ibra ry

“Section 14. Who May Apply. — The following persons may file in the proper Court of first Instance an application for
registration of title to land, whether personally or through their duly authorized representatives:

Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious
possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since
June 12, 1945, or earlier.”
Accordingly, pursuant to the aforequoted provision of law, applicants for registration of title must prove the following: (1)
that the subject land forms part of the disposable and alienable lands of the public domain; and (2) that they have been in
open, continuous, exclusive and notorious possession and occupation of the land under a bona fide claim of ownership since
12 June 1945 or earlier. Section 14(1) of the law requires that the property sought to be registered is already alienable and
disposable at the time the application for registration is filed.

Applying the foregoing in the present case, We find and so rule that the trial court is correct in granting appellees’ application
for original registration of the subject land. A scrutiny of the records shows that there is substantial compliance with the
requirement that the subject land is alienable and disposable land. It bears to emphasize that the Advance Plan has the
following notations: chan rob lesvi rtua llawlib rary

“Checked and verified against the cadastral records on file in this office and is for registration purposes.[”]

“This survey is within the alienable and disposable land proj. no. 3-H certified by Director of Forestry on June 20, 1927 per
LC Map No. 669, Sheet 1.”
In Republic v. Serrano, the Supreme Court affirmed the findings of the trial court and this Court that the parcel of land
subject of registration was alienable and disposable. It held that a DENR Regional Technical Director’s certification, which is
annotated on the subdivision plan submitted in evidence, constitutes substantial compliance with the legal requirement:

“While Cayetano failed to submit any certification which would formally attest to the alienable and disposable character of the
land applied for,
the Certification by DENR Regional Technical Director Celso V. Loriega, Jr., as annotated on the subdivision plan submitted in
evidence by Paulita, constitutes substantial compliance with the legal requirement. It clearly indicates that Lot 249 had been
verified as belonging to the alienable and disposable area as early as July 18, 1925.[”]

“The DENR certification enjoys the presumption of regularity absent any evidence to the contrary. It bears noting that no
opposition was filed or registered by the Land Registration Authority or the DENR to contest respondents’ applications on the
ground that their respective shares of the lot are inalienable. There being no substantive rights which stand to be prejudiced,
the benefit of the Certification may thus be equitably extended in favor of respondents.”
While in the case of Republic v. T.A.N. Properties, Inc., the Supreme Court overturned the grant by the lower courts of an
original application for registration over a parcel of land in Batangas and ruled that a CENRO certification is not enough to
certify that a land is alienable and disposable: chan rob lesvi rtual lawlib rary
 21

[“]Further, it is not enough for the PENRO or CENRO to certify that a land is alienable and disposable. The applicant for land
registration must prove that the DENR Secretary had approved the land classification and released the land of the public
domain as alienable and disposable, and that the land subject of the application for registration falls within the approved area
per verification through survey by the PENRO or CENRO. In addition, the applicant for land registration must present a copy
of the original classification approved by the DENR Secretary and certified as a true copy by the legal custodian of the official
records. These facts must be established to prove that the land is alienable and disposable. Respondent failed to do so
because the certifications presented by respondent do not, by themselves, prove that the land is alienable and disposable.”
However, in the recent case of Republic vs. Carlos R. Vega, et al., as an exception to the strict application of the stringent
rule imposed in the above pronouncement that the absence of these twin certifications justifies a denial of an application for
registration, the Supreme Court, in its sound discretion, and based solely on the evidence on record, may approve the
application, pro hac vice, on the ground of substantial compliance showing that there has been a positive act of government
to show the nature and character of the land and an absence of effective opposition from the government. This exception
shall only apply to applications for registration currently pending before the trial court prior to this Decision and shall be
inapplicable to all future applications.

It must be noted that the present case was decided by the trial court only on January 31, 2005, prior to the above
pronouncement[.] We believe that the same rule shall apply to the present case allowing the registration of the subject
property as there is substantial compliance with the requirement that the land subject of registration is an alienable and
disposable land. Besides, appellees had attached to their appellees’ brief a Certification from the DENR-CENR Office issued on
December 2, 1999, which states the following: cha nrob lesvi rtua llawlib ra ry

“THIS IS TO CERTIFY that the tract of land situated at Brgy. Siminublan, San Narciso, Zambales containing an area of ONE
THOUSAND EIGHT HUNDRED FORTY SEVEN (1,847) SQUARE METERS as shown and described in this sketch as verified by
Cart. Nestor L. Delgado for Sps. Jose Castuera and Perla Castuera was found to be within the Alienable or Disposable, Project
No. 3-H, certified by then Director of Forestry, Manila on June 20, 1927 per LC Map No 669, Sheet No. 1.”10
Petitioner filed a motion for reconsideration. In its 14 August 2012 Resolution, the Court of Appeals denied the motion.
Hence, the present petition.

The Issue

Petitioner raises as issue that the advance plan and the CENRO certification are insufficient proofs of the alienable and
disposable character of the property.

The Court’s Ruling

The petition is meritorious.

The advance plan and the CENRO certification are insufficient proofs of the alienable and disposable character of the
property. The Spouses Castuera, as applicants for registration of title, must present a certified true copy of the Department
of Environment and Natural Resources Secretary’s declaration or classification of the land as alienable and disposable.
In Republic of the Philippines v. Heirs of Juan Fabio,11 citing Republic v. T.A.N. Properties, Inc.,12 the Court held that:
chanroble svirtuallaw lib rary

In Republic v. T.A.N. Properties, Inc., we ruled that it is not enough for the Provincial Environment and Natural Resources
Office (PENRO) or CENRO to certify that a land is alienable and disposable. The applicant for land registration must prove
that the DENR Secretary had approved the land classification and released the land of the public domain as alienable and
disposable, and that the land subject of the application for registration falls within the approved area per verification through
survey by the PENRO or CENRO. In addition, the applicant must present a copy of the original classification of the land into
alienable and disposable, as declared by the DENR Secretary, or as proclaimed by the President. Such copy of the DENR
Secretary’s declaration or the President’s proclamation must be certified as a true copy by the legal custodian of such official
record. These facts must be established to prove that the land is alienable and disposable.13
WHEREFORE, the Court GRANTS the petition and SETS ASIDE the 26 March 2012 Decision and 14 August 2012 Resolution
of the Court of Appeals in CA-G.R. CV No. 85015. Respondents Jose and Perla Castuera’s application for registration
is DISMISSED.

SO ORDERED.

Velasco, Jr.,* Del Castillo, Mendoza, and Leonen, JJ., concur.

EN BANC

A.M. No. P-14-3194 (Formerly A.M. No. 14-1-01-MTC), January 27, 2015

OFFICE OF THE COURT ADMINISTRATOR, Complainant, v. CONSTANTINO P. REDOÑA, FORMER CLERK OF COURT
II, MUNICIPAL TRIAL COURT, TANAUAN, LEYTE, Respondent.

DECISION

PER CURIAM:
 22

This administrative matter stemmed from the financial audit on the Books of Accounts of the Municipal Trial Court, Tanauan,
Leyte, conducted by the Audit Team of the Court Management Office (Team) due to the application for separation benefits
under Section 11, paragraph (b) of Republic Act (R.A.) No. 8291 of Constantino P. Redoña.1 The audit covered the
accountability period of Constantino P. Redoña and Ranulfo R. Balano, former Clerk of Court II and Officer-in-Charge,
respectively, of the same court, from October 1, 2004 to July 31, 2012 and August 1, 2012 to February 28, 2013.

As culled from the records, the audit report yielded the following results:
cha nrob lesvi rtua llawli bra ry

1. The cash count on March 1, 2013 disclosed neither shortage nor overage for the undeposited collections,
computed as follows;2

Name of Fund Date OR No. Amount

SAJJ 03/01/13 3886520 P9.60
JDF 03/01/13 1788954 P40.40
TOTAL P50.00
2. For the inventory of Used and Unused Official Receipts:

There are seventy-three (73) booklets and two hundred-thirty three (233) pieces of official receipts which remain unused as
of March 1, 2013, to wit:

Name of Accountable Form Quantity Inclusive Serial Numbers

SC ORs 19 booklets 3886001-6500
3886551-7000
PHILJA ORs 7 booklets 643601-3650
643701-4000
UP LRF ORs 8 booklets 0725601-6000
DOJ ORs 10 booklets 4574001-4500
10 booklets 4574501-5000
10 booklets 4575001-5500
9 booklets 4575501-5950
JDF 30 pieces 3886521-6550
SAJF 46 pieces 1788955-9000
STF 23 pieces 7972928-2950
FF 43 pieces 2206908-6950
MF 29 pieces 643573-3600
LRF 29 pieces 725572-5600
VCF 33 pieces 4573968-4000
Total 73 booklets & 233 pieces
3. For the Fiduciary Fund (FF):

The audit of the court's Fiduciary Fund (FF) account showed an outstanding balance of Four Hundred Seven Thousand Eight
Hundred Seventy-Four Pesos (P407,874.00) and upon reconciliation of the said balance against the court's LBP Savings
Account, it disclosed a shortage of Seventy-One thousand Nine Hundred Pesos (P71,900.00), which was restituted by Redoña
on March 21, 2013. The detailed computation was presented below:

Unwithdrawn
Fiduciary Fund per
audit,
beginning Balance
as of Sept. 30, P 258,384.00
2004:
Add: Collections 1,041,710.00
 23

(10/1/2004 to
2/28/2013)
Total P1,300,094.00
Less: Withdrawals
820,320.00
(same period)
Balance of
Unwithdrawn FF as P 479,774.00
of 2/28/2013
Less: Bank
Balance as of P423,045.53
2/28/2013
Add/(Less)
Adjustments:
Unwithdrawn Net
Interest as of (P15,171.53)
2/28/2013
407,874.00
Balance of
Accountability – 71,900.00
shortage
Less: Restitution
on March 21, 71,900.00
2013
Final
Accountability
P 00.00
as of February
28, 2013
The shortage totaling to P71,900.00 was due to unreported and unremitted collections, to wit:

Receipt Date Bondsman/Litigant Case No. OR No. Amount

06/26/08 Dominador Lim 6448 11922537 P 12,000.00
06/26/08 Dominador Lim 6448 11922538 P 12,000.00
06/26/08 Dominador Lim 6448 11922540 P 12,000.00
06/26/08 Dominador Lim 6448 11922541 P 12,000.00
11/09/09 Remy Tismo 6694 3503955 P 2,000.00
11/16/09 Bernard Mijares 6748 3503956 P 2,000.00
12/07/09 Chito Cesar 6911 3503957 P 12,000.00
12/07/09 Raymundo Abarca 6095 3503958 P 8,000.00
Total P 72,000.00
Less: Adjustment for under-withdrawal of OR No. 7183422 (P100.00)
Adjusted total shortage P 71,900.00
Out of P60,000 cash bond posted by Dominador A. Lim in Criminal Case No. 6448 on June 26, 2008, only P12,000.00 was
reported in the cashbook and monthly report. Redoña explained in his Letter dated March 13, 2013 that OR Nos. 11922537,
11922538, 11922540 and 11922541 totalling to P48,000.00 were cancelled because of errors in the initial entries, and no
collections have been received for the cancelled official receipts. Redoña denied that he used the court funds, however, it
appeared that he allowed the refund of cash bond for the same case on September 14, 2011 amounting to P60,000.00. Also
as per Special Power of Attorney executed by Mr. Dominador A. Lim, Dennis V. Lim, Simeon Lim, Luz Omega and Rogelio A.
Yu, the accused in Criminal Case Number 6448, they requested to withdraw the cash bail bond in the total amount of
P60,000.00, thus, resulting to an over-withdrawal by P48,000.00 for this case.
 24

The audit team surmised that Redoña to cover up the missing collections, cancelled the original, duplicate and triplicate
copies of OR Nos. 11922537, 11922538, 11922540 and 11922441, with a total amount of P48,000.00. However, the
photocopies of the original official receipts appended in the case folder were not cancelled (Annexes “H-1”, “H-2”, “H-3” and
“H-4”)

For December 2009 monthly report, Redoña certified in the cashbook and monthly report that no collections were made
(Annexes “I” & “J”). To conceal collections, Redoña cancelled official receipt nos. 3503957 and 3503958 amounting to P
12,000.00 and P8,000.00, respectively. (Annexes “K” & “L”). As to the amount of P12,000.00 covered by Official Receipt No.
3503957 dated December 7, 2009 from payor Chito Cesar, he explained that due to pure inadvertence and honest lapse on
his part, he said the amount was not deposited and it was kept in a safe place in their office only known to him. For OR No.
3503958 dated December 7, 2009 in the amount of P8,000.00, Redoña allegedly posted cash bail bond for his friend, the
accused Raymundo Abarca, out of pity.

After examination of the case folders, the following irregularities were also discovered, to wit:
chan roblesv irt uallawl ibra ry

1. Unreported collection of cash bond for Case No. 03-02-6868 dated March 15, 2011 amounting to P6,000.00. Thus, Redoña
cancelled Official Receipt No. 3503967 to conceal the above missing collections. This was replaced with OR no. 3503973 on
May 11, 2011 with the same amount (Annexes “M” and “N”). In the cash bond affidavit of undertaking, the accused Mr. Ariel
Pirante posted a cash bond in Criminal Case No. 03-02-6868 amounting to P6,000.00 under OR No. 3503967 on March 15,
2011 as evidenced by Annex “O”, but the said OR No. 3503967 was marked as cancelled in the original, duplicate and
triplicate copies.

2. Received P4,000.00 from Florentino Mendoza in Case No. 10-04-6940 on October 29, 2010 under OR No. 3503963, but
such amount was unreported/unrecorded and undeposited. To conceal the missing collections, Mr. Redoña cancelled the
above OR (Annex “P” and “Q”). This was replaced by OR No. 3503970 on May 10, 2011 with the same amount. In the cash
bond affidavit of undertaking, the accused Mr. Florentino Mendoza posted a cash bond in Criminal Case No. 10-04-6940
amounting to P4,000.00 under OR No. 3503963 on October 29, 2011 as evidenced by Annex “R”, but the said OR No.
3503963 was marked as cancelled in the original, duplicate and triplicate copies.

3. Received P4,000.00 from Jayson Cabia in Criminal Case No. 02-08-6961 on March 1, 2011 under OR no. 3503966, but
such amount was unrecorded/unreported and undeposited. To cover up the missing collections, Redoña cancelled the above
receipt (Annex “S”). This was replaced with OR No. 3503972 on May 11, 2011. In the cash bond affidavit of undertaking, the
accused Mr. Jayson Cabia Cabudsan, Doroteo Ocenar and six (6) unidentified persons posted a cash bond in Criminal Case
no. 02-08-6961 amounting to P4,000.00 under OR No. 3503966 on March 1, 2011 as evidenced by Annex “T”, but the said
OR No. 3503963 was marked as cancelled in the original, duplicate and triplicate copies.

4. Received P2,000.00 from Bernard Mijares in Case No. 04-10-6748 on November 16, 2009 under OR No. 3503956, but
such amount was unreported/unrecorded and undeposited. To cover up the missing collections, Redoña cancelled the above
official receipt in the booklet (Annex “U”). In the case on file, the OR No. has not been marked as cancelled (“Annex “V”). In
the cash bond affidavit of undertaking in the case record, the accused Mr. Bernard Mijares posted a cash bond in Criminal
Case No. 04-10-6748 amounting to P2,000.00 under OR No. 3503956 on November 16, 2009 as evidenced by Annex “W.”
IV. For the Sheriff's Trust fund (STF):

Unwithdrawn STF per

audit, beginning balance
as of September 30, 2004 P 0.00
Add: Collections P
(6/16/2010 to 2/28/2013) 28,000.00
P
Total
28,000.00
Less: Withdrawals (same P
period) 11,722.00
Balance of Unwithdrawn P
STF as of 2/28/2013 16,278.00
Less: Bank Balance as of
P16,000.00
2/28/2013
Add/(Less)
Adjustments:
P
Petty cash fund P 278.00
16,278.00
Final Accountability as P 00.00
 25

of Feb. 28, 2013

V. For the JUDICIARY DEVELOPMENT FUND (JDF)

There was an over-remittance of P1,150.40 of Redoña, which was due to Special Allowance for the Judiciary Fund (SAJF)
collections totaling to P1,148.40 deposited to the account, as computed below:

Total Collections
(Nov. 1, 2004 to P
February 28, 2013) 481,794.69
Less: Total Deposits
482,945.09
(same period)
P(
Over-remittance
1,150.40)
Less: SAJF
collections deposited ( 1,148.40)
to this account
Balance of
Accountability – P ( 2.00)
over remittance
VI. For the SPECIAL ALLOWANCE FOR THE JUDICIARY FUND (SAJF):

There was an over-remittance of P7.20, as computed below:

Total Collections
(Nov. 1, 2004 to P
February 28, 2013) 616,748.20
Less: Total Deposits
(same period)
615,607.00
Balance of
P 1,141.20
Accountability
Less: SAJF
collections deposited
to the JDF account 1,148.40
Balance of
Accountability – P 7.20
over-remittance
VII. For the Mediation fund (MF):

Total Collections
P
(Sept. 1, 2005 to
99,000.00
February 28, 2013)
Less:Total Deposits
99,000.00
(same period)
Balance of
P 00.00
Accountability
In sum, the total accountabilities of Redoña, which was restituted on March 21, 2013, totalling to Seventy One Thousand
Nine Hundred Pesos (P71,900.00), was computed below:

TOTAL ACCOUNTABILITIES & PAYMENTS

 26

Nature of Funds Accountabilities Restitution Balance

Clerk of Court
P 71,900.00 P 71,900.00 P 0.00
Fiduciary Fund
Sheriff's Trust Fund P 0.00 P 0.00 P 0.00
Judiciary
P 0.00 P 0.00 P 0.00
Development Fund
Special Allowance for
P 0.00 P 0.00 P 0.00
the Judiciary Fund
Mediation Fund P 0.00 P 0.00 P 0.00
Total P 71,900.00 P 71,900.00 P 0.00
Likewise, Redoña failed to remit his collections on FF on time, as shown below:

SCHEDULE 1: For Fiduciary Fund

Date of
Date Deposited OR No. Amount Period of Delay
Collections
06/26/08 03/22/13 11922537 P12,000.00 4 yrs. & 9 mos.
06/26/08 03/22/13 11922538 P12,000.00 4 yrs. & 9 mos.
06/26/08 03/22/13 11922540 P12,000.00 4 yrs. & 9 mos.
06/26/08 03/22/13 11922541 P12,000.00 4 yrs. & 9 mos.
11/09/09 03/22/13 3503955 P 2,000.00 3 yrs. & 3 mos.
11/16/09 03/22/13 3503956 P 2,000.00 3 yrs. & 3 mos.
12/07/09 03/22/13 3503957 P12,000.00 3 yrs. & 2 mos.
12/07/09 03/22/13 3503958 P 8,000.00 3 yrs. & 2 mos.
01/13/05 04/19/05 11922976 P 6,000.00 3 mos.
01/21/05 04/19/05 11922977 P 5,000.00 3 mos.
01/21/05 04/19/05 11922978 P 8,000.00 3 mos.
04/13/05 07/28/05 11922984 P 2,000.00 3 mos.
04/20/05 08/22/05 11922985 P12,000.00 3 mos.
05/18/05 08/22/05 11922503 P10,000.00 3 mos.
12/01/05 03/07/06 11922996 P 3,720.00 3 mos.
12/01/05 03/16/06 11922997 P 2,000.00 3 mos.
06/26/08 08/05/08 11922539 P12,000.00 1 mo. & 9 days
Total P132,720.00
Considering the number of irregularities discovered by the audit team, the team recommended that their audit report be
docketed as a regular administrative matter against Redoña for gross misconduct, gross neglect of duty, dishonesty and
delay in the deposit of court collections, and that Redoña's retirement benefits, except accrued leave credits, be forfeited. On
March 3, 2014, the Court resolved to re-docket the Report dated November 5, 2013 as a regular administrative matter
against Redoña.

RULING

Time and time again, this Court has stressed that those charged with the dispensation of justice - from the presiding judge to
the lowliest clerk - are circumscribed with a heavy burden of responsibility. Their conduct at all times must not only be
characterized by propriety and decorum but, above all else, must be beyond suspicion. Every employee should be an
example of integrity, uprightness and honesty.3

The guilt of Redoña is undisputed. The records speak for themselves, to wit: (1) The unreported and unremitted collections
with a total amount of P71,900.00 resulting to a shortage of P71,900.00;4 (2) To cover up for the missing collections, Redoña
cancelled several original receipts, including OR Nos. 11922537, 11922538, 11922540, 11922541, 3503967, 3503973.
3503963, 3503966 and 3503956 (Annexes “F”, “M”, “N”, “O”, “P', “Q”, “S”, “U”); (3) For the December 2009 monthly report,
 27

Redoña issued a certification of “no collection” of fiduciary fund (Annexes “I” and “J”) and again cancelled official receipts
nos. 3503957 and 3503958 (Annexes “K” and “L”), amounting to P12,000.00 and P8,000.00, respectively, to cover up for
the missing collections; (4) For OR No. 3503958 dated December 7, 2009 in the amount of P8,0000.00, Redoña allegedly
posted cash bailbond for his friend, the accused Raymundo Abarca, out of pity; and (5) in several instances, Redoña incurred
delay for a period of four (4) years and nine (9) months in the remittances of his collections on fiduciary fund.

For his failure to remit the collections on time, Redoña committed a gross violation of SC Circular No. 13-92 which commands
that all fiduciary collections "shall be deposited immediately by the Clerk of Court concerned, upon receipt thereof, with an
authorized depositary bank." Settled is the role of clerks of courts as judicial officers entrusted with the delicate function with
regard to collection of legal fees, and are expected to correctly and effectively implement regulations.5 Shortages in the
amounts to be remitted and the years of delay in the actual remittances constitute gross neglect of duty for which Redoña
should be administratively liable.

Safekeeping of public and trust funds is essential to an orderly administration of justice. No protestation of good faith can
override the mandatory nature of the circulars designed to promote full accountability of government funds.6 Thus, Redoña's
claim of good faith, his forgetfulness and lack of secured storage area for the collections are lame excuses to evade
punishment for his neglect of duty.

Clerks of court are not supposed to keep funds for a period of time. They have the duty to immediately deposit their
collections with authorized government depositories because they are not authorized to keep those funds in their custody
and failure in this regard constitutes gross neglect of duty. The unwarranted failure to fulfill these responsibilities deserves
administrative sanction and not even the full payment of the collection shortages will exempt the accountable officer from
liability. Moreover, failure to comply with pertinent Court circulars designed to promote full accountability for public funds
constitutes grave misconduct.

Equally appalling is the tampering of the court records, such as the unwarranted cancellation of official receipts which were
committed with conscious and deliberate efforts to conceal the missing collections thus evincing a malicious and immoral
propensity.

Clerks of court perform a delicate function as designated custodians of the court's funds, revenues, records, properties and
premises. As such, they are generally regarded as treasurer, accountant, guard and physical plant manager thereof.7 It is the
clerks of courts’ duty to faithfully perform their duties and responsibilities to the end that there was full compliance with
function, that of being the custodian of the court’s funds and revenues, records, properties and premises.8 They are the chief
administrative officers of their respective courts. It is also their duty to ensure that the proper procedures are followed in the
collection of cash bonds. Clerks of court are officers of the law who perform vital functions in the prompt and sound
administration of justice. Their office is the hub of adjudicative and administrative orders, processes and concerns. They are
liable for any loss, shortage, destruction or impairment of such funds and property.

By failing to properly remit the cash collections constituting public funds, Redoña violated the trust reposed in him as
disbursement officer of the judiciary. His failure to explain satisfactorily the fund shortage, and fully comply with the Court’s
directives leave us no choice but to hold her liable for gross neglect of duty and gross dishonesty. In Lirios v.
Oliveros9 and Re: Report on the Financial Audit conducted in the Books of Accounts of Atty. Raquel G. Kho, Clerk of Court IV,
RTC, Oras, Eastern Samar,10 the Court held that the unreasonable delay in the remittance of fiduciary funds constitutes
serious misconduct.11 Even the restitution of the whole amount cannot erase his administrative liability. Clearly, his failure to
deposit the said amount upon collection was prejudicial to the court, which did not earn interest income on the said amount
or was not able to otherwise use the said funds.12

The inculpatory acts committed by respondent are so grave as to call for the most severe administrative penalty. Dishonesty
and grave misconduct, both being in the nature of a grave offense, carry the extreme penalty of dismissal from service with
forfeiture of retirement benefits, except accrued leave credits, and perpetual disqualification for re-employment in the
government service. This penalty is in accordance with Sections 52 and 58 of the Revised Uniform Rules on Administrative
Cases in the Civil Service.13

WHEREFORE, the Court finds respondent CONSTANTINO P. REDOÑA, former Clerk of Court II of the Municipal Trial Court,
Tanauan, Leyte, GUILTY of GROSS MISCONDUCT, GROSS NEGLECT OF DUTY and DISHONESTY. Since he had already retired
from the service, the penalty of forfeiture of retirement benefits and privileges, except accrued leave credits, if any, and with
prejudice to re-employment in any branch or instrumentality of the government, including government-owned or controlled
corporations, is instead imposed upon him.

SO ORDERED.

Sereno, (Chief Justice), on leave.

Carpio, (Acting Chief Justice), Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez,
Mendoza, Reyes, Perlas-Bernabe, Leonen, and Jardeleza, JJ., concur.
Brion , J., on official leave.

EN BANC
 28

G.R. Nos. 212140-41, January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner, v. BERSAMIN, OFFICE OF THE OMBUDSMAN, FIELD
INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION AND ATTY.
LEVITO D. BALIGOD, Respondents.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses
which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be
afforded an opportunity to be present but without the right to examine or cross-examine.

- Paderanga v. Drilon1
This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order and/or Writ of
Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman), Field Investigation Office (FIO) of the
Ombudsman, National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod) (collectively, respondents),
from conducting further proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 until the present Petition has been
resolved with finality; and (2) this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada) was
denied due process of law, and that the Order of the Ombudsman dated 27 March 2014 and the proceedings in OMB-C-C-13-
03013 and OMB-C-C-13-0397 subsequent to and affected by the issuance of the challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose “Jinggoy” P. Ejercito
Estrada, et al., refers to the complaint for Plunder as defined under Republic Act (RA) No. 7080, while OMB-C-C-13-
0397,4 entitled Field Investigation Office, Office of the Ombudsman v. Jose “Jinggoy” P. Ejercito-Estrada, et al., refers to the
complaint for Plunder as defined under RA No. 7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt
Practices Act). cralawred

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-13-0313, filed by the
NBI and Atty. Baligod, which prayed, among others, that criminal proceedings for Plunder as defined in RA No. 7080 be
conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit in OMB-C-C-13-0313 on 9 January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-13-0397, filed by the
FIO of the Ombudsman, which prayed, among others, that criminal proceedings for Plunder, as defined in RA No. 7080, and
for violation of Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit in
OMB-C-C-13-0397 on 16 January 2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits between 9 December 2013 and
14 March 2014.5 chanRoblesvirtual Lawli bra ry

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filings (Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada
asked for copies of the following documents:
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
(e) Consolidated Reply of complainant NBI, if one had been filed; and
(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents
and/or additional witnesses for the Complainants.6
Sen. Estrada’s request was made “[p]ursuant to the right of a respondent ‘to examine the evidence submitted by the
complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the Rules of Court) and to ‘have access to
the evidence on record’ (Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).”7 chanRoblesvi rtua lLawli bra ry

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent portions of the assailed
Order read: ChanRoble sVirtualawl ibra ry
 29

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112 of the Rules of Court
and Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman] do not entitle respondent [Sen. Estrada]
to befurnished all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]: ChanRobles Vi rtua lawlib rary

(a) The complaint shall state the address of the respondent and shall beaccompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause …

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents,
the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon
for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the complainant.
Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of the Office of the
Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10, 1990]: ChanRobles Vi rt ualawlib ra ry

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require
the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from receipt
thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen. Estrada] a copy of the
Complaint and its supporting affidavits and documents; and this Office complied with this requirement when it furnished
[Sen. Estrada] with the foregoing documents attached to the Orders to File Counter-Affidavit dated 19 November 2013 and
25 November 2013.

It is to be noted that there is no provision under this Office’s Rules of Procedure which entitles respondent to be furnished all
the filings by the other parties, e.g. the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L.
Relampagos themselves are all respondents in these cases. Under the Rules of Court as well as the Rules of Procedure of the
Office of the Ombudsman, the respondents areonly required to furnish their counter-affidavits and controverting
evidence to thecomplainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation depend on the rights
granted to him by law and these cannot be based on whatever rights he believes [that] he is entitled to or those that may be
derived from the phrase “due process of law.”

Thus, this Office cannot grant his motion to be furnished with copies of all the filings by the other parties. Nevertheless, he
should be furnished a copy of the Reply of complainant NBI as he is entitled thereto under the rules; however, as of this
date, no Reply has been filed by complainant NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filings is DENIED. He is nevertheless entitled to be furnished a copy of
the Reply if complainant opts to file such pleading.8 (Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Resolution9 which found
probable cause to indict Sen. Estrada and his co-respondents with one count of plunder and 11 counts of violation of Section
3(e) of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7
April 2014. Sen. Estrada prayed for the issuance of a new resolution dismissing the charges against him.

Without filing a Motion for Reconsideration of the Ombudsman’s 27 March 2014 Order denying his Request, Sen.
Estrada filed the present Petition for Certiorari under Rule 65 and sought to annul and set aside the 27 March 2014 Order. cralaw red

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:ChanRobles Vi rtualaw lib rary

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27 MARCH 2014, ACTED WITHOUT OR IN
EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. 10
Sen. Estrada also claimed that under the circumstances, he has “no appeal or any other plain, speedy, and adequate remedy
in the ordinary course of law, except through this Petition.”11 Sen. Estrada applied for the issuance of a temporary restraining
order and/or writ of preliminary injunction to restrain public respondents from conducting further proceedings in OMB-C-C-
13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has been denied due
process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as well as the proceedings in OMB-C-C-
13-0313 and OMB-C-C-13-0397 subsequent to and affected by the issuance of the 27 March 2014 Order, are void.12 chanRoble svirtual Lawli bra ry

On the same date, 7 May 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Order
furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Francisco Figura,
Gregoria Buenaventura, and Alexis Sevidal, and directing him to comment thereon within a non-extendible
 30

period of five days from receipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in OMB-C-C-13-0313 and OMB-
C-C-13-0397 because the denial of his Request to be furnished copies of counter-affidavits of his co-respondents deprived
him of his right to procedural due process, and he has filed the present Petition before this Court. The Ombudsman denied
Sen. Estrada’s motion to suspend in an Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the
Order dated 15 May 2014 but his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014, the date of filing of the Ombudsman’s Comment to the present Petition, Sen. Estrada had not
filed a comment on the counter-affidavits furnished to him. On 4 June 2014, the Ombudsman issued a Joint Order in
OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions filed by the other respondents, Sen. Estrada’s
motion for reconsideration dated 7 April 2014. The pertinent portion of the 4 June 2014 Joint Order stated: ChanRoble sVirt ualawli bra ry

While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata, Relampagos, Figura, Buenaventura and
Sevidal’s affidavits was denied by Order dated 27 March 2014 and before the promulgation of the assailed Joint Resolution,
this Office thereafter re-evaluated the request and granted it by Order dated 7 May 2014 granting his request. Copies of the
requested counter-affidavits were appended to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada
through counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this proceeding in light
of its grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to
the above-named co-respondents’ claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to procedural due
process.13 (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through the Office of the Solicitor
General, filed their Comment to the present Petition. The public respondents argued that: ChanRoblesVi rtua lawlib rary

I. PETITIONER [SEN. ESTRADA] WAS NOT DENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW.
III. PETITIONER IS NOT ENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER. 14
On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen. Estrada’s resort to a
Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have either filed a motion for reconsideration of the 27
March 2014 Order or incorporated the alleged irregularity in his motion for reconsideration of the 28 March 2014 Joint
Resolution. There was also no violation of Sen. Estrada’s right to due process because there is no rule which mandates that a
respondent such as Sen. Estrada be furnished with copies of the submissions of his co-respondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen. Estrada insisted that he was denied
due process. Although Sen. Estrada received copies of the counter-affidavits of Cunanan, Amata, Relampagos,
Buenaventura, Figura, Sevidal, as well as one of Tuason’s counter-affidavits, he claimed that he was not given the following
documents: ChanRoblesVirtualawl ibra ry

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of Victor Roman Cojamco Cacal dated 11 December 2013 (to the FIO Complaint);

f) Counter-Affidavit of Victor Roman Cojamco Cacal dated 22 January 2014 (to the NBI Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. Villaralvo-Johnson both dated 14 March 2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014.

Sen. Estrada argues that the Petition is not rendered moot by the subsequent issuance of the 7 May 2014 Joint Order
because there is a recurring violation of his right to due process. Sen. Estrada also insists that there is no forum shopping as
the present Petition arose from an incident in the main proceeding, and that he has no other plain, speedy, and adequate
remedy in the ordinary course of law. Finally, Sen. Estrada reiterates his application for the issuance of a temporary
 31

restraining order and/or writ of preliminary injunction to restrain public respondents from conducting further proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397. cralawred

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014 Order of Sen. Estrada’s Request did not
constitute grave abuse of discretion. Indeed, the denial did not violate Sen. Estrada’s constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-affidavits of
his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well as Rule II of
Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for ready reference.
From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be
in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed
and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground
to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its
supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not
have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required
to specify those which he intends to present against the respondent, and these shall be made available for examination or
copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at
the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section,
with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day
period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The
parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the
expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient
ground to hold the respondent for trial.

Section 4. Resolution of investigating prosecutor and its review. — If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or
as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the
accused was informed of the complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.
 32

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by
the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, by himself, file the information against the respondent, or direct any other assistant prosecutor
or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule
shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.

From the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule II: Procedure in Criminal
Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of R.A. 3019, as amended, R.A. 1379,
as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code, and for such other offenses committed by
public officers and employees in relation to office.

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct. — Preliminary investigation may be conducted by any of the following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations; or

5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional
Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following
provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the
complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a
copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days
from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any,
as his answer to the complaint. In any event,the respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of particulars be
entertained. If respondent desires any matter in the complainant’s affidavit to be clarified, the particularization thereof may
be done at the time of clarificatory questioning in the manner provided in paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been served, does not
comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be
 33

afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned.
Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing,
whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on
the witness concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of the case
together with his resolution to the designated authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsman
in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other cases.

xxxx

Sec. 6. Notice to parties. — The parties shall be served with a copy of the resolution as finally approved by the Ombudsman
or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration. — a) Only one (1) motion for reconsideration or reinvestigation of an approved order or
resolution shall be allowed, the same to be filed within fifteen (15) days from notice thereof with the Office of the
Ombudsman, or the proper deputy ombudsman as the case may be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding Information in court
on the basis of the finding of probable cause in the resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter-affidavits of his co-respondents violates his constitutional
right to due process. Sen. Estrada, however, fails to specify a law or rule which states that it is a compulsory
requirement of due process in a preliminary investigation that the Ombudsman furnish a respondent with the
counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure nor
Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen. Estrada’s claim.

What the Rules of Procedure of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent with a
copy of the complaint and the supporting affidavits and documents at the time the order to submit the counter-affidavit
is issued to the respondent. This is clear from Section 4(b), Rule II of the Rules of Procedure of the Office of the
Ombudsman when it states, “[a]fter such affidavits [of the complainant and his witnesses] have been secured, the
investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing
the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits x x x.” At this point, there is still
no counter-affidavit submitted by any respondent. Clearly, what Section 4(b) refers to are affidavits of the
complainant and his witnesses, not the affidavits of the co-respondents. Obviously, the counter-affidavits of the co-
respondents are not part of the supporting affidavits of the complainant. No grave abuse of discretion can thus be attributed
to the Ombudsman for the issuance of the 27 March 2014 Order which denied Sen. Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a respondent “shall
have access to the evidence on record,” this provision should be construed in relation to Section 4(a) and (b) of the
same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a) states that “the investigating officer shall
require the complainant or supporting witnesses to execute affidavits to substantiate the complaint.” The “supporting
witnesses” are the witnesses of the complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that “the investigating officer shall issue an order attaching thereto a copy of the affidavits and
all other supporting documents, directing the respondent” to submit his counter-affidavit. The affidavits referred to in Section
4(b) are the affidavits mentioned in Section 4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of
the complainant and his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the same Rule II
that a respondent shall have “access to the evidence on record” does not stand alone, but should be read in relation to the
provisions of Section 4(a and b) of the same Rule II requiring the investigating officer to furnish the respondent with the
“affidavits and other supporting documents” submitted by “the complainant or supporting witnesses.” Thus, a
respondent’s “access to evidence on record” in Section 4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the
affidavits and supporting documents of “the complainant or supporting witnesses” in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that “[t]he respondent shall have the right
to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his
expense.” A respondent’s right to examine refers only to “the evidence submitted by the complainant.”

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the Ombudsman’s Rules of
Procedure, there is no requirement whatsoever that the affidavits executed by the co-respondents should be furnished to a
respondent.

Justice Velasco’s dissent relies on the ruling in Office of the Ombudsman v. Reyes (Reyes case),15 anadministrative case, in
which a different set of rules of procedure and standards apply. Sen. Estrada’s Petition, in contrast, involves the preliminary
investigation stage in a criminal case. Rule III on the Procedure in Administrative Cases of the Rules of Procedure of the
Office of the Ombudsman applies in the Reyes case, while Rule II on the Procedure in Criminal Cases of the Rules of
 34

Procedure of the Office of the Ombudsman applies in Sen. Estrada’s Petition. In both cases, the Rules of Court apply in a
suppletory character or by analogy.16 chanRoblesv irtual Lawlib rary

In the Reyes case, the complainant Acero executed an affidavit against Reyes and Peñaloza, who were both employees of the
Land Transportation Office. Peñaloza submitted his counter-affidavit, as well as those of his two witnesses. Reyes adopted his
counter-affidavit in another case before the Ombudsman as it involved the same parties and the same incident. None of the
parties appeared during the preliminary conference. Peñaloza waived his right to a formal investigation and was willing to
submit the case for resolution based on the evidence on record. Peñaloza also submitted a counter-affidavit of his third
witness. The Ombudsman found Reyes guilty of grave misconduct and dismissed him from the service. On the other hand,
Peñaloza was found guilty of simple misconduct and penalized with suspension from office without pay for six months. This
Court agreed with the Court of Appeals’ finding that Reyes’ right to due process was indeed violated. This Court remanded
the records of the case to the Ombudsman, for two reasons: (1) Reyes should not have been meted the penalty of dismissal
from the service when the evidence was not substantial, an d (2) there was disregard of Reyes’ right to due process because
he was not furnished a copy of the counter-affidavits of Peñaloza and of Peñaloza’s three witnesses. In the Reyes case,
failure to furnish a copy of the counter-affidavits happened in the administrative proceedings on the merits,
which resulted in Reyes’ dismissal from the service. In Sen. Estrada’s Petition, the denial of his Request happened
during the preliminary investigation where the only issue is the existence of probable cause for the purpose of determining
whether an information should be filed, and does not prevent Sen. Estrada from requesting a copy of the counter-affidavits
of his co-respondents during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative case and a criminal
case:ChanRoblesVirtualawl ibra ry

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether the cases to which they
are meant to apply are criminal, civil or administrative in character. In criminal actions, proof beyond reasonable doubt is
required for conviction; in civil actions and proceedings, preponderance of evidence, as support for a judgment; and in
administrative cases, substantial evidence, as basis for adjudication. In criminal and civil actions, application of the Rules of
Court is called for, with more or less strictness. In administrative proceedings, however, the technical rules of pleading and
procedure, and of evidence, are not strictly adhered to; they generally apply only suppletorily; indeed, in agrarian disputes
application of the Rules of Court is actually prohibited.17
It should be underscored that the conduct of a preliminary investigation is only for the determination of probable cause, and
“probable cause merely implies probability of guilt and should be determined in a summary manner. A preliminary
investigation is not a part of the trial and it is only in a trial where an accused can demand the full exercise of his rights, such
as the right to confront and cross-examine his accusers to establish his innocence.”18 Thus, the rights of a respondent in a
preliminary investigation are limited to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient
ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that
the respondent is probably guilty thereof, and should be held for trial. The quantum of evidence now required in
preliminary investigation is such evidence sufficient to “engender a well founded belief” as to the fact of the
commission of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the
occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of such evidence
only as may engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof.We are in accord with the state prosecutor’s findings in the case at bar that there exists prima
facie evidence of petitioner’s involvement in the commission of the crime, it being sufficiently supported by the evidence
presented and the facts obtaining therein.

Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and Hanopol are inadmissible as to him
since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the
witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that
the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted
by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or
their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-
examine.Thus, even if petitioner was not given the opportunity to cross-examine Galarion and Hanopol at the time they
were presented to testify during the separate trial of the case against Galarion and Roxas, he cannot assert any legal right to
cross-examine them at the preliminary investigation precisely because such right was never available to him. The
admissibility or inadmissibility of said testimonies should be ventilated before the trial court during the trial proper and not in
the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over
the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be waived by the
accused, we find no compelling justification for a strict application of the evidentiary rules. In addition, considering
that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary investigation does not form part of the
record of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial
court if not presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such testimonies,
petitioner can always object thereto and the trial court can rule on the admissibility thereof; or the petitioner can, during the
trial, petition said court to compel the presentation of Galarion and Hanopol for purposes of cross-examination.19 (Emphasis
supplied)
 35

Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion of the Court of Appeals’ reasoning.
This Court quoted from the Court of Appeals’ decision: “x x x [A]dmissions made by Peñaloza in his sworn statement are
binding only on him. Res inter alios acta alteri nocere non debet. The rights of a party cannot be prejudiced by an act,
declaration or omission of another.”In OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estrada’s
co-respondents can in no way prejudice Sen. Estrada. Even granting Justice Velasco’s argument that the 28 March
2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720 mentioned the testimonies of Sen. Estrada’s co-
respondents like Tuason and Cunanan, their testimonies were merely corroborative of the testimonies of complainants’
witnesses Benhur Luy, Marina Sula, and Merlina Suñas and were not mentioned in isolation from the testimonies of
complainants’ witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to establish its finding of
probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 was judicially confirmed
by the Sandiganbayan, when it examined the evidence,found probable cause, and issued a warrant of arrest against Sen.
Estrada on 23 June 2014.

We likewise take exception to Justice Brion’s assertion that “the due process standards that at the very least should be
considered in the conduct of a preliminary investigation are those that this Court first articulated in Ang Tibay v.
Court of Industrial Relations [Ang Tibay].”21 Simply put, the Ang Tibay guidelines for administrative cases do not apply
to preliminary investigations in criminal cases. An application of the Ang Tibay guidelines to preliminary investigations will
have absurd and disastrous consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay described as the “fundamental
and essential requirements of due process in trials and investigations of an administrative character.”22 These
requirements are “fundamental and essential” because without these, there is no due process as mandated by the
Constitution. These “fundamental and essential requirements” cannot be taken away by legislation because they are part of
constitutional due process. These “fundamental and essential requirements” are: ChanRobles Virtualawl ibra ry

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his
own case and submit evidence in support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce evidence tending to establish the rights
which he asserts but the tribunal must considerthe evidence presented. x x x.

(3) “While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be
disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a
nullity, x x x.”

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be “substantial.”
“Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and
disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of
the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the
parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance
of this duty is inseparable from the authority conferred upon it.23
The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS): “what Ang Tibayfailed to explicitly state
was, prescinding from the general principles governing due process, the requirement of an impartial tribunal which,
needless to say, dictates that one called upon to resolve a dispute may not sit as judge and jury simultaneously, neither may
he review his decision on appeal.”25 The GSIS clarification affirms the non-applicability of the Ang Tibay guidelines to
preliminary investigations in criminal cases: The investigating officer, which is the role that the Office of the Ombudsman
plays in the investigation and prosecution of government personnel, will never be the impartial tribunal required in Ang
Tibay, as amplified in GSIS. The purpose of the Office of the Ombudsman in conducting a preliminary investigation, after
conducting its own fact-finding investigation, is to determine probable cause for filing an information, and not to make
a final adjudication of the rights and obligations of the parties under the law, which is the purpose of the guidelines in Ang
Tibay. The investigating officer investigates, determines probable cause, and prosecutes the criminal case after
filing the corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged with weak cases that will only be
dismissed, as well as to spare a person from the travails of a needless prosecution.26 The Ombudsman and the prosecution
service under the control and supervision of the Secretary of the Department of Justice are inherently the fact-finder,
investigator, hearing officer, judge and jury of the respondent in preliminary investigations. Obviously, this procedure cannot
comply with Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional with this procedure because this is
merely an Executive function, a part of the law enforcement process leading to trial in court where the requirements
mandated in Ang Tibay, as amplified in GSIS, will apply. This has been the procedure under the 1935, 1973 and 1987
Constitutions. To now rule that Ang Tibay, as amplified in GSIS, should apply to preliminary investigations will mean that all
 36

past and present preliminary investigations are in gross violation of constitutional due process.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when he filed his Request, is not
yet an accused person, and hence cannot demand the full exercise of the rights of an accused person: ChanRoblesVirtualawl ibra ry

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed
and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.
As well put in Brinegar v. United States, while probable cause demands more than “bare suspicion,” it requires “less than
evidence which would justify . . . conviction.” A finding of probable cause merely binds over the suspect to stand trial. It is
not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the
DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to
call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If
the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat,
probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary
investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his
rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar,
the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory
hearing was unnecessary.27
Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that the “rights conferred upon
accused persons to participate in preliminary investigations concerning themselves depend upon the provisions
of law by which such rights are specifically secured, rather than upon the phrase ‘due process of law’.” This
reiterates Justice Jose P. Laurel’s oft-quoted pronouncement in Hashim v. Boncan29 that “the right to a preliminary
investigation is statutory, not constitutional.” In short, the rights of a respondent in a preliminary investigation are
merely statutory rights, not constitutional due process rights. An investigation to determine probable cause for the filing of
an information does not initiate a criminal action so as to trigger into operation Section 14(2), Article III of the
Constitution.30 It is the filing of a complaint or information in court that initiates a criminal action.31 chanRoblesvi rt ual Lawlib rary

The rights to due process in administrative cases as prescribed in Ang Tibay, as amplified in GSIS, are granted by the
Constitution; hence, these rights cannot be taken away by mere legislation. On the other hand, as repeatedly reiterated by
this Court, the right to a preliminary investigation is merely a statutory right,32 not part of the “fundamental and essential
requirements” of due process as prescribed in Ang Tibay and amplified in GSIS. Thus, a preliminary investigation can be
taken away by legislation. The constitutional right of an accused to confront the witnesses against him does not apply in
preliminary investigations; nor will the absence of a preliminary investigation be an infringement of his right to confront the
witnesses against him.33 A preliminary investigation may be done away with entirely without infringing the constitutional
right of an accused under the due process clause to a fair trial.34
cha nRoblesv irt ual Lawlib rary

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the evidence needed in a preliminary
investigation to establish probable cause, or to establish the existence of aprima facie case that would warrant the
prosecution of a case. Ang Tibay refers to “substantial evidence,” while the establishment of probable cause needs “only
more than ‘bare suspicion,’ or ‘less than evidence which would justify . . . conviction’.” In the United States, from where we
borrowed the concept of probable cause,35 the prevailing definition of probable cause is this: ChanRobles Vi rt ualawlib ra ry

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they
are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.
The standard of proof is accordingly correlative to what must be proved.

“The substance of all the definitions” of probable cause “is a reasonable ground for belief of guilt.” McCarthy v. De Armit, 99
Pa. St. 63, 69, quoted with approval in theCarroll opinion. 267 U. S. at 161. And this “means less than evidence which would
justify condemnation” or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States,
7 Cranch 339, 348. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists
where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy
information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is
being committed. Carroll v. United States, 267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from
unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because
many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be
allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly
to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best
compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper
law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.36
In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable cause is needed to be
established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is sufficient ground to engender
a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for
trial. A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and one day without regard to the fine;
 37

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a commitment order, if the
accused has already been arrested, shall be issued and that there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless arrest when an offense has just
been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be issued, and only upon probable
cause in connection with one specific offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and
the things to be seized which may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the likelihood, or probability, of
guilt. Justice Brion, in the recent case of Unilever Philippines, Inc. v. Tan37(Unilever), stated:
ChanRoblesVirtualawli bra ry

The determination of probable cause needs only to rest on evidence showing that more likely than not, a crime has been
committed and there is enough reason to believe that it was committed by the accused. It need not be based on clear and
convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. What is merely required is
“probability of guilt.” Its determination, too, does not call for the application of rules or standards of proof that a judgment of
conviction requires after trial on the merits. Thus, in concluding that there is probable cause, it suffices that it is believed that
the act or omission complained of constitutes the very offense charged.

It is also important to stress that the determination of probable cause does not depend on the validity or merits of a
party’s accusation or defense or on the admissibility or veracity of testimonies presented. As previously discussed,
these matters are better ventilated during the trial proper of the case. As held in Metropolitan Bank & Trust Company v.
Gonzales: ChanRobles Vi rtua lawlib rary

Probable cause has been defined as the existence of such facts and circumstances as would excite the belief in a reasonable
mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which
he was prosecuted. x x x. The term does not mean “actual or positive cause” nor does it import absolute certainty. It is
merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether
there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the
charge. (Boldfacing and italicization supplied)
Justice Brion’s pronouncement in Unilever that “the determination of probable cause does not depend on the validity or
merits of a party’s accusation or defense or on the admissibility or veracity of testimonies presented” correctly
recognizes the doctrine in the United States that the determination of probable cause can rest partially, or even entirely, on
hearsay evidence, as long as the person making the hearsay statement is credible. In United States v. Ventresca,38 the
United States Supreme Court held: ChanRoble sVirt ualawli bra ry

While a warrant may issue only upon a finding of “probable cause,” this Court has long held that “the term ‘probable cause’ .
. . means less than evidence which would justify condemnation,” Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that
a finding of “probable cause” may rest upon evidence which is not legally competent in a criminal trial. Draper v. United
States, 358 U.S. 307, 358 U.S. 311. As the Court stated inBrinegar v. United States, 338 U.S. 160, 173, “There is a large
difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine
them, and therefore a like difference in the quanta and modes of proof required to establish them.” Thus, hearsay may be
the basis for issuance of the warrant “so long as there . . . [is] a substantial basis for crediting the
hearsay.”Jones v. United States, supra, at 362 U.S. 272. And, in Aguilar, we recognized that “an affidavit may be
based on hearsay information and need not reflect the direct personal observations of the affiant,” so long as
the magistrate is “informed of some of the underlying circumstances” supporting the affiant’s conclusions and
his belief that any informant involved “whose identity need not be disclosed . . .” was “credible” or his
information “reliable.” Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)
Thus, probable cause can be established with hearsay evidence, as long as there is substantial basisfor crediting the
hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such
investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in
administrative cases, where rights and obligations are finally adjudicated, what is required is “substantial evidence” which
cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial evidence because
substantial evidence excludes hearsay evidence while substantial basis can include hearsay evidence. To require the
application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change the quantum of evidence
required in determining probable cause from evidence of likelihood or probability of guilt to substantial evidence
of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused and the right to a
preliminary investigation. To treat them the same will lead to absurd and disastrous consequences. All pending
criminal cases in all courts throughout the country will have to be remanded to the preliminary investigation
level because none of these will satisfyAng Tibay, as amplified in GSIS. Preliminary investigations are conducted by
prosecutors, who are the same officials who will determine probable cause and prosecute the cases in court. The prosecutor
is hardly the impartial tribunal contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an investigating officer
outside of the prosecution service will be necessary if Ang Tibay, as amplified in GSIS, were to be applied. This will require a
new legislation. In the meantime, all pending criminal cases in all courts will have to be remanded for reinvestigation, to
 38

proceed only when a new law is in place. To require Ang Tibay, as amplified in GSIS, to apply to preliminary investigation will
necessarily change the concept of preliminary investigation as we know it now. Applying the constitutional due process
in Ang Tibay, as amplified in GSIS, to preliminary investigation will necessarily require the application of the rights of an
accused in Section 14(2), Article III of the 1987 Constitution. This means that the respondent can demand an actual hearing
and the right to cross-examine the witnesses against him, rights which are not afforded at present to a respondent in a
preliminary investigation.

The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending preliminary investigations but even to
those convicted by final judgment and already serving their sentences. The rule is well-settled that a judicial decision applies
retroactively if it has a beneficial effect on a person convicted by final judgment even if he is already serving his sentence,
provided that he is not a habitual criminal.39 This Court retains its control over a case “until the full satisfaction of the final
judgment conformably with established legal processes.”40 Applying Ang Tibay, as amplified in GSIS, to preliminary
investigations will result in thousands of prisoners, convicted by final judgment, being set free from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers that Sen. Estrada not “be subjected to the rigors of a criminal prosecution in court” because
there is “a pending question regarding the Ombudsman’s grave abuse of its discretion preceding the finding of a probable
cause to indict him.” Restated bluntly, Justice Velasco’s dissent would like this Court to conclude that the mere filing of the
present Petition for Certiorari questioning the Ombudsman’s denial of Sen. Estrada’s Request should have, by itself, voided
all proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estrada’s Request, the Ombudsman
subsequently reconsidered its Order. On 7 May 2014, the same date that Sen. Estrada filed the present Petition, the
Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 that furnished Sen. Estrada with the
counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina Amata, Mario Relampagos, Francisco Figura, Gregoria
Buenaventura, and Alexis Sevidal, and directed him to comment within a non-extendible period of five days from receipt
of said Order. Sen. Estrada did not file any comment, as noted in the 4 June 2014 Joint Order of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s Motion for Reconsideration of its 28
March 2014 Joint Resolution which found probable cause to indict Sen. Estrada and his co-respondents with one count of
plunder and 11 counts of violation of Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint Order, the Ombudsman
stated that “[t]his Office, in fact, held in abeyance the disposition of motions for reconsideration in this proceeding in
light of its grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to the
above-named respondents’ claims.”

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any pleading, much less a motion for
reconsideration, to the 27 March 2014 Order in OMB-C-C-13-0313. Sen. Estrada immediately proceeded to file
this Petition for Certiorari before this Court. Sen. Estrada’s resort to a petition for certiorari before this Court stands in
stark contrast to his filing of his 7 April 2014 Motion for Reconsideration of the 28 March 2014 Joint Resolution finding
probable cause. The present Petition for Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual and legal errors. Sen. Estrada,
however, failed to present a compelling reason that the present Petition falls under the exceptions41 to the general rule that
the filing of a motion for reconsideration is required prior to the filing of a petition for certiorari. This Court has reiterated in
numerous decisions that a motion for reconsideration is mandatory before the filing of a petition for certiorari.42 chanRoble svirtual Lawlib ra ry

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to the present Petition. Justice Velasco’s
dissent insists that “this Court cannot neglect to emphasize that, despite the variance in the quanta of evidence required, a
uniform observance of the singular concept of due process is indispensable in all proceedings.”

As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who join him in his dissent to this Court’s
ruling in Ruivivar v. Office of the Ombudsman (Ruivivar),43 wherein we stated that “[t]he law can no longer help one who had
been given ample opportunity to be heard but who did not take full advantage of the proffered chance.”

The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman. The Ombudsman found
petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy in the course of her official functions and imposed on
her the penalty of reprimand. Petitioner filed a motion for reconsideration of the decision on the ground that she was not
furnished copies of the affidavits of the private respondent’s witnesses. The Ombudsman subsequently ordered that
petitioner be furnished with copies of the counter-affidavits of private respondent’s witnesses, and that petitioner should “file,
within ten (10) days from receipt of this Order, such pleading which she may deem fit under the circumstances.” Petitioner
received copies of the affidavits, and simply filed a manifestation where she maintained that her receipt of the affidavits did
not alter the deprivation of her right to due process or cure the irregularity in the Ombudsman’s decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses after the Ombudsman rendered a
decision against her. We disposed of petitioner’s deprivation of due process claim in this manner: ChanRoblesVirtualawli bra ry

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to exhaust all the administrative
remedies available to her before the Ombudsman. This ruling is legally correct as exhaustion of administrative remedies is a
requisite for the filing of a petition for certiorari. Other than this legal significance, however, the ruling necessarily carries the
 39

direct and immediate implication that the petitioner has been granted the opportunity to be heard and has refused to avail of
this opportunity; hence, she cannot claim denial of due process. In the words of the CA ruling itself: “Petitioner was given the
opportunity by public respondent to rebut the affidavits submitted by private respondent. . . and had a speedy and adequate
administrative remedy but she failed to avail thereof for reasons only known to her.”

For a fuller appreciation of our above conclusion, we clarify that although they are separate and distinct concepts, exhaustion
of administrative remedies and due process embody linked and related principles. The “exhaustion” principle applies when
the ruling court or tribunal is not given the opportunity to re-examine its findings and conclusions because of an available
opportunity that a party seeking recourse against the court or the tribunal’s ruling omitted to take. Under the concept of “due
process,” on the other hand, a violation occurs when a court or tribunal rules against a party without giving him or her the
opportunity to be heard. Thus, the exhaustion principle is based on the perspective of the ruling court or tribunal, while due
process is considered from the point of view of the litigating party against whom a ruling was made. The commonality they
share is in the same “opportunity” that underlies both. In the context of the present case, the available opportunity to
consider and appreciate the petitioner’s counter-statement of facts was denied the Ombudsman; hence, the petitioner is
barred from seeking recourse at the CA because the ground she would invoke was not considered at all at the Ombudsman
level. At the same time, the petitioner – who had the same opportunity to rebut the belatedly-furnished affidavits of the
private respondent’s witnesses – was not denied and cannot now claim denial of due process because she did not take
advantage of the opportunity opened to her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds (i.e., for the private
respondent’s failure to furnish her copies of the affidavits of witnesses) and on questions relating to the appreciation of the
evidence on record. The Ombudsman acted on this motion by issuing its Order of January 17, 2003 belatedly furnishing her
with copies of the private respondent’s witnesses, together with the “directive to file, within ten (10) days from receipt of this
Order, such pleading which she may deem fit under the circumstances.”

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a “Manifestation” where
she took the position that “The order of the Ombudsman dated 17 January 2003 supplying her with the affidavits of the
complainant does not cure the 04 November 2002 order,” and on this basis prayed that the Ombudsman’s decision “be
reconsidered and the complaint dismissed for lack of merit.”

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated 27 January 2003 and
prayed for the denial of the petitioner’s motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for reconsideration after finding no basis to
alter or modify its ruling. Significantly, the Ombudsman fully discussed in this Order the due process significance of the
petitioner’s failure to adequately respond to the belatedly-furnished affidavits. The Ombudsman said: ChanRobles Vi rtualaw lib rary

“Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits, which she claims she has
not received. Furthermore, the respondent has been given the opportunity to present her side relative thereto, however, she
chose not to submit countervailing evidence or argument. The respondent, therefore (sic), cannot claim denial of due process
for purposes of assailing the Decision issued in the present case. On this score, the Supreme Court held in the case of People
v. Acot, 232 SCRA 406, that “a party cannot feign denial of due process where he had the opportunity to present
his side”. This becomes all the more important since, as correctly pointed out by the complainant, the decision issued in the
present case is deemed final and unappealable pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of
Administrative Order No. 07. Despite the clear provisions of the law and the rules, the respondent herein was given
the opportunity not normally accorded, to present her side, but she opted not to do so which is evidently fatal to
her cause.” [emphasis supplied].
Under these circumstances, we cannot help but recognize that the petitioner’s cause is a lost one, not only for her failure to
exhaust her available administrative remedy, but also on due process grounds. The law can no longer help one who had been
given ample opportunity to be heard but who did not take full advantage of the proffered chance.45
Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen. Estrada’s co-respondents
were furnished to him before the Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the affidavits were
furnished after the Ombudsman issued a decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and Duterte v. Sandiganbayan47 (Duterte) in an
attempt to prop up its stand. A careful reading of these cases, however, would show that they do not stand on all fours with
the present case. In Tatad, this Court ruled that “the inordinate delay in terminating the preliminary investigation and filing
the information [by the Tanodbayan] in the present case is violative of the constitutionally guaranteed right of the petitioner
to due process and to a speedy disposition of the cases against him.”48 The Tanodbayan took almost three years to terminate
the preliminary investigation, despite Presidential Decree No. 911’s prescription of a ten-day period for the prosecutor to
resolve a case under preliminary investigation. We ruled similarly in Duterte, where the petitioners were merely asked to
comment and were not asked to file counter-affidavits as is the proper procedure in a preliminary investigation. Moreover,
in Duterte, the Ombudsman took four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that Sen. Estrada’s present Petition for
Certiorari is premature for lack of filing of a motion for reconsideration before the Ombudsman. When the Ombudsman gave
Sen. Estrada copies of the counter-affidavits and even waited for the lapse of the given period for the filing of his comment,
Sen. Estrada failed to avail of the opportunity to be heard due to his own fault. Thus, Sen. Estrada’s failure cannot in any
way be construed as violation of due process by the Ombudsman, much less of grave abuse of discretion. Sen. Estrada has
not filed any comment, and still chooses not to.
 40

Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and should be summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May 2014, Sen. Estrada
stated: ChanRoblesVirtualawl ibra ry

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-C-13-0313 and OMB-C-
C-13-0397, raising as sole issue the finding of probable cause in the Joint Resolution dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman.49 (Emphasis supplied)
Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the Ombudsman reconsider and
issue a new resolution dismissing the charges against him. However, in this Motion for Reconsideration, Sen. Estrada assailed
the Ombudsman’s 27 March 2014 Joint Order denying his Request, and that such denial is a violation of his right to due
process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of the Rules of Court]
and principles. A reading of the Joint Resolution will reveal that various pieces of evidence which Senator Estrada
was not furnished with – hence, depriving him of the opportunity to controvert the same – were heavily
considered by the Ombudsman in finding probable cause to charge him with Plunder and with violations of
Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a “Request to be Furnished with Copies of Counter-Affidavits
of the Other Respondents, Affidavits of New Witnesses and Other Filings,” pursuant to the right of a respondent “to examine
the evidence submitted by the complainant which he may not have been furnished” (Section 3[b], Rule 112 of the Rules of
Court), and to “have access to the evidence on record” (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the law’s vigilance in protecting
the rights of an accused, the Special Panel of Investigators, in an Order dated 27 March 2014, unceremoniously
denied the request on the ground that “there is no provision under this Office’s Rules of Procedure which
entitles respondent to be furnished all the filings by the other parties x x x x.” (Order dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which were eventually
made the bases of the Ombudsman’s finding of probable cause. 50
The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014 Joint Order. Clearly, Sen. Estrada
expressly raised in his Motion for Reconsideration with the Ombudsman the violation of his right to due process, the same
issue he is raising in this petition.

In the verification and certification of non-forum shopping attached to his petition docketed as G.R. Nos. 212761-62 filed on
23 June 2014, Sen. Estrada disclosed the pendency of the present petition, as well as those before the Sandiganbayan for
the determination of the existence of probable cause. In his petition in G.R. Nos. 212761-62, Sen. Estrada again mentioned
the Ombudsman’s 27 March 2014 Joint Order denying his Request.
17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of probable cause, which he maintains is
without legal or factual basis, but also that such finding of probable cause was premised on evidence not disclosed to him,
including those subject of his Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits
of New Witnesses and Other Filings dated 20 March 2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following documents -

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled “Benhur Luy upstages Napoles in Senate Hearing” by
Norman Bordadora and TJ Borgonio, published on 06 March 2014,

none of which were ever furnished Sen. Estrada prior to the issuance of the challengedJoint Resolution, despite written
request.

xxxx
 41

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTIONDATED 28 MARCH 2014 AND
CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, BUT ALSO VIOLATED SEN.
ESTRADA’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited the filing of Sen.
Estrada’s comment to the voluminous documents comprising the documents it furnished Sen. Estrada to a “non-extendible”
period of five (5) days, making it virtually impossible for Sen. Estrada to adequately study the charges leveled against him
and intelligently respond to them. The Joint Order also failed to disclose the existence of other counter-affidavits and failed to
furnish Sen. Estrada copies of such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was the “sole issue” he raised
before the Ombudsman in his Motion for Reconsideration dated 7 April 2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4 June 2014 Joint Order which denied his
motion for reconsideration of the 28 March 2014 Joint Resolution, Sen. Estrada did not mention that the 4 June 2014 Joint
Order stated that the Ombudsman “held in abeyance the disposition of the motions for reconsideration in this proceeding in
light of its grant to [Sen. Estrada] a period of five days from receipt of the 7 May 2014 [Joint] Order to formally respond to
the above-named co-respondent’s claims.”

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited to the fulfillment of the requisites of litis pendentia.52 To determine whether a
party violated the rule against forum shopping, the most important factor to ask is whether the elements of litis
pendentia are present, or whether a final judgment in one case will amount to res judicata in
another.53 Undergirding the principle of litis pendentia is the theory that a party is not allowed to vex another more than
once regarding the same subject matter and for the same cause of action. This theory is founded on the public policy that the
same matter should not be the subject of controversy in court more than once in order that possible conflicting judgments
may be avoided, for the sake of the stability in the rights and status of persons.54
x x x [D]espite the fact that what the petitioners filed was a petition for certiorari, a recourse that – in the usual
course and because of its nature and purpose – is not covered by the rule on forum shopping. The exception
from the forum shopping rule, however, is true only where a petition for certiorari is properly or regularly
invoked in the usual course; the exception does not apply when the relief sought, through a petition
for certiorari, is still pending with or has as yet to be decided by the respondent court, tribunal or body
exercising judicial or quasi-judicial body, e.g., a motion for reconsideration of the order assailed via a petition
for certiorari under Rule 65, as in the present case. This conclusion is supported and strengthened by
Section 1, Rule 65 of the Revised Rules of Court which provides that the availability of a remedy in the ordinary course of law
precludes the filing of a petition for certiorari; under this rule, the petition’s dismissal is the necessary consequence if
recourse to Rule 65 is prematurely taken.
To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting rulings, or at the
very least, to complicated situations, between the RTC and the Court of Appeals. An extreme possible result is for the
appellate court to confirm that the RTC decision is meritorious, yet the RTC may at the same time reconsider its ruling and
recall its order of dismissal. In this eventuality, the result is the affirmation of the decision that the court a quo has
backtracked on. Other permutations depending on the rulings of the two courts and the timing of these rulings are
possible. In every case, our justice system suffers as this kind of sharp practice opens the system to the
possibility of manipulation; to uncertainties when conflict of rulings arise; and at least to vexation for
complications other than conflict of rulings. Thus, it matters not that ultimately the Court of Appeals may completely
agree with the RTC; what the rule on forum shopping addresses are the possibility and the actuality of its harmful
effects on our judicial system.55
Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due process by the Ombudsman
even as his Motion for Reconsideration raising the very same issue remained pending with the Ombudsman. This is plain and
simple forum shopping, warranting outright dismissal of this Petition. cralaw red

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits and documents, fully
complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules
of Procedure of the Office of the Ombudsman, Administrative Order No. 7. Both the Revised Rules of Criminal Procedure and
the Rules of Procedure of the Office of the Ombudsman require the investigating officer to furnish the respondent with copies
of the affidavits of the complainant and affidavits of his supporting witnesses. Neither of these Rules require the investigating
officer to furnish the respondent with copies of the affidavits of his co-respondents. The right of the respondent is only
“to examine the evidence submitted by the complainant,” as expressly stated in Section 3(b), Rule 112 of the Revised
Rules of Criminal Procedure. This Court has unequivocally ruled in Paderanga that “Section 3, Rule 112 of the Revised Rules
of Criminal Procedure expressly provides that the respondent shall only have the right to submit a counter-affidavit, to
 42

examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or
cross-examine.” Moreover, Section 4 (a, b and c) of Rule II of the Ombudsman’s Rule of Procedure, read together, only
require the investigating officer to furnish the respondent with copies of the affidavits of the complainant and his supporting
witnesses. There is no law or rule requiring the investigating officer to furnish the respondent with copies of the affidavits of
his co-respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen. Estrada with copies of
the counter-affidavits of his co-respondents whom he specifically named, as well as the counter-affidavits of some of other
co-respondents. In the 4 June 2014 Joint Order, the Ombudsman even held in abeyance the disposition of the motions for
reconsideration because the Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to
formally respond to the claims made by his co-respondents. The Ombudsman faithfully complied with the existing Rules on
preliminary investigation and even accommodated Sen. Estrada beyond what the Rules required. Thus, the Ombudsman
could not be faulted with grave abuse of discretion. Since this is a Petition for Certiorari under Rule 65, the Petition
fails in the absence of grave abuse of discretion on the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not applicable to preliminary
investigations which are creations of statutory law giving rise to mere statutory rights. A law can abolish preliminary
investigations without running afoul with the constitutional requirements of due process as prescribed in Ang Tibay, as
amplified in GSIS. The present procedures for preliminary investigations do not comply, and were never intended to comply,
with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with finality rights and obligations of
parties, while administrative investigations governed by Ang Tibay, as amplified inGSIS, so adjudicate. Ang Tibay, as
amplified in GSIS, requires substantial evidence for a decision against the respondent in the administrative case. In
preliminary investigations, only likelihood or probability of guilt is required. To apply Ang Tibay, as amplified in GSIS, to
preliminary investigations will change the quantum of evidence required to establish probable cause. The respondent in an
administrative case governed by Ang Tibay, as amplified in GSIS, has the right to an actual hearing and to cross-examine the
witnesses against him. In preliminary investigations, the respondent has no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be impartial and
cannot be the fact-finder, investigator, and hearing officer at the same time. In preliminary investigations, the same public
officer may be the investigator and hearing officer at the same time, or the fact-finder, investigator and hearing officer may
be under the control and supervision of the same public officer, like the Ombudsman or Secretary of Justice. This explains
why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now declare that the guidelines in Ang
Tibay, as amplified in GSIS, are fundamental and essential requirements in preliminary investigations will render all past and
present preliminary investigations invalid for violation of constitutional due process. This will mean remanding for
reinvestigation all criminal cases now pending in all courts throughout the country. No preliminary investigation
can proceed until a new law designates a public officer, outside of the prosecution service, to determine probable cause.
Moreover, those serving sentences by final judgment would have to be released from prison because their conviction violated
constitutional due process.

Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying his Request,
which is the subject of the present Petition. He should have filed a Motion for Reconsideration, in the same manner that he
filed a Motion for Reconsideration of the 15 May 2014 Order denying his motion to suspend proceedings. The unquestioned
rule in this jurisdiction is that certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law against the acts of the public respondent.56 The plain, speedy and adequate remedy expressly
provided by law is a Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen. Estrada’s failure to file
a Motion for Reconsideration renders this Petitionpremature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration of the 28 March 2014 Joint
Resolution of the Ombudsman finding probable cause. While his Motion for Reconsideration of the 28 March 2014 Joint
Resolution was pending, Sen. Estrada did not wait for the resolution of the Ombudsman and instead proceeded to file the
present Petition for Certiorari. The Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the issue that
Sen. Estrada is raising in this Petition. Thus, Sen. Estrada’s present Petition for Certiorari is not only premature, it also
constitutes forum shopping.

WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.

SO ORDERED. cralawlawlibra ry

FIRST DIVISION

G.R. No. 179491, January 14, 2015

ALEJANDRO C. ALMENDRAS, JR., Petitioner, v. ALEXIS C. ALMENDRAS, Respondent.

DECISION
 43

SERENO, C.J.:

We resolve the Petition for Review filed by petitioner Alejandro C. Almendras, Jr., from the 27 January 2006 Decision and 28
August 2007 Resolution of the Court of Appeals (CA) in CA-G.R. CV No. 73088.1The CA affirmed the Decision and Order of
the Regional Trial Court (RTC) in Civil Case No. 33432finding petitioner liable for damages. cralawred

THE FACTS

As culled from the CA, petitioner sent letters with similar contents on 7 February 1996 to House Speaker Jose de Venecia,
Jr., and on 26 February 1996 to Dr. Nemesio Prudente, President of Oil Carriers, Inc. The controversial portion of the first
and second letters reads as follows: cha nro blesvi rtua llawli bra ry

This is to notify your good self and your staff that one ALEXIS “DODONG” C. ALMENDRAS, a brother, is not vested with any
authority to liaison or transact any business with any department, office, or bureau, public or otherwise, that has bearing or
relation with my office, mandates or functions. x x x.

Noteworthy to mention, perhaps, is the fact that Mr. Alexis “Dodong” C. Almendras, a reknown blackmailer, is a bitter rival in
the just concluded election of 1995 who ran against the wishes of my father, the late Congressman Alejandro D. Almendras,
Sr. He has caused pain to the family when he filed cases against us: his brothers and sisters, and worst against his own
mother.

I deemed that his act of transacting business that affects my person and official functions is malicious in purpose, done with
ill motive and part of a larger plan of harassment activities to perforce realise his egoistic and evil objectives.

May I therefore request the assistance of your office in circulating the above information to concerned officials and
secretariat employees of the House of Representatives.3 chanRo blesvi rtual Lawli bra ry

xxxx

These letters were allegedly printed, distributed, circulated and published by petitioner, assisted by Atty. Roberto Layug, in
Digos, Davao del Sur and Quezon City, with evident bad faith and manifest malice to destroy respondent Alexis C.
Almendras’ good name. Hence, the latter filed an action for damages arising from libel and defamation against petitioner in
the Regional Trial Court (RTC), Branch 19, Digos City. cralawred

THE RTC RULING

In the course of trial at the lower court, petitioner failed to present any evidence, except his Answer, despite several
rescheduling of hearings at his instance.4 The trial court thus submitted the case for decision, and eventually ruled that
respondent was libeled and defamed. For the sufferings, social ridicule, defamation and dishonor caused by petitioner’s
letters, respondent was awarded damages, as follows: “P5,000,000.00 as moral damages; P100,000.00 as exemplary
damages; P10,000.00 for litigation expenses; and attorney’s fees in the amount of 25% of whatever amounts actually
received by plaintiff for this judgment.”5 chanRoblesv irt ual Lawlib rary

Petitioner moved for reconsideration and/or new trial,6 but the same was denied by the trial court.7 chanRoble svirtual Lawli bra ry

THE CA RULING

On intermediate appellate review, the CA ruled that petitioner was not denied due process. It noted that petitioner was given
full opportunity to present his evidence, but he vehemently disregarded the proceedings by merely absenting himself from
trials without valid excuses. 8
chanRoble svirtual Lawli bra ry

The appellate court also ruled that the letters were not privileged communications, since petitioner was not acting as a
member of the Congress when he sent them. In fact, his letter stated that he extends his “apology for bringing this personal
matter in the open.” He was, as maintained by the respondent, sending open libelous and unsealed letters, duly published
and circulated in Digos, Davao del Sur, and Quezon City.9 Consequently, the CA upheld the damages awarded by the trial
court, the amounts being consistent with the social and financial standing of the parties involved.10 chanRob lesvi rtual Lawli bra ry

We now rule on the final review of the case. cralawred

THE ISSUES

From the foregoing, we reduce the issues to the following:

(1) Whether or not petitioner was deprived due process;

(2) Whether or not the letters are libelous in nature;

(3) Whether or not the letters fall within the purview of privileged communication; and
 44

(4) Whether or not respondent is entitled to moral and exemplary damages, attorney’s fees and litigation expenses.

OUR RULING

We deny the petition.

Petitioner anchors his appeal on the ground that his letters are covered by privileged communications. He insists that he has
the legal, moral, or social duty to make the communication, or at least, had an interest to protect, being then a Congressman
duty-bound to insulate his office and his constituents from the dubious and mistrustful pursuits of his elder
brother.11 Moreover, the letters were also not meant to be circulated or published. They were sent merely to warn the
individuals of respondent’s nefarious activities, and made in good faith and without any actual malice. Respondent’s
testimony that he learned the existence of the letter from others cannot be countenanced, as no witness corroborated this.
At best, it is only hearsay.12
chanRoblesvi rtual Lawl ibra ry

On the denial of his motion for reconsideration and/or new trial, he maintains that his own counsel Atty. Leonardo D. Suario
categorically admitted that he did not know of petitioner’s ailment and thus did not make the proper manifestations in Court.
His failure to attend the hearing was not of his own volition, but because of his doctor’s strict advice since he earlier
underwent a quadruple coronary artery bypass at the St. Luke’s Medical Center-Heart Institute in Quezon City on 16 July
2001, just a day before the Motion for Reconsideration and/or New Trial was filed. While his counsel represents him, the
latter’s mistakes should not deprive him of his day in court to present his side.13 cha nRoblesv irt ual Lawlib rary

As to the damages, petitioner avers that since respondent never testified on any suffering he sustained or why he is entitled
to them, the same must not be awarded.

On the other hand, respondent asserts that petitioner’s letters do not fall within the purview of privileged communication
because it was published and read by the secretariat of the House of the Representatives, and not exclusively communicated
to persons who have some interest or duty in the matter and who have the power to furnish the protection sought by the
author of the statement. Moreover, he was not acting as a member of congress when he sent the letters. The writing of a
personal matter (which petitioner admitted in the letters), not relating to the functions of a member of Congress cannot, by
any stretch of imagination, be deemed to be privileged and insulated from suit arising therefrom.14 chanRob lesvi rtual Lawl ibra ry

Malice has also been sufficiently proven because the language of the letters in fact shows that the writer had some ill-feeling
towards the respondent by using the words such as “reknown blackmailer” and “bitter rival.” There is sufficient showing that
petitioner bore a grudge against the respondent and that there was rivalry or ill-feeling between them.15 chanRoble svirtual Lawli bra ry

Anent the damages, respondent believes that they were rightly awarded, taking into consideration his testimony in the lower
court,16 and the financial and social standing of the parties herein.17 cha nRoblesv irt ual Lawlib rary

First, we rule that petitioner was not deprived of his right to due process.

Settled is the rule that a client is bound by the mistakes of his counsel. The only exception is when the negligence of the
counsel is so gross, reckless and inexcusable that the client is deprived of his day in court. In such instance, the remedy is to
reopen the case and allow the party who was denied his day in court to adduce evidence. However, perusing the case at bar,
we find no reason to depart from the general rule.18 c hanRoble svirtual Lawlib ra ry

Petitioner was given several opportunities to present his evidence or to clarify his medical constraints in court, but he did not
do so, despite knowing full well that he had a pending case in court. For petitioner to feign and repeatedly insist upon a lack
of awareness of the progress of an important litigation is to unmask a penchant for the ludicrous. Although he rightfully
expected counsel to amply protect his interest, he cannot just sit back, relax and await the outcome of the case. In keeping
with the normal course of events, he should have taken the initiative “of making the proper inquiries from his counsel and
the trial court as to the status of his case.” For his failure to do so, he has only himself to blame.19 The Court cannot allow
petitioner the exception to the general rule just because his counsel admitted having no knowledge of his medical condition.
To do so will set a dangerous precedent of never-ending suits, so long as lawyers could allege their own fault or negligence
to support the client’s case and obtain remedies and reliefs already lost by the operation of law.20 chanRoblesv irt ual Lawlib rary

Second, we find that petitioner’s letters are libelous in nature and do not fall within the purview of privileged
communication.

For an imputation to be libelous under Article 353 of the Revised Penal Code, the following requisites must be present: (a) it
must be defamatory; (b) it must be malicious; (c) it must be given publicity; and (d) the victim must be identifiable.21 chanRob lesvi rtua lLawl ibra ry

Consequently, under Article 354, every defamatory imputation is presumed to be malicious, even if true, if no good intention
and justifiable motive is shown. As an exception to the rule, the presumption of malice is done away with when the
defamatory imputation qualifies as privileged communication.22In order to qualify as privileged communication under Article
354, Number 1,23 the following requisites must concur: (1) the person who made the communication had a legal, moral, or
social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the
one to whom it is made; (2) the communication is addressed to an officer or a board, or superior, having some interest or
duty in the matter, and who has the power to furnish the protection sought; and (3) the statements in the communication
 45

are made in good faith and without malice.24 chanRob lesvi rtual Lawli bra ry

Were petitioner’s letters defamatory in nature? We believe so.

In determining whether a statement is defamatory, the words used are to be construed in their entirety and should be taken
in their plain, natural, and ordinary meaning as they would naturally be understood by the persons reading them, unless it
appears that they were used and understood in another sense.25 In the instant case, the letters tag respondent as a
“reknown black mailer,” a vengeful family member who filed cases against his mother and siblings, and with nefarious
designs. Even an impartial mind reading these descriptions would be led to entertain doubts on the person’s character,
thereby affecting that person’s reputation.

Malice can also be presumed inasmuch as the letters are not privileged in nature. Petitioner’s contention that he has the
legal, moral or social duty to make the communication cannot be countenanced because he failed to communicate the
statements only to the person or persons who have some interest or duty in the matter alleged, and who have the power to
furnish the protection sought by the author of the statement. A written letter containing libelous matter cannot be classified
as privileged when it is published and circulated among the public.26 Examination of the letters would reveal that petitioner
himself intended for the letters to be circulated (and they were so) when he said that: chan roblesv irt uallawl ibra ry

May I therefore request the assistance of your office in circulating the above information to concerned officials and
secretariat employees of the House of Representatives.27

This lack of selectivity on his part is indicative of malice and is anathema to his claim of privileged communication because
such publication created upon the minds of the readers a circumstance which brought discredit and shame to respondent’s
reputation.28chanRoble svirtual Lawlib ra ry

Lastly, having duly proved that all the elements of libel are present in this case, we rule that the damages awarded by
the trial court and affirmed by the appellate court must be modified and equitably reduced.

In awarding damages in libel cases, the court is given ample discretion to determine the amount, depending upon the facts
of the particular case.29 Article 2219 of the Civil Code expressly authorizes the recovery of moral damages in cases of libel,
slander or any other form of defamation. However, “while no proof of pecuniary loss is necessary in order that moral
damages may be awarded, x x x it is nevertheless essential that the claimant should satisfactorily show the existence of the
factual basis of damages and its causal connection to defendant’s acts.”30 Considering that respondent sufficiently justified
his claim for damages (i.e. he testified that he was “embarrassed by the said letters [and] ashamed to show his face in [sic]
government offices”31), we find him entitled to moral and exemplary damages.

However, we equitably reduce the amounts32 awarded because even though the letters were libellous, respondent has not
suffered such grave or substantial damage to his reputation to warrant receiving P5,000,000 as moral damages and
P100,000.00 as exemplary damages. In fact, he was able to successfully secure an elected position in recent years.
Accordingly, we reduce the award of moral damages from P5,000,000 to P100,000 and exemplary damages from P100,000
to P20,000.

The award of attorney’s fees is not proper because respondent failed to justify satisfactorily his claim, and both the trial and
appellate courts failed to explicitly state in their respective decisions the rationale for the award.33 It is an accepted doctrine
that the award thereof as an item of damages is the exception rather than the rule, and counsel’s fees are not to be awarded
every time a party wins a suit. The power of the court to award attorney’s fees under Article 2208 of the Civil Code demands
factual, legal and equitable justification, without which the award is a conclusion without a premise, its basis being
improperly left to speculation and conjecture. In all events, the court must explicitly state in the text of the decision, and not
only in the decretal portion thereof, the legal reason for the award of attorney’s fees.34 The same is true for the award of
litigation expenses because respondent failed to satisfactorily justify his claim. c han robles law

WHEREFORE, we DENY the instant petition. The 27 January 2006 Decision and 28 August 2007 Resolution of the Court of
Appeals in CA-G.R. CV No. 73088 are hereby MODIFIED, in that: (1) the award of moral damages is reduced from
P5,000,000 to P100,000; (2) the award of exemplary damages is reduced from P100,000 to P20,000; and (3) litigation
expenses and attorney’s fees are deleted.

SO ORDERED. cralawlawlibra ry

FIRST DIVISION

G.R. No. 168950, January 14, 2015

ROHM APOLLO SEMICONDUCTOR PHILIPPINES, Petitioner, v. COMMISSIONER OF INTERNAL

REVENUE, Respondents.

DECISION
 46

SERENO, C.J.:

This Rule 45 Petition1 requires this Court to address the question of timeliness with respect to petitioner's judicial claim for
refund or credit of unutilized input Value-Added Tax (VAT) under Sections 112(A) and 112(D)2 of the 1997 Tax Code.
Petitioner Rohm Apollo Semiconductor Philippines., Inc. (Rohm Apollo) assails the Decision3 and Resolution4 of the Court of
Tax Appeals En Banc (CTA En Banc) in CTA En Banc Case No. 59, affirming the Decision in CTA Case No. 6534 of the CTA
First Division.5 The latter denied the claim for the refund or issuance of a tax credit certificate filed by petitioner Rohm Apollo
in the amount of P30,359,615.40 representing unutilized input VAT paid on capital goods purchased for the months of July
and August 2000. cralawred

FACTS

Petitioner Rohm Apollo is a domestic corporation registered with the Securities and Exchange Commission.6 It is also
registered with the Philippine Economic Zone Authority as an Ecozone Export Enterprise.7 Rohm Apollo is in the business of
manufacturing semiconductor products, particularly microchip transistors and tantalium capacitors at the People’s Technology
Complex – Special Economic Zone, Barangay Maduya, Carmona Cavite.8 Further, it is registered with the Bureau of Internal
Revenue (BIR) as a value-added taxpayer.9 chanRoblesv irt ual Lawlib rary

Sometime in June 2000, prior to the commencement of its operations on 1 September 2001, Rohm Apollo engaged the
services of Shimizu Philippine Contractors, Inc. (Shimizu) for the construction of a factory.10 For services rendered by
Shimizu, petitioner made initial payments of P198,551,884.28 on 7 July 2000 and P132,367,923.58 on 3 August 2000.11 chanRoble svirtual Lawlib ra ry

It should be noted at this point that Section 112(B), 12 in relation to Section 112(A) 13 of the 1997 Tax Code, allows a
taxpayer to file an application for the refund or tax credit of unutilized input VAT when it comes to the purchase of capital
goods. The provision sets a time frame for the filing of the application at two years from the close of the taxable quarter
when the purchase was made.

Going back to the case, petitioner treated the payments as capital goods purchases and thus filed with the BIR an
administrative claim for the refund or credit of accumulated unutilized creditable input taxes on 11 December 2000.14 As the
close of the taxable quarter when the purchases were made was 30 September 2000, the administrative claim was filed well
within the two-year prescriptive period.

Pursuant to Section 112(D)15 of the 1997 Tax Code, the Commissioner of Internal Revenue (CIR) had a period of 120 days
from the filing of the application for a refund or credit on 11 December 2000, or until 10 April 2001, to act on the claim. The
waiting period, however, lapsed without any action by the CIR on the claim.

Instead of filing a judicial claim within 30 days from the lapse of the 120-day period on 10 April, or until 10 May 2001, Rohm
Apollo filed a Petition for Review with the CTA docketed as CTA Case No. 6534 on 11 September 2002. It was under the
belief that a judicial claim had to be filed within the two-year prescriptive period ending on 30 September 2002.16 chanRoble svirtual Lawlib ra ry

On 27 May 2004, the CTA First Division rendered a Decision17 denying the judicial claim for a refund or tax credit. In support
of its ruling, the CTA First Division held, among others, that petitioner must have at least submitted its VAT return for the
third quarter of 2001, since it was in that period that it began its business operations. The purpose was to verify if indeed
petitioner did not carry over the claimed input VAT to the third quarter or the succeeding quarters.

On 14 July 2004, petitioner Rohm Apollo filed a Motion for Reconsideration, but the tax court stood by its Decision.18 chanRoblesv irt ual Lawlib rary

On 18 January 2005, the taxpayer elevated the case to the CTA En Banc via a Petition for Review.19 cha nRoblesv irt ual Lawlib rary

On 22 June 2005, the CTA En Banc rendered its Decision denying Rohm Apollo’s Petition for Review.20The appellate tax court
held that the failure to present the VAT returns for the subsequent taxable year proved to be fatal to the claim for a
refund/tax credit, considering that it could not be determined whether the claimed amount to be refunded remained
unutilized.

Petitioner filed a Motion for Reconsideration of the Decision, but it was denied for lack of merit.

Persistent, the taxpayer filed this Rule 45 Petition, arguing that it has satisfied all the legal requirements for a valid claim for
refund or tax credit of unutilized input VAT.cralawred

ISSUE

The threshold question to be resolved is whether the CTA acquired jurisdiction over the claim for the refund or tax credit of
unutilized input VAT. cralawred

THE COURT’S RULING

We deny the Petition on the ground that the taxpayer’s judicial claim for a refund/tax credit was filed beyond the prescriptive
period.
 47

The judicial claim was filed out of time.

Section 112(D) of the 1997 Tax Code states the time requirements for filing a judicial claim for the refund or tax credit of
input VAT. The legal provision speaks of two periods: the period of 120 days, which serves as a waiting period to give time
for the CIR to act on the administrative claim for a refund or credit; and the period of 30 days, which refers to the period
for filing a judicial claim with the CTA. It is the 30-day period that is at issue in this case.

The landmark case of Commissioner of Internal Revenue v. San Roque Power Corporation21 has interpreted Section 112 (D).
The Court held that the taxpayer can file an appeal in one of two ways: (1) file the judicial claim within 30 days after the
Commissioner denies the claim within the 120-day waiting period, or (2) file the judicial claim within 30 days from the
expiration of the 120-day period if the Commissioner does not act within that period.

In this case, the facts are not up for debate. On 11 December 2000, petitioner filed with the BIR an application for the refund
or credit of accumulated unutilized creditable input taxes. Thus, the CIR had a period of 120 days from 11 December 2000,
or until 10 April 2001, to act on the claim. It failed to do so, however. Rohm Apollo should then have treated the CIR’s
inaction as a denial of its claim. Petitioner would then have had 30 days, or until 10 May 2001, to file a judicial claim with the
CTA. But Rohm Apollo filed a Petition for Review with the CTA only on 11 September 2002. The judicial claim was thus filed
late.

The error of the taxpayer lies in the fact that it had mistakenly believed that a judicial claim need not be filed within 30 days
from the lapse of the 120-day period. It had believed that the only requirement is that the judicial claim must be filed within
the two-year period under Sections 112(A) and (B) of the 1997 Tax Code. In other words, Rohm Apollo erroneously thought
that the 30-day period does not apply to cases of the CIR’s inaction after the lapse of the 120-day waiting period, and that a
judicial claim is seasonably filed so long as it is done within the two year-period. Thus, it filed the Petition for Review with the
CTA only on 11 September 2002.

These mistaken notions have already been dispelled by Commissioner of Internal Revenue v. Aichi Forging Company of Asia,
Inc. (Aichi)22 and San Roque. Aichi clarified that it is only the administrative claim that must be filed within the two-year
prescriptive period.23 San Roque, on the other hand, has ruled that the 30-day period always applies, whether there is a
denial or inaction on the part of the CIR.24 chanRoblesvirtual Lawlib ra ry

Justice Antonio Carpio, writing for the Court in San Roque, explained that the 30-day period is a 1997 Tax Code innovation
that does away with the old rule where the taxpayer could file a judicial claim when there is inaction on the part of the CIR
and the two-year statute of limitations is about to expire. Justice Carpio stated: chanroble svi rtual lawlib rary

The old rule that the taxpayer may file the judicial claim, without waiting for the Commissioner's decision if the two-year
prescriptive period is about to expire, cannot apply because that rule was adopted before the enactment of the 30-day
period. The 30-day period was adopted precisely to do away with the old rule, so that under the VAT System the taxpayer
will always have 30 days to file the judicial claim even if the Commissioner acts only on the 120th day, or does not
act at all during the 120-day period. With the 30-day period always available to the taxpayer, the taxpayer can no longer
file a judicial claim for refund or credit of input VAT without waiting for the Commissioner to decide until the expiration of the
120-day period.25 (Emphases supplied)

The 30-day period to appeal is

mandatory and jurisdictional.

As a general rule, the 30-day period to appeal is both mandatory and jurisdictional. The only exception to the general rule is
when BIR Ruling No. DA-489-03 was still in force, that is, between 10 December 2003 and 5 October 2010, The BIR Ruling
excused premature filing, declaring that the taxpayer-claimant need not wait for the lapse of the 120-day period before it
could seek judicial relief with the CTA by way of Petition for Review. In San Roque, the High Court explained both the general
rule and the exception: chan rob lesvi rtual lawlib rary

To repeat, a claim for tax refund or credit, like a claim for tax exemption, is construed strictly against the taxpayer. One of
the conditions for a judicial claim of refund or credit under the VAT System is with the 120+30 day mandatory and
jurisdictional periods.Thus, strict compliance with the 120+30 day periods is necessary for such a claim to prosper,
whether before, during, or after the effectivity of the Atlas doctrine,except for the period from the issuance of BIR
Ruling No. DA-489-03 on 10 December 2003 to 6 October 2010 when the Aichi doctrine was adopted, which
again reinstated the 120+30 day periods as mandatory and jurisdictional.26 (Emphases supplied)

San Roque likewise ruled out the application of the BIR ruling to cases of late filing. The Court held that the BIR ruling, as an
exception to the mandatory and jurisdictional nature of the 120+30 day periods, is limited to premature filing and does not
extend to the late filing of a judicial claim.27 chanRob lesvi rtual Lawl ibra ry

In sum, premature filing is allowed for cases falling during the time when BIR Ruling No. DA-489-03 was in force;
nevertheless, late filing is absolutely prohibited even for cases falling within that period.

As mentioned above, the taxpayer filed its judicial claim with the CTA on 11 September 2002. This was before the
issuance of BIR Ruling No. DA-489-03 on 10 December 2003. Thus, Rohm Apollo could not have benefited from the BIR
 48

Ruling. Besides, its situation was not a case of premature filing of its judicial claim but one of late filing. To repeat, its
judicial claim was filed on 11 September 2002 – long after 10 May 2001, the last day of the 30-day period for appeal. The
case thus falls under the general rule – the 30-day period is mandatory and jurisdictional. cralaw red

CONCLUSION

In fine, our finding is that the judicial claim for the refund or credit of unutilized input VAT was belatedly filed. Hence, the
CTA lost jurisdiction over Rohm Apollo’s claim for a refund or credit.

The foregoing considered, there is no need to go into the merits of this case.

A final note, the taxpayers are reminded that that when the 120-day period lapses and there is inaction on the part of the
CIR, they must no longer wait for it to come up with a decision thereafter. The CIR’s inaction is the decision itself. It is
already a denial of the refund claim. Thus, the taxpayer must file an appeal within 30 days from the lapse of the 120-day
waiting period.c han robles law

WHEREFORE, the Petition is DENIED for lack of merit.

SO ORDERED. cralawlawlibra ry

FIRST DIVISION

A.M. No. P-08-2465 [Formerly A.M. OCA IPI No. 04-1849-P], January 12, 2015

CONCHITA S. BAHALA, Complainant, v. CIRILO DUCA, SHERIFF III, MUNICIPAL CIRCUIT TRIAL COURT IN CITIES,
BRANCH 1, CAGAYAN DE ORO CITY, Respondent.

DECISION

BERSAMIN, J.:

Complainant Conchita S. Bahala has charged grave abuse of discretion, gross misconduct and violation of the Anti-Graft and
Corrupt Practices Act (Republic Act No. 3019) against respondent Cirilo Duca, Sheriff III of the Municipal Trial Court in Cities
(MTCC), Branch 1, in Cagayan de Oro City in relation to his implementation of the writ of execution issued in Civil Case No.
98-July-817 entitledEstate of Casimiro Tamparong and Feliza Neri Tamparong, represented by Special Administratrix,
Veronica T. Borja v. Conchita S. Bahala and Mr. Bahala (Husband), an action for ejectment. cralawred

Antecedents

On August 6, 1999, the MTCC rendered judgment in Civil Case No. 98-July-817 that was adverse to Bahala.1 Pending appeal,
the Regional Trial Court (RTC) rendered a judgment on the compromise agreement of the parties,2 pursuant to which Bahala
paid the balance of the money judgment, remained in the premises during the agreed extension of two years, and paid her
monthly rentals. By the end of the two-year extension, she offered to sell the building standing on the property that she had
supposedly built in good faith. Not wanting to pay for the building, the plaintiff opted to execute the judgment. On August 1,
2002, Sheriff Duca served the writ of execution,3 but demanded P2,000.00 from her in order to delay its implementation.
She delivered the amount demanded on a Saturday at the Hall of Justice in the company of her friend, Helen Peligro. Bahala
averred, too, that Sheriff Duca had served the writ on her more than 10 times, and that she had given him either P200.00 or
P100.00 each time. In 2003, she started to evade Sheriff Duca whenever he served the writ.4 chanRob lesvi rtual Lawl ibra ry

Without filing his return on the writ, Sheriff Duca served a notice of auction sale on February 21, 2003,5 stating the amount
of P210,000.00 as the rentals-in-arrears due and demandable. The amount was allegedly his erroneous computation of the
rentals-in-arrears due because it was not based on the decision of the RTC. Consequently, Bahala opposed the sale. In its
order of May 5, 2003,6 the RTC ruled in her favor, to wit: chanroblesv irt uallawl ibra ry

Wherefore, defendants opposition is granted, the sheriff is enjoined from proceeding with the auction sale of defendant
property and he is instead hereby directed to execute the parties’ agreement regarding ejectment and removal of defendant
buildings/structures from the leased property of the plaintiff.

So Ordered.

Despite the clear order of the RTC, Sheriff Duca proceeded with the auction sale on May 13, 2003,7and awarded the building
to the plaintiff as the sole and highest bidder.8 On October 6, 2003, he forcibly removed all the personal belongings of the
actual occupants of the building, and placed them outside the building and along the street. He padlocked the building, and
warned Bahala and her lessees not to re-enter the premises. When she told him that his act was illegal, he retorted: Akong
himuon ang akong gusto, akong ning i-padlock ang imong building, walay makabuot sa ako. (I will do what I want. I will
 49

padlock your building and nobody will stop me from doing this). Later that afternoon, she started to voluntarily demolish the
building, but he ordered her to stop the demolition, threatening to file a case against her otherwise.9 chanRo blesvi rtua lLawl ib rary

In his answer,10 Sheriff Duca denied demanding and receiving any amount from Bahala. He admitted meeting her only on
four occasions, one of which was on a working day in the Hall of Justice, as she was pleading that her lessees not be
informed of the writ. He also admitted not having filed any return because his implementation was not yet complete at that
time, and that he informed the plaintiff about the status of the implementation of the writ. He maintained that the amount of
P210,000.00 contained in the notice of auction sale was based on the computation of the arrears submitted by the plaintiff.
As regards the auction sale, he received a copy of the RTC’s order only on May 5, 2003 long after the property had been
auctioned off on March 3, 2003. He denied using force in ejecting the occupants of the building, stating that they had
voluntary removed their personal belongings themselves.

The Court resolved to re-docket this case as a regular administrative matter, and referred it to the Executive Judge of the
RTC in Cagayan de Oro City for investigation and recommendation.11 chanRoblesv irt ual Lawlib rary

In his report,12 then Executive Judge Edgardo T. Lloren found and concluded that Sheriff Duca had committed simple
misconduct for not filing his periodic report on the writ pursuant to Section 14, Rule 39 of the Rules of Court, and for
adopting the computation of arrears made by the plaintiff. Accordingly, Judge Lloren recommended that Sheriff Duca be
suspended for six months and one day without pay; and that the charges for violation of the Anti-Graft and Corrupt
Practices Act be dismissed for lack of merit.

The OCA agreed with Judge Lloren’s finding that Sheriff Duca had committed simple misconduct in basing the amount stated
in the notice of auction sale on the computation submitted by the plaintiff.13It also found Sheriff Duca liable for simple
neglect of duty for not complying with the requirements of Section 14, Rule 39 of the Rules of Court, and recommended his
suspension without pay for six months and one day with stern warning against the commission of similar acts or
omissions.14chanRob lesvi rtua lLawl ibra ry

Ruling

We agree with the findings of the OCA, but modify the recommended penalty.

As an agent of the law, a sheriff must discharge his duties with due care and utmost diligence. He cannot afford to err while
serving the court’s writs and processes without affecting the integrity of his office and the efficient administration of
justice.15 He is not given any discretion on the implementation of a writ of execution; hence, he must strictly abide by the
prescribed procedure to avoid liability.16 cha nRoblesv irt ual Lawlib rary

Section 14, Rule 39 of the Rules of Court requires a sheriff implementing a writ of execution (1) to make and submit a return
to the court immediately upon satisfaction in part or in full of the judgment; and (2) if the judgment cannot be satisfied in
full, to make a report to the court within 30 days after his receipt of the writ and state why full satisfaction could not be
made. He shall continue making the report every 30 days in the proceedings undertaken by him until the judgment is fully
satisfied in order to apprise the court on the status of the execution and to take necessary steps to ensure speedy execution
of decisions.17 cha nRoblesvi rtua lLaw lib rary

Although Sheriff Duca thrice served the writ on Bahala,18 he filed his return only on October 7, 2003 after her property had
been levied and sold on public auction.19 His excuses for his omission, that his “job was not yet finished,” and that he had
informed the plaintiff on the status of its implementation, did not exculpate him from administrative liability, because there is
no question that the failure to file a return on the writ constituted “simple neglect of duty,”20 defined as the failure of an
employee to give his attention to the task expected of him, signifying a disregard of a duty resulting from carelessness or
indifference.21 chanRoble svi rtual Lawli bra ry

In this regard, the OCA correctly observed: chan roblesv irtuallawl ib rary

As deputy sheriff, respondent could not be unaware of Section 14, Rule 39 of the 1997 Revised Rules of Civil Procedure x x x

xxxx

Based on the foregoing, it is mandatory for a sheriff to make a return of the writ of execution to the court issuing it. If the
judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court
and state the reason or reasons therefore. The court officer is likewise tasked to make a report to the court every thirty (30)
days on the proceedings taken thereon until the judgment is satisfied in full or its effectivity expires. The raison d’
etre behind this requirement is to update the court on the status of the execution and to take necessary steps to ensure the
speedy execution of decision.

A careful perusal of the records show that the writ of execution was issued on August 1, 2002. However, it was only more
than a year later or on October 7, 2003 when respondent sheriff was able to file his return of the writ. In his testimony
before the investigating judge on March 7, 2005, he was not even sure on when he first served the writ of execution upon
complainant but admitted of having served the same at least three (3) times yet he failed to timely make a sheriff’s return as
required under Section 14, Rule 39 of the Rules of Civil Procedure. Respondent though belatedly submitted his sheriff’s
return and furnished a copy thereof to the complainant only on October 7, 2003.
 50

Due to respondent’s failure to make a timely return and periodic progress report of the writ, the court was obviously unaware
of the auction sale of defendant’s property conducted by respondent-sheriff on March 3, 2003 that in its Order dated May 5,
2003, it enjoined respondent sheriff from proceeding with the auction sale of defendant’s property and directed him to
execute the parties’ agreement regarding ejectment and removal of defendants’ buildings/structures from the leased
property of the plaintiff. By then, subject property was already auctioned and awarded to plaintiff, being the highest bidder
and defendant’s agents already ejected from subject property per his Sheriff’s Return of Service dated October 7, 2003.

Clearly, respondent sheriff is derelict in his submission of the returns thereof. His explanation that “his job was not yet
finished and … talked to the plaintiff regarding the same” is utterly wanting. A finding that he was remiss in the performance
of his duty is thus proper under the attendant circumstances. For such nonfeasance, respondent is guilty of dereliction or
simple neglect of his duty as a sheriff, because he failed to submit his Report of Service within thirty (30) days from receipt
thereof and make periodic reports to the court until the judgment was fully satisfied. In fine, the gravamen of respondent’s
shortcoming is in his failure to observe Sec. 14, Rule 39 of the Rules of Court.22

Without doubt, Sheriff Duca played an indispensable part in the administration of justice. His duties as a sheriff included the
prompt enforcement of judgments and the efficient implementation of orders and writs issued by the court. Any move or
actuation in the discharge of his duties that denoted complacency, or reflected inefficiency, or constituted impropriety would
equate to the disregard of the office he held. Thus, his lapses in complying with Section 14, Rule 39 of the Rules of Court
constituted sufficient ground to order his dismissal, suspension from office or payment of a fine.23 chanRoblesvi rtual Lawl ibra ry

Sheriff Duca’s liability was not limited to his failure to file the return on the writ. The OCA recommended that he be found
liable also for simple misconduct because he was guilty of the irregularity of relying on the computation of the plaintiff in
charging Bahala for the arrears in rentals amounting to P210,000.00, thus: chanroblesvi rtua llawli bra ry

Respondent’s reliance on the computation of plaintiff for the rental-in-arrears amounting to P210,000.00 contained in the
Sheriff’s Notice of Auction Sale is likewise irregular. He should not have put undue reliance on the computation made by a
private individual not duly deputized by the court. It must be borne in mind that respondent sheriff has, as an officer of the
court, the duty to compute the amount due from the judgment debtor. (Bagano v. Paninsoro, 246 SCRA 146) For such
actuation, respondent committed simple misconduct.24

Compounding this liability was his admission of not inquiring whether Bahala had paid her rentals or not to the plaintiff.25 chanRoble svirtual Lawlib ra ry

To be sure, the amount of P210,000.00 stated in the notice of levy did not conform with the writ of execution that stated the
following amounts to be due to the plaintiff from Bahala, viz: cha nrob lesvi rtua llawlib ra ry

WRIT OF EXECUTION

xxxx

Whereas, Judgment on compromise agreement issued in this case by the Regional Trial Court Branch 40, dated 10 November
1999, quoted as follows: ChanRobles Vi rtua lawlib rary

COMPROMISE AGREEMENT

COME NOW the parties hereto, assisted by their respective counsels, and unto this Honorable Court hereby submit the
following Compromise Agreement, to wit:

xxxx
3) That the parties hereto are desirous of settling their dispute by compromise agreement and have voluntarily agreed the
following:
Cha nRobles Vi rtua lawlib rary

a) THAT defendant shall pay the sum of P17,900.00 upon signing of this Compromise Agreement, P15,500.00 of which shall
be taken from the amount deposited with the Clerk of Court of the Municipal Trial Court of Cagayan de Oro City to be applied
in the manner as follows:

P5,900.00 -- for payment of arrears in rentals as of December 30, 1999;

10,000.00 -- as attorney’s fees (part) per decision in Civil Case No. 98-Jul-817

2,000.00 -- for reimbursement of expenses of litigation

b) THAT the period of lease is extended to two (2) years commencing on January 1, 2000 and termination January 30, 2002.

c) THAT the monthly rental shall be five thousand pesos (P5,000.00) payable to the office of the plaintiff within the first (5)
days of each and every month without need of any demand.
x x x x26

It was Sheriff Duca’s duty as court sheriff to know the computation of the amount due in accordance with the writ of
execution.27 He should have ensured that only those ordained or decreed in the judgment would be the subject of execution.
To accomplish this, he must himself compute the correct amount due from the judgment obligor or garnishee based strictly
 51

on the terms of the executory judgment, and, if necessary, he must verify the amount from the court itself; in other words,
he could not rely on the computations submitted by private individuals not duly authorized to do so by the issuing court.28 He
could not delegate the official duty to compute or reckon the amounts to be realize through execution to such
individuals.29 In adopting the computations submitted by the plaintiff without himself determining whether the computations
conformed to the terms of the judgment and the writ, he was guilty of simple misconduct, an act that related to any unlawful
conduct prejudicial to the rights of the parties or to the right determination of the cause.30 chanRoblesvi rtua lLawl ibra ry

Sheriff Duca should discharge his duties as a court sheriff with utmost care and diligence, particularly that which pertained to
the implementation of orders and processes of the court. In the discharge of his duties, he acted as an agent of the court,
such that any lack of care and diligence he displayed would inevitably cause the erosion of the faith of the people in the
Judiciary.31
cha nRoblesvi rt ualLawlib rary

Anent the charge of violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act, Bahala did not adduce substantial
evidence to establish that Sheriff Duca had demanded and received monetary consideration to delay the implementation of
the writ of execution. The charge is dismissed for being without merit.

We modify the recommended penalty of suspension from office without pay for six months and one day. Under the Revised
Uniform Rules on Administrative Cases in the Civil Service, simple neglect of duty and simple misconduct are less grave
offenses punishable by suspension from office of one month and one day to six months for the first offense. The offense
charged being Sheriff Duca’s first violation, he is appropriately punished with suspension from office without pay for three
months, with a stern warning that the commission of the same or similar offense will be dealt with more severely. chanrob leslaw

WHEREFORE, the Court FINDS and DECLARES respondent CIRILO DUCA, Sheriff III of the Municipal Circuit Trial Court in
Cities, Branch 1, in Cagayan de Oro City, GUILTY of SIMPLE MISCONDUCT and SIMPLE NEGLECT OF DUTY, and,
accordingly, SUSPENDS him from office for three months without pay, with a stern warning that any similar infraction in the
future will be dealt with more severely.

SO ORDERED.

EN BANC

A.C. No. 10568 [Formerly CBD Case No. 10-2753], January 13, 2015

MARILEN G. SOLIMAN, Complainant, v. ATTY. DITAS LERIOS-AMBOY, Respondent.

RESOLUTION

REYES, J.:

This is an administrative complaint1 filed by Marilen G. Soliman (Soliman) against Atty. Ditas Lerios-Amboy (Atty. Amboy) for
violation of the Code of Professional Responsibility.

In her complaint, Soliman claimed that she engaged the services of Atty. Amboy on May 27, 2007 in connection with a
partition case. In accordance with the Retainer Agreement between the parties, Soliman agreed to pay Atty. Amboy
P50,000.00 as acceptance fee. Upon the latter’s engagement, Soliman paid her P25,000.00. Later on, Atty. Amboy advised
Soliman to no longer institute a partition case since the other co-owners of the property were amenable to the partition
thereof. Instead, Atty. Amboy just facilitated the issuance of the titles to the said property from the co-owners to the
individual owners; the P25,000.00 already paid to her was then treated as payment for her professional services.2 chanRoblesv irtual Lawlib rary

In November 2008, Soliman gave Atty. Amboy P16,700.00 as payment for the transfer tax. In the second quarter of 2009,
Atty. Amboy told Soliman that there was a delay in the issuance of the titles to the property because of the failure of the
other co-owners to submit certain documents. Atty. Amboy then told Soliman that someone from the Register of Deeds (RD)
can help expedite the issuance of the titles for a fee of P80,000.00. On June 17, 2009, Atty. Amboy told Soliman that her
contact in the RD agreed to reduce the amount to P50,000.00.3 chanRoblesv irt ual Lawlib rary

Meanwhile, Soliman deposited the amount of P8,900.00 to Atty. Amboy’s bank account as payment for the real property tax
for the year 2009. Thereafter, Soliman deposited the amount of P50,000.00 to Atty. Amboy’s bank account as payment for
the latter’s contact in the RD.4 chanRoblesvi rtua lLawl ibra ry

On October 16, 2009, Atty. Amboy informed Soliman that the certificates of title to the property were then only awaiting the
signature of the authorized officer. However, Atty. Amboy failed to deliver the respective certificates of title of Soliman and
her co-owners to the subject property.5 chanRob lesvi rtua lLawl ibra ry

On January 6, 2010, Atty. Amboy’s secretary informed Soliman that their contact in the RD was asking for an additional
P10,000.00 to facilitate the release of the said certificates of title. Soliman then refused to further pay the amount being
asked by Atty. Amboy’s secretary.6 chanRoblesvi rt ual Lawlib rary
 52

Thereafter, Soliman kept on asking Atty. Amboy for any update on the release of the said titles, but the latter was not
responding to her queries. On July 7, 2010, Soliman and Atty. Amboy’s secretary went to the office of a certain Atty.
Marasigan, Deputy RD of Manila. Soliman asked Atty. Marasigan if he received the P50,000.00 as payment for the release of
the said titles. Atty. Marasigan denied having received any amount to facilitate the release of the titles and claimed that the
reason why the same could not be processed was that Atty. Amboy failed to file certain documents.7 chanRoblesvi rtual Lawli bra ry

Soliman further claimed that Atty. Amboy thereafter refused to release the pertinent documents she gave to her for the
processing of the titles to the property or give back the P50,000.00 that was already paid to her.8 chanRoble svirtual Lawlib rary

For her part, Atty. Amboy admitted that she had a retainer agreement with Soliman, but denied having received any amount
from the latter pursuant to the said agreement. She claimed that the retainer agreement was not implemented since the
partition case was not instituted. She claimed that she merely undertook to research, gather and collate all documents
required in the partition and in the transfer of the titles from the co-owners to the individual owners. She denied having
failed to submit the relevant documents to the RD which caused the delay in the processing of the said titles. She likewise
denied having asked Soliman for P50,000.00 to facilitate the release of the said titles.9 chanRoble svirtual Lawlib ra ry

On May 29, 2012, after due proceedings, the Investigating Commissioner of the Commission on Bar Discipline of the
Integrated Bar of the Philippines (IBP) issued a Report and Recommendation,10 which recommended the suspension of Atty.
Amboy from the practice of law for six (6) months. The Investigating Commissioner opined that Atty. Amboy violated the
Code of Professional Responsibility by failing to observe due diligence in dealing with Soliman. It also opined that she failed
to inform the latter of the status of the proceedings for the issuance of the said titles.

On March 20, 2013, the IBP Board of Governors issued a Resolution,11 which adopted and approved the recommendation of
the Investigating Commissioner, albeit with the modification that the period of
Atty. Amboy’s suspension from the practice of law was increased from six (6) months to two (2) years and that she
was ordered to return the entire amount she received from Soliman.

Atty. Amboy sought a reconsideration12 of the Resolution dated March 20, 2013, but it was denied by the IBP Board of
Governors in its Resolution13 dated March 21, 2014.

After a thorough perusal of the respective allegations of the parties and the circumstances of this case, the Court affirms the
penalty imposed by the IBP Board of Governors.

The Code of Professional Responsibility clearly states that a lawyer owes fidelity to the cause of his client and that he should
be mindful of the trust and confidence reposed in him.14 A lawyer is mandated to serve his client with competence and
diligence; to never neglect a legal matter entrusted to him; and to keep his client informed of the status of his case and
respond within a reasonable time to the client’s request for information.15 chanRoble svirtual Lawlib ra ry

The circumstances of this case clearly show that Atty. Amboy, after receiving P25,000.00 as payment for her professional
services, failed to submit material documents relative to the issuance of separate certificates of title to the individual owners
of the property. It was her negligence which caused the delay in the issuance of the certificates of title.

To make matters worse, Atty. Amboy abetted the commission of an illegal act when she asked from Soliman the amount of
P50,000.00 to be paid to her “contact” inside the office of the RD in order to facilitate the release of the said certificates of
title. Further, notwithstanding the payment of P50,000.00, Atty. Amboy still failed to obtain issuance of the said certificates
of title. Instead of procuring the release of the certificates of title as she promised, Atty. Amboy asked for an additional
P10,000.00 from Soliman.

Clearly, this is not a simple case of negligence and incompetence by a counsel in dealing with a client. Atty. Amboy’s acts
undermined the legal processes, which she swore to uphold and defend. In swearing to the oath, Atty. Amboy bound herself
to respect the law and legal processes.

The Court further finds improper the refusal of Atty. Amboy to return the amount of P50,000.00 which she paid in order to
facilitate the release of the certificates of title. To reiterate, upon inquiry, Atty. Marasigan, the Deputy RD of Manila, denied
having received any amount from Atty. Amboy. In not returning the money to Soliman after a demand therefor was made
following her failure to procure the issuance of the certificates of title, Atty. Amboy violated Canon 16 of the Code of
Professional Responsibility, particularly Rule 16.03 thereof, which requires that a lawyer shall deliver the funds and property
of his client upon demand. It is settled that the unjustified withholding of money belonging to a client warrants the
imposition of disciplinary action.16 chanRob lesvi rtual Lawl ibra ry

“A lawyer’s failure to return upon demand the funds held by him on behalf of his client gives rise to the presumption that he
has appropriated the same for his own use in violation of the trust reposed in him by his client. Such act is a gross violation
of general morality as well as of professional ethics. It impairs public confidence in the legal profession and deserves
punishment.”17 chanRoblesvi rtua lLawl ibra rycha nro bleslaw

WHEREFORE, in consideration of the foregoing disquisitions, Atty. Ditas Lerios-Amboy is foundGUILTY of violating Rule
16.03, Canons 17 and 18, and Rules 18.03 and 18.04 of the Code of Professional Responsibility and is
hereby SUSPENDED from the practice of law for a period of two (2) years, effective upon receipt of this Resolution.
 53

Furthermore, she is ORDERED to return to Marilen G. Soliman the entire amount of Fifty Thousand Pesos (P50,000.00) she
received from the latter, plus legal interest thereon, reckoned from finality of this Resolution until fully paid. The respondent
is further DIRECTED to promptly submit to this Court written proof of her compliance within thirty (30) days from notice of
this Resolution.

Let copies of this Resolution be furnished to the Office of the Bar Confidant, to be appended to Atty. Ditas Lerios-Amboy’s
personal record as an attorney; to the Integrated Bar of the Philippines; and to the Office of the Court Administrator for
dissemination to all courts throughout the country for their information and guidance.

SO ORDERED. cralawlawlibra ry

SECOND DIVISION

G.R. No. 209346, January 12, 2015

PEOPLE OF THE PHILIPPINES, Appellee, v. ARNALDO BOSITO Y CHAVENIA, Appellant.

DECISION

CARPIO, J.:

The Case

Before the Court is an appeal assailing the Decision1 dated 19 April 2013 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
05289. The CA affirmed with modification the Decision2 dated 29 September 2011 of the Regional Trial Court (RTC) of
Tabaco City, Albay, Branch 15 in Criminal Case No. T-4696, convicting appellant Arnaldo Bosito y Chavenia (Bosito) of the
crime of murder and sentencing him to suffer the penalty of reclusion perpetua.

The Facts

Bosito was charged in an Information for murder, defined and penalized under Article 2483 of the Revised Penal Code. The
Information states: chanroblesvi rtua llawli bra ry

That [on or] about 1:00 in the afternoon of June 11, 2007 at P-1, Barangay Hacienda, San Miguel Island, City of Tabaco,
Philippines, and within the jurisdiction of this Honorable Court, the [above-named accused], with intent to kill and with
treachery, and while armed with a bolo, did then and there willfully, unlawfully, feloniously attack, assault, and hack WILLY
BERBA BONAOBRA, thereby inflicting upon the latter multiple mortal wounds which directly caused his death, to the damage
and prejudice of his legal heirs.

ACTS CONTRARY TO LAW.4

Upon arraignment, Bosito pleaded not guilty and invoked self-defense.

On 14 January 2008, at the pre-trial conference, the following facts offered for stipulation by the prosecution were admitted
by the defense: (1) the identity of Bosito; (2) that Bosito and the victim, Willy Berba Bonaobra (Bonaobra) knew each other;
(3) that Bosito was in Hacienda, San Miguel, Tabaco City on 11 June 2007; (4) that Bosito saw Bonaobra in Hacienda in the
afternoon of 11 June 2007; (5) that Bonaobra is already dead; (6) that Bosito hacked Bonaobra several times at the house of
Rosemarie Bongon in Hacienda, San Miguel, in the afternoon of 11 June 2007; and (7) that Bonaobra did not die immediately
at the scene of the incident but expired at the hospital.

The prosecution presented the following witnesses: (1) Adonis Bosito (Adonis), Bosito’s nephew and the eyewitness to the
crime; (2) Vicente Bonaobra, father of the victim; (3) Dr. Nicanor Manzano III, the attending physician of Bonaobra at the
Bicol Regional Training and Teaching Hospital where the victim was brought after the hacking incident; (4) Atty. William
Balayo, the lawyer who assisted Bosito when he gave his extrajudicial confession; and (5) SPO1 Dennis Biron, the
Investigator and Blotter Custodian of Tabaco City Police Force.

The prosecution summed up its version of the facts from the testimony of Adonis, the eyewitness to the crime: Bonaobra
arrived at the house of his sister Rosemarie Bongon (Rosemarie) at around noon of 11 June 2007. After 30 minutes, Bosito
arrived at Rosemarie’s house. Bosito stood beside Bonaobra and watched a card game being played by other guests.
Bonaobra offered Bosito some peanuts which Bosito accepted.

At around 1:00 in the afternoon, without warning, Bosito hacked Bonaobra with a bolo as the victim was trying to sit. The
blow to his head caused Bonaobra to slump to the ground. He tried to crawl away but Bosito hacked him again and hit him in
the leg. Despite his injuries, Bonaobra was still conscious and continued crawling. Bosito then positioned himself behind
Bonaobra and hacked him in the head two more times. Although already mortally wounded, Bonaobra still managed to stand
 54

up and run away.

After Bonaobra’s escape, Adonis picked up a wooden post from the ground and told Bosito to stop. However, Bosito waved
his bolo and told Adonis not to come near him. Bosito then walked toward the direction of his house and threatened Adonis
and his companions that they would be next should they follow him.

Later, Adonis saw Bonaobra being boarded on a boat and found out that Bonaobra was taken to a hospital. On 14 June 2007,
Bonaobra died of aspiration pneumonia due to sustained multiple hack wounds.

Adonis testified that Bonaobra did not provoke Bosito. Adonis suspected that Bosito thought that Bonaobra came to Tabaco
City to avenge Edgar Binas, who was also hacked by Bosito three years earlier.

Dr. Nicanor Manzano III, the attending physician of Bonaobra when he was brought to the hospital issued two medico-legal
certificates showing that Bonaobra sustained: (1) a skull fracture which caused brain evisceration; (2) severe neck trauma;
(3) thoracic area posterior trauma; and (4) left gluteal area trauma. Dr. Manzano testified that all of Bonaobra’s wounds
were to the back of his head and the back side of his torso. Among all his wounds, the most fatal was the first head trauma
which caused Bonaobra’s brain tissues to come out from his skull.

Atty. William Balayo testified that upon the request of PO2 Joel Zubeldia, he assisted Bosito in executing his extrajudicial
confession. Atty. Balayo ensured that Bosito understood his constitutional rights and Bosito, having understood the
implication of his act, voluntarily gave his confession. Atty. Balayo stated that Bosito admitted striking the victim only once.
However, upon learning that Bonaobra died in the hospital several days after due to multiple hack wounds, Atty. Balayo
decided not to assist anymore because of Bosito’s misrepresentation.

SPO1 Dennis Biron brought to court and read into the records Police Blotter Entries 062156, 062158 and 062189 and
attested to the correctness of the certification submitted in court as documentary exhibits.

The defense, on the other hand, presented (1) appellant Bosito; (2) Analisa Balderama (Analisa), appellant’s sister; and (3)
Walter Dumaguin, appellant’s friend.

Bosito testified that while on their way to the rice field, he and his sister Analisa passed by the house of Rosemarie Bongon
where Adonis was having a drinking spree with his brothers, Juan and Arnold, and Bonaobra. The group called on Bosito to
join them and when he approached them, Adonis struck him with a piece of wood, hitting his wrist as he parried the blow.
While still holding the piece of wood, Bonaobra, together with Juan and Arnold, who were all drunk and holding bladed
weapons surrounded Bosito. Just as Bonaobra was about to stab him, Bosito immediately pulled out his bolo and hacked the
victim. Bonaobra ran away and fell to the ground about a kilometer away from the crime scene. The others scampered away.
Bosito went home, left his bolo there and surrendered himself to thebarangay captain.

Analisa testified that she and her brother Bosito were on their way to the rice field when they passed by Bonaobra, Adonis,
Juan and Arnold on a drinking spree at Rosemarie’s house. Adonis invited Bosito for a drink which the latter refused.
Bonaobra then pushed Bosito and struck Bosito with a bolo four times but Bosito evaded these thrusts. They grappled for
possession of the bolo which Bosito eventually wrestled out of Bonaobra’s hand and hacked Bonaobra maybe four times. She
tried to pacify them but to no avail. Analisa stated that prior to this incident, Bonaobra had been threatening Bosito for about
seven months already whenever Bonaobra was drunk.

Walter Dumaguin, a fishpond operator in Hacienda, San Miguel, testified that he was a friend of Bosito and visited him in jail
for about 10 minutes the day after the incident. Dumaguin did not give any other relevant information.

In its Decision dated 29 September 2011, the RTC found Bosito guilty beyond reasonable doubt of the crime of murder. The
RTC accorded full faith and credence to the testimony of Adonis and disregarded Bosito’s claim of self-defense. The RTC
stated that Adonis testified in a straightforward and candid manner that Bosito mercilessly hacked Bonaobra four times, with
his bolo. The RTC stated further that Bosito’s version of self-defense was incredulous and unbelievable since Bosito was
unharmed and unwounded compared to the number of hacked wounds sustained by the victim. The RTC declared Bosito
guilty of the crime of murder attended by the qualifying circumstance of treachery and abuse of superior strength due to the
sudden and unexpected attack made by Bosito which afforded no opportunity for Bonaobra to defend himself. The dispositive
portion of the decision states:
chan roblesv irt uallawl ibra ry

WHEREFORE, foregoing premises considered, judgment is hereby rendered finding accused Arnaldo Bosito y Chavenia guilty
beyond reasonable doubt of the crime of Murder. He is hereby sentenced to suffer the penalty of imprisonment of Reclusion
Perpetua.

Accused is likewise ordered to indemnify the heirs of Willy Berba Bonaobra the following: ChanRoble sVirt ualawli bra ry

a) P50,000.00 as civil indemnity;

b) P50,000.00 as moral damages;
c) P15,505.45 as actual damages;
d) P1,392,120.00 representing the loss of earning capacity.
SO ORDERED.5

Bosito filed an appeal with the CA and raised a lone error by the RTC: chanroble svi rtual lawlib rary
 55

THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO THE ACCUSED-APPELLANT’S SELF-DEFENSE [THEORY].6

The Ruling of the Court of Appeals

In its Decision dated 19 April 2013, the CA affirmed with modification the decision of the RTC. The CA found no cogent
reason to deviate from the trial court’s factual findings and conclusion. The CA stated that Bosito’s plea of self-defense has
been rebutted by the positive and categorical testimony of prosecution witness Adonis who had convincingly established that
the unlawful aggression emanated from Bosito and not from the victim. The CA added that the trial court correctly accorded
credence to Adonis whose testimony it found spontaneous, straightforward, candid and evincing credence and belief. Further,
the CA ruled out the presence of ill-motive on the part of Adonis to falsely implicate his uncle.

The CA deleted the award of (1) actual damages of P15,505.45 since jurisprudence holds that when actual damages proven
by receipts during the trial amount to less than P25,000, the award of temperate damages of P25,000 is justified in lieu of
actual damages in a lesser amount; and (2) damages for loss of earning capacity since no documentary evidence was
presented by the prosecution to substantiate the claim and the victim does not fall under any of the recognized exceptions.
Nevertheless, the CA granted the amount of P25,000 as temperate damages in lieu of actual damages of P15,505.45
supported by receipts and P30,000 as exemplary damages pursuant to Article 22307 of the Civil Code. The dispositive portion
of the decision states: chanro blesvi rt uallawl ibra ry

WHEREFORE, with the MODIFICATIONS:

1. Ordering Appellant Arnaldo Bosito y Chavenia to pay the heirs of the victim temperate damages of Twenty-Five Thousand
Pesos (Php25,000.00) and exemplary damages in the amount of Thirty Thousand Pesos (Php30,000.00);

2. Deleting the award of actual damages and damages for loss of earning capacity; and

3. Ordering the payment of interest at the legal rate of 6% per annum computed from the date of finality of this Decision
until fully paid on the total amount of damages adjudged in favor of the heirs of the victim,

the appealed 29 September 2011 Decision of the Regional Trial Court of Tabaco City, Branch 15, in Criminal Case No. T-4696
is AFFIRMED in all other respects.

SO ORDERED.8

Appellant Bosito now comes before the Court, submitting for resolution the same issue argued before the CA. In a
Manifestation9 dated 28 February 2014, Bosito stated that in lieu of supplemental brief, he is adopting the Appellant’s
Brief10 dated 21 June 2012 submitted before the CA. Likewise, the Office of the Solicitor General manifested that it no longer
desires to file a supplemental brief and instead adopts the Appellee’s Brief11 dated 12 November 2012 which it filed before
the CA.12chanRoblesvirt ual Lawlib rary

Appellant assails the decisions of the RTC and CA for not giving credence to his contention of self-defense. c ralawred

The Ruling of the Court

The appeal lacks merit.

We agree with the RTC and the CA in ruling that the prosecution fully established Bosito’s guilt for the crime of murder
beyond reasonable doubt. Adonis positively identified Bosito as the person who hacked Bonaobra and caused his death.
Considering that Adonis and Bosito were blood relatives, Adonis was candid, straightforward, spontaneous and firm in his
narration of the events.

In the present case, Bosito would like us to believe that he acted in self-defense. In his Appellant’s Brief, Bosito admitted
hacking Bosito although in self-defense. By invoking self-defense, appellant admits killing the victim and the constitutional
presumption of innocence is effectively waived. The burden of evidence then shifts to the appellant that the killing was
justified and that he incurred no criminal liability.13 Thus, it is incumbent upon appellant to prove the elements of self-
defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or
repel it; and (3) lack of sufficient provocation on the part of the person claiming self-defense.14 chanRo blesvi rtua lLaw lib rary

Bosito claims that the unlawful aggression consisted of Bonaobra’s group ganging up on him and attempting to stab him with
a knife. However, aside from Bosito’s self-serving testimony, the defense did not present any witness to corroborate his
testimony that Bonaobra pulled a knife and tried to stab him. Likewise, Bosito failed to present the knife which he said he
grabbed during the tussle and kept in his possession. In People v. Satonero,15 we held that the failure to account for the non-
presentation of the weapon allegedly wielded by the victim is fatal to the plea of self-defense.

Next, the means employed by Bosito to prevent or repel the supposed unlawful aggression was beyond reasonably
necessary. As correctly found by the trial and appellate courts, the number, nature, and gravity of the wounds sustained by
Bonaobra reveal a determined effort to kill and contradict Bosito’s claim of self-defense. The prosecution’s evidence shows
that Bonaobra sustained and died from multiple hack wounds. The records show that after Bonaobra received the first blow
to his head, which proved to be the most fatal, Bosito still continued to thrust his bolo to the victim three more times. Even
 56

Analisa, Bosito’s sister, who gave her testimony for the defense, confirmed that Bosito hacked Bonaobra four times. Clearly,
the means utilized was not reasonable under the circumstances.

In People v. Obordo,16 we held that self-defense, to be successfully invoked, must be proven by clear and convincing
evidence that excludes any vestige of criminal aggression on the part of the person invoking it. Bosito failed to present
adequate evidence to prove otherwise. Thus, his claim of self-defense cannot stand.

Further, we agree with the lower courts in appreciating treachery as a qualifying circumstance. The essence of treachery is
the sudden and unexpected attack on an unsuspecting victim, depriving the victim of any chance to defend himself. Here,
the sudden attack of Bosito with a bolo against Bonaobra while they were watching a card game caught the victim by
surprise. Bonaobra was unprepared and had no means to put up a defense. Such aggression insured the commission of the
crime without risk on Bosito. Also, we agree with the trial court when it held that abuse of superior strength is deemed
absorbed in treachery. Since treachery qualifies the crime of murder, the generic aggravating circumstance of abuse of
superior strength is necessarily included in the former.17
ch anRoblesvi rtua lLawl ibra ry

In sum, we find no cogent reason to depart from the decision of the trial and appellate courts. Bosito is guilty beyond
reasonable doubt of the crime of murder and is sentenced to suffer the penalty ofreclusion perpetua without eligibility for
parole, in accordance with Sections 2 and 3 of Republic Act No. 9346;18 and with all the accessory penalties provided by law.
As for damages, the CA awarded these amounts: (1) P50,000 as civil indemnity; (2) P50,000 as moral damages; (3)
P25,000 as temperate damages; and (4) P30,000 as exemplary damages. To conform with recent jurisprudence,19 the
amount of civil indemnity awarded by the CA is hereby increased to P75,000. Moreover, the amounts of damages awarded
are subject to interest at the legal rate of 6% per annumfrom the date of finality of this judgment until fully paid.
chanro bleslaw

WHEREFORE, we DISMISS the appeal. We AFFIRM the Decision dated 19 April 2013 of the Court of Appeals in CA-G.R.
CR-H.C. No. 05289 WITH THE MODIFICATIONS that:

(1) appellant Arnaldo Bosito y Chavenia is found GUILTY beyond reasonable doubt of
the crime of murder, and sentenced to reclusion perpetua without eligibility for
parole;
(2) the amount of civil indemnity is increased to P75,000; and
(3) appellant is ordered to pay interest on all damages at the legal rate of 6% per
annum from the date of finality of this judgment until fully paid.
SO ORDERED. cralawlawlibra ry

SECOND DIVISION

G.R. No. 200797, January 12, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MANOLITO OPIANA Y TANAEL, Accused-Appellant.

RESOLUTION

DEL CASTILLO, J.:

Appellant Manolito Opiana y Tanael was charged with the crimes of violations of Section 5 (sale of illegal drugs; 0.05 gram)
and Section 11 (possession of dangerous drugs; 0.74 gram), both of Article II, Republic Act No. 9165 (RA 9165) or the
Comprehensive Dangerous Drugs Act of 2002.

The facts of the case showed that on April 8, 2008, the Makati police officers and Makati Anti-Drug Abuse Council (MADAC)
operatives conducted an entrapment/buy-bust operation on appellant who was reportedly engaged in illegal drug trade
in Brgy. Guadalupe Viejo, Makati City. MADAC operative Sherwin Sydney Serrano (Serrano) acted as poseur-buyer. After
having been introduced by the informant as a “scorer” of shabu, appellant and Serrano negotiated for the sale of P300.00
worth ofshabu. Serrano gave appellant the P300 marked money and in exchange, appellant handed to Serrano a heat-
sealed sachet containing white crystalline substance. After making the pre-arranged signal, appellant was apprehended and
when bodily frisked, 19 heat-sealed sachets were recovered from his possession. Laboratory examination revealed that all
20 heat-sealed sachets yielded positive results for shabu.

Appellant denied the charges against him. He claimed that on April 8, 2008, he was repairing a vehicle in front of his house
when a green van arrived and three (3) men alighted. When he affirmatively answered to their query whether he is “Noli,”
he was immediately arrested. He asserted that the police officers mistook him as the “Noli” who was known to be a drug
peddler in their area. He argued that he is known in their place as “Noli Mekaniko,” and not the drug peddler.
 57

Ruling of the Regional Trial Court (RTC)

In a Decision dated May 26, 2009, the Regional Trial Court of Makati City, Branch 65, convicted appellant of violations of
Sections 5 (sale of illegal drugs) and 11 (possession of dangerous drugs), Article II of RA 9165. It ratiocinated thus:
chanrob lesvi rtua llawlib ra ry

In order to successfully prosecute an accused for illegal sale of dangerous drugs, the prosecution must be able to prove the
following elements: (1) identities of the buyer and seller, the object, and the consideration; and 2) the delivery of the thing
sold and the payment therefor. x x x The delivery of the illegal drugs subject of the sale and the receipt of the marked
money consummate the buy-bust transaction between the entrapping officers and the accused. It is therefore important to
prove only that the transaction or sale actually took place, coupled with the presentation in court of the dangerous drugs. x x
x

xxxx

After a prudent consideration, the court finds that the prosecution succeeded in proving the guilt of the accused for the crime
of violation of Section 5, Article II of Republic Act No. 9165 beyond reasonable doubt. Indeed, the collective evidence
presented during the trial by the prosecution adequately established that a valid buy-bust operation was conducted by the
operatives of the MADAC as well as the SAID-SOTF, Makati City on April 8, 2008 after proper coordination with the PDEA was
made x x x. During the operation, 0.05 gram of shabu x x x was purchased by MADAC operative Serrano from accused
Manolito Opiana in consideration of P300.00. The results of the laboratory test confirmed that the item contained in the said
plastic sachet which was bought from the accused was indeed methylamphetamine hydrochloride or shabu x x x. There can
be no gainsaying the credibility of the forensic chemist who conducted the laboratory examination on the specimen. In fact,
nothing was adduced or intimated that the said prosecution witness had reason to fabricate or concoct her findings.

Likewise, there can be no question about the identity of the corpus delicti in the instant case for sale of illegal drugs. The
small plastic sachet containing shabu marked as “WIN” which was brought to and identified in court was found to be the
same plastic sachet of shabu which the prosecution witness, MADAC operative Serrano, purchased from the accused during
the buy-bust operation. Brgy. Capt. Ernesto Bobier testified and confirmed having signed the inventory sheet x x x of the
items seized from the accused in his presence. Therefore, the integrity and evidentiary value of the items confiscated and/or
purchased from the accused had been well safeguarded as to be reliable. Needless to state, the identity of the accused was
positively established in open court by the witnesses for the prosecution who pointed to him as the same person who was
apprehended during the buy-bust operation.

Moreover, the prosecution adequately established the existence of all the elements for the offense of illegal possession of
dangerous drugs under Section 11, Article II of the same Act, to wit: (1) the accused is in possession of the object identified
as a prohibited or regulated drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously
possessed the said drug x x x.

It has been ruled that there can be no conviction for the subject offense unless the prosecution shows that the accused
knowingly possessed the prohibited articles in his person, or that animus possidendi is shown to be present together with his
possession or control of such article x x x. Based on the testimony of the prosecution witnesses, however, it was clearly
shown that nineteen (19) plastic sachets containing shabu x x x were recovered from the accused. The contents thereof
were later examined at the PNP Crime Laboratory and were found to be in fact methylamphetamine hydrochloride or
shabu. The accused had no authority to possess or otherwise use said dangerous drugs; neither did he have any license or
prescription to possess the same. The intention of the accused to possess the said plastic sachets containing shabu was
patent considering that these were found in his person after a routine body search was conducted. It is also beyond cavil
that he possessed the said plastic sachets containing shabu freely and consciously.

The inventory of the items seized from the accused and the testimony in open court of Brgy. Capt. Ernesto Bobier, an elected
official, bolstered the claim of the prosecution that a buy-bust operation was conducted by operatives of the MADAC as well
as SAID-SOTF, Makati City, which operation resulted in the arrest of the accused. It is settled that in cases involving
violations of the Comprehensive Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers for
they are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary. x x x1

The dispositive portion of the trial court's Decision reads: chan roblesv irtuallawl ib rary

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. In Criminal Case No. 08-542, the court finds the accused, MANOLITO OPIANA y TANAEL, GUILTY beyond reasonable
doubt of the charge for violation of Section 5, Article II, R.A. No. 9165 and sentences him to suffer the penalty of life
imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00);

2. In Criminal Case No. 08-543, the court finds the same accused, MANOLITO OPIANA y TANAEL, GUILTY beyond reasonable
doubt of the charge for violation of Section 11, Article II, R.A. No. 9165 and sentences him to suffer the penalty of
imprisonment of twelve (12) years and one (1) day as minimum to fourteen (14) years and eight (8) months as maximum
and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

The period of detention of the accused should be given full credit.

 58

Let the dangerous drugs subject matter of these cases be disposed of in the manner provided by law.

SO ORDERED.2

Ruling of the Court of Appeals

Aggrieved, appellant appealed to the Court of Appeals (CA). In his Brief, appellant alleged that the buy-bust team did not
observe the proper procedure governing the handling, custody and disposition of the illegal drugs. In particular, he
contended that there was a gap in the chain of custody as it was unclear what happened to the specimen after it was
delivered to the crime laboratory and examined by the forensic chemist or how it was brought to the court. The defense also
lamented the failure of the police officers to secure a search warrant or warrant of arrest despite ample time to do the same.

Unpersuaded, the CA, in its June 30, 2011 Decision, ruled as follows: chan roble svirtuallaw lib rary

WHEREFORE, PREMISES CONSIDERED, the instant appeal is DENIED. The Decision dated 26 May 2009 is hereby AFFIRMED
IN TOTO.

SO ORDERED.3

The CA opined that based on the testimony of MADAC operative Serrano, all the elements for the illegal sale of dangerous
drugs, i.e., that a sale transaction took place and the illicit drug was presented in court, were satisfactorily proved. More
important, the integrity and evidentiary value of the illicit drug were properly preserved, viz: cha nrob lesvi rtua llawlib ra ry

x x x [T]he marking of the evidence was testified to by Serrano whereas the testimony of the investigator x x x was
stipulated upon by the prosecution and the defense. The recovered items were turned over to PO1 Randy C. Santos upon his
conduct of investigation. The request for laboratory examination was delivered by PO1 Gimena on 08 April 2008 at 2125H
and the same was received by PSI Jocelyn J. Belen whose testimony was likewise stipulated upon. Although there has been
no photographs taken and no testimony as to what happened with the evidence after the same was submitted for laboratory
examination, the same was positively identified by Serrano during trial. x x x4

Anent the charge for illegal possession of dangerous drugs, the CA also found that the prosecution satisfactorily established
all the elements thereof, to wit: 1) that the accused is in possession of a prohibited drug; 2) such possession is not
sanctioned by law; and 3) the accused freely and consciously possessed the illegal drugs. In addition, the CA found no ill-
motives on the part of the police operatives.

In an April 25, 2012 Resolution,5 we required both parties to file their respective supplemental briefs. However, both opted
to adopt the briefs they submitted before the CA. cralawred

Our Ruling

After a careful review of the records of the case, the Court finds the appeal to be lacking in merit. Both the RTC of Makati
City, Branch 65 and the CA correctly found appellant guilty beyond reasonable doubt of violations of Sections 5 and 11,
Article II of RA 9165, as amended by RA 9346.6 For the violation of Section 5, the prosecution satisfactorily established the
following elements: “(1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of
the thing sold and the payment therefor. What is material in a prosecution for illegal sale of dangerous drugs is the proof
that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti or the illicit drug in
evidence.”7 Similarly, the prosecution satisfactorily established the following elements for the illegal possession of dangerous
drugs in violation of Section 11, to wit: appellant was shown to have been in possession of 0.74 gram of shabu, a prohibited
drug; his possession was not authorized by law; and that he freely and consciously possessed the said illegal drug.

Under the law, the penalty for the unauthorized sale of shabu, regardless of its quantity and purity, is life imprisonment to
death and a fine ranging from P500,000.00 to P10 million. However, with the enactment of RA 9346, only life imprisonment
and fine shall be imposed. Thus, the penalty imposed by the trial court and affirmed by the CA, i.e., life imprisonment and a
fine of P500,000.00, is proper. However, appellant is not eligible for parole pursuant to Section 2 of the Indeterminate
Sentence Law. The penalty for illegal possession of dangerous drugs, on the other hand, is imprisonment of twelve (12)
years and one (1) day to twenty (20) years and a fine ranging from P300,000.00 to P400,000.00, if the quantity of the
dangerous drug is less than five (5) grams. In this case, appellant was found to have been in illegal possession of 0.74 gram
of shabu. Thus, he was properly meted the penalty of imprisonment ranging from twelve (12) years and one (1) day to 14
years and eight (8) months and a fine of P300,000.00. chanroble slaw

WHEREFORE, the June 30, 2011 Decision of the Court of Appeals is AFFIRMED withMODIFICATION. Appellant Manolito
Opiana y Tanael is hereby found guilty beyond reasonable doubt of the crime of violations of Sections 5 and 11, Article II of
Republic Act No. 9165, as amended by Republic Act No. 9346, and sentencing him to suffer the penalty of life imprisonment
without eligibility for parole and ordering him to pay the fine of P500,000.00, for violation of Section 5, Article II, Republic
Act No. 9165, and imprisonment of twelve (12) years and one (1) day to fourteen (14) years and eight (8) months and a fine
of P300,000.00, for violation of Section 11, Article II, Republic Act No. 9165.

SO ORDERED. cralawlawlibra ry
 59

SECOND DIVISION

G.R. No. 207993, January 21, 2015

PEOPLE OF THE PHILIPPINES, Appellee, v. GERARDO ENUMERABLE Y DE VILLA, Appellant.

DECISION

CARPIO, J.:

The Case

On appeal is the 31 January 2013 Decision1 of the Court of Appeals in CA-G.R. CR HC No. 04948. The Court of Appeals
affirmed the 15 February 2011 Decision2 of the Regional Trial Court, Branch 12 of Lipa City convicting appellant Gerardo
Enumerable y De Villa for violation of Section 5 of Republic Act No. 9165. cralawred

The Facts

The Information dated 27 August 2004 reads: chanrob lesvi rtua llawli bra ry

That on or about the 27th day of May, 2004 at about 11:30 o’clock in the morning at Petron Gasoline Station, located at B.
Morada Ave., Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without
authority of law, did then and there willfully, unlawfully and feloniously sell, deliver, dispose or give away to a police officer-
poseur buyer, 9.88 grams of Methamphetamine Hydrochloride locally known as “shabu”, a dangerous drug, contained in
three (3) plastic sachets.

Contrary to Law.3

Appellant pleaded not guilty to the offense charged.4 Trial ensued.

The prosecution presented two witnesses, namely: Police Officer (PO) 3 Edwalberto Villas and Police Inspector Danilo
Balmes. On the other hand, appellant waived the presentation of any defense evidence.

As found by the trial court, the facts are as follows: chan roblesv irt uallawl ibra ry

From the evidence adduced by the People, the Court finds that based on the information about a deal in shabu between the
asset of PO3 Edwalberto Villas and a certain Gerry of San Pablo City, a buy-bust operation was conducted by the elements of
the Batangas City Police Station with the assistance of Police Inspector Danilo Balmes of the CIDG Batangas Province on May
27, 2004 at 11:30 o’clock in the morning at the Petron Gasoline Station along B. Morada Ave., Lipa City.

Using two (2) pieces of marked P500.00 bills and boodle money to make the appearance of about P24,000.00, the police
asset who posed as a buyer transacted with the alias Gerry upon his arrival at the gas station. After the exchange of the
marked money and the three (3) plastic sachets of shabu placed in a black plastic box, alias Gerry was placed under
arrest. He was later identified as Gerardo Enumerable y de Villa. The marked money was recovered from his possession by
PO3 Villas who also took custody of the specimen shabu which he marked EMV 1 to EMV 3. The three (3) sachets of shabu
were turned over to the Batangas Provincial Crime Laboratory, pursuant to the request for laboratory examination of P/Supt.
Fausto Manzanilla, Jr., Chief of Police, Batangas City PNP on May 27, 2004 at 5:25 p.m. However, that Crime laboratory
indorsed the request with the specimens on June 4, 2004 at 2:30 p.m. to the Regional Crime Laboratory in Calamba City.

Police Inspector and Forensic Chemist Donna Villa P. Huelgas found the specimens positive for the presence of
methamphetamine hydrochloride, a dangerous drug, as shown by Chemistry Report No. D-566-04, the authenticity and
genuineness of which were admitted by accused during the pre-trial.5

Appellant filed a Comment with Motion for Leave to File Demurrer,6 which motion was denied by the trial court for appellant’s
failure to adduce any reason therefor.7 chanRob lesvi rtual Lawl ibra ry

The trial court found appellant guilty of the offense charged. The dispositive portion of the trial court’s decision reads: chan roblesv irtuallaw lib rary

WHEREFORE, the Court finds accused GERARDO ENUMERABLE y DE VILLA guilty beyond reasonable doubt as principal by
direct participation of the crime of drug pushing as defined and penalized under Section 5, Article II of Republic Act [No.]
9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and hereby impose on him the penalty of life
imprisonment and to pay a fine of P500,000.00. The 9.88 grams of shabu are hereby ordered destroyed pursuant to the
provisions of Section 21(4) and (7) of RA 9165.

The period of detention of the accused shall be deducted in his service of sentence.

Let a commitment order be issued for the transfer of custody of the accused from the BJMP Lipa City to the National
 60

Penitentiary, Muntinlupa City.

SO ORDERED.8

Appellant filed a Notice of Appeal.9 The Court of Appeals affirmed the conviction of appellant for the offense charged.

Hence, this appeal. cralawre d

The Ruling of the Court of Appeals

In sustaining appellant’s conviction for the offense charged, the Court of Appeals held that the testimony of PO3 Villas
identifying the three plastic sachets of shabu as the same ones seized from appellant rendered insignificant appellant’s
allegation that PO3 Villas did not immediately put markings on the three sachets of shabu at the place of arrest. The Court
of Appeals further ruled that the failure of the arresting officers to conduct a physical inventory and to take photographs of
the seized items is not fatal as long as the integrity and evidentiary value of the seized items are properly preserved, as in
this case.

According to the Court of Appeals, the prosecution was able to prove the unbroken chain of custody of the prohibited drug
from the time PO3 Villas confiscated the plastic sachets from appellant and marked them at the place of arrest, to the time
PO3 Villas brought the plastic sachets to the police station and turned them over to the investigator on-duty until the time
SPO1 de Castro submitted the marked plastic sachets to the Regional Crime Laboratory Office Calabarzon for laboratory
examination. cralawred

The Issue

The issue boils down to whether the prosecution established the identity and integrity of the confiscated illegal drug, which is
the corpus delicti of the offense charged against appellant. cralawred

The Ruling of the Court

We grant the appeal.

While appellant waived the presentation of evidence for his defense, he disputes the identity and integrity of the illegal drug
which is the corpus delicti of the offense charged against him. Appellant maintains that the prosecution failed to prove the
unbroken chain of custody of the illegal drug which gravely impairs its identity. Without the identity of the corpus
delicti being sufficiently established, appellant claims that he should be acquitted.

It is settled that in prosecutions for illegal sale of dangerous drug, not only must the essential elements of the offense be
proved beyond reasonable doubt, but likewise the identity of the prohibited drug. The dangerous drug itself constitutes
the corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction.10 chanRoble svirtual Lawli bra ry

Necessarily, the prosecution must establish that the substance seized from the accused is the same substance offered in
court as exhibit. In this regard, the prosecution must sufficiently prove the unbroken chain of custody of the confiscated
illegal drug. In People v. Watamama,11 the Court held: chanro b lesvirtual lawlib rary

In all prosecutions for the violation of the Comprehensive Dangerous Drugs Act of 2002, the existence of the prohibited drug
has to be proved. The chain of custody rule requires that testimony be presented about every link in the chain,
from the moment the item was seized up to the time it is offered in evidence. To this end, the prosecution must
ensure that the substance presented in court is the same substance seized from the accused.

While this Court recognizes substantial adherence to the requirements of R.A. No. 9165 and its implementing rules and
regulations, not perfect adherence, is what is demanded of police officers attending to drugs cases, still, such officers must
present justifiable reason for their imperfect conduct and show that the integrity and evidentiary value of the seized items
had been preserved. x x x. (Emphasis supplied)

In People v. Climaco,12 citing Malillin v. People,13 the Court held: cha nrob lesvi rtua llawlib ra ry

x x x [T]o establish guilt of the accused beyond reasonable doubt in cases involving dangerous drugs, it is important that the
substance illegally possessed in the first place be the same substance offered in court as exhibit. This chain of custody
requirement ensures that unnecessary doubts are removed concerning the identity of the evidence. When the identity of the
dangerous drug recovered from the accused is not the same dangerous drug presented to the forensic chemist for review
and examination, nor the same dangerous drug presented to the court, the identity of the dangerous drug is not preserved
due to the broken chain of custody. With this, an element in the criminal cases for illegal sale and illegal possession of
dangerous drugs, the corpus delicti, is not proven, and the accused must then be acquitted based on reasonable doubt. For
this reason, [the accused] must be acquitted on the ground of reasonable doubt due to the broken chain of custody over the
dangerous drug allegedly recovered from him.

In this case, there was a glaring gap in the custody of the illegal drug since the prosecution failed to sufficiently establish
 61

who had custody of the illegal drug from the moment it was allegedly transmitted to the Batangas Provincial Crime
Laboratory on 27 May 2004 until it was allegedly delivered to the Regional Crime Laboratory on 4 June 2004. There was no
evidence presented how the confiscated sachets of shabu were stored, preserved or labeled nor who had custody prior to
their delivery to the Regional Crime Laboratory and their subsequent presentation before the trial court. This is evident from
the testimony of PO3 Villas, who stated he had no knowledge on who had custody of the sachets of shabu from 27 May 2004
until 4 June 2004. PO3 Villas testified thus: chan roble svirtual lawlib rary

Q But when the accused was arrested on May 27, 2004, records will show that the
specimen was submitted to the crime laboratory on June 4, 2004 which is
practically several days after. Am I right?
A It was turned over to the duty investigator.
Q Who brought the specimen to the crime laboratory?
A I don’t know from the duty investigator, sir.
Q So you are not aware who brought the specimen to the crime laboratory?
A Yes, sir.
Q But between May 27 and June 4, 2004, who was in custody of the specimen?
A I turned it over to the duty investigator, sir.
Q On what date?
A On May 27 after we turned over the suspect to the investigator, sir.
Q So your statement which says that the accused was released simply because the
specimen or the result of the examination … would not catch up with the
investigation is not correct because you have not submitted immediately the
specimen to the crime laboratory?
COURT
Q Because it was submitted seven (7) days after the apprehension?
A I was not the one who is concerned with the submission of the specimen
to the crime laboratory. We turned it over to the duty investigator and the
duty investigator marked the specimen, Your Honor.
ATTY. GAJITOS
Q But you will agree that the specimen was submitted to the crime laboratory by
your investigator only on June 4, 2004 or practically a week after the
apprehension?
A I don’t know, sir. It is only now that I came to know, sir.14 (Emphasis
supplied)
The prosecution attempted to fill the gap in the chain of custody. However, such effort proved futile. On re-direct
examination, PO3 Villas, who earlier testified that he had no knowledge on who had custody of the illegal drugs prior and
during their delivery to the crime laboratories, merely restated the contents of the 3 June 2004 Memorandum from the Chief
of the Batangas Police addressed to the Regional Chief, corresponding to the questions of the prosecutor. In other words,
PO3 Villas testified on a piece of document he had no participation in the preparation or execution thereof. PO3 Villas
testified as follows:
c han roblesv irt uallawl ibra ry

CROSS-EXAMINATION OF ATTY. GAJITOS

Q Do you admit there are no significant markings on this black box for possession
or identification more particularly the signature or initial of the arresting officer?
A No, sir.
ATTY. GAJITOS
No further question, Your Honor.
 62

COURT
Re-direct.
PROSECUTOR
Q During your cross-examination, you were asked regarding the fact as a reply to
the question of the defense it was after 7 days that the specimen was actually
brought to the laboratory for examination, your answer that was correct?
A Yes, ma’am.
Q I am showing to you a document, the indorsement which came from the Office of
the Chief of Police of Batangas City dated May 27, 2004, can you please go over
the same and tell the Court what is the relevance of that document regarding the
delivery of specimen to the crime laboratory?
A This is the request prepared by our investigator dated May 27 in relation to the
arrest of Gerardo Enumerable wherein the subject were three (3) plastic sachets
of shabu, it was delivered to Batangas Provincial Crime Laboratory on the same
date, ma’am.
Q How did you come to know it was delivered on the same date?
A There was a stamp receipt by the Provincial Crime Laboratory office delivered by
SPO1 De Castro and received by PO3 Llarena at Batangas Provincial Crime
Laboratory, ma’am.
Q You likewise identified during the direct examination chemistry report coming
from Camp Vicente Lim, how would you reconcile the fact the specimen was
delivered to the Provincial Crime Laboratory and the result came from Camp
Vicente Lim?
A It was the Provincial Crime Laboratory of Batangas PPO who made the
indorsements from Batangas Provincial Police Office to the Crime Laboratory,
Camp Vicente Lim, ma’am.
Q Do you have proof to show that fact?
A Yes, ma’am.
Q What is that?
A Letter request made by the Batangas Crime Laboratory to the Crime Laboratory,
Camp Vicente Lim, ma’am.
Q This is the same request made by the Batangas Provincial Crime Laboratory
addressed to Regional Crime Laboratory, was there a proof to show that the
specimen together with the indorsement was actually received by the Crime
Laboratory Camp Vicente Lim.
A Yes, there was a stamp of the Regional Crime Laboratory office delivered by PO3
Vargas and received by PO3 Macabasco of the Regional Crime Laboratory,
ma’am.
Q What date?
A It was delivered on June 3 and the specimen was received on June 4, ma’am.
Q Why was it necessary for your office to deliver the specimen to the Provincial
Crime Laboratory, why not directly to the Crime Laboratory of Camp Vicente
Lim?
A During that time there was no chemist who examined the specimen in the
Provincial Crime Laboratory so what they did was they delivered the specimen to
 63

the Regional Crime Laboratory, ma’am.

Q My question is, why not deliver it directly to Camp Vicente Lim?
A The PNP during that time did not have any budget, ma’am.
Q How much would it need to deliver the specimen?
A It was cheap, sir. The problem was that the Provincial Crime Laboratory did not
have any chemist, they delivered the specimen to the Regional Crime Laboratory
that is why there are many accused who remained at large, ma’am.
xxxx
Q Who brought the specimen to the PNP Crime Laboratory?
A The officer on duty, Your Honor.
Q From Batangas to Camp Vicente Lim, do you know the officer?
A The person who delivered there, it is stated in the document, Your
Honor.
Q Who was in custody of this specimen from Batangas PNP to the
Provincial Crime Laboratory?
A The officer, Your Honor.15 (Emphasis supplied)
Clearly, PO3 Villas had no personal knowledge on (1) how the illegal drugs were delivered and who delivered the drugs from
the Batangas Provincial Crime Laboratory to the Regional Crime Laboratory; (2) who received the drugs in the Regional
Crime Laboratory; and (3) who had custody of the drugs from 27 May 2004 to 3 June 2004 until their presentation before
the trial court. The testimony of PO3 Villas merely attests to the existence of the Memorandum from the Chief of the
Batangas Provincial Crime Laboratory to the Regional Crime Laboratory.

While appellant admitted during the pre-trial the authenticity and due execution of the Chemistry Report, prepared by Police
Inspector and Forensic Chemist Donna Villa P. Huelgas, this admission merely affirms the existence of the specimen and the
request for laboratory examination and the results thereof. Appellant’s admission does not relate to the issue of chain of
custody. In fact, appellant qualified his admission that the specimens were not taken or bought from him.16 In People v.
Gutierrez, the Court stated: chanro blesvi rtual lawlib rary

x x x That the defense stipulated on these matters,viz: that the specimen exists, that a request has been made by the
arresting officers for examination thereof, that a forensic chemist examined it, and that it tested positive for
methylamphetamine hydrochloride has no bearing on the question of chain of custody. These stipulations, which merely
affirm the existence of the specimen, and the request for laboratory examination and the results thereof, were entered into
during pre-trial only in order to dispense with the testimony of the forensic chemist and abbreviate the proceedings. x x x.17

Since the failure of the prosecution to establish every link in the chain of custody of the illegal drug gravely compromised its
identity and integrity, which illegal drug is the corpus delicti of the offense charged against appellant, his acquittal is
therefore in order. chan roble slaw

WHEREFORE, we GRANT the appeal and ACQUIT appellant Gerardo Enumerable y De Villa based on reasonable doubt and
we ORDER his immediate release from detention, unless he is detained for any other lawful cause.

SO ORDERED. cralawlawlibra ry

EN BANC

G.R. No. 206666, January 21, 2015

ATTY. ALICIA RISOS-VIDAL, Petitioner,

ALFREDO S. LIM, Petitioner-Intervenor, v. COMMISSION ON ELECTIONS AND JOSEPH EJERCITO

ESTRADA, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

 64

Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule 65, both of the Revised Rules of
Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially prays for the issuance of the writ of certiorari annulling and
setting aside the April 1, 20131 and April 23, 20132Resolutions of the Commission on Elections (COMELEC), Second Division
and En banc, respectively, in SPA No. 13-211 (DC), entitled “Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada” for having
been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction; and (2) a Petition-in-
Intervention3 filed by Alfredo S. Lim (Lim), wherein he prays to be declared the 2013 winning candidate for Mayor of the City
of Manila in view of private respondent former President Joseph Ejercito Estrada’s (former President Estrada) disqualification
to run for and hold public office.
cra lawred

The Facts

The salient facts of the case are as follows:

On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former President of the Republic of the
Philippines, for the crime of plunder in Criminal Case No. 26558, entitled “People of the Philippines v. Joseph Ejercito Estrada,
et al.” The dispositive part of the graft court’s decision reads:
ChanRobles Vi rtualawl ib rary

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558 finding the accused,
Former President Joseph Ejercito Estrada, GUILTYbeyond reasonable doubt of the crime of PLUNDER, defined in and
penalized by Republic Act No. 7080, as amended. On the other hand, for failure of the prosecution to prove and establish
their guilt beyond reasonable doubt, the Court finds the accused Jose “Jinggoy” Estrada and Atty. Edward S. Serapio NOT
GUILTY of the crime of plunder, and accordingly, the Court hereby orders their ACQUITTAL.

The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by Republic Act No. 7659,
is Reclusion Perpetua to Death. There being no aggravating or mitigating circumstances, however, the lesser penalty shall be
applied in accordance with Article 63 of the Revised Penal Code. Accordingly, the accused Former President Joseph Ejercito
Estrada is hereby sentenced to suffer the penalty ofReclusion Perpetua and the accessory penalties of civil interdiction
during the period of sentence and perpetual absolute disqualification.

The period within which accused Former President Joseph Ejercito Estrada has been under detention shall be credited to him
in full as long as he agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners.

Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659, the Court hereby
declares the forfeiture in favor of the government of the following: Cha nRobles Vi rtua lawlib rary

(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-]One Thousand Pesos (P545,291,000.00),
with interest and income earned, inclusive of the amount of Two Hundred Million Pesos (P200,000,000.00), deposited in the
name and account of the Erap Muslim Youth Foundation.

(2) The amount of One Hundred Eighty[-]Nine Million Pesos (P189,000,000.00), inclusive of interests and income earned,
deposited in the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as “Boracay Mansion” located at #100 11th Street, New Manila,
Quezon City.
The cash bonds posted by accused Jose “Jinggoy” Estrada and Atty. Edward S. Serapio are hereby ordered cancelled and
released to the said accused or their duly authorized representatives upon presentation of the original receipt evidencing
payment thereof and subject to the usual accounting and auditing procedures. Likewise, the hold-departure orders issued
against the said accused are hereby recalled and declaredfunctus oficio.4
On October 25, 2007, however, former President Gloria Macapagal Arroyo (former President Arroyo) extended executive
clemency, by way of pardon, to former President Estrada. The full text of said pardon states: chanroble svirtuallaw lib rary

MALACAÑAN PALACE
MANILA
____________________________________________________

By the President of the Philippines

PARDON
_____________________________________________________

WHEREAS, this Administration has a policy of releasing inmates who have reached the age of seventy (70),

WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half years,

WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,

IN VIEW HEREOF and pursuant to the authority conferred upon me by the Constitution, I hereby grant executive clemency
to JOSEPH EJERCITO ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty of Reclusion
Perpetua. He is hereby restored to his civil and political rights.

The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and processes issued by the
 65

Sandiganbayan in pursuance hereof, except for the bank account(s) he owned before his tenure as President.

Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take effect.

Given under my hand at the City of Manila,

this 25th Day of October, in the year of
Our Lord, two thousand and seven.

Gloria M. Arroyo (sgd.)

By the President:

IGNACIO R. BUNYE (sgd.)

Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President Estrada “received and accepted”6 the pardon by affixing his signature
beside his handwritten notation thereon.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy7 for the position of President. During that
time, his candidacy earned three oppositions in the COMELEC: (1) SPA No. 09-024 (DC), a “Petition to Deny Due Course and
Cancel Certificate of Candidacy” filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a petition for
“Disqualification as Presidential Candidate” filed by Evilio C. Pormento (Pormento); and (3) SPA No. 09-104 (DC), a “Petition
to Disqualify Estrada Ejercito, Joseph M. from Running as President due to Constitutional Disqualification and Creating
Confusion to the Prejudice of Estrada, Mary Lou B” filed by Mary Lou Estrada. In separate Resolutions8 dated January 20,
2010 by the COMELEC, Second Division, however, all three petitions were effectively dismissed on the uniform grounds that
(i) the Constitutional proscription on reelection applies to a sitting president; and (ii) the pardon granted to former President
Estrada by former President Arroyo restored the former’s right to vote and be voted for a public office. The subsequent
motions for reconsideration thereto were denied by the COMELEC En banc.

After the conduct of the May 10, 2010 synchronized elections, however, former President Estrada only managed to garner
the second highest number of votes.

Of the three petitioners above-mentioned, only Pormento sought recourse to this Court and filed a petition for certiorari,
which was docketed as G.R. No. 191988, entitled “Atty. Evilio C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada and Commission
on Elections.” But in a Resolution9 dated August 31, 2010, the Court dismissed the aforementioned petition on the ground of
mootness considering that former President Estrada lost his presidential bid.

On October 2, 2012, former President Estrada once more ventured into the political arena, and filed a Certificate of
Candidacy,10 this time vying for a local elective post, that of the Mayor of the City of Manila.

On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for Disqualification against former President
Estrada before the COMELEC. The petition was docketed as SPA No. 13-211 (DC). Risos-Vidal anchored her petition on the
theory that “[Former President Estrada] is Disqualified to Run for Public Office because of his Conviction for Plunder by the
Sandiganbayan in Criminal Case No. 26558 entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’ Sentencing Him to
Suffer the Penalty of Reclusion Perpetua with Perpetual Absolute Disqualification.”11 She relied on Section 40 of the Local
Government Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC), which state respectively, that: ChanRoblesVi rtua lawlib rary

Sec. 40, Local Government Code:

SECTION 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and

(g) The insane or feeble minded. (Emphasis supplied.)

Sec. 12, Omnibus Election Code:

Section 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has
been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he has been
 66

sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude,shall be disqualified to be
a candidate and to hold any public office, unless he has been given plenary pardon or granted amnesty. (Emphases
supplied.)
In a Resolution dated April 1, 2013, the COMELEC, Second Division, dismissed the petition for disqualification, the fallo of
which reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for utter lack of merit.12 chanRob lesvi rtua lLawl ibra ry

The COMELEC, Second Division, opined that “[h]aving taken judicial cognizance of the consolidated resolution for SPA No.
09-028 (DC) and SPA No. 09-104 (DC) and the 10 May 2010 En Banc resolution affirming it, this Commission will not belabor
the controversy further. Moreso, [Risos-Vidal] failed to present cogent proof sufficient to reverse the standing
pronouncement of this Commission declaring categorically that [former President Estrada’s] right to seek public office has
been effectively restored by the pardon vested upon him by former President Gloria M. Arroyo. Since this Commission has
already spoken, it will no longer engage in disquisitions of a settled matter lest indulged in wastage of government
resources.”13chanRoble svirtual Lawlib rary

The subsequent motion for reconsideration filed by Risos-Vidal was denied in a Resolution dated April 23, 2013.

On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present petition. She presented five issues for the
Court’s resolution, to wit: ChanRobles Vi rtualaw lib rary

I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
IN HOLDING THAT RESPONDENT ESTRADA’S PARDON WAS NOT CONDITIONAL;

II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT FINDING THAT RESPONDENT ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF MANILA UNDER
SEC. 40 OF THE LOCAL GOVERNMENT CODE OF 1991 FOR HAVING BEEN CONVICTED OF PLUNDER, AN OFFENSE INVOLVING
MORAL TURPITUDE;

III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DISMISSING THE PETITION FOR DISQUALIFICATION ON THE GROUND THAT THE CASE INVOLVES THE
SAME OR SIMILAR ISSUES IT ALREADY RESOLVED IN THE CASES OF “PORMENTO VS. ESTRADA”, SPA NO. 09-028 (DC) AND
IN “RE: PETITION TO DISQUALIFY ESTRADA EJERCITO, JOSEPH M. FROM RUNNING AS PRESIDENT, ETC.,” SPA NO. 09-104
(DC);

IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT RULING THAT RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT OF SUFFRAGE NOR
REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION FROM SEEKING PUBLIC OFFICE; and

V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
IN NOT HAVING EXERCISED ITS POWER TO MOTU PROPRIO DISQUALIFY RESPONDENT ESTRADA IN THE FACE OF HIS
PATENT DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS PERPETUAL AND ABSOLUTE DISQUALIFICATION
TO SEEK PUBLIC OFFICE AND TO VOTE RESULTING FROM HIS CRIMINAL CONVICTION FOR PLUNDER.14
While this case was pending before the Court, or on May 13, 2013, the elections were conducted as scheduled and former
President Estrada was voted into office with 349,770 votes cast in his favor. The next day, the local board of canvassers
proclaimed him as the duly elected Mayor of the City of Manila.

On June 7, 2013, Lim, one of former President Estrada’s opponents for the position of Mayor, moved for leave to intervene in
this case. His motion was granted by the Court in a Resolution15 dated June 25, 2013. Lim subscribed to Risos-Vidal’s theory
that former President Estrada is disqualified to run for and hold public office as the pardon granted to the latter failed to
expressly remit his perpetual disqualification. Further, given that former President Estrada is disqualified to run for and hold
public office, all the votes obtained by the latter should be declared stray, and, being the second placer with 313,764 votes
to his name, he (Lim) should be declared the rightful winning candidate for the position of Mayor of the City of Manila. cralawred

The Issue

Though raising five seemingly separate issues for resolution, the petition filed by Risos-Vidal actually presents only one
essential question for resolution by the Court, that is, whether or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that former President Estrada is qualified to vote and be voted for in
public office as a result of the pardon granted to him by former President Arroyo.

In her petition, Risos-Vidal starts her discussion by pointing out that the pardon granted to former President Estrada was
conditional as evidenced by the latter’s express acceptance thereof. The “acceptance,” she claims, is an indication of the
conditional nature of the pardon, with the condition being embodied in the third Whereas Clause of the pardon, i.e.,
“WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office.” She explains
that the aforementioned commitment was what impelled former President Arroyo to pardon former President Estrada,
without it, the clemency would not have been extended. And any breach thereof, that is, when former President Estrada filed
his Certificate of Candidacy for President and Mayor of the City of Manila, he breached the condition of the pardon; hence,
“he ought to be recommitted to prison to serve the unexpired portion of his sentence x x x and disqualifies him as a
candidate for the mayoralty [position] of Manila.”16 chanRoblesv irt ual Lawlib rary
 67

Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former President Estrada must be disqualified from
running for and holding public elective office is actually the proscription found in Section 40 of the LGC, in relation to Section
12 of the OEC. She argues that the crime of plunder is both an offense punishable by imprisonment of one year or more and
involving moral turpitude; such that former President Estrada must be disqualified to run for and hold public elective office.

Even with the pardon granted to former President Estrada, however, Risos-Vidal insists that the same did not operate to
make available to former President Estrada the exception provided under Section 12 of the OEC, the pardon being merely
conditional and not absolute or plenary.

Moreover, Risos-Vidal puts a premium on the ostensible requirements provided under Articles 36 and 41 of the Revised Penal
Code, to wit:ChanRoblesVirtualawl ibra ry

ART. 36. Pardon; its effects. – A pardon shall not work the restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties. – The penalties of reclusion
perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as
to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is not enough that a pardon makes a general statement that such
pardon carries with it the restoration of civil and political rights. By virtue of Articles 36 and 41, a pardon restoring civil and
political rights without categorically making mention what specific civil and political rights are restored “shall not work to
restore the right to hold public office, or the right of suffrage; nor shall it remit the accessory penalties of civil interdiction
and perpetual absolute disqualification for the principal penalties of reclusion perpetua and reclusion temporal.”17 In other
words, she considers the above constraints as mandatory requirements that shun a general or implied restoration of civil and
political rights in pardons.

Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and Florentino P. Feliciano in Monsanto v.
Factoran, Jr.18 to endorse her position that “[t]he restoration of the right to hold public office to one who has lost such right
by reason of conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no matter how intensely
arguable, but must be stated in express, explicit, positive and specific language.”

Applying Monsanto to former President Estrada’s case, Risos-Vidal reckons that “such express restoration is further
demanded by the existence of the condition in the [third] [W]hereas [C]lause of the pardon x x x indubitably indicating that
the privilege to hold public office was not restored to him.”19 chanRoblesvi rtua lLawl ibra ry

On the other hand, the Office of the Solicitor General (OSG) for public respondent COMELEC, maintains that “the issue of
whether or not the pardon extended to [former President Estrada] restored his right to run for public office had already been
passed upon by public respondent COMELEC way back in 2010 via its rulings in SPA Nos. 09-024, 09-028 and 09-104, there
is no cogent reason for it to reverse its standing pronouncement and declare [former President Estrada] disqualified to run
and be voted as mayor of the City of Manila in the absence of any new argument that would warrant its reversal. To be sure,
public respondent COMELEC correctly exercised its discretion in taking judicial cognizance of the aforesaid rulings which are
known to it and which can be verified from its own records, in accordance with Section 2, Rule 129 of the Rules of Court on
the courts’ discretionary power to take judicial notice of matters which are of public knowledge, or are capable of
unquestionable demonstration, or ought to be known to them because of their judicial functions.”20 chanRoblesvirtual Lawlib ra ry

Further, the OSG contends that “[w]hile at first glance, it is apparent that [former President Estrada’s] conviction for plunder
disqualifies him from running as mayor of Manila under Section 40 of the [LGC], the subsequent grant of pardon to him,
however, effectively restored his right to run for any public office.”21 The restoration of his right to run for any public office is
the exception to the prohibition under Section 40 of the LGC, as provided under Section 12 of the OEC. As to the seeming
requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the express restoration/remission of a particular right to be
stated in the pardon, the OSG asserts that “an airtight and rigid interpretation of Article 36 and Article 41 of the [RPC] x x x
would be stretching too much the clear and plain meaning of the aforesaid provisions.”22 Lastly, taking into consideration the
third Whereas Clause of the pardon granted to former President Estrada, the OSG supports the position that it “is not an
integral part of the decree of the pardon and cannot therefore serve to restrict its effectivity.”23 chanRoble svirtual Lawli bra ry

Thus, the OSG concludes that the “COMELEC did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Resolutions.”24
chanRoblesv irt ual Lawlib rary

For his part, former President Estrada presents the following significant arguments to defend his stay in office: that “the
factual findings of public respondent COMELEC, the Constitutional body mandated to administer and enforce all laws relative
to the conduct of the elections, [relative to the absoluteness of the pardon, the effects thereof, and the eligibility of former
President Estrada to seek public elective office] are binding [and conclusive] on this Honorable Supreme Court;” that he “was
granted an absolute pardon and thereby restored to his full civil and political rights, including the right to seek public elective
office such as the mayoral (sic) position in the City of Manila;” that “the majority decision in the case of Salvacion A.
 68

Monsanto v. Fulgencio S. Factoran, Jr., which was erroneously cited by both Vidal and Lim as authority for their respective
claims, x x x reveal that there was no discussion whatsoever in the ratio decidendi of the Monsanto case as to the alleged
necessity for an expressed restoration of the ‘right to hold public office in the pardon’ as a legal pre-requisite to remove the
subject perpetual special disqualification;” that moreover, the “principal question raised in this Monsanto case is whether or
not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her
former position without need of a new appointment;” that his “expressed acceptance [of the pardon] is not proof that the
pardon extended to [him] is conditional and not absolute;” that this case is a mere rehash of the cases filed against him
during his candidacy for President back in 2009-2010; that Articles 36 and 41 of the Revised Penal Code “cannot abridge or
diminish the pardoning power of the President expressly granted by the Constitution;” that the text of the pardon granted to
him substantially, if not fully, complied with the requirement posed by Article 36 of the Revised Penal Code as it was
categorically stated in the said document that he was “restored to his civil and political rights;” that since pardon is an act of
grace, it must be construed favorably in favor of the grantee;25 and that his disqualification will result in massive
disenfranchisement of the hundreds of thousands of Manileños who voted for him.26 ch anRoblesvi rtua lLawl ibra ry

The Court’s Ruling

The petition for certiorari lacks merit.

Former President Estrada was granted an absolute pardon that fully restored all his civil and political rights, which naturally
includes the right to seek public elective office, the focal point of this controversy. The wording of the pardon extended to
former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the
Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of the pardon is that
the same in fact conforms to Articles 36 and 41 of the Revised Penal Code.

Recall that the petition for disqualification filed by Risos-Vidal against former President Estrada, docketed as SPA No. 13-211
(DC), was anchored on Section 40 of the LGC, in relation to Section 12 of the OEC, that is, having been convicted of a crime
punishable by imprisonment of one year or more, and involving moral turpitude, former President Estrada must be
disqualified to run for and hold public elective office notwithstanding the fact that he is a grantee of a pardon that includes a
statement expressing “[h]e is hereby restored to his civil and political rights.”

Risos-Vidal theorizes that former President Estrada is disqualified from running for Mayor of Manila in the May 13, 2013
Elections, and remains disqualified to hold any local elective post despite the presidential pardon extended to him in 2007 by
former President Arroyo for the reason that it (pardon) did not expressly provide for the remission of the penalty of perpetual
absolute disqualification, particularly the restoration of his (former President Estrada) right to vote and be voted upon for
public office. She invokes Articles 36 and 41 of the Revised Penal Code as the foundations of her theory.

It is insisted that, since a textual examination of the pardon given to and accepted by former President Estrada does not
actually specify which political right is restored, it could be inferred that former President Arroyo did not deliberately intend
to restore former President Estrada’s rights of suffrage and to hold public office, or to otherwise remit the penalty of
perpetual absolute disqualification. Even if her intention was the contrary, the same cannot be upheld based on the pardon’s
text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the President of the
Philippines possesses the power to grant pardons, along with other acts of executive clemency, to wit: ChanRobles Vi rtua lawlib rary

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall
be granted by the President without the favorable recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that the only instances in which the President may not extend
pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases
involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the
COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit the pardoning
power of the President.

In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the 1935 Constitution, wherein the provision
granting pardoning power to the President shared similar phraseology with what is found in the present 1987 Constitution,
the Court then unequivocally declared that “subject to the limitations imposed by the Constitution, the pardoning power
cannot be restricted or controlled by legislative action.” The Court reiterated this pronouncement in Monsanto v. Factoran,
Jr.29 thereby establishing that, under the present Constitution, “a pardon, being a presidential prerogative, should not be
circumscribed by legislative action.” Thus, it is unmistakably the long-standing position of this Court that the exercise of the
pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when
it exceeds the limits provided for by the Constitution.
 69

This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of Congress, specifically
through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987 Constitution when they
flatly rejected a proposal to carve out an exception from the pardoning power of the President in the form of “offenses
involving graft and corruption” that would be enumerated and defined by Congress through the enactment of a law. The
following is the pertinent portion lifted from the Record of the Commission (Vol. II): ChanRobles Virtualawl ibra ry

MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an amendment on the same section.

THE PRESIDENT. Commissioner Tan is recognized.

SR. TAN. Madam President, lines 7 to 9 state:

However, the power to grant executive clemency for violations of corrupt practices laws may be limited by
legislation.

I suggest that this be deleted on the grounds that, first, violations of corrupt practices may include a very little offense like
stealing P10; second, which I think is more important, I get the impression, rightly or wrongly, that subconsciously we are
drafting a constitution on the premise that all our future Presidents will be bad and dishonest and, consequently, their acts
will be lacking in wisdom. Therefore, this Article seems to contribute towards the creation of an anti-President Constitution or
a President with vast responsibilities but no corresponding power except to declare martial law. Therefore, I request that
these lines be deleted.

MR. REGALADO. Madam President, may the Committee react to that?

THE PRESIDENT. Yes, please.

MR. REGALADO. This was inserted here on the resolution of Commissioner Davide because of the fact that similar to the
provisions on the Commission on Elections, the recommendation of that Commission is required before executive clemency is
granted because violations of the election laws go into the very political life of the country.

With respect to violations of our Corrupt Practices Law, we felt that it is also necessary to have that subjected to the same
condition because violation of our Corrupt Practices Law may be of such magnitude as to affect the very economic system of
the country. Nevertheless, as a compromise, we provided here that it will be the Congress that will provide for the
classification as to which convictions will still require prior recommendation; after all, the Congress could take into account
whether or not the violation of the Corrupt Practices Law is of such magnitude as to affect the economic life of the country, if
it is in the millions or billions of dollars. But I assume the Congress in its collective wisdom will exclude those petty crimes of
corruption as not to require any further stricture on the exercise of executive clemency because, of course, there is a whale
of a difference if we consider a lowly clerk committing malversation of government property or funds involving one hundred
pesos. But then, we also anticipate the possibility that the corrupt practice of a public officer is of such magnitude as to have
virtually drained a substantial portion of the treasury, and then he goes through all the judicial processes and later on, a
President who may have close connections with him or out of improvident compassion may grant clemency under such
conditions. That is why we left it to Congress to provide and make a classification based on substantial distinctions between a
minor act of corruption or an act of substantial proportions.

SR. TAN. So, why do we not just insert the word GROSS or GRAVE before the word “violations”?

MR. REGALADO. We feel that Congress can make a better distinction because “GRAVE” or “GROSS” can be misconstrued by
putting it purely as a policy.

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. May I speak in favor of the proposed amendment?

THE PRESIDENT. Please proceed.

MR. RODRIGO. The power to grant executive clemency is essentially an executive power, and that is precisely why it is called
executive clemency. In this sentence, which the amendment seeks to delete, an exception is being made.
Congress, which is the legislative arm, is allowed to intrude into this prerogative of the executive. Then it limits
the power of Congress to subtract from this prerogative of the President to grant executive clemency by limiting the power of
Congress to only corrupt practices laws. There are many other crimes more serious than these. Under this amendment,
Congress cannot limit the power of executive clemency in cases of drug addiction and drug pushing which are very, very
serious crimes that can endanger the State; also, rape with murder, kidnapping and treason. Aside from the fact that it is
a derogation of the power of the President to grant executive clemency, it is also defective in that it singles out
just one kind of crime. There are far more serious crimes which are not included.

MR. REGALADO. I will just make one observation on that. We admit that the pardoning power is an executive power. But
even in the provisions on the COMELEC, one will notice that constitutionally, it is required that there be a favorable
 70

recommendation by the Commission on Elections for any violation of election laws.

At any rate, Commissioner Davide, as the principal proponent of that and as a member of the Committee, has explained in
the committee meetings we had why he sought the inclusion of this particular provision. May we call on Commissioner
Davide to state his position.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I am constrained to rise to object to the proposal. We have just approved the Article on Accountability of Public
Officers. Under it, it is mandated that a public office is a public trust, and all government officers are under obligation to
observe the utmost of responsibility, integrity, loyalty and efficiency, to lead modest lives and to act with patriotism and
justice.

In all cases, therefore, which would go into the very core of the concept that a public office is a public trust, the violation is
itself a violation not only of the economy but the moral fabric of public officials. And that is the reason we now want that if
there is any conviction for the violation of the Anti-Graft and Corrupt Practices Act, which, in effect, is a violation of the public
trust character of the public office, no pardon shall be extended to the offender, unless some limitations are imposed.

Originally, my limitation was, it should be with the concurrence of the convicting court, but the Committee left it entirely to
the legislature to formulate the mechanics at trying, probably, to distinguish between grave and less grave or serious cases
of violation of the Anti-Graft and Corrupt Practices Act. Perhaps this is now the best time, since we have strengthened the
Article on Accountability of Public Officers, to accompany it with a mandate that the President’s right to grant executive
clemency for offenders or violators of laws relating to the concept of a public office may be limited by Congress itself.

MR. SARMIENTO. Madam President.

THE PRESIDENT. Commissioner Sarmiento is recognized.

MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.

Madam President, over and over again, we have been saying and arguing before this Constitutional Commission that we are
emasculating the powers of the presidency, and this provision to me is another clear example of that. So, I speak
against this provision. Even the 1935 and the 1973 Constitutions do not provide for this kind of provision.

I am supporting the amendment by deletion of Commissioner Tan.

MR. ROMULO. Commissioner Tingson would like to be recognized.

THE PRESIDENT. Commissioner Tingson is recognized.

MR. TINGSON. Madam President, I am also in favor of the amendment by deletion because I am in sympathy with the stand
of Commissioner Francisco “Soc” Rodrigo. I do believe and we should remember that above all the elected or appointed
officers of our Republic, the leader is the President. I believe that the country will be as the President is, and if we
systematically emasculate the power of this presidency, the time may come when he will be also handcuffed
that he will no longer be able to act like he should be acting.

So, Madam President, I am in favor of the deletion of this particular line.

MR. ROMULO. Commissioner Colayco would like to be recognized.

THE PRESIDENT. Commissioner Colayco is recognized.

MR. COLAYCO. Thank you very much, Madam President.

I seldom rise here to object to or to commend or to recommend the approval of proposals, but now I find that the proposal
of Commissioner Tan is worthy of approval of this body.

Why are we singling out this particular offense? There are other crimes which cast a bigger blot on the moral character of the
public officials.

Finally, this body should not be the first one to limit the almost absolute power of our Chief Executive in deciding
whether to pardon, to reprieve or to commute the sentence rendered by the court.

I thank you.

THE PRESIDENT. Are we ready to vote now?

 71

MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will be Commissioner Natividad.

THE PRESIDENT. Commissioner Padilla is recognized.

MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been called the Anti-Graft Court, so if this is
allowed to stay, it would mean that the President’s power to grant pardon or reprieve will be limited to the cases decided by
the Anti-Graft Court, when as already stated, there are many provisions in the Revised Penal Code that penalize
more serious offenses.

Moreover, when there is a judgment of conviction and the case merits the consideration of the exercise of executive
clemency, usually under Article V of the Revised Penal Code the judge will recommend such exercise of clemency. And so, I
am in favor of the amendment proposed by Commissioner Tan for the deletion of this last sentence in Section 17.

THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?

MR. NATIVIDAD. Just one more.

THE PRESIDENT. Commissioner Natividad is recognized.

MR. NATIVIDAD. I am also against this provision which will again chip more powers from the President. In case of other
criminals convicted in our society, we extend probation to them while in this case, they have already been convicted and we
offer mercy. The only way we can offer mercy to them is through this executive clemency extended to them by the
President. If we still close this avenue to them, they would be prejudiced even worse than the murderers and the
more vicious killers in our society. I do not think they deserve this opprobrium and punishment under the new
Constitution.

I am in favor of the proposed amendment of Commissioner Tan.

MR. ROMULO. We are ready to vote, Madam President.

THE PRESIDENT. Is this accepted by the Committee?

MR. REGALADO. The Committee, Madam President, prefers to submit this to the floor and also because of the objection of
the main proponent, Commissioner Davide. So we feel that the Commissioners should vote on this question. cralaw red

VOTING

THE PRESIDENT. As many as are in favor of the proposed amendment of Commissioner Tan to delete the last sentence of
Section 17 appearing on lines 7, 8 and 9, please raise their hand. (Several Members raised their hand.)

As many as are against, please raise their hand. (Few Members raised their hand.)

The results show 34 votes in favor and 4 votes against; the amendment is approved.30 (Emphases supplied.)
The proper interpretation of Articles 36 and 41 of the Revised Penal Code.

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal Code cannot, in any way, serve
to abridge or diminish the exclusive power and prerogative of the President to pardon persons convicted of violating penal
statutes.

The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles contain specific textual commands which
must be strictly followed in order to free the beneficiary of presidential grace from the disqualifications specifically prescribed
by them.

Again, Articles 36 and 41 of the Revised Penal Code provides: ChanRob les Virtualawl ibra ry

ART. 36. Pardon; its effects. – A pardon shall not work the restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties. – The penalties of reclusion
perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as
to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as proposed by Risos-Vidal, is unwarranted, especially so if it will
defeat or unduly restrict the power of the President to grant executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from ambiguity, it must
 72

be given its literal meaning and applied without attempted interpretation.Verba legis non est recedendum. From the words of
a statute there should be no departure.31 It is this Court’s firm view that the phrase in the presidential pardon at issue which
declares that former President Estrada “is hereby restored to his civil and political rights” substantially complies with the
requirement of express restoration.

The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos-Vidal that there was no express remission and/or restoration
of the rights of suffrage and/or to hold public office in the pardon granted to former President Estrada, as required by Articles
36 and 41 of the Revised Penal Code.

Justice Leonen posits in his Dissent that the aforementioned codal provisions must be followed by the President, as they do
not abridge or diminish the President’s power to extend clemency. He opines that they do not reduce the coverage of the
President’s pardoning power. Particularly, he states: ChanRoblesVi rtualaw lib rary

Articles 36 and 41 refer only to requirements of convention or form. They only provide aprocedural prescription. They are not
concerned with areas where or the instances when the President may grant pardon; they are only concerned with how he or
she is to exercise such power so that no other governmental instrumentality needs to intervene to give it full effect.

All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon the restoration of the rights of
suffrage and to hold public office, or the remission of the accessory penalty of perpetual absolute disqualification, he or she
should do so expressly. Articles 36 and 41 only ask that the President state his or her intentions clearly, directly, firmly,
precisely, and unmistakably. To belabor the point, the President retains the power to make such restoration or remission,
subject to a prescription on themanner by which he or she is to state it.32
With due respect, I disagree with the overbroad statement that Congress may dictate as to how the President may exercise
his/her power of executive clemency. The form or manner by which the President, or Congress for that matter, should
exercise their respective Constitutional powers or prerogatives cannot be interfered with unless it is so provided in the
Constitution. This is the essence of the principle of separation of powers deeply ingrained in our system of government which
“ordains that each of the three great branches of government has exclusive cognizance of and is supreme in matters falling
within its own constitutionally allocated sphere.”33 Moreso, this fundamental principle must be observed if non-compliance
with the form imposed by one branch on a co-equal and coordinate branch will result into the diminution of an exclusive
Constitutional prerogative.

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to the
executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve to impair
or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive
himself/herself. The said codal provisions must be construed to harmonize the power of Congress to define crimes and
prescribe the penalties for such crimes and the power of the President to grant executive clemency. All that the said
provisions impart is that the pardon of the principal penalty does not carry with it the remission of the accessory penalties
unless the President expressly includes said accessory penalties in the pardon. It still recognizes the Presidential prerogative
to grant executive clemency and, specifically, to decide to pardon the principal penalty while excluding its accessory penalties
or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the President on the
penalties imposed in accordance with law.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty
of reclusion perpetua and its accessory penalties are included in the pardon. The first sentence refers to the executive
clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty
of reclusion perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence that
followed, which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory
penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the
Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties of civil interdiction and
perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua.

In this jurisdiction, the right to seek public elective office is recognized by law as falling under the whole gamut of civil and
political rights.

Section 5 of Republic Act No. 9225,34 otherwise known as the “Citizenship Retention and Reacquisition Act of 2003,” reads as
follows:ChanRob les Virtualawl ibra ry

Section 5. Civil and Political Rights and Liabilities. – Those who retain or reacquire Philippine citizenship under this Act shall
enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as “The Overseas Absentee Voting Act of 2003” and other existing
laws;

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear an oath of allegiance to the Republic of the Philippines and
its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the
 73

country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit
to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended
to, those who:

(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or

(b) are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are
naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and Political Rights, to which the Philippines is a signatory, acknowledges the
existence of said right. Article 25(b) of the Convention states: ChanRoblesVirtualawl ibra ry

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without
unreasonable restrictions:

xxxx

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held
by secret ballot, guaranteeing the free expression of the will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on Elections,35 the Court unequivocally referred to the right to seek public
elective office as a political right, to wit:
ChanRobles Vi rtua lawlib rary

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their
citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The
petitioner’s failure to comply therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of
Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain her political right
to seek elective office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for
and hold any elective office in the Philippines. (Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally considered as a political right.
Hence, the Court reiterates its earlier statement that the pardon granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the pardon granted to him, he regained his FULL civil and political
rights – including the right to seek elective office.

On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said penal provisions; and prescribes a formal
requirement that is not only unnecessary but, if insisted upon, could be in derogation of the constitutional prohibition relative
to the principle that the exercise of presidential pardon cannot be affected by legislative action.

Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v. Factoran, Jr.36 to justify her argument that an
absolute pardon must expressly state that the right to hold public office has been restored, and that the penalty of perpetual
absolute disqualification has been remitted.

This is incorrect.

Her reliance on said opinions is utterly misplaced. Although the learned views of Justices Teodoro R. Padilla and Florentino P.
Feliciano are to be respected, they do not form part of the controlling doctrine nor to be considered part of the law of the
land. On the contrary, a careful reading of the majority opinion in Monsanto, penned by no less than Chief Justice Marcelo B.
Fernan, reveals no statement that denotes adherence to a stringent and overly nuanced application of Articles 36 and 41 of
the Revised Penal Code that will in effect require the President to use a statutorily prescribed language in extending
executive clemency, even if the intent of the President can otherwise be deduced from the text or words used in the pardon.
Furthermore, as explained above, the pardon here is consistent with, and not contrary to, the provisions of Articles 36 and
41.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of the OEC
was removed by his acceptance of the absolute pardon granted to him.

Section 40 of the LGC identifies who are disqualified from running for any elective local position. Risos-Vidal argues that
former President Estrada is disqualified under item (a), to wit: ChanRobles Vi rtua lawlib rary

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years after serving sentence[.] (Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an exception, to wit: ChanRobles Virtualawl ibra ry

Section 12. Disqualifications. – x x x unless he has been given plenary pardon or granted amnesty. (Emphasis
supplied.)
As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction for plunder disqualifies him from running
for the elective local position of Mayor of the City of Manila under Section 40(a) of the LGC. However, the subsequent
absolute pardon granted to former President Estrada effectively restored his right to seek public elective office. This is made
possible by reading Section 40(a) of the LGC in relation to Section 12 of the OEC.
 74

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms, Section 12 of the
OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In other words, the latter provision allows
any person who has been granted plenary pardon or amnesty after conviction by final judgment of an offense involving moral
turpitude, inter alia, to run for and hold any public office, whether local or national position.

Take notice that the applicability of Section 12 of the OEC to candidates running for local elective positions is not
unprecedented. In Jalosjos, Jr. v. Commission on Elections,37 the Court acknowledged the aforementioned provision as one of
the legal remedies that may be availed of to disqualify a candidate in a local election filed any day after the last day for filing
of certificates of candidacy, but not later than the date of proclamation.38 The pertinent ruling in the Jalosjos case is quoted
as follows:ChanRobles Vi rtua lawlib rary

What is indisputably clear is that false material representation of Jalosjos is a ground for a petition under Section 78.
However, since the false material representation arises from a crime penalized by prision mayor, a petition under Section 12
of the Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed.The petitioner has a
choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section
40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which remedy
to adopt belongs to petitioner.39 (Emphasis supplied.)
The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., “[w]hereas, Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or office,” neither makes the pardon conditional, nor militate
against the conclusion that former President Estrada’s rights to suffrage and to seek public elective office have been
restored. This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering the
unqualified use of the term “civil and political rights” as being restored.

Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory or preparatory clause that
explains the reasons for the enactment, usually introduced by the word “whereas.”40 Whereas clauses do not form part of a
statute because, strictly speaking, they are not part of the operative language of the statute.41 In this case, the whereas
clause at issue is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent upon the fulfilment of the aforementioned commitment nor to limit
the scope of the pardon.

On this matter, the Court quotes with approval a relevant excerpt of COMELEC Commissioner Maria Gracia Padaca’s separate
concurring opinion in the assailed April 1, 2013 Resolution of the COMELEC in SPA No. 13-211 (DC), which captured the
essence of the legal effect of preambular paragraphs/whereas clauses, viz: ChanRobles Vi rtualaw lib rary

The present dispute does not raise anything which the 20 January 2010 Resolution did not conclude upon. Here, Petitioner
Risos-Vidal raised the same argument with respect to the 3rd “whereas clause” or preambular paragraph of the decree of
pardon. It states that “Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office.” On
this contention, the undersigned reiterates the ruling of the Commission that the 3rd preambular paragraph does not have
any legal or binding effect on the absolute nature of the pardon extended by former President Arroyo to herein Respondent.

This ruling is consistent with the traditional and customary usage of preambular paragraphs. In the case of Echegaray v.
Secretary of Justice, the Supreme Court ruled on the legal effect of preambular paragraphs or whereas clauses on statutes.
The Court stated, viz.: ChanRoblesVirt ualawli bra ry

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It
cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can
neither expand nor restrict its operation much less prevail over its text.
If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to seek a public office
again, the former ought to have explicitly stated the same in the text of the pardon itself. Since former President Arroyo did
not make this an integral part of the decree of pardon, the Commission is constrained to rule that the 3rd preambular clause
cannot be interpreted as a condition to the pardon extended to former President Estrada.42 (Emphasis supplied.)
Absent any contrary evidence, former President Arroyo’s silence on former President Estrada’s decision to run for President in
the May 2010 elections against, among others, the candidate of the political party of former President Arroyo, after the
latter’s receipt and acceptance of the pardon speaks volume of her intention to restore him to his rights to suffrage and to
hold public office.

Where the scope and import of the executive clemency extended by the President is in issue, the Court must turn to the only
evidence available to it, and that is the pardon itself. From a detailed review of the four corners of said document, nothing
therein gives an iota of intimation that the thirdWhereas Clause is actually a limitation, proviso, stipulation or condition on
the grant of the pardon, such that the breach of the mentioned commitment not to seek public office will result in a
revocation or cancellation of said pardon. To the Court, what it is simply is a statement of fact or the prevailing situation at
the time the executive clemency was granted. It was not used as a condition to the efficacy or to delimit the scope of the
pardon.

Even if the Court were to subscribe to the view that the third Whereas Clause was one of the reasons to grant the pardon,
the pardon itself does not provide for the attendant consequence of the breach thereof. This Court will be hard put to discern
the resultant effect of an eventual infringement. Just like it will be hard put to determine which civil or political rights were
restored if the Court were to take the road suggested by Risos-Vidal that the statement “[h]e is hereby restored to his civil
and political rights” excludes the restoration of former President Estrada’s rights to suffrage and to hold public office. The
 75

aforequoted text of the executive clemency granted does not provide the Court with any guide as to how and where to draw
the line between the included and excluded political rights.

Justice Leonen emphasizes the point that the ultimate issue for resolution is not whether the pardon is contingent on the
condition that former President Estrada will not seek another elective public office, but it actually concerns the coverage of
the pardon – whether the pardon granted to former President Estrada was so expansive as to have restored all his political
rights, inclusive of the rights of suffrage and to hold public office. Justice Leonen is of the view that the pardon in question is
not absolute nor plenary in scope despite the statement that former President Estrada is “hereby restored to his civil and
political rights,” that is, the foregoing statement restored to former President Estrada all his civil and political
rights except the rights denied to him by the unremitted penalty of perpetual absolute disqualification made up of, among
others, the rights of suffrage and to hold public office. He adds that had the President chosen to be so expansive as to
include the rights of suffrage and to hold public office, she should have been more clear on her intentions.

However, the statement “[h]e is hereby restored to his civil and political rights,” to the mind of the Court, is crystal clear –
the pardon granted to former President Estrada was absolute, meaning, it was not only unconditional, it was unrestricted in
scope, complete and plenary in character, as the term “political rights” adverted to has a settled meaning in law and
jurisprudence.

With due respect, I disagree too with Justice Leonen that the omission of the qualifying word “full” can be construed as
excluding the restoration of the rights of suffrage and to hold public office. There appears to be no distinction as to the
coverage of the term “full political rights” and the term “political rights” used alone without any qualification. How to ascribe
to the latter term the meaning that it is “partial” and not “full” defies one’s understanding. More so, it will be extremely
difficult to identify which of the political rights are restored by the pardon, when the text of the latter is silent on this matter.
Exceptions to the grant of pardon cannot be presumed from the absence of the qualifying word “full” when the pardon
restored the “political rights” of former President Estrada without any exclusion or reservation.

Therefore, there can be no other conclusion but to say that the pardon granted to former President Estrada was absolute in
the absence of a clear, unequivocal and concrete factual basis upon which to anchor or support the Presidential intent to
grant a limited pardon.

To reiterate, insofar as its coverage is concerned, the text of the pardon can withstand close scrutiny even under the
provisions of Articles 36 and 41 of the Revised Penal Code.

The COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
assailed Resolutions.

In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

The Court has consistently held that a petition for certiorari against actions of the COMELEC is confined only to instances of
grave abuse of discretion amounting to patent and substantial denial of due process, because the COMELEC is presumed to
be most competent in matters falling within its domain.43 chanRoble svirtual Lawli bra ry

As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power due to passion, prejudice or personal
hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or refusal to perform a
positive duty enjoined by law or to act at all in contemplation of law. For an act to be condemned as having been done with
grave abuse of discretion, such an abuse must be patent and gross.44 chanRoblesvi rtua lLawl ibra ry

The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal bases to prove that the assailed
COMELEC Resolutions were issued in a “whimsical, arbitrary or capricious exercise of power that amounts to an evasion or
refusal to perform a positive duty enjoined by law” or were so “patent and gross” as to constitute grave abuse of discretion.

On the foregoing premises and conclusions, this Court finds it unnecessary to separately discuss Lim’s petition-in-
intervention, which substantially presented the same arguments as Risos-Vidal’s petition.

WHEREFORE, the petition for certiorari and petition-in-intervention are DISMISSED. The Resolution dated April 1, 2013 of
the Commission on Elections, Second Division, and the Resolution dated April 23, 2013 of the Commission on Elections, En
banc, both in SPA No. 13-211 (DC), are AFFIRMED.

SO ORDERED. cralawlawlibra ry

SECOND DIVISION

G.R. No. 200333, January 21, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DOMINGO DILLA Y PAULAR, Accused-Appellant.

 76

RESOLUTION

DEL CASTILLO, J.:

Appellant Domingo Dilla y Paular was charged with the crime of murder for the death of his brother, Pepito Dilla y Paular
(Pepito). Based on the evidence presented by the prosecution, it was shown that at around 5:30 in the afternoon of July 22,
2003, at Sitio Ilaud, Himaao, Pili, Camarines Sur, Pepito was working on his farm when appellant suddenly appeared and
shot the victim with a gun hitting him on his left thigh. The victim managed to run but was overtaken by appellant who then
stabbed him with a bolo. The son of the victim, Pepito Jr., and Mary Jane Renegado (Renegado), witnessed the incident.

Appellant presented a different version. He claimed that it was Pepito who was the aggressor. He narrated that Pepito went
to his (appellant’s) house and challenged him to a fight. Dismissing the challenge, he went out of his house and proceeded
to his farm to get his carabao but the victim pursued him. They grappled for possession of the gun and bolo. In the ensuing
struggle, he struck the victim with a wrench. He denied having fired the gun. He pointed to somebody allegedly wearing a
hat who could have shot and stabbed Pepito.

In a Decision1 dated July 13, 2009, the Regional Trial Court (RTC) of Pili, Camarines Sur, Branch 32, found appellant guilty of
murder. Lending credence to the testimonies of the prosecution witnesses, the trial court held that the attack on the victim
was perpetrated by no other than appellant; that the attack was treacherous as the appellant suddenly appeared and shot
the victim, and after having wounded him, stabbed him with a bolo. The RTC found appellant’s tale incredible and self-
serving especially in view of his positive identification by the prosecution witnesses.

The dispositive portion of the trial court’s Decision reads:

chan roblesv irtuallawl ib rary

WHEREFORE, judgment is hereby rendered, finding the accused guilty beyond reasonable doubt of the crime of murder and
sentences him to suffer the penalty of Reclusion Perpetua, together with its accessory penalties, condemning him to pay
actual damages of P35,448.00, moral damages of P50,000.00 and P50,000.00 as indemnity for the death of Pepito Dilla; the
accused is credited in full for his preventive detention should he agree in writing to abide by the rules for convicted prisoners,
otherwise to 4/5 of the same; costs against the accused.

SO ORDERED.2

Aggrieved, appellant appealed to the Court of Appeals (CA) arguing in the main that the trial court erred in finding him guilty
of the charge. He contended that there was no direct proof showing that he actually killed the victim.

The CA, however, was not persuaded. Thus, in its June 9, 2011 Decision,3 it affirmed with modification the findings of the
RTC, viz:chanrob lesvi rtua llawli bra ry

WHEREFORE, premises considered, the Decision of the Regional Trial Court, Branch 32, Pili, Camarines Sur, in Crim. Case
No. P-3466 for Murder, convicting Domingo Dilla y Paular is AFFIRMED with MODIFICATION. Accordingly, accused is hereby
sentenced to suffer Reclusion Perpetua together with its accessory penalties, and is further ORDERED to pay the victim’s
heirs P35,448.00, as actual damages, P50,000.00, as moral damages, and P75,000.00, as civil indemnity for the death of the
victim.

SO ORDERED.4

Hence, this appeal. In a Resolution5 dated April 18, 2012, we required both parties to file their Supplemental Briefs.
However, both parties opted not to file the same.6 Hence, we will resolve this appeal based on the briefs submitted by the
parties before the CA.

After a careful review of the records of the case, the Court finds the appeal to be lacking in merit. The records belie
appellant’s contention that there was no direct proof identifying him as the perpetrator of the crime. The testimonies of
prosecution witnesses Pepito, Jr. and Renegado established without a shadow of doubt that it was appellant who mercilessly
killed his brother, Pepito.

Pepito, Jr. was categorical in his testimony that -

Q Pepito Dilla, Jr., what is your relation to the victim in this case?
A He is my father.
Q How about to the accused in this case[,] Domingo Dilla?
A He is my uncle.
xx
xx
 77

Q On July 22, 2003 at around 5:30 in the afternoon do you remember where you were?
A Yes, sir.
Q Where were you?
A I was at the side of the road in sitio Ilawod, Himaao, Pili, Camarines Sur.
Q x x x [W]hat were you doing there?
A None, sir.
xx
xx
Q While thereat, do you remember x x x any unusual incident?
A Yes, sir.
Q What was that all about?
A I saw my father being chased by uncle Ingo.
Q [Where did] this incident [happen]?
A In sitio Ilawod, Himaao, Pili, Camarines Sur.
Q While your father was being chased by Domingo Dilla how far were you from where
you are seated now will you please point to an object outside this [courtroom]
representing the distance similar to the distance from where you were to the place
where your father [was] being chased by Domingo Dilla?
A That my uncle was angry.
Q Will you please tell us the distance at the time you saw your father was being chased
by your uncle Domingo Dilla, what was the distance of your father to Domingo Dilla?
A Three arms length.
Q After you saw Domingo Dilla chasing your father, what happened next?
A He shot him[,] sir.
Q Of your own knowledge, was your father hit by the shot?
A Yes, sir.
Q Why, what happened to your father?
A He [limped,] sir.
Q Will you please tell us or illustrate to us, as you have said your father was shot by
Domingo Dilla, please indicate to us the gun used by Domingo Dilla?
INTERPRETER:
Witness indicate[d] a length of about 8 inches.
Q After your father was shot by Domingo Dilla, what happened next?
A He stabbed him.
Q Why, what was the position of your father when Domingo Dilla stab[bed] your
father?
INTERPRETER:
Witness illustrate[s] in standing position.
Q What was the position of your father when Domingo Dilla stab[bed] your father?
A He was standing[,] sir and his 2 hands were [at] his side.
Q While your father was being stabbed by Domingo Dilla, where was the relative
position of Domingo Dilla in relation to your father?
 78

A Domingo Dilla was in front.

Q How many times [was] your father x x x stabbed?
A One[,] sir.
Q Considering that you [are] the son of Pepito Dilla, Sr., what did you do?
A I told my grandfather that the two of them were fighting, after I told my grandfather
x x x I went back and approached them but at that time Domingo Dilla was running.
xx
xx
Q What happened to your father?
A He was already lying on the ground[,] sir.
Q What did you do when you [saw] your father x x x already lying on the ground?
A I asked help from the other people who also witness[ed] the incident to bring him to
the hospital.
Q What happened to your father?
A He did not reach the hospital because he died.7
Pepito, Jr.’s testimony was corroborated in all material points by the testimony of Renegado.8chanRoblesv irt ual Lawlib rary

In fine, both the RTC and the CA correctly found appellant guilty beyond reasonable doubt of the crime of murder and
properly sentenced him to suffer the penalty of reclusion perpetua. Moreover, appellant is not eligible for parole pursuant to
Section 3 of Republic Act No. 9346 or the Act Prohibiting the Imposition of Death Penalty in the Philippines. The awards of
civil indemnity in the amount of P75,000.00 and moral damages in the amount of P50,000.00 are proper. In addition, the
heirs of the victim are entitled to exemplary damages in the amount of P30,000.00.

Anent the award of actual damages in the amount of P35,448.00, we find that only the amount of P15,000.00 was duly
receipted.9 The amount of P20,448.0010 which supposedly pertained to expenses incurred during the wake was not
supported by receipts but consisted only of handwritten entries. As we held in People v. Villanueva,11 “when actual damages
proven by receipts during the trial amount to less than P25,000.00, as in this case, the award of temperate damages of
P25,000.00 is justified in lieu of actual damages of a lesser amount.” Accordingly, we grant temperate damages in the
amount of P25,000.00 in lieu of actual damages. In addition, all damages awarded shall earn interest at the rate of 6% per
annum from date of finality of judgment until fully paid.
cha nro bleslaw

WHEREFORE, the assailed June 9, 2011 Decision of the Court of Appeals in CA-G.R.-CR-HC. No. 04088 finding appellant
Domingo Dilla y Paular guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty
of reclusion perpetua and to pay the heirs of Pepito Dilla yPaular the amounts of P75,000.00 as civil indemnity and
P50,000.00 as moral damages, is AFFIRMEDwith MODIFICATIONS that appellant is not eligible for parole; appellant is
further ordered to pay the heirs of the victim P30,000.00 as exemplary damages, and P25,000.00 as temperate damages, all
with interest at the rate of 6% per annum from date of finality of this judgment until fully paid.

SO ORDERED. cralawlawlibra ry

SECOND DIVISION

G.R. No. 191540, January 21, 2015

SPOUSES JOSE O. GATUSLAO AND ERMILA LEONILA LIMSIACO-GATUSLAO, Petitioners, v. LEO RAY V.
YANSON, Respondent.

DECISION

DEL CASTILLO, J.:

Petitioners spouses Jose O. Gatuslao and Ermila Leonila Limsiaco-Gatuslao (petitioners) are assailing the December 8,
20091 Order of the Regional Trial Court (RTC) of Bacolod City, Branch 49 in Cad. Case No. 09-2802 which granted
respondent Leo Ray2 Yanson’s (respondent) Ex Parte Motion for the Issuance of Writ of Possession over the properties being
occupied by petitioners, as well as the February 26, 2010 RTC Order3 denying petitioners’ motion for reconsideration thereto.
 79

Factual Antecedents

Petitioner Ermila Leonila Limsiaco-Gatuslao is the daughter of the late Felicisimo Limsiaco (Limsiaco) who died intestate on
February 7, 1989. Limsiaco was the registered owner of two parcels of land with improvements in the City of Bacolod
described as Lots 10 and 11, Block 8 of the subdivision plan Psd-38577 and covered by Transfer Certificates of Title (TCT)
Nos. T-334294 and T-24331.5 chanRoble svirtual Lawli bra ry

Limsiaco mortgaged the said lots along with the house standing thereon to Philippine National Bank (PNB). Upon Limsiaco’s
failure to pay, PNB extrajudicially foreclosed on the mortgage and caused the properties’ sale at a public auction on June 24,
1991 where it emerged as the highest bidder. When the one-year redemption period expired without Limsiaco’s estate
redeeming the properties, PNB caused the consolidation of titles in its name. Ultimately, the Registry of Deeds of Bacolod
City cancelled TCT Nos. T-33429 and T-24331 and in lieu thereof issued TCT Nos. T-3088186 and T-3088197 in PNB’s name
on October 25, 2006.

On November 10, 2006, a Deed of Absolute Sale8 was executed by PNB conveying the subject properties in favor of
respondent. As a consequence thereof, the Registry of Deeds of Bacolod City issued TCT Nos. T-3111259 and T-31112610 in
respondent’s name in lieu of PNB’s titles.

Then, as a registered owner in fee simple of the contested properties, respondent filed with the RTC an Ex-Parte Motion for
Writ of Possession11 pursuant to Section 7 of Act No. 3135,12 as amended by Act No. 4118 (Act No. 3135, as
amended),13 docketed as Cad. Case No. 09-2802.

In their Opposition,14 petitioners argued that the respondent is not entitled to the issuance of an ex-parte writ of possession
under Section 7 of Act No. 3135 since he was not the buyer of the subject properties at the public auction sale and only
purchased the same through a subsequent sale made by PNB. Not being the purchaser at the public auction sale,
respondent cannot file and be granted an ex parte motion for a writ of possession. Petitioners also asserted that the intestate
estate of Limsiaco has already instituted an action for annulment of foreclosure of mortgage and auction sale affecting the
contested properties.15 They argued that the existence of the said civil suit bars the issuance of the writ of possession and
that whatever rights and interests respondent may have acquired from PNB by virtue of the sale are still subject to the
outcome of the said case.

Ruling of the Regional Trial Court

The RTC granted the issuance of the writ of possession in an Order16 dated December 8, 2009. It cited the Court’s
pronouncement in China Banking Corporation v. Lozada,17viz: cha nrob lesvi rtua llawli bra ry

The Court recognizes the rights acquired by the purchaser of the foreclosed property at the public auction sale upon the
consolidation of his title when no timely redemption of the property was made, x x x.

It is thus settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not
redeemed during the period of one year after the registration of the sale. As such, he is entitled to the possession of the said
property and can demand it at any time following the consolidation of ownership in his name and the issuance to him of a
new transfer certificate of title. x x x Possession of the land then becomes an absolute right of the purchaser as confirmed
owner. Upon proper application and proof of title, the issuance of the writ of possession becomes a ministerial duty of the
court.

The purchaser, therefore, in the public auction sale of a foreclosed property is entitled to a writ of possession x x x.18

PNB, therefore, as the absolute owner of the properties is entitled to a writ of possession. And since respondent purchased
the properties from PNB, the former has necessarily stepped into the shoes of the latter. Otherwise stated, respondent, by
subrogation, has the right to pursue PNB’s claims against petitioners as though they were his own.

The dispositive portion of the above Order reads: chan roble svi rtual lawlib rary

WHEREFORE, premises considered, the Court hereby issues a writ of possession in favor of movant Leo Ray V. Yanson
ordering Spouses Jose and Mila Gatuslao, their heirs, assigns, successors-in-interest, agents, representatives and/or any and
all other occupants or persons claiming any interest or title of the subject property to deliver the possession of said property
to the herein movant/ petitioner.

SO ORDERED.19
Petitioners moved for reconsideration20 which was denied in an Order21 dated February 26, 2010, thus: chanroblesvi rtua llawli bra ry

WHEREFORE, the Motion for Reconsideration filed by Oppositors is hereby DENIED. Thus, the Order dated December 8, 2009
stands.

SO ORDERED.22

Respondent on March 19, 2010 moved to execute the possessory writ23 while petitioners on April 15, 2010 filed with this
 80

Court the present Petition for Review on Certiorari.

On September 30, 2010, the RTC issued an Order24 directing the implementation of the writ. And per Sheriff’s Return of
Service,25 the same was fully implemented on March 14, 2011. cralawred

Issues

1. According to petitioners, the pending action for annulment of foreclosure of mortgage and the corresponding sale at
public auction of the subject properties operates as a bar to the issuance of a writ of possession;

2. Claiming violation of their right to due process, petitioners likewise assert that as they were not parties to the
foreclosure and are, thus, strangers or third parties thereto, they may not be evicted by a mere ex parte writ of
possession; and

3. Lastly, petitioners argue that respondent, a mere purchaser of the contested properties by way of a negotiated sale
between him and PNB, may not avail of a writ of possession pursuant to Section 7 of Act No. 3135, as amended, as
he is not the purchaser at the public auction sale. Petitioners further contend that respondent has no right to avail of
the writ even by way of subrogation.

Our Ruling

Preliminarily, we note that petitioners’ direct resort to this Court from the assailed Orders of the RTC violates the rule on
hierarchy of courts. Their remedy lies with the Court of Appeals. Considering however the length of time this case has been
pending and in view of our January 26, 2011 Resolution26 giving due course to the Petition, we deem it proper to adjudicate
the case on its merits.

The Petition is denied.

It is settled that the issuance of a Writ of

Possession may not be stayed by a pending
action for annulment of mortgage or the
foreclosure itself.

It is petitioners’ stand that the pending action for annulment of foreclosure of mortgage and of the corresponding sale at
public auction of the subject properties operates as a bar to the issuance of a writ of possession.

The Court rules in the negative. BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center, Inc.27 reiterates the
long-standing rule that: chan roblesv irtuallawl ib rary

[I]t is settled that a pending action for annulment of mortgage or foreclosure sale does not stay the issuance of the writ of
possession. The trial court, where the application for a writ of possession is filed, does not need to look into the validity of
the mortgage or the manner of its foreclosure. The purchaser is entitled to a writ of possession without prejudice to the
outcome of the pending annulment case.

This is in line with the ministerial character of the possessory writ. Thus, in Bank of the Philippine Islands v. Tarampi,28 it was
held:cha nrob lesvi rtua llawli bra ry

To stress the ministerial character of the writ of possession, the Court has disallowed injunction to prohibit its
issuance, just as it has held that its issuance may not be stayed by a pending action for annulment of mortgage or
the foreclosure itself.

Clearly then, until the foreclosure sale of the property in question is annulled by a court of competent
jurisdiction, the issuance of a writ of possession remains the ministerial duty of the trial court. The same is true
with its implementation; otherwise, the writ will be a useless paper judgment – a result inimical to the mandate
of Act No. 3135 to vest possession in the purchaser immediately.29(Emphases supplied)

Clearly, petitioners’ argument is devoid of merit.

Petitioners are not strangers or third

parties to the foreclosure sale; they
were not deprived of due process.

Section 7 of Act No. 3135, as amended, sets forth the following procedure in the availment of and issuance of a writ of
possession in cases of extrajudicial foreclosures, viz: cha nrob lesvi rtua llawli bra ry
 81

SECTION 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance
(Regional Trial Court) of the province or place where the property or any part thereof is situated, to give him possession
thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of
twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without
complying with the requirements of this Act. Such petition shall be made under oath and filed in form of an ex parte motion
in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property
registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other
real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any
existing law, and in each case the clerk of the court shall, upon the filing of such petition, collect the fees specified in
paragraph eleven of section one hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act
Numbered Twenty-eight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of
possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order
immediately.

Although the above provision clearly pertains to a writ of possession availed of and issued within the redemption period of
the foreclosure sale, the same procedure also applies to a situation where a purchaser is seeking possession of the foreclosed
property bought at the public auction sale after the redemption period has expired without redemption having been
made.30 The only difference is that in the latter case, no bond is required therefor, as held in China Banking Corporation v.
Lozada,31thus:chanrob lesvi rtual lawlib rary

It is thus settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not
redeemed during the period of one year after the registration of the sale. As such, he is entitled to the possession of the said
property and can demand it at any time following the consolidation of ownership in his name and the issuance to him of a
new transfer certificate of title. The buyer can in fact demand possession of the land even during the redemption
period except that he has to post a bond in accordance with Section 7 of Act No. 3135, as amended. No such
bond is required after the redemption period if the property is not redeemed. x x x32 (Emphasis supplied)

Upon the expiration of the period to redeem and no redemption was made, the purchaser, as confirmed owner, has the
absolute right to possess the land and the issuance of the writ of possession becomes a ministerial duty of the court upon
proper application and proof of title.33 cha nRoblesvi rt ualLaw lib rary

Nevertheless, where the extrajudicially foreclosed real property is in the possession of a third party who is holding the same
adversely to the judgment debtor or mortgagor, the RTC’s duty to issue a writ of possession in favor of the purchaser of said
real property ceases to be ministerial and, as such, may no longer proceed ex parte.34 In such a case, the trial court must
order a hearing to determine the nature of the adverse possession.35 For this exception to apply, however, it is not enough
that the property is in the possession of a third party, the property must also be held by the third partyadversely to the
judgment debtor or mortgagor,36 such as a co-owner, agricultural tenant or usufructuary.37 chanRoblesvi rtua lLawl ib rary

In this case, petitioners do not fall under any of the above examples of such a third party holding the subject properties
adversely to the mortgagor; nor is their claim to their right of possession analogous to the foregoing situations. Admittedly,
they are the mortgagor Limsiaco’s heirs. It was precisely because of Limsiaco’s death that petitioners obtained the right to
possess the subject properties and, as such, are considered transferees or successors-in-interest of the right of possession of
the latter. As Limsiaco’s successors-in-interest, petitioners merely stepped into his shoes and are, thus, compelled not only
to acknowledge but, more importantly, to respect the mortgage he had earlier executed in favor of respondent.38 They
cannot effectively assert that their right of possession is adverse to that of Limsiaco as they do not have an independent
right of possession other than what they acquired from him.39 Not being third parties who have a right contrary to that of
the mortgagor, the trial court was thus justified in issuing the writ and in ordering its implementation.

Petitioners’ claim that their right to due process was violated by the mere issuance of the writ of possession must likewise
fail. As explained, petitioners were not occupying the properties adversely to the mortgagor, hence, a writ of possession
may be issued ex parte. And precisely because of thisex parte nature of the proceedings no notice is needed to be
served40 upon them. It has been stressed time and again that “the ex parte nature of the proceeding does not deny due
process to the petitioners because the issuance of the writ of possession does not prevent a separate case for annulment of
mortgage and foreclosure sale.”41 Consequently, the RTC may grant the petition even without petitioners’
participation. Nevertheless, even if the proceedings in this case was supposed to be ex parte, the records of the case would
show that petitioners’ side on this controversy was actually heard as evidenced by the numerous pleadings42 filed by them in
the lower court. In fact, in its July 27, 2009 Order,43 the RTC expressly directed respondent, “in observance of equity and
fair play x x x to furnish [petitioners] with a copy of his motion/petition and to show x x x proof of compliance thereof x x
x.”44 Then and now, the Court holds that a party cannot invoke denial of due process when he was given an opportunity to
present his side.45 c hanRoble svirtual Lawli bra ry

Respondent is entitled to the

issuance of writ of possession.

Petitioners insist that respondent is not entitled to the issuance of the writ of possession under Section 7 of Act No. 3135 as
he is only a buyer of the subject properties in a contract of sale subsequently executed in his favor by the actual purchaser,
PNB. To them, it is only the actual purchaser of a property at the public auction sale who can ask the court and be granted a
writ of possession.
 82

This argument is not tenable. Respondent, as a transferee or successor-in-interest of PNB by virtue of the contract of sale
between them, is considered to have stepped into the shoes of PNB. As such, he is necessarily entitled to avail of the
provisions of Section 7 of Act No. 3135, as amended, as if he is PNB. This is apparent in the Deed of Absolute
Sale46 between the two, viz: ch anroble svirtual lawlib rary

1. The Vendor hereby sells, transfer[s] and convey[s] unto[, and] in favor of the Vendee, and the latter’s
assigns and successors-in-interest, all of the former’s rights and title to, interests and participation in
the Property on an “AS IS, WHERE IS” basis. It is thus understood that the Vendee has inspected the Property and
has ascertained its condition.

xxxx

3. The Vendor is selling only whatever rights and title to, interests and participation it has acquired over
the Property, and the Vendee hereby acknowledges full knowledge of the nature and extent of the Vendor’s rights
and title to, [and] interests and participation in the Property.

4. x x x The Vendee further agrees to undertake, at its/his/her expense, the ejectment of any occupant of
the Property.47 (Emphases in the original)

Verily, one of the rights that PNB acquired as purchaser of the subject properties at the public auction sale, which it could
validly convey by way of its subsequent sale of the same to respondent, is the availment of a writ of possession. This can be
deduced from the above-quoted stipulation that “[t]he [v]endee further agrees to undertake, at xxx his expense, the
ejectment of any occupant of the [p]roperty.” Accordingly, respondent filed the contentious ex parte motion for a writ of
possession to eject petitioners therefrom and take possession of the subject properties.

Further, respondent may rightfully take possession of the subject properties through a writ of possession, even if he was not
the actual buyer thereof at the public auction sale, in consonance with our ruling in Ermitaño v. Paglas.48 In the said case,
therein respondent was petitioner’s lessee in a residential property owned by the latter. During the lifetime of the lease,
respondent learned that petitioner mortgaged the subject property in favor of Charlie Yap (Yap) who eventually foreclosed
the same. Yap was the purchaser thereof in an extrajudicial foreclosure sale. Respondent ultimately bought the property
from Yap. However, it was stipulated in the deed of sale that the property was still subject to petitioner’s right of
redemption. Subsequently and despite written demands to pay the amounts corresponding to her monthly rental of the
subject property, respondent did not anymore pay rents. Meanwhile, petitioner’s period to redeem the foreclosed property
expired on February 23, 2001. Several months after, petitioner filed a case for unlawful detainer against respondent. When
the case reached this Court, it ruled that therein respondent’s basis for denying petitioner’s claim for rent was insufficient as
the latter, during the period for which payment of rent was being demanded, was still the owner of the foreclosed
property. This is because at that time, the period of redemption has not yet expired. Thus, petitioner was still entitled to the
physical possession thereof subject, however, to the purchaser’s right to petition the court to give him possession and to file
a bond pursuant to the provisions of Section 7 of Act No. 3135, as amended. However, after the expiration of the
redemption period without redemption having been made by petitioner, respondent became the owner thereof and
consolidation of title becomes a right. Being already then the owner, respondent became entitled to
possession. Consequently, petitioner’s ejectment suit was held to have been rendered moot by the expiration of the period
of redemption without petitioner redeeming the properties. This is considering that petitioner already lost his possessory
right over the property after the expiration of the said period.

Although the main issue in Ermitaño was whether respondent was correct in refusing to pay rent to petitioner on the basis of
her having bought the latter’s foreclosed property from whom it was mortgaged, the case is enlightening as it acknowledged
respondent’s right, as a subsequent buyer of the properties from the actual purchaser of the same in the public auction sale,
to possess the property after the expiration of the period to redeem sans any redemption. Verily, Ermitañodemonstrates the
applicability of the provisions of Section 7 of Act No. 3135 to such a subsequent purchaser like respondent in the present
case.

All told, the Court affirms the RTC’s issuance of the Writ of Possession in favor of respondent. chanrob leslaw

WHEREFORE, the Petition is hereby DENIED. The December 8, 2009 and February 26, 2010 Orders of the Regional Trial
Court of Bacolod City, Branch 49 in Cad. Case No. 09-2802 are AFFIRMED.

SO ORDERED. cralawlawlibra ry

SECOND DIVISION

A.M. No. P-11-2940, January 21, 2015

 83

JUDGE GODOFREDO B. ABUL, JR., Complainant, v. GEORGE E. VIAJAR, SHERIFF IV, REGIONAL TRIAL COURT,
BRANCH 4, BUTUAN CITY, Respondent.

DECISION

CARPIO, J.:

The Case

Before the Court is an administrative case for Dishonesty, Grave Abuse of Authority, Usurpation of Judicial Authority, and
Malfeasance and Graft and Corruption filed by Judge Godofredo B. Abul, Jr. (complainant) of the Regional Trial Court, Branch
4, Butuan City, against Sheriff IV George E. Viajar (respondent).cralawre d

The Antecedent Facts

Complainant alleged that on 26 March 2010, he issued a Writ of Execution (writ) in Civil Case No. 3985 entitled “Felipe
Gorme, Sr., Adela Gorme, Crisanta Gorme-Gado and Felipe Saludo v. Fast Cargo Transport Corporation and Romy
Estrella.” According to complainant, respondent received the writ on the same day it was issued but he withheld the writ and
filed the Sheriff’s Return of Service only on 21 June 2010. Complainant further alleged that respondent arrogated judicial
powers upon himself by receiving P68,000 from the judgment creditor and failing to deposit it to the court. Complainant also
alleged that respondent submitted an unreasonably high Sheriff’s fees, through padded and imaginary charges, as can be
seen from the Statement of Liquidation he submitted which contained the following charges: ChanRobles Vi rtualaw lib rary

(a) Two P5,800, without receipts;

(b) Publication of Sheriff’s Notice of Sale – P15,000, published without the required raffle;
(c) Lifting of levy – P5,000, without receipt;
(d) Representation allowances – P4,500; and
(e) Withheld amount from the judgment creditor – P28,260.
Complainant alleged that respondent refused to follow the Rules of Court when he failed to demand payment directly from
the judgment creditor. Respondent took it upon himself to make a determination that the judgment creditor in Civil Case No.
3985, Fast Cargo Transport Corporation, is the same as Fast Cargo Logistics Corporation. In addition, respondent mailed a
copy of the writ of execution to the judgment debtor in Cebu City instead of serving the writ. He then proceeded to execute a
levy garnishment and conducted an illegal sale. By purposely not giving notice to the judgment debtor and its counsel,
respondent deprived some of the parties of their right to participate. Respondent allegedly conducted a simulated bidding,
awarded the property to the judgment creditor, received P800,000 for the bid but did not deposit the money with the Clerk
of Court. On 15 June 2010, respondent executed a Sheriff’s Certificate of Redemption with accompanying acknowledgment
receipt which showed that he charged the judgment debtor additional expenses of P40,000 as actual expenses and P40,000
as Sheriff’s fees. Respondent then allowed the judgment debtor to withdraw the amount of P460,647 from him and only
informed the trial court through an addendum of Return of Service submitted on 24 June 2010. The trial court ordered
respondent to deposit the P800,000 paid by the highest bidder to the court but he refused and only gave a vague
explanation.

In his comment, respondent denied that he deliberately withheld the making of the return of the writ. He alleged that on 24
May 2010, he proceeded with the auction sale since there was no sign that the judgment debtor would settle its obligation.
On 25 May 2010, he delivered P575,000 out of the bid amount of P800,000 to the judgment creditor to satisfy the obligation.
Respondent alleged that on 9 June 2010, Terence Saavedra (Saavedra), a representative of Fast Cargo Logistics Corporation
who claimed to also represent Fast Cargo Transport Corporation, came to the trial court and informed him that he wanted to
redeem the property. Respondent alleged that Saavedra returned on 15 June 2010, made a proposal to satisfy the judgment
amount and the Sheriff’s expenses, and he received the amount on the same day.

Respondent further alleged that the amount of P69,000 as estimated expenses was approved by complainant because he
was supposed to go to Cebu City to serve the writ. However, he changed his plans because he learned that the judgment
creditor still had property in Butuan City. He added that the judgment creditor opted not to deposit the estimated amount of
expenses and instead personally handed it to him. Respondent further stated that it is discretionary upon complainant
whether to approve his expenses. Respondent denied that he made a judicial pronouncement that Fast Cargo Transport
Corporation is the same as Fast Cargo Logistics Corporation. He claimed that he observed the change in the corporate name
on 15 August 1997 and that complainant was duly informed when he submitted his Sheriff’s Return of Service. Respondent
denied that he deliberately refused to deposit the amount of P800,000. He added that P575,000 was already delivered to
the judgment creditor. He stressed that he did not receive a single centavo for his personal benefit.

In its Resolution dated 15 June 2011, this Court re-docketed the complaint as a regular administrative complaint and
referred the case to the Executive Judge of the Regional Trial Court of Butuan City, Branch 3, for investigation, report and
recommendation. cralawre d

The Report and Recommendation of the Executive Judge

After conducting his investigation, Executive Judge Francisco F. Maclang found that respondent committed the following
violations:
 84

1. Respondent did not enforce the writ by personally going to Cebu City. Instead, respondent mailed a copy of the writ to
Fast Cargo Transport Corporation.

2. Respondent mailed to Fast Cargo Transport Corporation not only the writ but also the notice of levy of execution. As such,
Fast Cargo Transport Corporation was not given an option to select what personal or real property would be levied by
respondent. Respondent was not able to show that Fast Cargo Transport Corporation has no bank account or other personal
property that would justify the immediate levy on its real property.

3. Respondent did not immediately return the writ after the judgment had been satisfied in part or in full. Instead, he
submitted the Report on 21 June 2010, or almost three months after the issuance of the writ on 26 March 2010.

4. Respondent did not present any evidence that the written Notice of Sale had been published once a week for two
consecutive weeks in one newspaper. Respondent presented one Sheriff’s Notice of Sale. He also presented an official receipt
issued by The People’s Guardian showing payment for P15,000 on 25 May 2010 but the publication was dated 28 April 2010.
Respondent likewise failed to give a copy of the Notice of Sale to Fast Cargo Transport Corporation.

5. Instead of turning over the payment to the Clerk of Court for delivery to the judgment creditor, respondent took it upon
himself to deliver the bid amount. He also made a conclusion that Fast Cargo Transport Corporation changed its name to
Fast Cargo Logistics Corporation.

6. Respondent charged an exorbitant amount of sheriff’s expenses of P68,260 even if he did not actually go to Cebu City.
Even the actual expenses reflected on the Sheriff’s Return, amounting to P40,000, were exorbitant. Respondent also failed to
explain why he demanded P460,627 from Fast Cargo Transport Corporation after the Certificate of Sale was issued.

7. In his letter dated 1 July 2010, respondent included the amount of P176,112.60 allegedly representing lawyer’s expenses
from 6 November 2001 to 6 August 2007. He also admitted that he gave money to the Register of Deeds and the Assessor’s
Office to facilitate the release of the papers.

8. Respondent approved the Certificate of Sale instead of giving the same to the court for approval.

9. Respondent failed to show that The People’s Guardian had been awarded the right to publish the Notice of Sale through a
raffle conducted by the Office of the Clerk of Court.

10. Respondent failed to submit receipts for the following amounts: ChanRoblesVi rtualawl ib rary

a. 5,800;
b. P5,000;
c. P4,500;
d. P28,620; and
e. P40,000.
The investigating judge noted that respondent initially admitted that he had been remiss in the performance of his duties and
that he expressed willingness to accept any disciplinary action. After some time, respondent recanted and denied all the
charges against him. The investigating judge recommended that respondent be imposed the corresponding sanctions by this
Court.cralawred

The Report and Recommendation of the OCA

In a Memorandum dated 28 August 2013, the Office of the Court Administrator (OCA) agreed with the findings of the
investigating judge that respondent did not follow the basic procedure for implementing a writ of execution.

The OCA stressed that respondent should have personally demanded the payment of the principal obligation from the
judgment debtor. If, upon verification, respondent noticed that the name of the corporation appeared to have been changed,
he should have inquired from the judgment debtor if Fast Cargo Transport Corporation is the same as Fast Cargo Logistics
Corporation. In addition, the OCA stated that respondent failed to show that he accorded the judgment debtor the option to
choose which among its personal or real properties may be levied upon.

The OCA noted that respondent seemed unaware of the rule that he has to make a report to the court even if the writ is not
satisfied in full. He did not make periodic reports on the status of the implementation of the writ of execution. The OCA
likewise found that respondent failed to show proof that The People’s Guardian was awarded the right to publish the Notice of
Sale through a raffle conducted by the Office of the Clerk of Court. Respondent could not prove the fact of publication
because he could not present a copy of the newspaper clipping where the Notice of Sale was published and the Affidavit of
Publication by the publisher. Further, the Official Receipt for P15,000 that respondent presented was dated 25 May 2010 but
the dates of publication were on 2, 9 and 16 May 2010.

The OCA found that respondent was guilty of grave misconduct and dishonesty. The OCA recommended that respondent be
imposed the penalty of suspension from office without pay for six months. However, considering that respondent had already
retired from the service, the OCA further recommended that the amount corresponding to respondent’s salary for six months
should instead be deducted from his retirement benefits. cralawred
 85

The Ruling of this Court

We adopt the findings of the OCA and increase the recommended penalty.

We must stress once again that sheriffs play an important role in the administration of justice.1 As agents of the law, they
are called upon to discharge their duties with due care and utmost diligence.2In serving the court’s writs and processes and
implementing its orders, they cannot afford to err without affecting the integrity of their office and the efficient
administration of justice.3
chanRoble svi rtual Lawli brary

In this case, respondent had been remiss in performing his responsibilities.

First, respondent violated a basic rule by failing to do his ministerial duty to make periodic reports on the writ. Section 14,
Rule 39 of the Revised Rules of Court provides: chan roblesv irtuallawl ib rary

SEC. 14. Return of writ of execution. - The writ of execution shall be returnable to the court issuing it immediately after the
judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his
receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during
the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty
(30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or
periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof
promptly furnished the parties.

In this case, the writ of execution was issued on 26 March 2010. Respondent received it on the same day. Respondent made
his Report on 21 June 2010. Respondent ignored the directive of the Rules requiring him to make a report to the court every
30 days on the proceedings taken on the writ until the judgment is satisfied in full, or when the effectivity of the writ expires.
We cannot accept respondent’s explanation that the main reason for his failure to make his report was that there were still
activities to be undertaken in the process of his implementation of the writ. The Rule is clear. Even when the judgment has
not yet been fully satisfied, respondent is mandated to submit his periodic report to the court. Respondent failed to do so.

Respondent likewise failed to show that he personally demanded from the judgment debtor the immediate payment of the
full amount stated in the writ of execution, and of all lawful fees. In addition, respondent failed to show that he accorded the
judgment debtor the option to choose which among its real or personal properties would be levied upon. Section 9(b) of Rule
39 states that “[i]f the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode
of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every
kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter
the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment.” In
this case, respondent just levied upon the property of the judgment debtor without demanding payment of the judgment
debt, and without giving the judgment debtor the option to choose which of its properties may be levied upon.

In addition, respondent’s duty to execute a judgment is ministerial and he need not look outside the plain meaning of the
writ of execution.4 When a sheriff is faced with an ambiguous execution order, prudence and reasonableness dictate that he
seek clarification from the judge.5 When confronted with the question of whether Fast Cargo Transport Corporation is the
same as Fast Cargo Logistics Corporation, respondent should have consulted with the judge. Instead, he decided on his own
that they are one and the same corporation. Respondent relied on the words of Atty. Audie Bernabe, counsel of the
judgment creditor,6 when his proper course of action should have been to seek clarification from the judge.

As regards the publication of the sale, we agree with the OCA that respondent failed to show that The People’s Guardian was
selected by raffle in accordance with Section 15(c), Rule 39 of the 1997 Rules of Civil Procedure. Respondent failed to
present a copy of the newspaper clipping where the Notice of Sale was published as well as the affidavit of publication by the
publisher. Further, the official receipt presented by respondent was dated 25 May 2010 but the Notice of Sale was supposed
to have been published on 2, 9 and 16 May 2010.

Respondent also admitted that he accommodated the judgment creditor’s request to include the amount of P176,112.60 as
lawyer’s expenses which was not part of the decision. Respondent explained: c han roblesv irt uallawl ibra ry

x x x the judgment creditor asked this amount to be included, to take chances that it might [be] accepted by the judgment
debtor, and to give the benefit of the doubt, the undersigned Sheriff accommodated the said claim, though to his personal
knowledge it is not a valid claim since it was not part of the judgment amount as mentioned in the writ of execution[.]7

Again, respondent went beyond the terms of the writ of execution although he knew that the judgment creditor’s claim was
not valid.

As regards the Sheriff’s expenses, respondent himself admitted that some of the amount he included did not have receipts
and were, therefore, not justified.8 c hanRoblesv irtual Lawlib rary

The OCA found respondent guilty of grave misconduct and dishonesty in the performance of his duties, which, considering
the circumstances, we deem to be serious dishonesty. Both offenses are punishable with dismissal from the
service.9 However, in recommending the imposable penalty, the OCA considered the following as mitigating circumstances in
 86

favor of respondent: (1) this is respondent’s first offense; (2) respondent had been in the service for 15 years; and (3)
humanitarian reasons. Thus, the OCA recommended that the penalty of suspension from office without salary for six months
should instead be meted on respondent. In view of respondent’s retirement from the service, the OCA further recommended
that the amount corresponding to six months’ salary be instead deducted from respondent’s retirement benefits. We modify
the recommended penalty by increasing the suspension from six months to one year. Considering that respondent already
retired from the service, the amount corresponding to one year’s salary should instead be deducted from respondent’s
retirement benefits. chan roble slaw

WHEREFORE, we find George E. Viajar GUILTY of grave misconduct and serious dishonesty and impose upon him the
penalty of SUSPENSION from office without pay for one year. In view of Viajar’s retirement from the service, we direct the
Finance Division, Financial Management Office of the OCA to deduct the amount corresponding to his one year’s salary from
the retirement benefits due him.

SO ORDERED. cralawlawlibra ry

SECOND DIVISION

G.R. No. 209605, January 12, 2015

NEIL B. AGUILAR AND RUBEN CALIMBAS, Petitioners, v. LIGHTBRINGERS CREDIT COOPERATIVE, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari filed by petitioners Neil B. Aguilar (Aguilar) and Ruben Calimbas (Calimbas), seeking
to reverse and set aside the April 5, 20131 and October 9, 20132Resolutions of the Court of Appeals (CA) in CA-G.R. SP No.
128914, which denied the petition for review outright, assailing the January 2, 2013 Decision3 of the Regional Trial Court,
Branch 5, Dinalupihan, Bataan (RTC) and the May 9, 2012 Decision4 of the First Municipal Circuit Trial Court, Dinalupihan,
Bataan (MCTC).

In the lower courts, one of the issues involved was the proper application of the rules when a party does not appear in the
scheduled pre-trial conference despite due notice. In this petition, the dismissal by the CA of the petition filed under Rule 42
for failure to attach the entire records has also been put to question, aside from the veracity of indebtedness issue.

The Facts

This case stemmed from the three (3) complaints for sum of money separately filed by respondent Lightbringers Credit
Cooperative (respondent) on July 14, 2008 against petitioners Aguilar and Calimbas, and one Perlita
Tantiangco (Tantiangco) which were consolidated before the First Municipal Circuit Trial Court, Dinalupihan, Bataan (MCTC).
The complaints alleged that Tantiangco, Aguilar and Calimbas were members of the cooperative who borrowed the following
funds: chanrob lesvi rtua llawli bra ry

1. In Civil Case No. 1428, Tantiangco allegedly borrowed P206,315.71 as evidenced by Cash Disbursement Voucher No.
4010 but the net loan was only P45,862.00 as supported by PNB Check No. 0000005133.5 chanRoble svirtual Lawlib ra ry

2. In Civil Case No. 1429, petitioner Calimbas allegedly borrowed P202,800.18 as evidenced by Cash Disbursement
Voucher No. 3962 but the net loan was only P60,024.00 as supported by PNB Check No. 0000005088;6 chanRoble svi rtual Lawli bra ry

3. In Civil Case No. 1430, petitioner Aguilar allegedly borrowed P126,849.00 as evidenced by Cash Disbursement
Voucher No. 3902 but the net loan was only P76,152.00 as supported by PNB Check No. 0000005026;7

Tantiangco, Aguilar and Calimbas filed their respective answers. They uniformly claimed that the discrepancy between the
principal amount of the loan evidenced by the cash disbursement voucher and the net amount of loan reflected in the PNB
checks showed that they never borrowed the amounts being collected. They also asserted that no interest could be claimed
because there was no written agreement as to its imposition.

On the scheduled pre-trial conference, only respondent and its counsel appeared. The MCTC then issued the Order,8 dated
August 25, 2009, allowing respondent to present evidence ex parte.Respondent later presented Fernando Manalili (Manalili),
its incumbent General Manager, as its sole witness. In his testimony, Manalili explained that the discrepancy between the
amounts of the loan reflected in the checks and those in the cash disbursement vouchers were due to the accumulated
interests from previous outstanding obligations, withheld share capital, as well as the service and miscellaneous fees. He
stated, however, that it was their bookkeeper who could best explain the details.
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Aguilar and Calimbas insisted that they should have the right to cross-examine the witness of respondent, notwithstanding
the fact that these cases were being heard ex parte. In the interest of justice, the MCTC directed the counsels of the parties
to submit their respective position papers on the issue of whether or not a party who had been declared “as in default” might
still participate in the trial of the case. Only respondent, however, complied with the directive. In its Order,9 dated April 27,
2011, the MCTC held that since the proceedings were being heard ex parte, the petitioners who had been declared “as in
default” had no right to participate therein and to cross-examine the witnesses. Thereafter, respondent filed its formal offer
of evidence.10cha nRoblesvi rt ualLaw lib rary

MCTC Ruling

On May 9, 2012, the MCTC resolved the consolidated cases in three separate decisions. In Civil Case No. 1428,11 the MCTC
dismissed the complaint against Tantiangco because there was no showing that she received the amount being claimed.
Moreover, the PNB check was made payable to “cash” and was encashed by a certain Violeta Aguilar. There was, however,
no evidence that she gave the proceeds to Tantiangco. Further, the dates indicated in the cash disbursement voucher and
the PNB check varied from each other and suggested that the voucher could refer to a different loan.

The decisions in Civil Case No. 142912 and 1430,13 however, found both Calimbas and Aguilar liable to respondent for their
respective debts. The PNB checks issued to the petitioners proved the existence of the loan transactions. Their receipts of the
loan were proven by their signatures appearing on the dorsal portions of the checks as well as on the cash disbursement
vouchers. As a matter of practice, banks would allow the encashment of checks only by the named payee and subject to the
presentation of proper identification. Nonetheless, the MCTC ruled that only the amount shown in the PNB check must be
awarded because respondent failed to present its bookkeeper to justify the higher amounts being claimed. The court also
awarded attorney’s fees in favor of respondent. The dispositive portion of the decision in Civil Case No. 1429 reads: chanrob lesvi rtua llawli bra ry

WHEREFORE, premises considered, judgment is hereby rendered in plaintiff’s favor and against the defendant, ordering the
latter to pay plaintiff the amount of P60,024.00 with interest at the rate of 12% per annum from April 4, 2007 until fully
paid, plus P15,000.00 as attorney’s fees.

Costs against the defendant.

SO ORDERED.14

And in Civil Case No. 1430, the dispositive portion states: chan roblesv irt uallawl ibra ry

WHEREFORE, premises considered, judgment is hereby rendered in plaintiff’s favor and against the defendant, ordering the
latter to pay the plaintiff the amount of ?76,152.00 with interest at the rate of 12% per annum from February 28, 2007 until
fully paid.

Defendant is further directed to pay attorney’s fees equivalent to 25% of the adjudged amount.

Costs against the defendant.

SO ORDERED.15

On July 12, 2012, a notice of appeal16 was filed by the petitioners, and on August 15, 2012, they filed their joint
memorandum for appeal17 before the Regional Trial Court, Branch 5, Bataan (RTC). Aguilar and Calimbas argued out that
had they been allowed to present evidence, they would have established that the loan documents were bogus. Respondent
produced documents to appear that it had new borrowers but did not lend any amount to them. Attached to the joint
memorandum were photocopies of the dorsal portions of the PNB checks which showed that these checks were to be
deposited back to respondent’s bank account.

RTC Ruling

On January 2, 2013, the RTC rendered separate decisions in Civil Case No. DH-1300-1218 and Civil Case No. DH-1299-
1219 which affirmed the MCTC decisions. It held that the PNB checks were concrete evidence of the indebtedness of the
petitioners to respondent. The RTC relied on the findings of the MCTC that the checks bore no endorsement to another
person or entity. The checks were issued in the name of the petitioners and, thus, they had the right to encash the same and
appropriate the proceeds. The decretal portions of the RTC decision in both cases similarly read: c han roblesv irt uallawl ibra ry

WHEREFORE, premises considered, the appeal is hereby DENIED. The Decision dated May 9, 2012 of the First Municipal
Circuit Trial Court (1st MCTC), Dinalupihan-Hermosa, Bataan is hereby affirmed in toto.

SO ORDERED.

On January 18, 2013, the petitioners filed their joint motion for reconsideration/new trial20 before the RTC. Aguilar and
Calimbas reiterated their position that they did not receive the proceeds of the checks. As an alternative prayer, petitioners
moved that the RTC remand the case to the MCTC for a new trial on account of the Sinumpaang Salaysay of Arcenit Dela
Torre, the bookkeeper of respondent.
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On February 11, 2013, the RTC issued separate orders21 denying the motion of the petitioners. It explained that all the issues
were already passed upon and the supposed newly discovered evidence was already available during appeal, but the
petitioners failed to present the same in time.

CA Ruling

Aggrieved, Aguilar and Calimbas filed a petition for review22 before the CA on March 11, 2013. It was dismissed, however, in
the questioned resolution,23 dated April 5, 2013, stating that the petition was formally defective because the “verification and
disclaimer of forum shopping” and the “affidavit of service” had a defective jurat for failure of the notary public to indicate his
notarial commission number and office address. Moreover, the entire records of the case, inclusive of the oral and documents
evidence, were not attached to the petition in contravention of Section 2, Rule 42 of the Rules of Court.

A motion for reconsideration24 was filed by the petitioners which sought the leniency of the CA. They attached a corrected
verification and disclaimer of forum shopping and affidavit of service. They asked the CA to simply order the RTC to elevate
the records of the case pursuant to Section 7, Rule 42 of the Rules of Court. Moreover, the petitioners could not attach the
records of the case because the flooding caused by “Habagat” in August 2012 soaked the said records in water.

In the other questioned resolution, dated October 9, 2013, the CA denied the motion because the petitioners still failed to
attach the entire records of the case which was a mandatory requirement under Section 2, Rule 42.

Hence, this petition.

SOLE ASSIGNMENT OF ERROR

THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION WHEN IT DISMISSED THE PETITION FOR REVIEW FILED BEFORE IT BY THE PETITIONERS UNDER
RULE 42 OF THE RULES OF COURT CITING THAT THE SAID PETITION IS FORMALLY DEFECTIVE FOR FAILURE OF
THE PETITIONERS TO SUBMIT WITH THE SAID PETITION THE ENTIRE RECORDS OF THE APPEALED CIVIL CASE
NOS. DH-1300-12 AND DH-1299-12.25

The petitioners argue that contrary to the findings of the CA, they substantially complied with the required form and contents
of a petition for review under Section 2, Rule 42 of the Rules of Court. There is nothing in the provision which requires that
the entire records of the appealed case should be endorsed to the CA. Such requirement would definitely be cumbersome to
poor litigants like them.

They assert that they submitted the following pleadings and material portions of the court records in their petition for review:
(1) certified copies of the decisions, orders or resolutions of the RTC and the MCTC; (2) complaints against the petitioners
attached with documents used by respondent in its formal offer of evidence; (3) answer of the petitioners; (4) order of the
MCTC declaring the petitioners in default; (5) respondent’s formal offer of evidence; (6) notice of appeal; (7) joint
memorandum of appeal; and (8) joint motion for reconsideration/new trial. According to the petitioners, these pleadings and
records were sufficient to support their petition for review.

Assuming that there was a reason to dismiss the petition on account of technicalities, the petitioners argue that the CA
should not have strictly applied the rules of procedure and provided leniency to the petitioners. They also ask the Court to
give a glance on the merits of their case brought before the CA.

On February 7, 2014, respondent filed its comment26 contending that the petitioners had no excuse in their non-compliance
with Section 2, Rule 42. They claim that the court records were not attached because these were soaked in flood water in
August 2012, but the RTC rendered its decision in January 2013. The petitioners failed to secure a certification from the RTC
that these records were indeed unavailable.

On May 21, 2014, the petitioners filed their reply before this Court,27 adding that the elevation of the entire records of the
case was not a mandatory requirement, and the CA could exercise its discretion that it furnished with the entire records of
the case by invoking Section 7, Rule 42 of the Rules of Court. cralawred

The Court’s Ruling

First Procedural Issue

On the sole assignment of error, the Court agrees with the petitioners that Section 2, Rule 42 does not require that the entire
records of the case be attached to the petition for review. The provision states: chanrob lesvi rtual lawlib rary

Sec. 2. Form and contents. - The petition shall be filed in seven (7) legible copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the case, without
impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the specific material dates
showing that it was filed on time; (c) set forth concisely a statement of the matters involved, the issues raised, the
specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments
relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of
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the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial
Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the
record as would support the allegations of the petition. [Emphasis and underscoring supplied]

The abovequoted provision enumerates the required documents that must be attached to a petition for review, to wit: (1)
clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the
clerk of court of the Regional Trial Court; (2) the requisite number of plain copies thereof; and (3) of the pleadings and other
material portions of the record as would support the allegations of the petition. Clearly, the Rules do not require that the
entire records of the case be attached to the petition for review. Only when these specified documents are not attached in
the petition will it suffer infirmities under Section 3, Rule 42, which states: chanroblesv irt uallawl ibra ry

Sec. 3. Effect of failure to comply with requirements. - The failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the
petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the
dismissal thereof.

In Canton v. City of Cebu,28 the Court discussed the importance of attaching the pleadings or material portions of the records
to the petition for review. “[P]etitioner’s discretion in choosing the documents to be attached to the petition is however not
unbridled. The CA has the duty to check the exercise of this discretion, to see to it that the submission of supporting
documents is not merely perfunctory. The practical aspect of this duty is to enable the CA to determine at the earliest
possible time the existence of prima facie merit in the petition.”29 In that case, the petition was denied because the petitioner
failed to attach the complaint, answer and appeal memorandum to support their allegation.

In Cusi-Hernandez v. Diaz,30 a case where the petitioner did not attach to her petition for review a copy of the contract to sell
that was at the center of controversy, the Court nonetheless found that there was a substantial compliance with the rule,
considering that the petitioner had appended to the petition for review a certified copy of the decision of the MTC that
contained a verbatim reproduction of the omitted contract.

Recently, in Galvez, v. CA,31 it was held that attaching the other records of the MTC and the RTC were not necessary based
on the circumstances of the case. The petitioner therein was not assailing the propriety of the findings of fact by the MTC and
the RTC, but only the conclusions reached by the said lower courts after their appreciation of the facts. In dealing with the
questions of law, the CA could simply refer to the attached decisions of the MTC and the RTC.

Thus, the question in the case at bench is whether or not the petitioners attached the sufficient pleadings and material
portions of the records in their petition for review. The Court rules that the petition was in substantial compliance with the
requirements.

The assignment of error32 in the petition for review clearly raises questions of fact as the petitioners assail the appreciation of
evidence by the MCTC and the RTC. Thus, aside from the decisions and orders of the MCTC and the RTC, the petitioners
should attach pertinent portions of the records such as the testimony of the sole witness of respondent, the copies of the
cash disbursement vouchers and the PNB checks presented by respondent in the MCTC. In the petition for review, the
petitioners attached respondent’s complaints before the MCTC which contained the photocopies of the cash disbursement
vouchers and PNB checks. These should be considered as ample compliance with Section 2, Rule 42 of the Rules of Court.

Second Procedural Issue

Nevertheless, instead of remanding the case to the CA, this Court deems it fit to rule on the merits of the case to once and
for all settle the dispute of the parties.

The rule is that a court can only consider the evidence presented by respondent in the MCTC because the petitioners failed to
attend the pre-trial conference on August 25, 2009 pursuant to Section 5, Rule 18 of the Rules of Court.33 The Court,
however, clarifies that failure to attend the pre-trial does not result in the “default” of the defendant. Instead, the failure of
the defendant to attend shall be cause to allow the plaintiff to present his evidence ex parte and the court to render
judgment on the basis thereof.

The case of Philippine American Life & General Insurance Company v. Joseph Enario34 discussed the difference between non-
appearance of a defendant in a pre-trial conference and the declaration of a defendant in default in the present Rules of Civil
Procedure. The decision states: chan roble svirtuallaw lib rary

Prior to the 1997 Revised Rules of Civil Procedure, the phrase "as in default" was initially included in Rule 20 of the old rules,
and which read as follows: ChanRoblesVi rt u alawlibra ry

Sec. 2. A party who fails to appear at a pre-trial conference may be non-suited or considered as in default.
It was however amended in the 1997 Revised Rules of Civil Procedure. Justice Regalado, in his book REMEDIAL LAW
COMPENDIUM, explained the rationale for the deletion of the phrase "as in default" in the amended provision, to wit: ChanRobles Vi rt ualawlib ra ry

1. This is a substantial reproduction of Section 2 of the former Rule 20 with the change that, instead of defendant being
declared "as in default" by reason of his non-appearance, this section now spells out that the procedure will be to allow
the ex parte presentation of plaintiff’s evidence and the rendition of judgment on the basis thereof. While actually the
procedure remains the same, the purpose is one of semantical propriety or terminological accuracy as there were criticisms
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on the use of the word "default" in the former provision since that term is identified with the failure to file a required answer,
not appearance in court.

If the absent party is the plaintiff, then his case shall be dismissed. If it is the defendant who fails to appear, then the
plaintiff is allowed to present his evidence ex parte and the court shall render judgment on the basis thereof. Thus, the
plaintiff is given the privilege to present his evidence without objection from the defendant, the likelihood being that the
court will decide in favor of the plaintiff, the defendant having forfeited the opportunity to rebut or present his own
evidence.35cha nRoblesv irt ual Lawlib rary

The pre-trial cannot be taken for granted. It is not a mere technicality in court proceedings for it serves a vital objective: the
simplification, abbreviation and expedition of the trial, if not indeed its dispensation.36 More significantly, the pre-trial has
been institutionalized as the answer to the clarion call for the speedy disposition of cases. Hailed as the most important
procedural innovation in Anglo-Saxon justice in the nineteenth century, it paved the way for a less cluttered trial and
resolution of the case. It is, thus, mandatory for the trial court to conduct pre-trial in civil cases in order to realize the
paramount objective of simplifying, abbreviating and expediting trial.37 cha nRoblesvi rtua lLaw lib rary

In the case at bench, the petitioners failed to attend the pre-trial conference set on August 25, 2009. They did not even give
any excuse for their non-appearance, manifestly ignoring the importance of the pre-trial stage. Thus, the MCTC properly
issued the August 25, 2009 Order,38 allowing respondent to present evidence ex parte.

The MCTC even showed leniency when it directed the counsels of the parties to submit their respective position papers on
whether or not Aguilar and Calimbas could still participate in the trial of the case despite their absence in the pre-trial
conference. This gave Aguilar and Calimbas a second chance to explain their non-attendance and, yet, only respondent
complied with the directive to file a position paper. The MCTC, in its Order,39 dated April 27, 2011, properly held that since
the proceedings were being heard ex parte, Aguilar and Calimbas had no right to participate therein and to cross-examine
the witness.

Thus, as it stands, the Court can only consider the evidence on record offered by respondent. The petitioners lost their right
to present their evidence during the trial and, a fortiori, on appeal due to their disregard of the mandatory attendance in the
pre-trial conference.

Substantive Issue

And on the merits of the case, the Court holds that there was indeed a contract of loan between the petitioners and
respondent. The Court agrees with the findings of fact of the MCTC and the RTC that a check was a sufficient evidence of a
loan transaction. The findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment
of the probative weight thereof, as well as its conclusions anchored on the findings are accorded high respect, if not
conclusive effect.40 chanRob lesvi rtua lLawl ibra ry

The case of Pua v. Spouses Lo Bun Tiong41 discussed the weight of a check as an evidence of a loan: chanro blesvi rtua llawli bra ry

In Pacheco v. Court of Appeals, this Court has expressly recognized that a check constitutes an evidence of indebtedness and
is a veritable proof of an obligation. Hence, it can be used in lieu of and for the same purpose as a promissory note. In fact,
in the seminal case of Lozano v. Martinez, We pointed out that a check functions more than a promissory note since it not
only contains an undertaking to pay an amount of money but is an "order addressed to a bank and partakes of a
representation that the drawer has funds on deposit against which the check is drawn, sufficient to ensure payment upon its
presentation to the bank." This Court reiterated this rule in the relatively recentLim v. Mindanao Wines and Liquour
Galleria stating that a check, the entries of which are in writing, could prove a loan transaction.42

There is no dispute that the signatures of the petitioners were present on both the PNB checks and the cash disbursement
vouchers. The checks were also made payable to the order of the petitioners. Hence, respondent can properly demand that
they pay the amounts borrowed. If the petitioners believe that there is some other bogus scheme afoot, then they must
institute a separate action against the responsible personalities. Otherwise, the Court can only rule on the evidence on
record in the case at bench, applying the appropriate laws and jurisprudence.

As to the award of attorney’s fees, the Court is of the view that the same must be removed. Attorney's fees are in the
concept of actual or compensatory damages allowed under the circumstances provided for in Article 2208 of the Civil Code,
and absent any evidence supporting its grant, the same must be deleted for lack of factual basis.43 In this case, the MCTC
merely stated that respondent was constrained to file the present suit on account of the petitioners’ obstinate failure to settle
their obligation. Without any other basis on record to support the award, such cannot be upheld in favor of respondent. The
settled rule is that no premium should be placed on the right to litigate and that not every winning party is entitled to an
automatic grant of attorney’s fees.44 chanRoble svirtual Lawlib ra rychan roble slaw

WHEREFORE, the petition is PARTIALLY GRANTED.

In accord with the discourse on the substantive issue, the January 2, 2013 decision of the Regional Trial Court, Branch 5,
Dinalupihan, Bataan, is AFFIRMED. The award of attorney's fees is, however,DELETED.

SO ORDERED. cralawlawlibra ry
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