1. Silkair v.

CIR GR 184398 2/25/2010

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

The antecedent facts are as follows:

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

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

Respondent Commissioner of Internal Revenue is impleaded herein in his

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

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

Section 135(b) of the NIRC provides:

SEC. 135. Petroleum Products Sold to International Carriers and Exempt

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

xxxx

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

other international agreements for their use or
consumption: Provided, however, That the country of said foreign
international carrier or exempt entities or agencies exempts from similar
taxes petroleum products sold to Philippine carriers, entities or agencies;
x x x.

Article 4(2) of the Air Transport Agreement between

the Philippines and Singapore, in turn, provides:

ART. 4. x x x.

xxxx

(2) Fuel, lubricants, spare parts, regular equipment and aircraft stores
introduced into, or taken on board aircraft in the territory of one Contracting Party
by, or on behalf of, a designated airline of the other Contracting Party and intended
solely for use in the operation of the agreed services shall, with the exception of
charges corresponding to the service performed, be exempt from the same customs
duties, inspection fees and other duties or taxes imposed in the territory of the first
Contracting Party, even when these supplies are to be used on the parts of the
journey performed over the territory of the Contracting Party in which they are
introduced into or taken on board. The materials referred to above may be required
to be kept under customs supervision and control.
 In a Decision[5] dated July 27, 2006, the CTA First Division found that
petitioner was qualified for tax exemption under Section 135(b) of the NIRC, as long
as the Republic of Singapore exempts from similar taxes petroleum products sold to
Philippine carriers, entities or agencies under Article 4(2) of the Air Transport
Agreement quoted above. However, it ruled that petitioner was not entitled to the
excise tax exemption for failure to present proof that it was authorized to operate in
the Philippines during the period material to the case due to the non-admission of
some of its exhibits, which were merely photocopies, including Exhibit A which was
petitioners Certificate of Registration with the Securities and Exchange Commission
(SEC) and Exhibits P, Q and R which were its operating permits issued by the Civil
Aeronautics Board (CAB) to fly the Singapore-Cebu-Singapore and Singapore-
Cebu-Davao-Singapore routes for the period October 1999 to October 2000.

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

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

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

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

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

WHEREFORE, premises considered, the instant petition is

hereby DENIED for lack of merit. The assailed Decision dated July 27, 2006
dismissing the instant petition on ground of failure of petitioner to prove that it was
authorized to operate in the Philippines for the period from June to December 2000,
is hereby AFFIRMED WITH MODIFICATION that petitioner is further not
found to be the proper party to file the instant claim for refund.[9]
In a separate Concurring and Dissenting Opinion,[10] CTA Presiding Justice Ernesto
D. Acosta opined that petitioner was exempt from the payment of excise taxes based
on Section 135 of the NIRC and Article 4 of the Air Transport Agreement between
the Philippines and Singapore. However, despite said exemption, petitioners claim
for refund cannot be granted since it failed to establish its authority to operate in
the Philippinesduring the period subject of the claim. In other words, Presiding
Justice Acosta voted to uphold in toto the Decision of the CTA First Division.
Petitioner again filed a motion for reconsideration which was denied in the
Resolution dated September 5, 2008. Hence, the instant petition for review
on certiorari, which raises the following issues:

Whether or not petitioner has substantially proven its authority to

operate in the Philippines.

II

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

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

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

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

Moreover, petitioner argues that Exhibits P, Q and R, which it previously filed with
the CTA, were merely flight schedules submitted to the CAB, and were not its
operating permits. Petitioner adds that it was through inadvertence that only
photocopies of these exhibits were introduced during the hearing.
Petitioner also asserts that despite its failure to present the original copy of its SEC
Registration during the hearings, the CTA should take judicial notice of its SEC
Registration since the same was already offered and admitted in evidence in similar
cases pending before the CTA.

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

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

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

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

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

We quote with approval the disquisition of the CTA En Banc in its Decision dated
May 27, 2008 on the non-admission of petitioners Exhibits A, P, Q and R, to wit:
 Anent petitioners argument that the Court in Division should have taken
judicial notice of the existence of Exhibit A (petitioners SEC Certificate of
Registration), although not properly identified during trial as this has previously
been offered and admitted in evidence in similar cases involving the subject matter
between the same parties before this Court, We are in agreement with the ruling of
the Court in Division, as discussed in its Resolution dated April 12, 2005 resolving
petitioners Motion for Reconsideration on the courts non-admission of Exhibits A,
P, Q and R, wherein it said that:

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

The cases cited by petitioner concerned similar parties before the

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

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

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

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

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

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

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

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

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

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

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

Likewise, in the Resolution dated July 15, 2005 of the Court in Division
denying petitioners Omnibus Motion seeking allowance to compare the denied
exhibits with their certified true copies, the court a quo explained that:

Petitioner was already given enough time and opportunity to

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

In view of the foregoing discussion, the Court en banc finds that indeed,
petitioner indubitably failed to establish its authority to operate in
the Philippines for the period beginning June to December 2000.[13]

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

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

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

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

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

Neither could it be said that petitioners SEC Registration and operating

permits from the CAB are documents which are of public knowledge, capable of
unquestionable demonstration, or ought to be known to the judges because of their
judicial functions, in order to allow the CTA to take discretionary judicial notice of
the said documents.[15]

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

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

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

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

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

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

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

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

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

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

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

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

On the other hand, indirect taxes are those that are demanded, in the first
instance, from, or are paid by, one person in the expectation and intention that he
can shift the burden to someone else. Stated elsewise, indirect taxes are taxes
wherein the liability for the payment of the tax falls on one person but the burden
thereof can be shifted or passed on to another person, such as when the tax is
imposed upon goods before reaching the consumer who ultimately pays for it.When
the seller passes on the tax to his buyer, he, in effect, shifts the tax burden, not the
liability to pay it, to the purchaser as part of the purchase price of goods sold or
services rendered.
Title VI of the NIRC deals with excise taxes on certain goods. Section 129 reads as
follows:

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

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

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

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

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

When Petron removes its petroleum products from its refinery in

Limay, Bataan, it pays the excise tax due on the petroleum products thus
removed. Petron, as manufacturer or producer, is the person liable for the payment
of the excise tax as shown in the Excise Tax Returns filed with the BIR. Stated
otherwise, Petron is the taxpayer that is primarily, directly and legally liable for the
payment of the excise taxes. However, since an excise tax is an indirect tax, Petron
can transfer to its customers the amount of the excise tax paid by treating it as part
of the cost of the goods and tacking it on the selling price.
 As correctly observed by the CTA, this Court held in Philippine Acetylene
Co., Inc. v. Commissioner of Internal Revenue:

It may indeed be that the economic burden of the tax finally falls
on the purchaser; when it does the tax becomes part of the price which the
purchaser must pay.

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

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

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

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

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

Products.

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

Payment of Tax.

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

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

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

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

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

Refund or Credit Taxes. The Commissioner may

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

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

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

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

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

This calls for the application of the doctrine, stare decisis et non quieta
movere. Follow past precedents and do not disturb what has been settled. Once a
case has been decided one way, any other case involving exactly the same point at
issue, as in the case at bar, should be decided in the same manner.[26]
WHEREFORE, the instant petition for review is DENIED. We AFFIRM the
assailed Decision dated May 27, 2008 and the Resolution dated September 5, 2008
of the Court of Tax Appeals En Banc in C.T.A. E.B. No. 267. No pronouncement as
to costs.

SO ORDERED.

2. Latip v. Chua GR 177809 10/16/2009

Challenged in this petition for review on certiorari is the Court of Appeals (CA)
Decision in CA-G.R. SP No. 89300:[1] (1) reversing the decision of the Regional
Trial Court (RTC), Branch 274, Paraaque City in Civil Case No. 04-0052;[2] and (2)
reinstating and affirming in toto the decision of the Metropolitan Trial Court
(MeTC), Branch 78, of the same city in Civil Case No. 2001-315.[3]

First, we sift through the varying facts found by the different lower courts.

The facts parleyed by the MeTC show that respondent Rosalie Chua (Rosalie)
is the owner of Roferxane Building, a commercial building, located at No. 158
Quirino Avenue corner Redemptorist Road, Barangay Baclaran, Paraaque City.

On July 6, 2001, Rosalie filed a complaint for unlawful detainer plus damages
against petitioners, Spouses Omar and Moshiera Latip (Spouses Latip). Rosalie
attached to the complaint a contract of lease over two cubicles in Roferxane Bldg.,
signed by Rosalie, as lessor, and by Spouses Latip, as lessees thereof.

The contract of lease reads:

CONTRACT OF LEASE

KNOW ALL MEN BY THESE PRESENTS:

This Contract of Lease is entered into by and between:

ROSALIE PALAA CHUA, Filipino, of legal age, married with office at
2/F JOFERXAN Building, F.B. Harrison St., Brgy.
Baclaran, Paraaque City, and hereinafter referred to as the LESSOR,

- and -

OMAR LATIEF marriage to MOSHIERA LATIEF, also both Filipino,

of legal age with address at 24 Anahan St. RGV Homes Paraaque City,
and hereinafter referred to as the LESSEES.

WITNESSETH

1. That the LESSOR is the owner of the commercial building erected at

the lot of the Toribio G. Reyes Realty, Inc. situated at 158 Quirino
Ave. corner Redemptorist Road, Barangay Baclaran in Paraaque Ctiy;

2. That LESSOR hereby leases two (2) cubicles located at the 1st &
2nd Floor, of said building with an area of 56 square meters under the
following terms and conditions, to wit:

a. That the monthly rental of the two (2) cubicles in

PESOS, SIXTY THOUSAND (P60,000.00), Philippine
Currency. However, due to unstable power of the peso LESSEES
agrees to a yearly increase of ten (10%) percent of the monthly
rental;

b. That any rental in-arrears shall be paid before the expiration

of the contract to the LESSOR;

c. That LESSEES agree to pay their own water and

electric consumptions in the said premises;

d. That the LESSEES shall not sub-let or make any alteration in the
cubicles without a written permission from the LESSOR. Provided,
however, that at the termination of the Contract, the lessee shall
return the two cubicles in its original conditions at their expenses;
 e. That the LESSEES agree to keep the cubicles in a safe
and sanitary conditions, and shall not keep any kinds of
flammable or combustible materials.

f. That in case the LESSEES fail to pay the monthly rental

every time it falls due or violate any of the above conditions shall
be enough ground to terminate this Contract of
Lease. Provided, further, that, if the LESSEES pre-terminate this
Contract they shall pay the rentals for the unused month or period
by way of liquidated damages in favor of the LESSOR.

3. That this Contract of Lease is for six (6) yrs. only starting from
December _____, 1999 or up to December ______, 2005.

IN WITNESS WHEREOF, the parties have hereunto affixed their hands

this ___th day of December, 1999 at City of Manila, Philippines.

(sgd.) (sgd.)
ROSALIE PALAA-CHUA MOSHIERA LATIEF
LESSORLESSEE

(sgd.)
OMAR LATIEF
LESSEE

SIGNED IN THE PRESENCE OF:

(sgd.) (sgd.)
1. Daisy C. Ramos 2. Ferdinand C. Chua

Republic of the Philippines)

C i t y o f M a n i l a )s.s.

ACKNOWLEDGMENT

BEFORE ME, a Notary Public for and in the City of Manila personally
appeared the following persons:

Rosalie P. Chua with CTC No. 05769706 at Paraaque City on 2/1/99;

Moshiera Latief with CTC No. 12885654 at Paraaque City on
 11/11/99; Omar Latief with CTC No. 12885653 Paraaque City on Nov.
11, 1999.

known to me and to me known to be the same persons who executed this

instrument consisting of two (2) pages duly signed by them and the two
(2) instrumental witnesses and acknowledged to me that the same is their
free and voluntarily acts and deeds.

IN FAITH AND TESTIMONY WHEREOF, I have hereunto affixed my

hand and Notarial Seal this ____th day of December, 1999 at the City of
Manila, Philippines.

Doc. No. _____ ATTY. CALIXTRO B. RAMOS

Page No. _____ NOTARY PUBLIC
Book No. LXV Until December 31, 2000
Series of 1999 PTR # 374145-1/11/99/-Mla.
IBP # 00262-Life Member[4]

A year after the commencement of the lease and with Spouses Latip already
occupying the leased cubicles, Rosalie, through counsel, sent the spouses a letter
demanding payment of back rentals and should they fail to do so, to vacate the leased
cubicles. When Spouses Latip did not heed Rosalies demand, she instituted the
aforesaid complaint.

In their Answer, Spouses Latip refuted Rosalies claims. They averred that the lease
of the two (2) cubicles had already been paid in full as evidenced by receipts showing
payment to Rosalie of the total amount of P2,570,000.00. The three (3) receipts, in
Rosalies handwriting, read:

1. I received the amount of P2,000,000.00 (two million pesos) from

[O]mar Latip & Moshi[e]ra Latip for the payment of 2 cubicles located at
158 Quirino Ave. corner Redemptorist Rd.[,] Baclaran P[ara]aque City.
ROFERLAND[5] Bldg. with the terms 6 yrs. Contract.

P2,000,000.00 ______(sgd.)______
CHECK # 3767924 Rosalie Chua
FAR EAST BANK
 ______(sgd.)______
Ferdinand Chua

2. Received cash
P500,000.00
From Moshiera Latip

(sgd.)
12/10/99 Rosalie Chua
Received by

3. Received cash
P70,000.00 from
Moshiera Latip
12-11-99

____(sgd.)___
Received by:[6]

Spouses Latip asseverated that sometime in October 1999, Rosalie offered for
sale lease rights over two (2) cubicles in Roferxane Bldg. Having in mind the brisk
sale of goods during the Christmas season, they readily accepted Rosalies offer to
purchase lease rights in Roferxane Bldg., which was still under construction at the
time. According to Spouses Latip, the immediate payment of P2,570,000.00 would
be used to finish construction of the building giving them first priority in the
occupation of the finished cubicles.

Thereafter, in December 1999, as soon as two (2) cubicles were finished,

Spouses Latip occupied them without waiting for the completion of five (5) other
stalls. Spouses Latip averred that the contract of lease they signed had been novated
by their purchase of lease rights of the subject cubicles. Thus, they were surprised to
receive a demand letter from Rosalies counsel and the subsequent filing of a
complaint against them.

The MeTC ruled in favor of Rosalie, viz.:

 WHEREFORE, premises considered, the [Spouses Latip] and all
persons claiming rights under them are hereby ordered to VACATE the
property subject of this case located at the 1st and 2nd floors of a Roferxane
Building situated at No. 158 Quirino Avenue corner Redemptorist Road,
Barangay Baclaran, Paraaque City. The [Spouses Latip] are also ordered
to PAY [Rosalie] the amount of SEVEN HUNDRED TWENTY
THOUSAND PESOS (P720,000.00) as rent arrearages for the period of
December 1999 to December 2000 and thereafter to PAY [Rosalie] the
amount of SEVENTY TWO THOUSAND PESOS (P72,000.00) per
month from January 2001 to December 2002, plus ten percent (10%)
increase for each and every succeeding years thereafter as stipulated in
paragraph 2(a) of the Contract of Lease x x x, until the [Spouses Latip]
have completely vacated the leased premises subject of this lease.
Finally[,] the [Spouses Latip] are hereby ordered to PAY [Rosalie] the
amount of TWENTY THOUSAND PESOS (P20,000.00) as attorneys
fees and TWO THOUSAND PESOS (P2,000.00) per [Rosalies]
appearance in Court as appearance fee and to PAY the cost of this suit.

[Spouses Latips] counterclaim is hereby DISMISSED for lack of merit.

SO ORDERED.[7]

In stark contrast, the RTC reversed the MeTC and ruled in favor of Spouses Latip.
The RTC did not give credence to the contract of lease, ruling that it was not
notarized and, in all other substantial aspects, incomplete. Further on this point, the
RTC noted that the contract of lease lacked: (1) the signature of Ferdinand Chua,
Rosalies husband; (2) the signatures of Spouses Latip on the first page thereof; (3)
the specific dates for the term of the contract which only stated that the lease is for
six (6) y[ea]rs only starting from December 1999 or up to December 2005; (4) the
exact date of execution of the document, albeit the month of December and year
1999 are indicated therein; and (5) the provision for payment of deposit or advance
rental which is supposedly uncommon in big commercial lease contracts.

The RTC believed the claim of Spouses Latip that the contract of lease was modified
and supplemented; and the entire lease rentals for the two (2) cubicles for six (6)
years had already been paid by Spouses Latip in the amount of P2,570,000.00. As to
Rosalies claim that her receipt of P2,570,000.00 was simply goodwill payment by
prospective lessees to their lessor, and not payment for the purchase of lease rights,
the RTC shot this down and pointed out that, apart from her bare allegations, Rosalie
did not adduce evidence to substantiate this claim. On the whole, the RTC declared
an existent lease between the parties for a period of six (6) years, and already fully
paid for by Spouses Latip. Thus, Spouses Latip could not be ejected from the leased
premises until expiration of the lease period.

The RTC disposed of the appeal, viz.:

WHEREFORE, all the foregoing considered, the appealed decision of the

[MeTC] dated January 13, 2004 is reversed as judgment is hereby
rendered for the [Spouses Latip] and against [Rosalie], ordering the latter
to pay the former

(1) the sum of PhP1,000,000.00 as moral damages;

(2) the sum of PhP500,000.00 as exemplary damages;

(3) the sum of PhP250,000.00 plus PhP3,000.00 per court

appearance as and for attorneys fees; and

(4) costs of suit.

SO ORDERED.[8]

In yet another turn of events, the CA, as previously mentioned, reversed the RTC
and reinstated the decision of the MeTC. The CA ruled that the contract of lease,
albeit lacking the signature of Ferdinand and not notarized, remained a complete and
valid contract. As the MeTC had, the CA likewise found that the alleged defects in
the contract of lease did not render the contract ineffective. On the issue of whether
the amount of P2,570,000.00 merely constituted payment of goodwill money, the
CA took judicial notice of this common practice in the area of Baclaran, especially
around the Redemptorist Church. According to the appellate court, this judicial
notice was bolstered by the Joint Sworn Declaration of the stallholders at Roferxane
Bldg. that they all had paid goodwill money to Rosalie prior to occupying the stalls
thereat. Thus, ruling on Rosalies appeal, the CA disposed of the case:
 WHEREFORE, in view of the foregoing, the Petition for Review is hereby
GRANTED. The assailed decision of RTC Paraaque City Branch 274
dated September 24, 2004 is hereby REVERSED and SET ASIDE, and
the January 13, 2004 decision of the MeTC is REINSTATED and
AFFIRMED en toto.

SO ORDERED.[9]

Not surprisingly, Spouses Latip filed the present appeal.

The singular issue for our resolution is whether Spouses Latip should be ejected from
the leased cubicles.

As previously adverted to, the CA, in ruling for Rosalie and upholding the ejectment
of Spouses Latip, took judicial notice of the alleged practice of prospective lessees
in the Baclaran area to pay goodwill money to the lessor.

We disagree.

Sections 1 and 2 of Rule 129 of the Rules of Court declare when the taking of
judicial notice is mandatory or discretionary on the courts, thus:

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

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

SEC. 2. Judicial notice, when discretionary. A court may take judicial

notice of matters which are of public knowledge, or are capable of
unquestionable demonstration or ought to be known to judges because of
their judicial functions.

On this point, State Prosecutors v. Muro[10] is instructive:

 I. The doctrine of judicial notice rests on the wisdom and discretion
of the courts. The power to take judicial notice is to be exercised by
courts with caution; care must be taken that the requisite notoriety
exists; and every reasonable doubt on the subject should be promptly
resolved in the negative.

Generally speaking, matters of judicial notice have three material

requisites: (1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settled and not doubtful or
uncertain; and (3) it must be known to be within the limits of the
jurisdiction of the court. The principal guide in determining what facts
may be assumed to be judicially known is that of notoriety. Hence, it
can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety.

To say that a court will take judicial notice of a fact is merely another way
of saying that the usual form of evidence will be dispensed with if
knowledge of the fact can be otherwise acquired. This is because the court
assumes that the matter is so notorious that it will not be disputed. But
judicial notice is not judicial knowledge. The mere personal
knowledge of the judge is not the judicial knowledge of the court, and
he is not authorized to make his individual knowledge of a fact, not
generally or professionally known, the basis of his action. Judicial
cognizance is taken only of those matters which are commonly known.

Things of common knowledge, of which courts take judicial notice, may

be matters coming to the knowledge of men generally in the course of the
ordinary experiences of life, or they may be matters which are generally
accepted by mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may
be found in encyclopedias, dictionaries or other publications, are
judicially noticed, provided they are of such universal notoriety and so
generally understood that they may be regarded as forming part of the
common knowledge of every person.[11]

We reiterated the requisite of notoriety for the taking of judicial notice in the
recent case of Expertravel & Tours, Inc. v. Court of Appeals,[12] which cited State
Prosecutors:
 Generally speaking, matters of judicial notice have three material
requisites: (1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settled and not doubtful or
uncertain; and (3) it must be known to be within the limits of the
jurisdiction of the court. The principal guide in determining what facts
may be assumed to be judicially known is that of notoriety. Hence, it can
be said that judicial notice is limited to facts evidenced by public records
and facts of general notoriety. Moreover, a judicially noticed fact must be
one not subject to a reasonable dispute in that it is either: (1) generally
known within the territorial jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting to sources whose accuracy
cannot reasonably be questionable.

Things of common knowledge, of which courts take judicial notice, may

be matters coming to the knowledge of men generally in the course of the
ordinary experiences of life, or they may be matters which are generally
accepted by mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may
be found in encyclopedias, dictionaries or other publications, are
judicially noticed, provided, they are such of universal notoriety and so
generally understood that they may be regarded as forming part of the
common knowledge of every person. As the common knowledge of man
ranges far and wide, a wide variety of particular facts have been judicially
noticed as being matters of common knowledge. But a court cannot take
judicial notice of any fact which, in part, is dependent on the existence or
non-existence of a fact of which the court has no constructive knowledge.

From the foregoing provisions of law and our holdings thereon, it is apparent that
the matter which the appellate court took judicial notice of does not meet the
requisite of notoriety. To begin with, only the CA took judicial notice of this
supposed practice to pay goodwill money to the lessor in the Baclaran area. Neither
the MeTC nor the RTC, with the former even ruling in favor of Rosalie, found that
the practice was of common knowledge or notoriously known.

We note that the RTC specifically ruled that Rosalie, apart from her bare allegation,
adduced no evidence to prove her claim that the amount of P2,570,000.00 simply
constituted the payment of goodwill money. Subsequently, Rosalie attached an
annex to her petition for review before the CA, containing a joint declaration under
oath by other stallholders in Roferxane Bldg. that they had paid goodwill money to
Rosalie as their lessor. On this score, we emphasize that the reason why our rules on
evidence provide for matters that need not be proved under Rule 129, specifically
on judicial notice, is to dispense with the taking of the usual form of evidence on a
certain matter so notoriously known, it will not be disputed by the parties.

However, in this case, the requisite of notoriety is belied by the necessity of attaching
documentary evidence, i.e., the Joint Affidavit of the stallholders, to Rosalies appeal
before the CA. In short, the alleged practice still had to be proven by Rosalie;
contravening the title itself of Rule 129 of the Rules of Court What need not be
proved.

Apparently, only that particular division of the CA had knowledge of the

practice to pay goodwill money in the Baclaran area. As was held in State
Prosecutors, justices and judges alike ought to be reminded that the power to take
judicial notice must be exercised with caution and every reasonable doubt on the
subject should be ample reason for the claim of judicial notice to be promptly
resolved in the negative.

Ultimately, on the issue of whether Spouses Latip ought to be ejected from

the leased cubicles, what remains in evidence is the documentary evidence signed
by both parties the contract of lease and the receipts evidencing payment
of P2,570,000.00.

We need not be unduly detained by the issue of which documents were

executed first or if there was a novation of the contract of lease. As had been found
by the RTC, the lease contract and the receipts for the amount of P2,570,000.00 can
be reconciled or harmonized. The RTC declared:

Definitely, the parties entered into a lease agreement over two (2) cubicles
of the 1st and 2nd floors of Roferxane (Roferland) Building, a commercial
building located at 158 Quirino Avenue, corner Redemptorist Road,
Baclaran, Paraaque Cityand belonging to [Rosalie]. The lease agreement
is for a term of six (6) years commencing in December 1999 up to
December 2005. This agreement was embodied in a Contract of Lease x
 x x. The terms of this lease contract, however, are modified or
supplemented by another agreement between the parties executed and or
entered into in or about the time of execution of the lease contract, which
exact date of execution of the latter is unclear.[13]

We agree with the RTCs holding only up to that point. There exists a lease agreement
between the parties as set forth in the contract of lease which is a complete document.
It need not be signed by Ferdinand Chua as he likewise did not sign the other two
receipts for P500,000.00 and P70,000.00, respectively, which contained only the
signature of Rosalie. Besides, it is undisputed that Rosalie owns and leases the stalls
in Roferxane Bldg.; thus, doing away with the need for her husbands consent. The
findings of the three lower courts concur on this fact.

The contract of lease has a period of six (6) years commencing in December 1999.
This fact is again buttressed by Spouses Latips admission that they occupied the
property forthwith in December 1999, bearing in mind the brisk sales during the
holiday season.

On the conflicting interpretations by the lower courts of the receipts amounting

to P2,570,000.00, we hold that the practice of payment of goodwill money in the
Baclaran area is an inadequate subject of judicial notice. Neither was Rosalie able to
provide sufficient evidence that, apart from the belatedly submitted Joint Affidavit
of the stallholders of Roferxane Bldg., the said amount was simply for the payment
of goodwill money, and not payment for advance rentals by Spouses Latip.

In interpreting the evidence before us, we are guided by the Civil Code provisions
on interpretation of contracts, to wit:

Art. 1371. In order to judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally considered.

Art. 1372. However general the terms of a contract may be, they shall not
be understood to comprehend things that are distinct and cases that are different
from those which the parties intended to agree.
 Art. 1373. If some stipulation of any contract should admit of several
meanings, it shall be understood as bearing that import which is most adequate
to render it effectual.

The RTC was already on the right track when it declared that the receipts
for P2,570,000.00 modified or supplemented the contract of lease. However, it made
a quantum leap when it ruled that the amount was payment for rentals of the two (2)
cubicles for the entire six-year period. We cannot subscribe to this finding. To
obviate confusion and for clarity, the contents of the receipts, already set forth above,
are again reproduced:

1. I received the amount of P2,000,000.00 (two million pesos) from

[O]mar Latip & Moshi[e]ra Latip for the payment of 2 cubicles located at
158 Quirino Ave. corner Redemptorist Rd.[,] Baclaran P[ara]que City.
ROFERLAND Bldg. with the terms 6 yrs. Contract.

P2,000,000.00 ______(sgd.)______
CHECK # 3767924 Rosalie Chua
FAR EAST BANK

______(sgd.)______
Ferdinand Chua

2. Received cash
P500,000.00
From Moshiera Latip

(sgd.)
12/10/99 Rosalie Chua
Received by

3. Received cash
P70,000.00 from
Moshiera Latip
12-11-99

___(sgd.) ____
Received by:[14]
 There is nothing on the receipts and on record that the payment and receipt
of P2,570,000.00 referred to full payment of rentals for the whole period of the lease.
All three receipts state Rosalies receipt of cash in varying amounts. The first receipt
for P2,000,000.00 did state payment for two (2) cubicles, but this cannot mean full
payment of rentals for the entire lease period when there are no words to that effect.
Further, two receipts were subsequently executed pointing to the obvious fact that
the P2,000,000.00 is not for full payment of rentals. Thus, since the contract of lease
remained operative, we find that Rosalies receipt of the monies should be considered
as advanced rentals on the leased cubicles. This conclusion is bolstered by the fact
that Rosalie demanded payment of the lease rentals only in 2000, a full year after the
commencement of the lease.

Finally, we note that the lease ended in 2005. Consequently, Spouses Latip can be
ejected from the leased premises. They are liable to Rosalie for unpaid rentals on the
lease of the two (2) cubicles in accordance with the stipulations on rentals in the
Contract of Lease. However, the amount of P2,570,000.00, covering advance
rentals, must be deducted from this liability of Spouses Latip to Rosalie.

WHEREFORE, premises considered, the petition is hereby GRANTED.

The decision of the Court of Appeals in CA-G.R. SP No. 89300 is REVERSED.
The petitioners, spouses Omar and Moshiera Latip, are liable to respondent Rosalie
Chua for unpaid rentals minus the amount of P2,570,000.00 already received by her
as advance rentals. No costs.
SO ORDERED.

3. Rep v. Sandiganbayan GR 152375 12/13/2011

REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
SANDIGANBAYAN (FOURTH DIVISION), JOSE L. AFRICA (substituted by his heirs), MANUEL
H. NIETO, JR., FERDINAND E. MARCOS (substituted by his heirs), IMELDA R. MARCOS,
FERDINAND R. MARCOS, JR., JUAN PONCE ENRILE, and POTENCIANO ILUSORIO
(substituted by his heirs), Respondents.

DECISION

BRION, J.:
Before us is the petition for certiorari1 filed by the Republic of the Philippines (petitioner) to set aside
the February 7, 2002 resolution (2002 resolution)2 of the Sandiganbayan3 denying the
petitioner’s Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice V.
Bane) (3rd motion).

THE ANTECEDENTS

On July 22, 1987, the petitioner Republic of the Philippines, through the Presidential Commission on
Good Government (PCGG), filed a complaint (docketed as Civil Case No. 0009) against Jose L.
Africa, Manuel H. Nieto, Jr., Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Juan
Ponce Enrile, and Potenciano Ilusorio (collectively, the respondents) for reconveyance, reversion,
accounting, restitution, and damages before the Sandiganbayan. The petitioner alleged, inter alia,
that the respondents illegally manipulated the purchase of the major shareholdings of Cable and
Wireless Limited in Eastern Telecommunications Philippines, Inc. (ETPI), which shareholdings
respondents Jose Africa and Manuel Nieto, Jr. held for themselves and, through their holdings and
the corporations they organized, beneficially for respondents Ferdinand E. Marcos and Imelda R.
Marcos.4

Civil Case No. 0009 is the main case subject of the present petition. Victor Africa (Africa), son of the
late Jose L. Africa, was not impleaded in and so is plainly not a party to Civil Case No. 0009.5

Civil Case No. 0009 spawned numerous incidental cases,6 among them, Civil Case No. 0130.7 The
present respondents were not made parties either in Civil Case No. 0130.

I. Civil Case No. 0130

In the August 7, 1991 PCGG-conducted ETPI stockholders meeting, a PCGG-controlled board of

directors was elected. Later, the registered ETPI stockholders convened a special stockholders
meeting wherein another set of board of directors was elected. As a result, two sets of ETPI board
and officers were elected.8

Thereafter, Africa, as an ETPI stockholder, filed a petition for certiorari, with prayer for a temporary
restraining order/preliminary injunction with the Sandiganbayan (docketed as Civil Case No. 0130),
seeking to nullify the August 5, 1991 and August 9, 1991 Orders of the PCGG. These Orders
directed Africa:

[T]o account for his sequestered shares in ETPI and to cease and desist from exercising voting
rights on the sequestered shares in the special stockholders’ meeting to be held on August 12, 1991,
from representing himself as a director, officer, employee or agent of ETPI, and from participating,
directly or indirectly[,] in the management of ETPI.9

During the pendency of Africa’s petition, Civil Case No. 0130, Africa filed a motion with the
Sandiganbayan, alleging that since January 29, 1988 the PCGG had been "illegally ‘exercising’ the
rights of stockholders of ETPI,"10especially in the election of the members of the board of directors.
Africa prayed for the issuance of an order for the "calling and holding of [ETPI] annual stockholders
meeting for 1992 under the [c]ourt’s control and supervision and prescribed guidelines."11

In its November 13, 1992 resolution, the Sandiganbayan favored Africa’s motion in this wise:

WHEREFORE, it is ordered that an annual stockholders meeting of the [ETPI], for 1992 be held on
Friday, November 27, 1992, at 2:00 o’clock in the afternoon, at the ETPI Board Room, Telecoms
Plaza, 7th Floor, 316 Gil J. Puyat Avenue, Makati, Metro Manila. x x x The stockholders meeting
shall be conducted under the supervision and control of this Court, through Mr. Justice Sabino R. de
Leon, Jr. [O]nly the registered owners, their duly authorized representatives or their proxies may
vote their corresponding shares.

The following minimum safeguards must be set in place and carefully maintained until final judicial
resolution of the question of whether or not the sequestered shares of stock (or in a proper case the
underlying assets of the corporation concerned) constitute ill-gotten wealth[.]12

The PCGG assailed this resolution before this Court via a petition for certiorari docketed as G.R. No.
10778913(PCGG’s petition), imputing grave abuse of discretion on the Sandiganbayan for
holding, inter alia, that the registered stockholders of ETPI had the right to vote.14 In our November
26, 1992 Resolution, we enjoined the Sandiganbayan from implementing its assailed resolution.

In the meantime, in an April 12, 1993 resolution, the Sandiganbayan ordered the consolidation of
Civil Case No. 0130, among others, with Civil Case No. 0009, with the latter as the main case and
the former merely an incident.15

During the pendency of PCGG’s petition (G.R. No. 107789), the PCGG filed with this Court a "Very
Urgent Petition for Authority to Hold Special Stockholders’ Meeting for [the] Sole Purpose of
Increasing [ETPI’s] Authorized Capital Stock" (Urgent Petition). In our May 7, 1996 Resolution, we
referred this Urgent Petition to the Sandiganbayan for reception of evidence and immediate
resolution.16 The Sandiganbayan included the Urgent Petition in Civil Case No. 0130.17

In the proceedings to resolve the Urgent Petition, the testimony of Mr. Maurice V. Bane (former
director and treasurer-in-trust of ETPI) was taken– at the petitioner’s instance and after serving
notice of the deposition-taking on the respondents18 – on October 23 and 24, 1996 by way of
deposition upon oral examination (Bane deposition) before Consul General Ernesto Castro of the
Philippine Embassy in London, England.

Invoking Section 1, Rule 24 (of the old Rules of Court), purportedly allowing the petitioner to depose
Bane without leave of court, i.e., as a matter of right after the defendants have filed their answer, the
notice stated that "[t]he purpose of the deposition is for [Bane] to identify and testify on the facts set
forth in his affidavit19 x x x so as to prove the ownership issue in favor of [the petitioner] and/or
establish the prima facie factual foundation for sequestration of [ETPI’s] Class A stock in support of
the [Urgent Petition]."20 The notice also states that the petitioner shall use the Bane deposition "in
evidence… in the main case of Civil Case No. 0009."21 On the scheduled deposition date, only Africa
was present and he cross-examined Bane.

On December 13, 1996, the Sandiganbayan resolved the Urgent Petition by granting authority to the
PCGG (i) "to cause the holding of a special stockholders’ meeting of ETPI for the sole purpose of
increasing ETPI’s authorized capital stock" and (ii) "to vote therein the sequestered Class ‘A’ shares
of stock."22 Thus, a special stockholders meeting was held, as previously scheduled, on March 17,
1997 and the increase in ETPI’s authorized capital stock was "unanimously approved."23 From this
ruling, Africa went to this Court via a petition for certiorari24 docketed as G.R. No. 147214 (Africa’s
petition).

We jointly resolved the PCGG’s and Africa’s petitions, and ruled:

This Court notes that, like in Africa’s motion to hold a stockholders meeting (to elect a board of
directors), the Sandiganbayan, in the PCGG’s petition to hold a stockholders meeting (to amend the
articles of incorporation to increase the authorized capital stock), again failed to apply the two-tiered
test. On such determination hinges the validity of the votes cast by the PCGG in the stockholders
meeting of March 17, 1997. This lapse by the Sandiganbayan leaves this Court with no other choice
but to remand these questions to it for proper determination.

xxxx

WHEREFORE, this Court Resolved to REFER the petitions at bar to the Sandiganbayan for
reception of evidence to determine whether there is a prima facie evidence showing that the
sequestered shares in question are ill-gotten and there is an imminent danger of dissipation to entitle
the PCGG to vote them in a stockholders meeting to elect the ETPI Board of Directors and to amend
the ETPI Articles of Incorporation for the sole purpose of increasing the authorized capital stock of
ETPI.

The Sandiganbayan shall render a decision thereon within sixty (60) days from receipt of this
Resolution and in conformity herewith.

II. Civil Case No. 0009

Although Civil Case No. 0009 was filed on July 22, 1987, it was only on November 29, 1996 and
March 17, 1997 that the first pre-trial conference was scheduled and concluded.25

In its Pre-Trial Brief26 dated August 30, 1996, the petitioner offered to present the following
witnesses:

WITNESSES TO BE PRESENTED AND A BRIEF DESCRIPTION OF THEIR TESTIMONIES

(1) Maurice V. Bane – representative of Cable and Wireless Limited (C & W) at the time
ETPI was organized.

xxxx

(2) Mr. Manuel H. Nieto – x x x

(3) Ms. Evelyn Singson – x x x

(4) Mr. Severino P. Buan, Jr. – x x x

(5) Mr. Apolinario K. Medina - x x x

(6) Mr. Potenciano A. Roque – x x x

(7) Caesar Parlade - x x x

IIa. Motion to Admit the Bane Deposition

At the trial of Civil Case No. 0009, the petitioner filed a Motion27 (1st motion), stating that –

1. In the hearings of the incidents of [Civil Case No. 0009], i.e., Civil Case Nos. 0048, 0050,
0130, 014628 the following witnesses were presented therein:
 a. Cesar O.V. Parlade

b. Maurice Bane

c. Evelyn Singson

d. Leonorio Martinez

e. Ricardo Castro; and

f. Rolando Gapud

2. [The petitioner] wishes to adopt in [Civil Case No. 0009] their testimonies and the
documentary exhibits presented and identified by them, since their testimonies and the said
documentary exhibits are very relevant to prove the case of the [petitioner] in [Civil Case No.
0009].

3. The adverse parties in the aforementioned incidents had the opportunity to cross-examine
them.

The respondents filed their respective Oppositions to the 1st motion;29 in turn, the petitioner filed a
Common Reply30 to these Oppositions.

On April 1, 1998, the Sandiganbayan31 promulgated a resolution32 (1998 resolution) denying the
petitioner’s 1st motion, as follows:

Wherefore, the [petitioner’s] Motion x x x is –

1. partly denied insofar as [the petitioner] prays therein to adopt the testimonies on oral
deposition of Maurice V. Bane and Rolando Gapud as part of its evidence in Civil Case No.
0009 for the reason that said deponents according to the [petitioner] are not available
for cross-examination in this Court by the [respondents]. (emphasis added)

2. partly Granted, in the interest of speedy disposition of this long pending case, insofar as
plaintiff prays therein to adopt certain/particular testimonies of Cesar O. Parlade, Evelyn
Singson, Leoncio Martinez, and Ricardo Castro and documentary exhibits which said
witnesses have identified in incident Civil Case Nos. xxx 0130 xxx, subject to the following
conditions :

1. xxx

2. xxx

3. That the said witnesses be presented in this Court so that they can be cross-
examined on their particular testimonies in incident Civil Cases xxx [by the
respondents].

IIb. Urgent Motion and/or Request for Judicial Notice

The petitioner did not in any way question the 1998 resolution, and instead made its Formal Offer of
Evidence on December 14, 1999.33 Significantly, the Bane deposition was not included as part of its
offered exhibits. Rectifying the omission, the petitioner filed an Urgent Motion and/or Request for
Judicial Notice34 (2nd motion) dated February 21, 2000, with the alternative prayer that:

1. An order forthwith be issued re-opening the plaintiff’s case and setting the same for trial
any day in April 2000 for the sole purpose of introducing additional evidence and limited only
to the marking and offering of the [Bane deposition] which already forms part of the records
and used in Civil Case No. 0130 x x x;

2. In the alternative, x x x the [Sandiganbayan] to take judicial notice of the facts established
by the [Bane deposition], together with the marked exhibits appended thereto. [emphasis
ours]

On August 21, 2000, the Sandiganbayan promulgated a resolution35 (2000 resolution) denying the
petitioner’s 2nd motion:

Judicial notice is found under Rule 129 which is titled "What Need Not Be Proved." Apparently, this
provision refers to the Court’s duty to consider admissions made by the parties in the pleadings, or in
the course of the trial or other proceedings in resolving cases before it. The duty of the Court is
mandatory and in those cases where it is discretionary, the initiative is upon the Court. Such being
the case, the Court finds the Urgent Motion and/or Request for Judicial Notice as something which
need not be acted upon as the same is considered redundant.

On the matter of the [Bane deposition], [its] admission is done through the ordinary formal offer of
exhibits wherein the defendant is given ample opportunity to raise objection on grounds provided by
law. Definitely, it is not under Article (sic) 129 on judicial notice. [Emphasis ours]

On November 6, 2000 and on several dates thereafter, the respondents separately filed their
respective demurrers to evidence.36 On the other hand, the petitioner moved for the reconsideration
of the 2000 resolution, but was rebuffed by the Sandiganbayan in its April 3, 2001 resolution37 (2001
resolution).

IIc. Motion to Admit Supplemental Offer of

Evidence (Re: Deposition of Maurice Bane)

On November 16, 2001, the petitioner filed its 3rd Motion, seeking once more the admission of the
Bane deposition.38 On February 7, 2002 (pending resolution of the respondents’ demurrers to
evidence),39 the Sandiganbayan promulgated the assailed 2002 resolution,40 denying the petitioner’s
3rd motion. The Sandiganbayan ruled:

But in the court’s view, it is not really a question of whether or not plaintiff has already rested its case
as to obviate the further presentation of evidence. It is not even a question of whether the non-
appearing defendants are deemed to have waived their right to cross-examine Bane as to qualify the
admission of the deposition sans such cross-examination. Indeed, We do not see any need to dwell
on these matters in view of this Court’s Resolution rendered on April 1, 1998 which already denied
the introduction in evidence of Bane’s deposition and which has become final in view of plaintiff’s
failure to file any motion for reconsideration or appeal within the 15-day reglementary period.
Rightly or wrongly, the resolution stands and for this court to grant plaintiff’s motion at this point in
time would in effect sanction plaintiff’s disregard for the rules of procedure. Plaintiff has slept on its
rights for almost two years and it was only in February of 2000 that it sought to rectify its ineptitude
by filing a motion to reopen its case as to enable it to introduce and offer Bane’s deposition as
additional evidence, or in the alternative for the court to take judicial notice of the allegations of the
deposition. But how can such a motion be granted when it has been resolved as early as 1998 that
the deposition is inadmissible. Without plaintiff having moved for reconsideration within the
reglementary period, the resolution has attained finality and its effect cannot be undone by the
simple expedient of filing a motion, which though purporting to be a novel motion, is in reality a
motion for reconsideration of this court’s 1998 ruling. [emphases ours]

The resolution triggered the filing of the present petition.

THE PETITION

The petitioner filed the present petition claiming that the Sandiganbayan committed grave abuse of
discretion:

I.

x x x IN HOLDING THAT ITS INTERLOCUTORY ORDER IN 1998 HAD BECOME FINAL.

II.

x x x IN x x x REFUSING TO ADMIT THE BANE DEPOSITION –WHICH WAS ALREADY

ADMITTED AS EVIDENCE IN AN INCIDENT CASE (CIVIL CASE NO. 0130) – AS PART
OF PETITIONER’S EVIDENCE IN THE MAIN x x x CASE (CIVIL CASE NO. 0009).

III.

x x x IN REFUSING TO ADMIT A HIGHLY RELEVANT AND IMPORTANT PIECE OF

EVIDENCE FOR THE PETITIONER ON THE BASIS OF FLIMSY AND TENUOUS
TECHNICAL GROUNDS.

The petitioner41 argues that the 1998 resolution of the Sandiganbayan is merely an interlocutory
order; thus, the petitioner’s failure to question this 1998 resolution could not have given it a character
of "finality" so long as the main case remains pending.42 On this basis, the petitioner concludes that
the Sandiganbayan’s denial of its 3rd motion was plainly tainted with grave abuse of discretion.

On the issue of the Sandiganbayan’s refusal (in its 2002 resolution) either to take judicial notice of or
to admit the Bane deposition as part of its evidence, the petitioner asserts that Civil Case No. 0130
(where the Bane deposition was originally taken, introduced and admitted in evidence) is but a
"child" of the "parent" case, Civil Case No. 0009; under this relationship, evidence offered and
admitted in any of the "children" cases should be considered as evidence in the "parent" case.

Lastly, the petitioner claims that given the crucial importance of the Bane deposition, the
Sandiganbayan should not have denied its admission on "flimsy grounds," considering that:

1. It was also already stated in the notice (of the taking of the Bane deposition) that it would
be used as evidence in Civil Case No. 0009. Notices having been duly served on all the
parties concerned, they must accordingly be deemed to have waived their right to cross-
examine the witness when they failed to show up.
 2. The Bane deposition was a very vital cog in the case of the petitioner relative to its
allegation that the respondents’ interest in ETPI and related firms properly belongs to the
government.

3. The non-inclusion of the Bane deposition in the petitioner’s formal offer of evidence was
obviously excusable considering the period that had lapsed from the time the case was filed
and the voluminous records that the present case has generated.43

THE RESPONDENTS’ COMMENTS

and THE PETITIONER’S REPLY

In the respondents’ Comments44 (filed in compliance with our Resolution of April 10, 200245 ), they
claim that the present petition was filed out of time - i.e., beyond the 60-day reglementary period
prescribed under Section 4, Rule 65 of the Rules of Court.46 This assertion proceeds from the view
that the petitioner’s 3rd motion, being a mere rehash of similar motions earlier filed by the petitioner,
likewise simply assails the Sandiganbayan’s 1998 resolution. Along the same line, they posit that the
petitioner’s 3rd motion actually partakes of a proscribed third motion for reconsideration of the
Sandiganbayan’s 1998 resolution.47 They likewise assert, on the assumption that the 1998 resolution
is interlocutory in character, that the petitioner’s failure to contest the resolution by way
of certiorari within the proper period gave the 1998 resolution a character of "finality."

The respondents further claim that after a party has rested its case, the admission of a supplemental
offer of evidence requires the reopening of the case at the discretion of the trial court; the
Sandiganbayan simply exercised its sound discretion in refusing to reopen the case since the
evidence sought to be admitted was "within the knowledge of the [petitioner] and available to [it]
before [it] rested its case."48 The respondents also advert to the belated filing of the petitioner’s 3rd
motion – i.e., after the respondents had filed their respective demurrers to evidence.

On the petitioner’s claim of waiver, the respondents assert that they have not waived their right to
cross-examine the deponent; the Sandiganbayan recognized this right in its 1998 resolution and the
petitioner never questioned this recognition. They also assert that the allegations in the Bane
deposition cannot be a proper subject of judicial notice under Rule 129 of the Rules of Court. The
respondents lastly submit that the Bane deposition is inadmissible in evidence because the
petitioner failed to comply with the requisites for admission under Section 47, Rule 130 of the Rules
of Court.

In its Reply,49 the petitioner defends the timeliness of the present petition by arguing that a party may
opt to wait out and collect a pattern of questionable acts before resorting to the extraordinary remedy
of certiorari. The petitioner stresses that it filed the 3rd motion precisely because of the
Sandiganbayan’s 2000 resolution, which held that the admission of the Bane deposition should be
done through the ordinary formal offer of evidence. Thus, the Sandiganbayan seriously erred in
considering the petitioner’s 3rd motion as a proscribed motion for reconsideration. The petitioner
generally submits that the dictates of substantial justice should have guided the Sandiganbayan to
rule otherwise.

The petitioner also clarifies that it has not yet rested its case although it has filed a formal offer of
evidence. A party normally rests his case only after the admission of the pieces of evidence he
formally offered; before then, he still has the opportunity to present further evidence to substantiate
his theory of the case should the court reject any piece of the offered evidence.50

The petitioner further maintains that the mere reasonable opportunity to cross-examine the deponent
is sufficient for the admission of the Bane deposition considering that the deponent is not an ordinary
witness who can be easily summoned by our courts in light of his foreign residence, his citizenship,
and his advanced age. The petitioner asserts that Rule 24 (now Rule 23), and not Section 47, Rule
130, of the Rules of Court should apply to the present case, as explicitly stated in the notice of the
deposition-taking.

To date, respondents Imelda Marcos and the heirs of Potenciano Ilusorio have yet to file their
respective comments on the petition. Given the time that had lapsed since we required their
comments, we resolve to dispense with the filing of these comments and to consider this petition
submitted for decision.

THE ISSUES

On the basis of the pleadings, we summarize the pivotal issues for our resolution, as follows:

1. Whether the petition was filed within the required period.

2. Whether the Sandiganbayan committed grave abuse of discretion –

i. In holding that the 1998 resolution has already attained finality;

ii. In holding that the petitioner’s 3rd motion partakes of a prohibited motion for
reconsideration;

iii. In refusing to re-open the case given the critical importance of the Bane deposition
to the petitioner’s cause; and

iv. In refusing to admit the Bane deposition notwithstanding the prior consolidation of
Civil Case No. 0009 and Civil Case No. 0130.

3. Whether the Bane deposition is admissible under -

i. Rule 23, Section 4, par. (c) alone or in relation to Section 47, Rule 130 of the Rules
of Court; and

ii. The principle of judicial notice.

THE COURT’S RULING

We deny the petition for lack of merit.

I. Preliminary Considerations

I (a). The interlocutory nature of the Sandiganbayan’s 1998 resolution.

In determining the appropriate remedy or remedies available, a party aggrieved by a court order,
resolution or decision must first correctly identify the nature of the order, resolution or decision he
intends to assail.51 In this case, we must preliminarily determine whether the 1998 resolution is "final"
or "interlocutory" in nature.
Case law has conveniently demarcated the line between a final judgment or order and an
interlocutory one on the basis of the disposition made.52 A judgment or order is considered final if the
order disposes of the action or proceeding completely, or terminates a particular stage of the same
action; in such case, the remedy available to an aggrieved party is appeal. If the order or resolution,
however, merely resolves incidental matters and leaves something more to be done to resolve the
merits of the case, the order is interlocutory53 and the aggrieved party’s remedy is a petition
for certiorari under Rule 65. Jurisprudence pointedly holds that:

As distinguished from a final order which disposes of the subject matter in its entirety or terminates a
particular proceeding or action, leaving nothing else to be done but to enforce by execution what has
been determined by the court, an interlocutory order does not dispose of a case completely, but
leaves something more to be adjudicated upon. The term "final" judgment or order signifies a
judgment or an order which disposes of the case as to all the parties, reserving no further questions
or directions for future determination.

On the other hand, a court order is merely interlocutory in character if it leaves substantial
proceedings yet to be had in connection with the controversy. It does not end the task of the court in
adjudicating the parties’ contentions and determining their rights and liabilities as against each other.
In this sense, it is basically provisional in its application.54 (emphasis supplied)

Under these guidelines, we agree with the petitioner that the 1998 resolution is interlocutory. The
Sandiganbayan’s denial of the petitioner’s 1st motion through the 1998 Resolution came at a time
when the petitioner had not even concluded the presentation of its evidence. Plainly, the denial of
the motion did not resolve the merits of the case, as something still had to be done to achieve this
end.

We clarify, too, that an interlocutory order remains under the control of the court until the case is
finally resolved on the merits. The court may therefore modify or rescind the order upon sufficient
grounds shown at any time before final judgment.55 In this light, the Sandiganbayan’s 1998 resolution
– which merely denied the adoption of the Bane deposition as part of the evidence in Civil Case No.
0009 – could not have attained finality (in the manner that a decision or final order resolving the case
on the merits does) despite the petitioner’s failure to move for its reconsideration or to appeal.56

I (b). The 3rd motion was not prohibited by the Rules.

We also agree with the petitioner that its 3rd motion cannot be considered as a proscribed third
(actually second) motion for reconsideration of the Sandiganbayan’s 1998 resolution. As Section 5,
Rule 37 of the Rules of Court clearly provides, the proscription against a second motion for
reconsideration is directed against "a judgment or final order." Although a second motion for
reconsideration of an interlocutory order can be denied on the ground that it is a mere "rehash" of
the arguments already passed upon and resolved by the court, it cannot be rejected on the ground
that it is forbidden by the law or by the rules as a prohibited motion.57

I (c). The 1998 resolution was not ripe for a petition for certiorari.

Under Section 1, Rule 41 of the Rules of Court, an aggrieved party may appeal from a judgment or
final order which completely disposes of a case or from an order that the Rules of Court declares to
be appealable. While this provision prohibits an appeal from an interlocutory order, the aggrieved
party is afforded the chance to question an interlocutory order through a special civil action
of certiorari under Rule 65; the petition must be filed within sixty days from notice of the assailed
judgment, order, resolution, or denial of a motion for reconsideration.
On the premise that the 1998 resolution is interlocutory in nature, the respondents insist that the 60-
day period for filing a petition for certiorari should be reckoned from the petitioner’s notice of the
Sandiganbayan’s 1998 resolution. They argue that since this ruling had long been rendered by the
court, the petitioner’s subsequent filing of similar motions was actually a devious attempt to
resuscitate the long-denied admission of the Bane deposition.

We do not find the respondents’ submission meritorious. While the 1998 resolution is an
interlocutory order, as correctly argued by the petitioner and impliedly conceded by the respondents,
the claim that the 1998 resolution should have been immediately questioned by the petitioner
on certiorari is not totally correct as a petition for certiorari is not grounded solely on the issuance of
a disputed interlocutory ruling.58 For a petition for certiorari to prosper, Section 1, Rule 65 of the
Rules of Court requires, among others, that neither an appeal nor any plain, speedy and
adequate remedy in the ordinary course of law is available to the aggrieved party. As a matter of
exception, the writ of certiorari may issue notwithstanding the existence of an available alternative
remedy, if such remedy is inadequate or insufficient in relieving the aggrieved party of the injurious
effects of the order complained of.59

We note that at the time of its 1st motion in Civil Case No. 0009, the petitioner had not yet concluded
the presentation of its evidence, much less made any formal offer of evidence. At this stage of the
case, the prematurity of using the extraordinary remedy of certiorari to question the admission of the
Bane deposition is obvious. After the denial of the 1st motion, the plain remedy available to the
petitioner was to move for a reconsideration to assert and even clarify its position on the admission
of the Bane deposition. The petitioner could introduce60 anew the Bane deposition and include this
as evidence in its formal offer61 – as the petitioner presumably did in Civil Case No. 0130.

Thus, at that point, the case was not yet ripe for the filing of a petition for certiorari, and the denial of
the 1st motion could not have been the reckoning point for the period of filing such a petition.

II. The Sandiganbayan’s ruling on the finality of its 1998 resolution was legally erroneous but
did not constitute grave abuse of discretion

In light of the above discussions and conclusions, the Sandiganbayan undoubtedly erred on a
question of law in its ruling, but this legal error did not necessarily amount to a grave abuse of
discretion in the absence of a clear showing that its action was a capricious and whimsical exercise
of judgment affecting its exercise of jurisdiction.62Without this showing, the Sandiganbayan’s
erroneous legal conclusion was only an error of judgment, or, at best, an abuse of discretion but
not a grave one. For this reason alone, the petition should be dismissed.

Despite this conclusion, however, we opt not to immediately dismiss the petition in light of the unique
circumstances of this case where the petitioner cannot entirely be faulted for not availing of the
remedy at the opportune time, and where the case, by its nature, is undoubtedly endowed with
public interest and has become a matter of public concern.63 In other words, we opt to resolve the
petition on the merits to lay the issues raised to rest and to avoid their recurrence in the course of
completely resolving the merits of Civil Case No. 0009.

Although the word "rested" nowhere appears in the Rules of Court, ordinary court procedure has
inferred it from an overview of trial sequence under Section 5, Rule 30 (which capsulizes the order of
presentation of a

party’s evidence during trial), read in relation to Rule 18 on Pre-Trial,64 both of the Rules of Court.
Under Section 5, Rule 30, after a party has adduced his direct evidence in the course of discharging
the burden of proof,65 he is considered to have rested his case, and is thereafter allowed to offer
rebutting evidence only.66 Whether a party has rested his case in some measure depends on his
manifestation in court on whether he has concluded his presentation of evidence.67

In its second and third motions, respectively, the petitioner expressly admitted that "due to oversight,
[the petitioner] closed and rested its case";68 and that it "had terminated the presentation of its
evidence in x x x Civil Case No. 0009."69 In the face of these categorical judicial admissions,70 the
petitioner cannot suddenly make an about-face and insist on the introduction of evidence out of the
usual order. Contrary to the petitioner’s assertion, the resting of its case could not have been
conditioned on the admission of the evidence it formally offered. To begin with, the Bane deposition,
which is the lone piece of evidence subject of this present petition, was not among the pieces of
evidence included in its formal offer of evidence and thus could not have been admitted or rejected
by the trial court.

The Court observes with interest that it was only in this present petition for certiorari that the
petitioner had firmly denied having rested its case.71 Before then, the petitioner never found it
appropriate to question on certiorari the Sandiganbayan’s denial of its 2nd motion which
prayed, inter alia, for the reopening of the case. This is a fatal defect in the petitioner’s case.

Although the denial of the petitioner’s first motion did not necessitate an immediate recourse to the
corrective writ of certiorari, the denial of the 2nd motion dictated a different course of action. The
petitioner’s non-observance of the proper procedure for the admission of the Bane deposition, while
seemingly innocuous, carried fatal implications for its case. Having been rebuffed on its first attempt
to have the Bane deposition adopted in Civil Case No. 0009, and without seeking reconsideration of
the denial, the petitioner presented its other pieces of evidence and eventually rested its case. This
time, the petitioner forgot about the Bane deposition and so failed to include that piece of evidence in
its formal offer of evidence.

More than two years later, the petitioner again tried to squeeze in the Bane deposition into its case.
In resolving the petitioner’s motion for reconsideration of the Sandiganbayan’s 2000 resolution, the
Sandiganbayan held that the Bane deposition has "become part and parcel" of Civil Case No. 0009.
This pronouncement has obscured the real status of the Bane deposition as evidence (considering
that, earlier, the Sandiganbayan already denied the petitioner’s attempt to adopt the Bane deposition
as evidence in Civil Case No. 0009 for the deponent cannot be cross-examined in court).
Nevertheless, the Sandiganbayan ultimately denied the petitioner’s motion to reopen the case.
Having judicially admitted the resting of its case, the petitioner should have already questioned the
denial of its 2nd motion by way of certiorari, since the denial of its attempt to reopen the case
effectively foreclosed all avenues available to it for the consideration of the Bane deposition. Instead
of doing so, however, the petitioner allowed the 60-day reglementary period, under Section 4,
Rule 65 of the Rules of Court, to lapse, and proceeded to file its 3rd motion.

Significantly, the petitioner changed its legal position in its 3rd motion by denying having rested its
case and insisting on the introduction of the Bane deposition. Rebuffed once more, the petitioner
filed the present petition, inviting our attention to the Sandiganbayan’s resolutions,72 which allegedly
gave it "mixed signals."73 By pointing to these resolutions, ironically, even the petitioner impliedly
recognized that they were then already ripe for review on certiorari. What the petitioner should have
realized was that its 2nd motion unequivocally aimed to reopen the case for the introduction of
further evidence consisting of the Bane deposition. Having been ultimately denied by the court, the
petitioner could not have been prevented from taking the proper remedy notwithstanding any
perceived ambiguity in the resolutions.

On the other end, though, there was nothing intrinsically objectionable in the petitioner’s motion to
reopen its case before the court ruled on its formal offer of evidence. The Rules of Court does not
prohibit a party from requesting the court to allow it to present additional evidence even after it has
rested its case. Any such opportunity, however, for the ultimate purpose of the admission of
additional evidence is already addressed to the sound discretion of the court. It is from the prism of
the exercise of this discretion that the Sandiganbayan’s refusal to reopen the case (for the purpose
of introducing, "marking and offering" additional evidence) should be viewed. We can declare this
Sandiganbayan action invalid if it had acted with grave abuse of discretion.

III. The Sandiganbayan gravely abused its discretion in ultimately refusing to reopen the case
for the purpose of introducing and admitting in evidence the Bane deposition

The basis for a motion to reopen a case to introduce further evidence is Section 5, Rule 30 of the
Rules of Court, which reads:

Sec. 5. Order of trial. – Subject to the provisions of section 2 of Rule 31, and unless the court for
special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order
and shall proceed as follows:

xxxx

(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their original
case[.] [emphases ours]

Under this rule, a party who has the burden of proof must introduce, at the first instance, all the
evidence he relies upon74 and such evidence cannot be given piecemeal.75 The obvious rationale of
the requirement is to avoid injurious surprises to the other party and the consequent delay in the
administration of justice.76

A party’s declaration of the completion of the presentation of his evidence prevents him from
introducing further evidence;77 but where the evidence is rebuttal in character, whose necessity, for
instance, arose from the shifting of the burden of evidence from one party to the other;78 or where the
evidence sought to be presented is in the nature of newly discovered evidence,79 the party’s right to
introduce further evidence must be recognized. Otherwise, the aggrieved party may avail of the
remedy of certiorari.

Largely, the exercise of the court’s discretion80 under the exception of Section 5(f), Rule 30 of the
Rules of Court depends on the attendant facts – i.e., on whether the evidence would qualify as a
"good reason" and be in furtherance of "the interest of justice." For a reviewing court to properly
interfere with the lower court’s exercise of discretion, the petitioner must show that the lower court’s
action was attended by grave abuse of discretion. Settled jurisprudence has defined this term as the
capricious and whimsical exercise of judgment, equivalent to lack of jurisdiction; or, the exercise of
power in an arbitrary manner by reason of passion, prejudice, or personal hostility, so patent or so
gross as to amount to an evasion of a positive duty, to a virtual refusal to perform the mandated
duty, or to act at all in contemplation of the law.81 Grave abuse of discretion goes beyond the bare
and unsupported imputation of caprice, whimsicality or arbitrariness, and beyond allegations that
merely constitute errors of judgment82 or mere abuse of discretion.83

In Lopez v. Liboro,84 we had occasion to make the following pronouncement:

After the parties have produced their respective direct proofs, they are allowed to offer rebutting
evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may
permit them to offer evidence upon their original case, and its ruling will not be disturbed in the
appellate court where no abuse of discretion appears. So, generally, additional evidence is
allowed when it is newly discovered, or where it has been omitted through inadvertence or
mistake, or where the purpose of the evidence is to correct evidence previously offered. The
omission to present evidence on the testator's knowledge of Spanish had not been deliberate. It was
due to a misapprehension or oversight. (citations omitted; emphases ours)

Likewise, in Director of Lands v. Roman Archbishop of Manila,85 we ruled:

The strict rule is that the plaintiff must try his case out when he commences. Nevertheless, a
relaxation of the rule is permitted in the sound discretion of the court. "The proper rule for the
exercise of this discretion," it has been said by an eminent author, "is, that material testimony
should not be excluded because offered by the plaintiff after the defendant has rested,
although not in rebuttal, unless it has been kept back by a trick, and for the purpose of
deceiving the defendant and affecting his case injuriously."

These principles find their echo in Philippine remedial law. While the general rule is rightly
recognized, the Code of Civil Procedure authorizes the judge "for special reasons," to change the
order of the trial, and "for good reason, in the furtherance of justice," to permit the parties "to offer
evidence upon their original case." These exceptions are made stronger when one considers the
character of registration proceedings and the fact that where so many parties are involved, and
action is taken quickly and abruptly, conformity with precise legal rules should not always be
expected. Even at the risk of violating legal formulæ, an opportunity should be given to
parties to submit additional corroborative evidence in support of their claims of title, if the
ends of justice so require. (emphases ours)

In his commentaries, Chief Justice Moran had this to say:

However, the court for good reasons, may, in the furtherance of justice, permit the parties to offer
evidence upon their original case, and its ruling will not be disturbed where no abuse of discretion
appears, Generally, additional evidence is allowed when x x x; but it may be properly disallowed
where it was withheld deliberately and without justification.86

The weight of the exception is also recognized in foreign jurisprudence.87

Under these guidelines, we hold that the Sandiganbayan gravely abused its discretion in refusing to
reopen the case. Instead of squarely ruling on the petitioner’s 2nd motion to avoid any uncertainty on
the evidentiary status of the Bane deposition, the Sandiganbayan’s action actually left the
petitioner’s concern in limbo by considering the petitioner’s motion "redundant." This is tantamount to
a refusal to undertake a positive duty as mandated by the circumstances and is equivalent to an act
outside the contemplation of law.

It has not escaped our notice that at the time the petitioner moved to re-open its case, the
respondents had not yet even presented their evidence in chief. The respondents, therefore, would
not have been prejudiced by allowing the petitioner’s introduction of the Bane deposition, which was
concededly omitted "through oversight."88 The higher interest of substantial justice, of course, is
another consideration that cannot be taken lightly.89

In light of these circumstances, the Sandiganbayan should not have perfunctorily applied Section 5,
Rule 30 of the Rules of Court on the petitioner’s request to reopen the case for the submission of the
Bane deposition.
On the basis of this conclusion, a remand of this case should follow as a matter of course. The state
of the parties’ submissions and the delay that has already attended this aspect of Civil Case No.
0009, however, dictate against this obvious course of action. At this point, the parties have more
than extensively argued for or against the admission of the Bane deposition. Civil Case No. 0009 is
a 25-year old sequestration case that is now crying out for complete resolution. Admissibility, too, is
an issue that would have again been raised on remand and would surely stare us in the face after
remand.90 We are thus left with no choice but to resolve the issue of admissibility of the Bane
deposition here and now.

IV. The admissibility of the Bane deposition

IV (a). The consolidation of Civil Case No. 0009 and Civil Case No. 0130 did not dispense with
the usual requisites of admissibility

In support of its 3rd motion, the petitioner argues that the Bane deposition can be admitted in
evidence without observing the provisions of Section 47, Rule 130 of the Rules of Court.91 The
petitioner claims that in light of the prior consolidation of Civil Case No. 0009 and Civil Case No.
0130, among others,92 the "former case or proceeding" that Section 47, Rule 130 speaks of no
longer exists.

Rule 31 of the old Rules of Court93 – the rule in effect at the time Civil Case Nos. 0009 and 0130
were consolidated – provided that:

Rule 31
Consolidation or Severance

Section 1. Consolidation. – When actions involving a common question of law or fact are pending
before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it
may order all the actions consolidated; and it may make such orders concerning proceedings therein
as may tend to avoid unnecessary costs or delay.94 (emphases ours)

Consolidation is a procedural device granted to the court as an aid in deciding how cases in its
docket are to be tried so that the business of the court may be dispatched expeditiously and with
economy while providing justice to the parties. To promote this end, the rule permits the
consolidation and a single trial of several cases in the court’s docket, or the consolidation of issues
within those cases.95

A reading of Rule 31 of the Rules of Court easily lends itself to two observations. First, Rule 31 is
completely silent on the effect/s of consolidation on the cases consolidated; on the parties and the
causes of action involved; and on the evidence presented in the consolidated cases. Second, while
Rule 31 gives the court the discretion either to order a joint hearing or trial, or to order the actions
consolidated, jurisprudence will show that the term "consolidation" is used generically and even
synonymously with joint hearing or trial of several causes.96 In fact, the title "consolidation" of Rule
31 covers all the different senses of consolidation, as discussed below.

These observations are not without practical reason. Considering that consolidation is basically a
function given to the court, the latter is in the best position to determine for itself (given the nature of
the cases, the complexity of the issues involved, the parties affected, and the court’s capability and
resources vis-à-vis all the official business pending before it, among other things) what
"consolidation" will bring, bearing in mind the rights of the parties appearing before it.
To disregard the kind of consolidation effected by the Sandiganbayan on the simple and convenient
premise that the deposition-taking took place after the Sandiganbayan ordered the consolidation is
to beg the question. It is precisely the silence of our Rules of Procedure and the dearth of applicable
case law on the effect of "consolidation" that strongly compel this Court to determine the kind of
"consolidation" effected to directly resolve the very issue of admissibility in this case.

In the context of legal procedure, the term "consolidation" is used in three different senses:97

(1) Where all except one of several actions are stayed until one is tried, in which case the
judgment in the one trial is conclusive as to the others. This is not actually consolidation but
is referred to as such. (quasi-consolidation)98

(2) Where several actions are combined into one, lose their separate identity, and become a
single action in which a single judgment is rendered. This is illustrated by a situation where
several actions are pending between the same parties stating claims which might have been
set out originally in one complaint. (actual consolidation)99

(3) Where several actions are ordered to be tried together but each retains its separate
character and requires the entry of a separate judgment. This type of consolidation does not
merge the suits into a single action, or cause the parties to one action to be parties to the
other. (consolidation for trial)100

Considering that the Sandiganbayan’s order101 to consolidate several incident cases does not at all
provide a hint on the extent of the court’s exercise of its discretion as to the effects of the
consolidation it ordered – in view of the function of this procedural device to principally aid the court
itself in dealing with its official business – we are compelled to look deeper into the voluminous
records of the proceedings conducted below. We note that there is nothing that would even suggest
that the Sandiganbayan in fact intended a merger of causes of action, parties and evidence.102 To be
sure, there would have been no need for a motion to adopt (which did not remain unopposed) the
testimonies in the incident cases had a merger actually resulted from the order of consolidation, for
in that case, the Sandiganbayan can already take judicial notice of the same.

Significantly, even the petitioner itself viewed consolidation, at most, to be merely a consolidation for
trial.103Accordingly, despite the consolidation in 1993, the petitioner acceded to the Sandiganbayan’s
1998 Resolution (which denied the petitioner’s 1st Motion on the ground that the witnesses, whose
testimony in the incident cases is sought to be adopted, "are not available for cross-examination in"
the Sandiganbayan) by presenting these other witnesses again in the main case, so that the
respondents can cross-examine them.

These considerations run counter to the conclusion that the Sandiganbayan’s order of consolidation
had actually resulted in the complete merger of the incident cases with the main case, in the sense
of actual consolidation, and that the parties in these consolidated cases had (at least constructively)
been aware of and had allowed actual consolidation without objection.104

Considering, too, that the consolidated actions were originally independent of one another and the
fact that in the present case the party respondents to Civil Case No. 0009 (an action for
reconveyance, accounting, restitution and damages) are not parties to Civil Case No. 0130 (a
special civil action filed by an ETPI stockholder involving a corporate squabble within ETPI), the
conclusion that the Sandiganbayan in fact intended an actual consolidationand, together with the
parties affected,105 acted towards that end - where the actions become fused and unidentifiable from
one another and where the evidence appreciated in one action is also appreciated in another action
– must find support in the proceedings held below. This is particularly true in a case with the
magnitude and complexity of the present case. Otherwise, to impose upon the respondents the
effects of an actual consolidation (which find no clear support in the provisions of the Rules of Court,
jurisprudence,106 and even in the proceedings before the Sandiganbayan itself and despite the
aforementioned considerations) results in an outright deprivation of the petitioner’s right to due
process. We reach this conclusion especially where the evidence sought to be admitted is not simply
a testimony taken in one of the several cases, but a deposition upon oral examination taken in
another jurisdiction and whose admission is governed by specific provisions on our rules on
evidence.

We stress on this point, too, that while the Sandiganbayan ordered the consolidation in 1993 (that is,
before the deposition was taken), neither does the Pre-Trial Order107 issued by the Sandiganbayan in
1997 in Civil Case No. 0009 contain any reference, formal or substantive, to Civil Case No.
0130.108 Interestingly, in its Pre-Trial Brief dated August 30, 1996,109 the petitioner even made a
representation to present Bane as one of its witnesses.

IV (b). Use of deposition under Section 4, Rule 23 and as a former testimony under Section
47, Rule 130

Since the present consolidation did not affect Civil Case No. 0130 as an original, albeit incidental,
case, the admissibility of the Bane deposition cannot avoid being measured against the
requirements of Section 47, Rule 130 of the Rules of Court – the rule on the admissibility of
testimonies or deposition taken in a different proceeding. In this regard, the petitioner argues that
Section 4, Rule 23 of the Rules of Court (then Rule 24)110 must, at any rate, prevail over Section 47,
Rule 130111 of the same Rules.

At the outset, we note that when the petitioner’s motion to adopt the testimonies taken in the incident
cases drew individual oppositions from the respondents, the petitioner represented to the
Sandiganbayan its willingness to comply with the provisions of Section 47, Rule 130 of the Rules of
Court,112 and, in fact, again presented some of the witnesses. The petitioner’s about-face two years
thereafter even contributed to the Sandiganbayan’s own inconsistency on how to treat the Bane
deposition, in particular, as evidence.

Section 4, Rule 23 of the Rules of Court on "Deposition Pending Action" (deposition de bene esse)
provides for the circumstances when depositions may be used in the trial, or at the hearing of a
motion or an interlocutory proceeding.

SEC. 4. Use of depositions. — At the trial or upon the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may
be used against any party who was present or represented at the taking of the deposition or who
had due notice thereof, in accordance with any one of the following provisions:

xxxx

(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose
if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more
than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines,
unless it appears that his absence was procured by the party offering the deposition; or (3) that the
witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that
the party offering the deposition has been unable to procure the attendance of the witness by
subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make
it desirable, in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used[.] [emphasis ours]
On the other hand, Section 47, Rule 130 of the Rules of Court provides:

SEC. 47. Testimony or deposition at a former proceeding. – The testimony or deposition of a

witness deceased or unable to testify, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may be given in evidence against
the adverse party who had the opportunity to cross-examine him.

A plain reading of Rule 23 of the Rules of Court readily rejects the petitioner’s position that the Bane
deposition can be admitted into evidence without observing the requirements of Section 47, Rule
130 of the Rules of Court.

Before a party can make use of the deposition taken at the trial of a pending action, Section 4, Rule
23 of the Rules of Court does not only require due observance of its sub-paragraphs (a) to (d); it also
requires, as a condition for admissibility, compliance with "the rules on evidence." Thus, even
Section 4, Rule 23 of the Rules of Court makes an implied reference to Section 47, Rule 130 of the
Rules of Court before the deposition may be used in evidence. By reading Rule 23 in isolation, the
petitioner failed to recognize that the principle conceding admissibility to a deposition under Rule 23
should be consistent with the rules on evidence under Section 47, Rule 130.113 In determining the
admissibility of the Bane deposition, therefore, reliance cannot be given on one provision to the
exclusion of the other; both provisions must be considered. This is particularly true in this case
where the evidence in the prior proceeding does not simply refer to a witness’ testimony in open
court but to a deposition taken under another and farther jurisdiction.

A common thread that runs from Section 4, Rule 23 of the Rules of Court and Section 47, Rule 130
of the same Rules is their mutual reference to depositions.

A deposition is chiefly a mode of discovery whose primary function is to supplement the pleadings
for the purpose of disclosing the real points of dispute between the parties and affording an
adequate factual basis during the preparation for trial.114 Since depositions are principally made
available to the parties as a means of informing themselves of all the relevant facts, depositions are
not meant as substitute for the actual testimony in open court of a party or witness. Generally, the
deponent must be presented for oral examination in open court at the trial or hearing. This is a
requirement of the rules on evidence under Section 1, Rule 132 of the Rules of Court.115

Examination to be done in open court. — The examination of witnesses presented in a trial or

hearing shall be done in open court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a different mode of answer, the answers of the
witness shall be given orally.

Indeed, any deposition offered to prove the facts set forth therein, in lieu of the actual oral testimony
of the deponent in open court, may be opposed by the adverse party and excluded under the
hearsay rule – i.e., that the adverse party had or has no opportunity to cross-examine the deponent
at the time that his testimony is offered. That opportunity for cross-examination was afforded during
the taking of the deposition alone is no argument, as the opportunity for cross-examination must
normally be accorded a party at the time that the testimonial evidence is actually presented against
him during the trial or hearing of a case.116 However, under certain conditions and for certain limited
purposes laid down in Section 4, Rule 23 of the Rules of Court, the deposition may be used without
the deponent being actually called to the witness stand.117

Section 47, Rule 130 of the Rules of Court is an entirely different provision. While a former testimony
or depositionappears under the Exceptions to the Hearsay Rule, the classification of former
testimony or deposition as an admissible hearsay is not universally conceded.118 A fundamental
characteristic of hearsay evidence is the adverse party’s lack of opportunity to cross-examine the
out-of-court declarant. However, Section 47, Rule 130 explicitly requires, inter alia, for the
admissibility of a former testimony or deposition that the adverse party must have had an opportunity
to cross-examine the witness or the deponent in the prior proceeding.

This opportunity to cross-examine though is not the ordinary cross-examination119 afforded an

adverse party in usual trials regarding "matters stated in the direct examination or connected
therewith." Section 47, Rule 130 of the Rules of Court contemplates a different kind of cross-
examination, whether actual or a mere opportunity, whose adequacy depends on the requisite
identity of issues in the former case or proceeding and in the present case where the former
testimony or deposition is sought to be introduced.

Section 47, Rule 130 requires that the issues involved in both cases must, at least, be substantially
the same; otherwise, there is no basis in saying that the former statement was - or would have been
- sufficiently tested by cross-examination or by an opportunity to do so.120 (The requirement of
similarity though does not mean that all the issues in the two proceedings should be the
same.121 Although some issues may not be the same in the two actions, the admissibility of a former
testimony on an issue which is similar in both actions cannot be questioned.122)

These considerations, among others, make Section 47, Rule 130 a distinct rule on evidence and
therefore should not be confused with the general provisions on deposition under Rule 23 of the
Rules of Court. In other words, even if the petitioner complies with Rule 23 of the Rules of Court on
the use of depositions, the observance of Section 47, Rule 130 of the Rules of Court cannot simply
be avoided or disregarded.

Undisputably, the Sandiganbayan relied on the Bane deposition, taken in Civil Case No. 0130, for
purposes of this very same case. Thus, what the petitioner established and what the Sandiganbayan
found, for purposes of using the Bane deposition, refer only to the circumstances laid down under
Section 4(c), Rule 23 of the Rules of Court, not necessarily to those of Section 47, Rule 130 of the
Rules of Court, as a distinct rule on evidence that imposes further requirements in the use of
depositions in a different case or proceeding. In other words, the prior use of the deposition under
Section 4(c), Rule 23 cannot be taken as compliance with Section 47, Rule 130 which considers the
same deposition as hearsay, unless the requisites for its admission under this rule are observed.
The aching question is whether the petitioner complied with the latter rule.

Section 47, Rule 130 of the Rules of Court lays down the following requisites for the admission of a
testimony or deposition given at a former case or proceeding.

1. The testimony or deposition of a witness deceased or otherwise unable to testify;

2. The testimony was given in a former case or proceeding, judicial or administrative;

3. Involving the same parties;

4. Relating to the same matter;

5. The adverse party having had the opportunity to cross-examine him.123

The reasons for the admissibility of testimony or deposition taken at a former trial or proceeding are
the necessity for the testimony and its trustworthiness.124 However, before the former testimony or
deposition can be introduced in evidence, the proponent must first lay the proper
predicate therefor,125 i.e., the party must establish the basis for the admission of the Bane deposition
in the realm of admissible evidence. This basis is the prior issue that we must now examine and
resolve.

IV (c). Unavailability of witness

For the admission of a former testimony or deposition, Section 47, Rule 130 of the Rules of Court
simply requires, inter alia, that the witness or deponent be "deceased or unable to testify." On the
other hand, in using a deposition that was taken during the pendency of an action, Section 4, Rule
23 of the Rules of Court provides several grounds that will justify dispensing with the actual
testimony of the deponent in open court and specifies, inter alia, the circumstances of the
deponent’s inability to attend or testify, as follows:

(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment[.] [emphases ours]126

The phrase "unable to testify" appearing in both Rule 23 and Rule 130 of the Rules of Court refers to
a physical inability to appear at the witness stand and to give a testimony.127 Hence notwithstanding
the deletion of the phrase "out of the Philippines," which previously appeared in Section 47, Rule
130 of the Rules of Court, absence from jurisdiction128 - the petitioner’s excuse for the non-
presentation of Bane in open court - may still constitute inability to testify under the same rule. This
is not to say, however, that resort to deposition on this instance of unavailability will always be
upheld. Where the deposition is taken not for discovery purposes, but to accommodate the
deponent, then the deposition should be rejected in evidence.129

Although the testimony of a witness has been given in the course of a former proceeding between
the parties to a case on trial, this testimony alone is not a ground for its admission in evidence. The
witness himself, if available, must be produced in court as if he were testifying de novo since his
testimony given at the former trial is mere hearsay.130 The deposition of a witness, otherwise
available, is also inadmissible for the same reason.

Indeed, the Sandiganbayan’s reliance on the Bane deposition in the other case (Civil Case No.
0130) is an argument in favor of the requisite unavailability of the witness. For purposes of
the present case (Civil Case No. 0009), however, the Sandiganbayan would have no basis to
presume, and neither can or should we, that the previous condition, which previously allowed the
use of the deposition, remains and would thereby justify the use of the same deposition in another
case or proceeding, even if the other case or proceeding is before the same court. Since the basis
for the admission of the Bane deposition, in principle, being necessity,131 the burden of establishing
its existence rests on the party who seeks the admission of the evidence. This burden cannot be
supplanted by assuming the continuity of the previous condition or conditions in light of the general
rule against the non-presentation of the deponent in court.132

IV (d). The requirement of opportunity of the adverse party to cross-examine; identity of

parties; and identity of subject matter

The function of cross-examination is to test the truthfulness of the statements of a witness made on
direct examination.133 The opportunity of cross-examination has been regarded as an essential
safeguard of the accuracy and completeness of a testimony. In civil cases, the right of cross-
examination is absolute, and is not a mere privilege of the party against whom a witness may be
called.134 This right is available, of course, at the taking of depositions, as well as on the examination
of witnesses at the trial. The principal justification for the general exclusion of hearsay statements
and for the admission, as an exception to the hearsay rule, of reported testimony taken at a former
hearing where the present adversary was afforded the opportunity to cross-examine, is based on the
premise that the opportunity of cross-examination is an essential safeguard135 against falsehoods
and frauds.

In resolving the question of whether the requirement of opportunity to cross-examine has been
satisfied, we have to consider first the required identity of parties as the present opponent to the
admission of the Bane deposition to whom the opportunity to cross-examine the deponent is imputed
may not after all be the same "adverse party" who actually had such opportunity.

To render the testimony of a witness admissible at a later trial or action, the parties to the first
proceeding must be the same as the parties to the later proceeding. Physical identity, however, is
not required; substantial identity136 or identity of interests137 suffices, as where the subsequent
proceeding is between persons who represent the parties to the prior proceeding by privity in law, in
blood, or in estate. The term "privity" denotes mutual or successive relationships to the same rights
of property.138

In the present case, the petitioner failed to impute, much less establish, the identity of interest or
privity between the then opponent, Africa, and the present opponents, the respondents. While Africa
is the son of the late respondent Jose Africa, at most, the deposition should be admissible only
against him as an ETPI stockholder who filed the certiorari petition docketed as Civil Case No. 0130
(and, unavoidably, as successor-in-interest of the late respondent Jose Africa). While Africa and the
respondents are all ETPI stockholders, this commonality does not establish at all any privity between
them for purposes of binding the latter to the acts or omissions of the former respecting the cross-
examination of the deponent. The sequestration of their shares does not result in the integration of
their rights and obligations as stockholders which remain distinct and personal to them, vis-a-
vis other stockholders.139

IV (d1). The respondents’ notice of taking of Bane deposition is insufficient evidence of waiver

The petitioner staunchly asserts that the respondents have waived their right to cross-examine the
deponent for their failure to appear at the deposition-taking despite individual notices previously sent
to them.140

In its first Notice to Take Oral Deposition of Mr. Maurice V. Bane dated August 30, 1996,141 the
petitioner originally intended to depose Mr. Bane on September 25-26 1996. Because it failed to
specify in the notice the purpose for taking Mr. Bane’s deposition, the petitioner sent a Second
Amended Notice to Take Deposition of Mr. Maurice V. Bane Upon Oral Examination where it
likewise moved the scheduled deposition-taking to October 23-26, 1996.

The records show that Africa moved several times for protective orders against the intended
deposition of Maurice Bane.142 On the other hand, among the respondents, only respondent Enrile
appears to have filed an Opposition143to the petitioner’s first notice, where he squarely raised the
issue of reasonability of the petitioner’s nineteen-day first notice. While the Sandiganbayan denied
Africa’s motion for protective orders,144 it strikes us that no ruling was ever handed down on
respondent Enrile’s Opposition.145

It must be emphasized that even under Rule 23, the admission of the deposition upon oral
examination is not simply based on the fact of prior notice on the individual sought to be bound
thereby. In Northwest Airlines v. Cruz, 146 we ruled that -

The provision explicitly vesting in the court the power to order that the deposition shall not be taken
connotes the authority to exercise discretion on the matter. However, the discretion conferred by law
is not unlimited. It must be exercised, not arbitrarily or oppressively, but in a reasonable manner and
in consonance with the spirit of he law. The courts should always see to it that the safeguards for the
protection of the parties and deponents are firmly maintained. As aptly stated by Chief Justice
Moran:

. . . . (T)his provision affords the adverse party, as well as the deponent, sufficient protection against
abuses that may be committed by a party in the exercise of his unlimited right to discovery. As a
writer said: "Any discovery involves a prying into another person's affairs — prying that is quite
justified if it is to be a legitimate aid to litigation, but not justified if it is not to be such an aid." For this
reason, courts are given ample powers to forbid discovery which is intended not as an aid to
litigation, but merely to annoy, embarrass or oppress either the deponent or the adverse party, or
both. (emphasis ours)

In the present case, not only did the Sandiganbayan fail to rule on respondent Enrile’s Opposition
(which is equally applicable to his co-respondents), it also failed to provide even the bare minimum
"safeguards for the protection of," (more so) non-parties,147 and to ensure that these safeguards are
firmly maintained. Instead, the Sandiganbayan simply bought the petitioner’s assertion (that the
taking of Bane deposition is a matter of right) and treated the lingering concerns – e.g., reasonability
of the notice; and the non-party status of the respondents in Civil Case No. 0130 - at whose incident
(docketed as G.R. No. 107789) the Bane deposition was taken - rather perfunctorily to the prejudice
of the respondents.

In conjunction with the order of consolidation, the petitioner’s reliance on the prior notice on the
respondents, as adequate opportunity for cross-examination, cannot override the non-party status of
the respondents in Civil Case No. 0130 – the effect of consolidation being merely for trial. As non-
parties, they cannot be bound by proceedings in that case. Specifically, they cannot be bound by the
taking of the Bane deposition without the consequent impairment of their right of cross-
examination.148 Opportunity for cross-examination, too, even assuming its presence, cannot be
singled out as basis for the admissibility of a former testimony or deposition since such admissibility
is also anchored on the requisite identity of parties. To reiterate, although the Sandiganbayan
considered the Bane deposition in resolving Civil Case No. 0130, its action was premised on Africa’s
status as a party in that case where the Bane deposition was taken.

Corollarily, the idea of privity also permeates Rule 23 of the Rules of Court through its Section 5
which provides:

Effect of substitution of parties. — Substitution of parties does not affect the right to use
depositions previously taken; and, when an action has been dismissed and another action involving
the same subject is afterward brought between the same parties or their representatives or
successors in interest, all depositions lawfully taken and duly filed in the former action may be used
in the latter as if originally taken therefor. [italics and underscoring ours]

In light of these considerations, we reject the petitioner’s claim that the respondents waived their
right to cross-examination when they failed to attend the taking of the Bane deposition. Incidentally,
the respondents’ vigorous insistence on their right to cross-examine the deponent speaks loudly that
they never intended any waiver of this right.

Interestingly, the petitioner’s notice of the deposition-taking relied on Rule 23 of the Rules of Court.
Section 15 of this rule reads:

Deposition upon oral examination; notice; time and place. — A party desiring to take the
deposition of any person upon oral examination shall give reasonable notice in writing to every
other party to the action. The notice shall state the time and place for taking the deposition and the
name and address of each person to be examined, if known, and if the name is not known, a general
description sufficient to identify him or the particular class or group to which he belongs. On motion
of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the
time.

Under this provision, we do not believe that the petitioner could reasonably expect that the individual
notices it sent to the respondents would be sufficient to bind them to the conduct of the then
opponent’s (Africa’s) cross-examination since, to begin with, they were not even parties to the
action. Additionally, we observe that in the notice of the deposition taking, conspicuously absent was
any indication sufficient to forewarn the notified persons that their inexcusable failure to appear at
the deposition taking would amount to a waiver of their right of cross-examination, without prejudice
to the right of the respondents to raise their objections at the appropriate time.149 We would be
treading on dangerous grounds indeed were we to hold that one not a party to an action, and
neither in privity nor in substantial identity of interest with any of the parties in the same
action, can be bound by the action or omission of the latter, by the mere expedient of a
notice. Thus, we cannot simply deduce a resultant waiver from the respondents’ mere failure to
attend the deposition-taking despite notice sent by the petitioner.

Lastly, we see no reason why the Bane deposition could not have been taken earlier in Civil Case
No. 0009 – the principal action where it was sought to be introduced – while Bane was still here in
the Philippines. We note in this regard that the Philippines was no longer under the Marcos
administration and had returned to normal democratic processes when Civil Case No. 0009 was
filed. In fact, the petitioner’s notice itself states that the "purpose of the deposition is for Mr. Maurice
Bane to identify and testify on the facts set forth in his Affidavit," which Mr. Bane had long executed
in 1991 in Makati, Metro Manila.150 Clearly, a deposition could then have been taken - without
compromising the respondents’ right to cross-examine a witness against them - considering that the
principal purpose of the deposition is chiefly a mode of discovery. These, to our mind, are avoidable
omissions that, when added to the deficient handling of the present matter, add up to the gross
deficiencies of the petitioner in the handling of Civil Case No. 0009.

After failing to take Bane’s deposition in 1991 and in view of the peculiar circumstances of this case,
the least that the petitioner could have done was to move for the taking of the Bane deposition and
proceed with the deposition immediately upon securing a favorable ruling thereon. On that occasion,
where the respondents would have a chance to be heard, the respondents cannot avoid a resultant
waiver of their right of cross-examination if they still fail to appear at the deposition-taking.
Fundamental fairness dictates this course of action. It must be stressed that not only were the
respondents non-parties to Civil Case No. 0130, they likewise have no interest in Africa’s certiorari
petition asserting his right as an ETPI stockholder.

Setting aside the petitioner’s flip-flopping on its own representations,151 this Court can only express
dismay on why the petitioner had to let Bane leave the Philippines before taking his deposition
despite having knowledge already of the substance of what he would testify on. Considering that the
testimony of Bane is allegedly a "vital cog" in the petitioner’s case against the respondents, the Court
is left to wonder why the petitioner had to take the deposition in an incident case (instead of the main
case) at a time when it became the technical right of the petitioner to do so.

V. The petitioner cannot rely on principle of judicial notice

The petitioner also claims that since the Bane deposition had already been previously introduced
and admitted in Civil Case No. 0130, then the Sandiganbayan should have taken judicial notice of
the Bane deposition as part of its evidence.
Judicial notice is the cognizance of certain facts that judges may properly take and act on without
proof because these facts are already known to them.152 Put differently, it is the assumption by a
court of a fact without need of further traditional evidentiary support. The principle is based on
convenience and expediency in securing and introducing evidence on matters which are not
ordinarily capable of dispute and are not bona fide disputed.153

The foundation for judicial notice may be traced to the civil and canon law maxim, manifesta (or
notoria) non indigent probatione.154 The taking of judicial notice means that the court will dispense
with the traditional form of presentation of evidence. In so doing, the court assumes that the matter is
so notorious that it would not be disputed.

The concept of judicial notice is embodied in Rule 129 of the Revised Rules on Evidence. Rule 129
either requires the court to take judicial notice, inter alia, of "the official acts of the x x x judicial
departments of the Philippines,"155or gives the court the discretion to take judicial notice of matters
"ought to be known to judges because of their judicial functions."156 On the other hand, a party-
litigant may ask the court to take judicial notice of any matter and the court may allow the parties to
be heard on the propriety of taking judicial notice of the matter involved.157 In the present case, after
the petitioner filed its Urgent Motion and/or Request for Judicial Notice, the respondents were also
heard through their corresponding oppositions.

In adjudicating a case on trial, generally, courts are not authorized to take judicial notice of the
contents of the records of other cases, even when such cases have been tried or are pending in the
same court, and notwithstanding that both cases may have been tried or are actually pending before
the same judge.158 This rule though admits of exceptions.

As a matter of convenience to all the parties, a court may properly treat all or any part of the original
record of a case filed in its archives as read into the record of a case pending before it, when, with
the knowledge of, andabsent an objection from, the adverse party, reference is made to it for
that purpose, by name and number or in some other manner by which it is sufficiently
designated; or when the original record of the former case or any part of it, is actually withdrawn
from the archives at the court's direction, at the request or with the consent of the parties,
and admitted as a part of the record of the case then pending.159

Courts must also take judicial notice of the records of another case or cases, where sufficient basis
exists in the records of the case before it, warranting the dismissal of the latter case.160

The issue before us does not involve the applicability of the rule on mandatory taking of judicial
notice; neither is the applicability of the rule on discretionary taking of judicial notice seriously
pursued. Rather, the petitioner approaches the concept of judicial notice from a genealogical
perspective of treating whatever evidence offered in any of the "children" cases – Civil Case 0130 –
as evidence in the "parent" case – Civil Case 0009 - or "of the whole family of cases."161 To the
petitioner, the supposed relationship of these cases warrants the taking of judicial notice.

We strongly disagree. First, the supporting cases162 the petitioner cited are inapplicable either
because these cases involve only a single proceeding or an exception to the rule, which proscribes
the courts from taking judicial notice of the contents of the records of other cases.163 Second, the
petitioner’s proposition is obviously obnoxious to a system of orderly procedure. The petitioner itself
admits that the present case has generated a lot of cases, which, in all likelihood, involve issues of
varying complexity. If we follow the logic of the petitioner’s argument, we would be espousing judicial
confusion by indiscriminately allowing the admission of evidence in one case, which was presumably
found competent and relevant in another case, simply based on the supposed lineage of the cases.
It is the duty of the petitioner, as a party-litigant, to properly lay before the court the evidence it relies
upon in support of the relief it seeks, instead of imposing that same duty on the court. We invite the
petitioner’s attention to our prefatory pronouncement in Lopez v. Sandiganbayan:164

Down the oft-trodden path in our judicial system, by common sense, tradition and the law, the Judge
in trying a case sees only with judicial eyes as he ought to know nothing about the facts of the case,
except those which have been adduced judicially in evidence. Thus, when the case is up for trial, the
judicial head is empty as to facts involved and it is incumbent upon the litigants to the action to
establish by evidence the facts upon which they rely. (emphasis ours)

We therefore refuse, in the strongest terms, to entertain the petitioner’s argument that we should
take judicial notice of the Bane deposition.

VI. Summation

To recapitulate, we hold that: (1) the Sandiganbayan’s denial of the petitioner’s 3rd motion –
the Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice Bane) – was a legal
error that did not amount to grave abuse of discretion; (2) the Sandiganbayan’s refusal to reopen the
case at the petitioner’s instance was tainted with grave abuse of discretion; and (3) notwithstanding
the grave abuse of discretion, the petition must ultimately fail as the Bane deposition is not
admissible under the rules of evidence.165

VII. Refutation of Justice Carpio’s Last Minute Modified Dissent

At the last minute, Justice Carpio circulated a modified dissent, quoting the Bane deposition. His
covering note states:

I have revised my dissenting opinion to include the Bane deposition so that the Court and the public
will understand what the Bane deposition is all about. (underlining added)

In light of this thrust, a discussion refuting the modified dissent is in order.

First: Contents of the Bane deposition not an Issue. The dissent perfectly identified what is at issue
in this case – i.e., the admissibility of the Bane deposition. Admissibility is concerned with the
competence and relevance166 of the evidence, whose admission is sought. While the dissent quoted
at length the Bane deposition, it may not be amiss to point out that the relevance of the Bane
deposition (or, to adopt the dissent’s characterization, whether "Maurice V. Bane is a vital witness")
is not an issue here unless it can be established first that the Bane deposition is a competent
evidence.

Second: Misrepresentation of Cited Authority. The dissent insists that "in Philippine Jurisprudence,
the consolidation of cases merges the different actions into one and the rights of the parties are
adjudicated in a single judgment," citing Vicente J. Francisco. In our discussion on consolidation, we
footnoted the following in response to the dissent’s position, which we will restate here for emphasis:

In the 1966 edition of Vicente J. Francisco’s Revised Rules of Court, Francisco wrote:

The effect of consolidation of actions is to unite and merge all of the different actions consolidated
into a single action, in the same manner as if the different causes of actions involved had originally
been joined in a single action, and the order of consolidation, if made by a court of competent
jurisdiction, is binding upon all the parties to the different actions until it is vacated or set aside. After
the consolidation there can be no further proceedings in the separate actions, which are by virtue of
the consolidation discontinued and superseded by a single action, which should be entitled in such
manner as the court may direct, and all subsequent proceedings therein be conducted and the rights
of the parties adjudicated in a single action (1 C.J.S., 113, pp. 1371-1372).

At the very beginning of the discussion on consolidation of actions in the Corpus Juris Secundum,
the following caveat appears:

The term consolidation is used in three different senses. First, where several actions are combined
into one and lose their separate identity and become a single action in which a single judgment is
rendered; second, where all except one of several actions are stayed until one is tried, in which case
the judgment in the one is conclusive as to the others; third, where several actions are ordered to be
tried together but each retains its separate character and requires the entry of a separate judgment.
The failure to distinguish between these methods of procedure, which are entirely distinct, the two
latter, strictly speaking, not being consolidation, a fact which has not always been noted, has caused
some confusion and conflict in the cases. (1 C.J.S., 107, pp. 1341-1342) (Emphasis added).

In defining the term "consolidation of actions," Francisco provided a colatilla that the term
"consolidation" is used in three different senses, citing 1 C.J.S. 1341 and 1 Am. Jur. 477 (Francisco,
Revised Rules of Court, p. 348).

From the foregoing, it is clear that the dissent appears to have quoted Francisco’s statement out of
context. As it is, the issue of the effect of consolidation on evidence is at most an unsettled matter
that requires the approach we did in the majority’s discussion on consolidation.167

Third: Misappreciation of the Purpose of Consolidation. The dissent then turns to the purpose of
consolidation – to "expeditiously settle the interwoven issues involved in the consolidated cases" and
"the simplification of the proceedings." It argues that this can only be achieved if the repetition of the
same evidence is dispensed with.

It is unfortunate that the dissent refuses to recognize the fact that since consolidation is primarily
addressed to the court concerned to aid it in dispatching its official business, it would be in keeping
with the orderly trial procedure if the court should have a say on what consolidation would actually
bring168 (especially where several cases are involved which have become relatively complex). In the
present case, there is nothing in the proceedings below that would suggest that the Sandiganbayan
or the parties themselves (the petitioner and the respondents) had in mind a consolidation beyond
joint hearing or trial. Why should this Court – which is not a trial court – impose a purported effect
that has no factual or legal grounds?

Fourth: The Due Process Consideration. The dissent argues that even if the consolidation only
resulted in a joint hearing or trial, the "respondents are still bound by the Bane deposition
considering that they were given notice of the deposition-taking." The issue here boils down to one
of due process – the fundamental reason why a hearsay statement (not subjected to the rigor of
cross-examination) is generally excluded in the realm of admissible evidence – especially when read
in light of the general rule that depositions are not meant as substitute for the actual testimony, in
open court, of a party or witness.

Respondent Enrile had a pending Opposition to the notice of deposition-taking (questioning the
reasonableness thereof – an issue applicable to the rest of the respondents) which the
Sandiganbayan failed to rule on. To make the Sandiganbayan’s omission worse, the Sandiganbayan
blindly relied on the petitioner’s assertion that the deposition-taking was a matter of right and, thus,
failed to address the consequences and/or issues that may arise from the apparently innocuous
statement of the petitioner (that it intends to use the Bane deposition in Civil Case No. 0009, where
only the respondents, and not Africa, are the parties).169 There is simply the absence of "due" in due
process.

Fifth: Misstatement of the Sandiganbayan’s Action. The dissent repeatedly misstates that the
Sandiganbayan "granted" the request for the deposition-taking. For emphasis, the Sandiganbayan
did not "grant" the request since the petitioner staunchly asserted that the deposition-taking was a
matter of right. No one can deny the complexity of the issues that these consolidated cases have
reached. Considering the consolidation of cases of this nature, the most minimum of fairness
demands upon the petitioner to move for the taking of the Bane deposition and for the
Sandiganbayan to make a ruling thereon (including the opposition filed by respondent Enrile which
equally applies to his co-respondents). The burgeoning omission and failures that have prevailed in
this case cannot be cured by this Court without itself being guilty of violating the constitutional
guarantee of due process.

Sixth: Issues Posed and Resolved Go Beyond Technicalities. The above conclusions, contrary to the
petitioner’s claim, are not only matters of technicality. Admittedly, rules of procedure involve
technicality, to which we have applied the liberality that technical rules deserve. But the resolution of
the issues raised goes beyond pure or mere technicalities as the preceding discussions show. They
involve issues of due process and basic unfairness to the respondents, particularly to respondent
Enrile, who is portrayed in the Bane deposition to be acting in behalf of the Marcoses so that these
shares should be deemed to be those of the Marcoses. They involved, too, principles upon which
our rules of procedure are founded and which we cannot disregard without flirting with the violation
of guaranteed substantive rights and without risking the disorder that these rules have sought to
avert in the course of their evolution.

In the Court En Banc deliberations of December 6, 2011, the Court failed to arrive at a conclusive
decision because of a tie vote (7-7, with one Justice taking no part). The same vote resulted in the
re-voting of December 13, 2011. In this light, the ponencia is deemed sustained.

WHEREFORE, premises considered, we DISMISS the petition for lack of merit. No costs.

SO ORDERED.

4. Pp v. Rullepa GR 131516 3/5/2003

On complaint of Cyra May Francisco Buenafe, accused-appellant Ronnie
Rullepa y Guinto was charged with Rape before the Regional Trial Court (RTC)
of Quezon City allegedly committed as follows:

That on or about the 17th day of November, 1995, in Quezon City, Philippines, the
said accused, by means of force and intimidation, to wit: by then and there willfully,
unlawfully and feloniously removing her panty, kissing her lips and vagina and
thereafter rubbing his penis and inserting the same to the inner portion of the vagina
of the undersigned complainant, 3 years of age, a minor, against her will and without
her consent. [1]

Arraigned on January 15, 1996, accused-appellant pleaded not guilty. [2]

 From the testimonies of its witnesses, namely Cyra May, her mother Gloria
[3]

Francisco Buenafe, Dr. Cristina V. Preyra, and SPO4 Catherine Borda, the
prosecution established the following facts:
On November 20, 1995, as Gloria was about to set the table for dinner at
her house in Quezon City, Cyra May, then only three and a half years old, told
her, Mama, si kuya Ronnie lagay niya titi niya at sinaksak sa puwit at sa bibig
ko.
Kuya Ronnie is accused-appellant Ronnie Rullepa, the Buenafes house
boy, who was sometimes left with Cyra May at home.
Gloria asked Cyra May how many times accused-appellant did those things
to her, to which she answered many times. Pursuing, Gloria asked Cyra May
what else he did to her, and Cyra May indicated the room where accused-
appellant slept and pointed at his pillow.
As on the night of November 20, 1995 accused-appellant was out with
Glorias husband Col. Buenafe, she waited until their arrival at past 11:00
[4]

p.m. Gloria then sent accused-appellant out on an errand and informed her
husband about their daughters plaint. Buenafe thereupon talked to Cyra May
who repeated what she had earlier told her mother Gloria.
When accused-appellant returned, Buenafe and Gloria verified from him
whether what Cyra May had told them was true. Ronnie readily admitted doing
those things but only once, at 4:00 p.m. of November 17, 1995 or three days
earlier. Unable to contain her anger, Gloria slapped accused-appellant several
times.
Since it was already midnight, the spouses waited until the following
morning to bring accused-appellant to Camp Karingal where he admitted the
imputations against him, on account of which he was detained. Glorias sworn
statement was then taken.
[5] [6]

Recalling what accused-appellant did to her, Cyra May declared at the

witness stand: Sinaksak nya ang titi sa pepe ko, sa puwit ko, at sa bunganga,
thus causing her pain and drawing her to cry. She added that accused-appellant
did these to her twice in his bedroom.
Dr. Ma. Cristina V. Preyra, the Medico-Legal Officer and Chief of the
Biological Science Branch of the Philippine National Police Crime Laboratory
who examined Crya May, came up with her report dated November 21,
1995, containing the following findings and conclusions:
[7]

FINDINGS:
GENERAL AND EXTRA GENITAL:

Fairly developed, fairly nourished and coherent female child subject. Breasts are
undeveloped. Abdomen is flat and soft.

GENITAL:

There is absence of pubic hair. Labia majora are full, convex and coaptated
with congested and abraded labia minora presenting in between. On separating
the same is disclosed an abraded posterior fourchette and an elastic, fleshy type intact
hymen.External vaginal orifice does not admit the tip of the examining index finger.

xxx

CONCLUSION:

Subject is in virgin state physically.

There are no external signs of recent application of any form of trauma at

the time of examination. (Emphasis supplied.)
By Dr. Preyras explanation, the abrasions on the labia minora could have
been caused by friction with an object, perhaps an erect penis. She doubted if
riding on a bicycle had caused the injuries. [8]

The defenses sole witness was accused-appellant, who was 28 and single
at the time he took the witness stand on June 9, 1997. He denied having
anything to do with the abrasions found in Cyra Mays genitalia, and claimed
that prior to the alleged incident, he used to be ordered to buy medicine for Cyra
May who had difficulty urinating. He further alleged that after he refused to
answer Glorias queries if her husband Buenafe, whom he usually accompanied
whenever he went out of the house, was womanizing, Gloria would always find
fault in him. He suggested that Gloria was behind the filing of the
complaint. Thus:
q- According to them you caused the abrasions found in her genital?
a- That is not true, sir.
q- If that is not true, what is the truth?
a- As I have mentioned earlier that before I started working with the family I was sent to
Crame to buy medicine for the daughter because she had difficulty in urinating.
q- Did you know why the child has difficulty in urinating?
a- No, I do not know, sir.
 q- And how about the present complaint filed against you, the complaint filed by the
mother of the victim?
a- I did not do it, sir.
q- What is the truth, what can you say about this present complaint filed against you?
a- As I said Mrs. Buenafe got mad at me because after I explained to her that I was going
with her gusband (sic) to the children of the husband with a former marriage. [9]

Finding for the prosecution, Branch 96 of the Quezon City RTC rendered
judgment, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding accused RONNIE

RULLEPA y GUINTO guilty beyond reasonable doubt of rape, and he is accordingly
sentenced to death.

The accused is ordered to pay CYRA MAE BUENAFE the amount of P40,000.00
as civil indemnity.

Costs to be paid by the accused. (Italics in the original.)

[10]

Hence, this automatic review, accused-appellant assigning the following

errors to the trial court:
I

THE COURT A QUO ERRED IN CONSIDERING AS ADMISSIBLE IN

EVIDENCE THE ACCUSED-APPELLANTS ADMISSION.

II

THE COURT A QUO ERRED ON (sic) RULING THAT THE ACCUSED-

APPELLANTS SILENCE DURING TRIAL AMOUNTED TO AN IMPLIED
ADMISSION OF GUILT.

III

THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE

ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN
BEYOND REASONABLE DOUBT.

IV

THE COURT A QUO GRAVELY ERRED IN IMPOSING THE SUPREME

PENALTY OF DEATH UPON THE ACCUSED-APPELLANT. (Emphasis [11]

supplied.)
 Accused-appellant assails the crediting by the trial court, as the following
portion of its decision shows, of his admission to Gloria of having sexually
assaulted Cyra May:

In addition, the mother asserted that Rullepa had admitted Cyra Ma[y]s complaint
during the confrontation in the house. Indeed, according to the mother, the admission
was even expressly qualified by Rullepas insistence that he had committed the sexual
assault only once, specifying the time thereof as 4:00 pm of November 17, 1995. That
qualification proved that the admission was voluntary and true. An uncoerced and
truthful admission like this should be absolutely admissible and competent.

xxx

Remarkably, the admission was not denied by the accused during trial despite his
freedom to deny it if untrue. Hence, the admission became conclusive upon
him. (Emphasis supplied.)
[12]

To accused-appellant, the statements attributed to him are inadmissible

since they were made out of fear, having been elicited only after Cyra Mays
parents bullied and questioned him. He thus submits that it was error for the
trial court to take his failure to deny the statements during the trial as an
admission of guilt.
Accused-appellants submission does not persuade. The trial court
considered his admission merely as an additional ground to convince itself of
his culpability. Even if such admission, as well as the implication of his failure
to deny the same, were disregarded, the evidence suffices to establish his guilt
beyond reasonable doubt.
The plain, matter-of-fact manner by which Cyra May described her abuse in
the hands of her Kuya Ronnie is an eloquent testament to the truth of her
accusations. Thus she testified on direct examination:
q- Do you recall if Ronnie Rullepa did anything to you?
a- Yes, sir.
q- What did he do to you?
a- Sinaksak nya ang titi sa pepe ko, sa puwit ko, at sa bunganga
q- How many times did he do that to you?
a- Twice, sir.
xxx
q- Do you remember when he did these things to you?
 a- Opo.
q- When was that?
a- When my mother was asleep, he put he removed my panty and inserted his penis
inside my vagina, my anus and my mouth, sir.
xxx
q- After your Kuya Ronnie did those things to you what did you feel?
a- Sabi nya ganito (Witness putting her finger in her lips) Nasaktan po ako at umiyak po
ako.
q- Did you cry because of hurt?
a- Yes.
q- What part of your body hurt?
a- Pepe ko po. When I went to the bathroom to urinate, I felt pain in my organ, sir.[13]

Cyra May reiterated her testimony during cross-examination, providing

more revolting details of her ordeal:
q- So, you said that Kuya Ronnie did something to you what did he do to you on
November 17, 1995?
a- Sinaksak nga yong titi nya. He inserted his penis to my organ and to my mouth, sir.
xxx
q- When you said that your kuya Ronnie inserted his penis into your organ, into your
mouth, and into your anus, would you describe what his penis?
a- It is a round object, sir.
C o u r t:
Is this titi of your kuya Ronnie a part of his body?
a- Opo.
q- Was that in the head of kuya Ronnie?
a- No, sir.
q- Which part of his body that titi located?
(Witness pointing to her groin area)
C o u r t:
Continue
xxx
q- Why were you in that room?
a- Gusto nya po matulog ako sa kuwarto niya.
q- When you were in that room, what did Kuya Ronnie do to you?
 a- Hinubo po niya ang panty ko.
q- And after he remove your panty, what did Kuya Ronnie do, what did he do to you?
a- He inserted his penis to my organ, sir.
q- Why did kuya Ronnie, was kuya Ronnie already naked or he was already wearing any
clothing?
a- Still had his clothing on, sir.
q- So, where did his penis, saan lumabas ang penis ni Kuya Ronnie?
a- Dito po, (Witness referring or pointing to her groin area)
xxx
q- So, thats the and at the time, you did not cry and you did not shout for help?
a- Sabi nya po, not to make any noise because my mother might be roused from sleep.
q- How long was kuya Ronnie did that to you?
a- Matagal po.
q- After kuya Ronnie scrub his penis to your vagina, what other things did he do?
a- After that he inserted his penis to my mouth, and to my anus, sir.
q- You did not complain and you did not shout?
a- I cried, sir.[14]

Accused-appellant draws attention to the statement of Cyra May that he was

not in the house on November 17 (1995), as reflected in the following transcript
of her testimony:
q- Is it not a fact that you said a while ago that when your father leaves the house, he
[was] usually accompanied by your kuya Ronnie?
a- Opo.
q- Why is it that Kuya Ronnie was in the house when you father left the house at that
time, on November 17?
a- He was with Kuya Ronnie, sir.
q- So, it is not correct that kuya Ronnie did something to you because your kuya Ronnie
[was] always with your Papa?
a- Yes, sir.[15]

The above-quoted testimony of Cyra May does not indicate the time when
her father Col. Buenafe left their house on November 17, 1995 with accused-
appellant and, thus, does not preclude accused-appellants commission of rape
on the same date. In any event, a young child is vulnerable to suggestion,
hence, her affirmative response to the defense counsels above-
quoted leading questions.
 As for the variance in the claim regarding when Gloria was informed of the
rape, Gloria having testified that she learned of it on November 20, 1995 while [16]

Cyra May said that immediately after the incident, she awakened her mother
who was in the adjacent room and reported it: This is a minor matter that does
[17]

not detract from Cyra Mays categorical, material testimony that accused-
appellant inserted his penis into her vagina.
Accused-appellant goes on to contend that Cyra May was coached, citing
the following portion of her testimony:
q- Yong sinabi mong sinira nya ang buhay mo, where did you get that phrase?
a- It was the word of my Mama, sir.[18]

On the contrary, the foregoing testimony indicates that Cyra May was really
narrating the truth, that of hearing her mother utter sinira niya ang buhay mo.
Accused-appellants suggestion that Cyra May merely imagined the things
of which he is accused, perhaps getting the idea from television programs, is
preposterous. It is true that the ordinary child is a great weaver of romances,
and her imagination may induce (her) to relate something she has heard or read
in a story as personal experience. But Cyra Mays account is hardly the stuff
[19]

of romance or fairy tales. Neither is it normal TV fare, if at all.

This Court cannot believe that a victim of Cyra Mays age could concoct a
tale of defloration, allow the examination of her private parts, and undergo the
expense, trouble, inconvenience, not to mention the trauma of public trial. [20]

Besides, her testimony is corroborated by the findings of Dr. Preyra that

there were abrasions in her labia minora, which she opined, could have been
caused by friction with an erect penis.
This Court thus accords great weight to the following assessment of the trial
court regarding the competency and credibility of Cyra May as a witness:

Her very tender age notwithstanding, Cyra Ma(y) nonetheless appeared to possess the
necessary intelligence and perceptiveness sufficient to invest her with the competence
to testify about her experience. She might have been an impressionable child as all
others of her age are but her narration of Kuya Ronnies placing his titi in her pepe was
certainly one which could not be considered as a common childs tale. Her responses
during the examination of counsel and of the Court established her consciousness of
the distinction between good and bad, which rendered inconceivable for her to
describe a bad act of the accused unless it really happened to her. Needless to state,
she described the act of the accused as bad. Her demeanor as a witness manifested
during trial by her unhesitant, spontaneous, and plain responses to questions further
enhanced her claim to credit and trustworthiness. (Italics in the original.)
[21]
 In a futile attempt at exculpation, accused-appellant claims that even before
the alleged incident Cyra May was already suffering from pain in urinating. He
surmises that she could have scratched herself which caused the abrasions. Dr.
Preyra, however, was quick to rule out this possibility. She stated categorically
that that part of the female organ is very sensitive and rubbing or scratching it
is painful. The abrasions could not, therefore, have been self-inflicted.
[22]

That the Medical-Legal Officer found no external signs of recent application

of any form of trauma at the time of the examination does not preclude accused-
appellants conviction since the infliction of force is immaterial in statutory rape. [23]

More. That Cyra May suffered pain in her vagina but not in her anus despite
her testimony that accused-appellant inserted his penis in both orifices does not
diminish her credibility. It is possible that accused-appellants penis failed to
penetrate her anus as deeply as it did her vagina, the former being more
resistant to extreme forces than the latter.
Accused-appellants imputation of ill motive on the part of Gloria is
puerile. No mother in her right mind would subject her child to the humiliation,
disgrace and trauma attendant to a prosecution for rape if she were not
motivated solely by the desire to incarcerate the person responsible for the
childs defilement. Courts are seldom, if at all, convinced that a mother would
[24]

stoop so low as to subject her daughter to physical hardship and shame

concomitant to a rape prosecution just to assuage her own hurt feelings. [25]

Alternatively, accused-appellant prays that he be held liable for acts of

lasciviousness instead of rape, apparently on the basis of the following
testimony of Cyra May, quoted verbatim, that he merely scrubbed his penis
against her vagina:
q- Is it not a fact that kuya Ronnie just made some scrubbed his penis into your vagina?
a- Yes, sir.
q- And when he did not actually penetrated your vagina?
a- Yes, sir.[26]

Dr. Preya, however, found abrasions in the labia minora, which is directly
beneath the labia majora, proving that there was indeed penetration of the
[27]

vagina, not just a mere rubbing or scrubbing of the penis against its surface.
In fine, the crime committed by accused-appellant is not merely acts of
lasciviousness but statutory rape.
The two elements of statutory rape are (1) that the accused had carnal
knowledge of a woman, and (2) that the woman is below twelve years of
age. As shown in the previous discussion, the first element, carnal knowledge,
[28]
had been established beyond reasonable doubt. The same is true with respect
to the second element.
The victims age is relevant in rape cases since it may constitute
an element of the offense. Article 335 of the Revised Penal Code, as amended
by Republic Act No. 7659, provides:
[29]

Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

x x x.

3. When the woman is under twelve years of age x x x.

x x x.

The crime of rape shall be punished by reclusion perpetua.

x x x.

Furthermore, the victims age may constitute a qualifying circumstance,

warranting the imposition of the death sentence. The same Article states:

The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity with the third
civil degree, or the common-law spouse of the parent of the victim.

x x x.

4. when the victim is x x x a child below seven (7) years old.

x x x.

Because of the seemingly conflicting decisions regarding the sufficiency of

evidence of the victims age in rape cases, this Court, in the recently decided
case of People v. Pruna, established a set of guidelines in appreciating age
[30]

as an element of the crime or as a qualifying circumstance, to wit:

1. The best evidence to prove the age of the offended party is an original or certified
true copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as
baptismal certificate and school records which show the date of birth of the victim
would suffice to prove age.

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

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

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

c. If the victim is alleged to be below 12 years of age and what is sought to be proved
is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of

the victims mother or relatives concerning the victims age, the complainants
testimony will suffice provided that it is expressly and clearly admitted by the
accused.

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

6. The trial court should always make a categorical finding as to the age of the victim.

Applying the foregoing guidelines, this Court in the Pruna case held that the
therein accused-appellant could only be sentenced to suffer the penalty
of reclusion perpetua since:

x x x no birth certificate or any similar authentic document, such as a baptismal

certificate of LIZETTE, was presented to prove her age. x x x.

x x x.

However, the Medico-Legal Report relied upon by the trial court does not in any way
prove the age of LIZETTE, for there is nothing therein which even mentions her
age. Only testimonial evidence was presented to establish LIZETTEs age. Her mother,
Jacqueline, testified (that the victim was three years old at the time of the commission
of the crime).

xxx

Likewise, LIZETTE testified on 20 November 1996, or almost two years after the
incident, that she was 5 years old. However, when the defense counsel asked her how
old she was on 3 January 1995, or at the time of the rape, she replied that she was 5
years old. Upon further question as to the date she was born, she could not answer.

For PRUNA to be convicted of rape in its qualified form and meted the supreme
penalty of death, it must be established with certainty that LIZETTE was below 7
years old at the time of the commission of the crime. It must be stressed that the
severity of the death penalty, especially its irreversible and final nature once carried
out, makes the decision-making process in capital offenses aptly subject to the most
exacting rules of procedure and evidence.

In view of the uncertainty of LIZETTEs exact age, corroborative evidence such as her
birth certificate, baptismal certificate or any other authentic document should be
introduced in evidence in order that the qualifying circumstance of below seven (7)
years old is appreciated against the appellant. The lack of objection on the part of the
defense as to her age did not excuse the prosecution from discharging its burden. That
the defense invoked LIZETTEs tender age for purposes of questioning her
competency to testify is not necessarily an admission that she was below 7 years of
age when PRUNA raped her on 3 January 1995. Such being the case, PRUNA cannot
be convicted of qualified rape, and hence the death penalty cannot be imposed on him.

However, conformably with no. 3 (b) of the foregoing guidelines, the testimony of
LIZETTEs mother that she was 3 years old at the time of the commission of the crime
is sufficient for purposes of holding PRUNA liable for statutory rape, or rape of a girl
below 12 years of age. Under the second paragraph of Article 335, as amended by
R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having carnal
knowledge of a woman under 12 years of age is punishable by reclusion
perpetua. Thus, the penalty to be imposed on PRUNA should be reclusion perpetua,
and not death penalty. (Italics in the original.)

Several cases suggest that courts may take judicial notice of the
[31]

appearance of the victim in determining her age. For example, the Court,
in People v. Tipay, qualified the ruling in People v. Javier, which required the
[32] [33]

presentation of the birth certificate to prove the rape victims age, with the
following pronouncement:
This does not mean, however, that the presentation of the certificate of birth is at all
times necessary to prove minority. The minority of a victim of tender age who may be
below the age of ten is quite manifest and the court can take judicial notice
thereof.The crucial years pertain to the ages of fifteen to seventeen where minority
may seem to be dubitable due to ones physical appearance. In this situation, the
prosecution has the burden of proving with certainty the fact that the victim was under
18 years of age when the rape was committed in order to justify the imposition of the
death penalty under the above-cited provision. (Emphasis supplied.)

On the other hand, a handful of cases holds that courts, without the
[34]

requisite hearing prescribed by Section 3, Rule 129 of the Rules of

Court, cannot take judicial notice of the victims age.
[35]

Judicial notice signifies that there are certain facta probanda, or

propositions in a partys case, as to which he will not be required to offer
evidence; these will be taken for true by the tribunal without the need of
evidence. Judicial notice, however, is a phrase sometimes used in a loose
[36]

way to cover some other judicial action. Certain rules of Evidence, usually
known under other names, are frequently referred to in terms of judicial notice. [37]

The process by which the trier of facts judges a persons age from his or her
appearance cannot be categorized as judicial notice. Judicial notice is based
upon convenience and expediency for it would certainly be superfluous,
inconvenient, and expensive both to parties and the court to require proof, in
the ordinary way, of facts which are already known to courts. As Tundag puts
[38]

it, it is the cognizance of certain facts which judges may properly take and act
on without proof because they already know them. Rule 129 of the Rules of
Court, where the provisions governing judicial notice are found, is entitled What
Need Not Be Proved. When the trier of facts observes the appearance of a
person to ascertain his or her age, he is not taking judicial notice of such fact;
rather, he is conducting an examination of the evidence, the evidence being
the appearance of the person. Such a process militates against the very
concept of judicial notice, the object of which is to do away with the presentation
of evidence.
This is not to say that the process is not sanctioned by the Rules of Court;
on the contrary, it does. A persons appearance, where relevant, is admissible
as object evidence, the same being addressed to the senses of the
court.Section 1, Rule 130 provides:

SECTION 1. Object as evidence. Objects as evidence are those addressed to the

senses of the court. When an object is relevant to the fact in issue, it may be exhibited
to, examined or viewed by the court.
 To be sure, one author writes, this practice of inspection by the court of
objects, things or persons relevant to the fact in dispute, has its roots in ancient
judicial procedure. The author proceeds to quote from another authority:
[39]

Nothing is older or commoner in the administration of law in all countries than the
submission to the senses of the tribunal itself, whether judge or jury, of objects which
furnish evidence. The view of the land by the jury, in real actions, of a wound by the
judge where mayhem was alleged, and of the person of one alleged to be an infant,
in order to fix his age, the inspection and comparison of seals, the examination of
writings, to determine whether they are ()blemished,() the implements with which a
crime was committed or of a person alleged, in a bastardy proceeding, to be the child
of another, are few illustrations of what may be found abundantly in our own legal
records and textbooks for seven centuries past. (Emphasis supplied.)
[40]

A persons appearance, as evidence of age (for example, of infancy, or of

being under the age of consent to intercourse), is usually regarded as
relevant; and, if so, the tribunal may properly observe the person brought before
it. Experience teaches that corporal appearances are approximately an index
[41]

of the age of their bearer, particularly for the marked extremes of old age and
youth. In every case such evidence should be accepted and weighed for what
it may be in each case worth. In particular, the outward physical appearance of
an alleged minor may be considered in judging his age; a contrary rule would
for such an inference be pedantically over-cautious. Consequently, the jury or
[42]

the court trying an issue of fact may be allowed to judge the age of persons in
court by observation of such persons. The formal offer of the person as
[43]

evidence is not necessary. The examination and cross-examination of a party

before the jury are equivalent to exhibiting him before the jury and an offer of
such person as an exhibit is properly refused. [44]

This Court itself has sanctioned the determination of an aliens age from his
appearance. In Braca v. Collector of Customs, this Court ruled that:
[45]

The customs authorities may also determine from the personal appearance of the
immigrant what his age is. The person of a Chinese alien seeking admission into the
Philippine Islands is evidence in an investigation by the board of special inquiry to
determine his right to enter; and such body may take into consideration his appearance
to determine or assist in determining his age and a finding that the applicant is not a
minor based upon such appearance is not without evidence to support it.

This Court has also implicitly recognized the same process in a criminal
case. Thus, in United States v. Agadas, this Court held:
[46]
Rosario Sabacahan testified that he was 17 years of age; that he had never purchased a
cedula; and that he was going to purchase a cedula the following january. Thereupon
the court asked this defendant these questions: You are a pretty big boy for
seventeen. Answer: I cannot tell exactly because I do not remember when I was born,
but 17 years is my guess. Court: If you are going to take advantage of that excuse, you
had better get some positive evidence to that effect. Answer: I do not remember, as I
already stated on what date and in what year I was born. The court, in determining the
question of the age of the defendant, Rosario Sabacahan, said:

The defendant, Rosario Sabacahan, testified that he thought that he was about 17
years of age, but judging by his appearance he is a youth 18 or 19 years old. He has
shown that he has no positive information on the subject and no effort was made by
the defense to prove the fact that he is entitled to the mitigating circumstance of article
9, paragraph 2, of the Penal code, which fact it is held to be incumbent upon the
defense to establish by satisfactory evidence in order to enable the court to give an
accused person the benefit of the mitigating circumstance.

In United States vs. Estavillo and Perez (10 Off. Gaz., 1984) Estavillo testified, when
the case was tried in the court below, that he then was only 16 years of age. There was
no other testimony in the record with reference to his age. But the trial judge said: The
accused Estavillo, notwithstanding his testimony giving his age as 16 years, is, as a
matter of fact, not less than 20. This court, in passing upon the age of Estavillo, held:

We presume that the trial court reached this conclusion with reference to the age of
Estavillo from the latters personal appearance. There is no proof in the record, as we
have said, which even tends to establish the assertion that this appellant understated
his age. * * * It is true that the trial court had an opportunity to note the personal
appearance of Estavillo for the purpose of determining his age, and by so doing
reached the conclusion that he was at least 20, just two years over 18. This appellant
testified that he was only 16, and this testimony stands uncontradicted. Taking into
consideration the marked difference in the penalties to be imposed upon that age, we
must, therefore, conclude (resolving all doubts in favor of the appellants) that the
appellants ages were 16 and 14 respectively.

While it is true that in the instant case Rosario testified that he was 17 years of age,
yet the trial court reached the conclusion, judging from the personal appearance of
Rosario, that he is a youth 18 or 19 years old. Applying the rule enunciated in the case
just cited, we must conclude that there exists a reasonable doubt, at least, with
reference to the question whether Rosario was, in fact 18 years of age at the time the
robbery was committed. This doubt must be resolved in favor of the defendant, and he
is, therefore, sentenced to six months of arresto mayor in lieu of six years ten months
and one day of presidio mayor. x x x.
 There can be no question, therefore, as to the admissibility of a persons
appearance in determining his or her age. As to the weight to accord such
appearance, especially in rape cases, Pruna laid down guideline no. 3, which
is again reproduced hereunder:

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

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

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

c. If the victim is alleged to be below 12 years of age and what is sought to be proved
is that she is less than 18 years old.

Under the above guideline, the testimony of a relative with respect to the
age of the victim is sufficient to constitute proof beyond reasonable doubt in
cases (a), (b) and (c) above. In such cases, the disparity between the allegation
and the proof of age is so great that the court can easily determine from the
appearance of the victim the veracity of the testimony. The appearance
corroborates the relatives testimony.
As the alleged age approaches the age sought to be proved, the persons
appearance, as object evidence of her age, loses probative value. Doubt as to
her true age becomes greater and, following Agadas, supra, such doubt must
be resolved in favor of the accused.

This is because in the era of modernism and rapid growth, the victims mere physical
appearance is not enough to gauge her exact age. For the extreme penalty of death to
be upheld, nothing but proof beyond reasonable doubt of every fact necessary to
constitute the crime must be substantiated. Verily, the minority of the victim should
be not only alleged but likewise proved with equal certainty and clearness as the crime
itself. Be it remembered that the proof of the victims age in the present case spells the
difference between life and death.[47]
 In the present case, the prosecution did not offer the victims certificate of
live birth or similar authentic documents in evidence. The victim and her mother,
however, testified that she was only three years old at the time of the rape.Cyra
Mays testimony goes:
q- Your name is Cyra Mae is that correct?
a- Yes, sir.
q- And you are 3 years old?
a- Yes, sir.[48]

That of her mother goes:

Q How old was your daughter when there things happened?
A 3 and years old.
Q When was she born?
A In Manila, May 10, 1992.[49]
Because of the vast disparity between the alleged age (three years old) and
the age sought to be proved (below twelve years), the trial court would have
had no difficulty ascertaining the victims age from her appearance. No
reasonable doubt, therefore, exists that the second element of statutory rape,
i.e., that the victim was below twelve years of age at the time of the commission
of the offense, is present.
Whether the victim was below seven years old, however, is another
matter. Here, reasonable doubt exists. A mature three and a half-year old can
easily be mistaken for an underdeveloped seven-year old. The appearance of
the victim, as object evidence, cannot be accorded much weight and,
following Pruna, the testimony of the mother is, by itself, insufficient.
As it has not been established with moral certainty that Cyra May was below
seven years old at the time of the commission of the offense, accused-appellant
cannot be sentenced to suffer the death penalty. Only the penalty of reclusion
perpetua can be imposed upon him.
In line with settled jurisprudence, the civil indemnity awarded by the trial
court is increased to P50,000.00. In addition, Cyra May is entitled to an award
of moral damages in the amount of P50,000.00. [50]

WHEREFORE, the Decision of the Regional Trial Court of Quezon City,

Branch 96, is AFFIRMED with MODIFICATION. Accused-appellant Ronnie
Rullepa y Guinto is found GUILTY of Statutory Rape, defined and punished by
Article 335 (3) of the Revised Penal Code, as amended, and is sentenced to
suffer the penalty of reclusion perpetua. He is ordered to pay private
complainant, Cyra May Buenafe y Francisco, the amount of P50,000.00 as civil
indemnity and P50,000.00 as moral damages.
SO ORDERED.
5. LBP v. Wycoco 419 S 67

Before the Court are consolidated petitions, the first seeking the review of
the February 9, 1999 Decision and the September 22, 1999 Resolution of the
[1] [2]

Court of Appeals in CA-G.R. No. SP No. 39913, which modified the Decision of [3]

Regional Trial Court of Cabanatuan City, Branch 23, acting as a Special

Agrarian Court in Agrarian Case No. 91 (AF); and the second for mandamus to
compel the said trial court to issue a writ of execution and to direct Judge
Rodrigo S. Caspillo to inhibit himself from Agrarian Case No. 91 (AF).
The undisputed antecedents show that Feliciano F. Wycoco is the
registered owner of a 94.1690 hectare unirrigated and untenanted rice land,
covered by Transfer Certificate of Title No. NT-206422 and situated in the Sitios
of Ablang, Saguingan and Pinamunghilan, Barrio of San Juan, Licab, Nueva
Ecija.[4]

In line with the Comprehensive Agrarian Reform Program (CARP) of the

government, Wycoco voluntarily offered to sell the land to the Department of
Agrarian Reform (DAR) for P14.9 million. In November 1991, after the DARs
[5]

evaluation of the application and the determination of the just compensation by

the Land Bank of the Philippines (LBP), a notice of intention to acquire 84.5690
hectares of the property for P1,342,667.46 was sent to Wycoco. The amount
[6]

offered was later raised to P2,594,045.39 and, upon review, was modified to
P2,280,159.82. The area which the DAR offered to acquire excluded idle
[7]

lands, river and road located therein. Wycoco rejected the offer, prompting the
DAR to indorse the case to the Department of Agrarian Reform Adjudication
Board (DARAB) for the purpose of fixing the just compensation in a summary
administrative proceeding. The case was docketed as DARAB VOS Case No.
[8]

232 NE 93. Thereafter, the DARAB requested LBP to open a trust account in
the name of Wycoco and deposited the compensation offered by DAR. In the [9]

meantime, the property was distributed to farmer-beneficiaries.

On March 29, 1993, DARAB required the parties to submit their respective
memoranda or position papers in support of their claim. Wycoco, however,
[10]

decided to forego with the filing of the required pleadings, and instead filed on
April 13, 1993, the instant case for determination of just compensation with the
Regional Trial Court of Cabanatuan City, Branch 23, docketed as Agrarian
Case No. 91 (AF). Impleaded as party-defendants therein were DAR and LBP.
[11]
 On April 30, 1993, Wycoco filed a manifestation in VOS Case No. 232 NE
93, informing the DARAB of the pendency of Agrarian Case No. 91 (AF) with
the Cabanatuan court, acting as a special agrarian court. On March 9, 1994,
[12]

the DARAB issued an order dismissing the case to give way to the
determination of just compensation by the Cabanatuan court. Pertinent portion
thereof states:

Admittedly, this Forum is vested with the jurisdiction to conduct administrative

proceeding to determine compensation. [H]owever, a thorough perusal of petitioners
complaint showed that he did not only raise the issue of valuation but such other
matters which are beyond the competence of the Board. Besides, the petitioner has the
option to avail the administrative remedies or bring the matter on just compensation to
the Special Agrarian Court for final determination.

WHEREFORE, premises considered, this case is hereby dismissed.

SO ORDERED. [13]

Meanwhile, DAR and LBP filed their respective answers before the special
agrarian court in Agrarian Case No. 91 (AF), contending that the valuation of
Wycocos property was in accordance with law and that the latter failed to
exhaust administrative remedies by not participating in the summary
administrative proceedings before the DARAB which has primary jurisdiction
over determination of land valuation. [14]

After conducting a pre-trial on October 3, 1994, the trial court issued a pre-
trial order as follows:

The parties manifested that there is no possibility of amicable settlement, neither are
they willing to admit or stipulate on facts, except those contained in the pleadings.

The only issue left is for the determination of just compensation or correct valuation
of the land owned by the plaintiff subject of this case.

The parties then prayed to terminate the pre-trial conference.

AS PRAYED FOR, the pre-trial conference is considered terminated, and instead of

trial, the parties are allowed to submit their respective memoranda.

WHEREFORE, the parties are given twenty (20) days from today within which to file
their simultaneous memoranda, and another ten (10) days from receipt thereof to file
their Reply/Rejoinder, if any, and thereafter, this case shall be deemed submitted for
decision.
SO ORDERED. [15]

The evidence presented by Wycoco in support of his claim were the

following: (1) Transfer Certificate of Title No. NT-206422; (2) Notice of Land
Valuation dated June 18, 1992; and (3) letter dated July 10, 1992 rejecting the
counter-offer of LBP and DAR. On the other hand, DAR and LBP presented
[16]

the Land Valuation Worksheets. [17]

On November 14, 1995, the trial court rendered a decision in favor of

Wycoco. It ruled that there is no need to present evidence in support of the land
valuation inasmuch as it is of public knowledge that the prevailing market value
of agricultural lands sold in Licab, Nueva Ecija is from P135,000.00 to
150,000.00 per hectare. The court thus took judicial notice thereof and fixed the
compensation for the entire 94.1690 hectare land at P142,500.00 per hectare
or a total of P13,428,082.00. It also awarded Wycoco actual damages for
unrealized profits plus legal interest. The dispositive portion thereof states:

WHEREFORE, premises considered, judgment is hereby rendered:

1. Ordering the defendants to pay the amount of P13,419,082.00 to plaintiff as just

compensation for the property acquired;

2. Ordering the defendants to pay plaintiff the amount of P29,663,235.00 representing

the unrealized profits from the time of acquisition of the subject property and the sum
of P8,475,210.00 for every calendar year, until the amount of compensation is fully
paid including legal interest which had accrued thereon.

No pronouncement as to costs.

SO ORDERED. [18]

The DAR and the LBP filed separate petitions before the Court of
Appeals. The petition brought by DAR on jurisdictional and procedural issues,
docketed as CA-G.R. No. SP No. 39234, was dismissed on May 29, 1997. The [19]

dismissal became final and executory on June 26, 1997. This prompted[20]

Wycoco to file a petition for mandamus before this Court, docketed as G.R. No.
146733, praying that the decision of the Regional Trial Court of Cabanatuan
City, Branch 23, in Agrarian Case No. 91 (AF) be executed, and that Judge
Rodrigo S. Caspillo, the now presiding Judge of said court, be compelled to
inhibit himself from hearing the case.
The petition brought by LBP on both substantive and procedural grounds,
docketed as CA-G.R. No. SP No. 39913, was likewise dismissed by the Court
of Appeals on February 9, 1999. On September 22, 1999, however, the Court
[21]

of Appeals modified its decision by deducting from the compensation due

Wycoco the amount corresponding to the 3.3672 hectare portion of the 94.1690
hectare land which was found to have been previously sold by Wycoco to the
Republic, thus

WHEREFORE, and conformably with the above, Our decision of February 9, 1999 is
hereby MODIFIED in the sense that the value corresponding to the aforesaid 3.3672
hectares and all the awards appertaining thereto in the decision a quo are ordered
deducted from the totality of the awards granted to the private respondent. In all other
respects, the decision sought to be reconsidered is hereby RE-AFFIRMED and
REITERATED.

SO ORDERED. [22]

In its petition, LBP contended that the Court of Appeals erred in ruling:
I

THAT THE TRIAL COURT ACTING AS A SPECIAL AGRARIAN COURT MAY

ASSUME JURISDICTION OVER AGRARIAN CASE NO. 91 (AF) AND RENDER
JUDGMENT THEREON WITHOUT AN INITIAL ADMINISTRATIVE
DETERMINATION OF JUST COMPENSATION BY THE DARAB PURSUANT
TO SECTION 16 OF RA 6657, OVER THE TIMELY OBJECTION OF THE
PETITIONER, AND IN VIOLATION OF THE RULE ON EXHAUSTION OF
ADMINISTRATIVE REMEDIES AND ON FORUM SHOPPING;

II

THAT THE JUST COMPENSATION DETERMINED BY THE TRIAL COURT

WAS SUPPORTED BY SUBSTANTIAL EVIDENCE, WHEN IT WAS BASED
ONLY ON JUDICIAL NOTICE OF THE PREVAILING MARKET VALUE OF
LAND BASED ON THE ALLEGED PRICE OF TRANSFER OF TENURAL
RIGHTS, TAKEN WITHOUT NOTICE AND HEARING IN VIOLATION OF
RULE 129 OF THE RULES OF COURT;

III

THAT THE TRIAL COURT CAN REQUIRE THE PETITIONER TO

COMPENSATE THE PORTIONS OF RESPONDENTS PROPERTY WHICH
WERE NOT DECLARED BY THE DAR FOR ACQUISITION, NOR SUITABLE
FOR AGRICULTURE NOR CAPABLE OF DISTRIBUTION TO FARMER
BENEFICIARIES UNDER THE CARP;
 IV

THAT THE TRIAL COURT CAN AWARD AS PART OF JUST COMPENSATION

LEGAL INTEREST ON THE PRINCIPAL AND ALLEGED UNREALIZED
PROFITS OF P29,663,235.00 FROM THE TIME OF ACQUISITION OF THE
SUBJECT PROPERTY AND P8,475,210.00 FOR EVERY CALENDAR YEAR
THEREAFTER, CONSIDERING THAT THE SAME HAS NO LEGAL BASIS
AND THAT THE RESPONDENT RETAINED THE TITLE TO HIS PROPERTY
DESPITE THE DARS NOTICE OF ACQUISITION;

THAT THE TRIAL COURT HAD VALIDLY GRANTED EXECUTION PENDING

APPEAL ON THE ALLEGEDLY GOOD REASON OF THE PETITIONERS
ADVANCED AGE AND WEAK HEALTH, CONTRARY TO THE APPLICABLE
JURISPRUDENCE AND CONSIDERING THAT THE RESPONDENT IS NOT
DESTITUTE. [23]

The issues for resolution are as follows: (1) Did the Regional Trial Court,
acting as Special Agrarian Court, validly acquire jurisdiction over the instant
case for determination of just compensation? (2) Assuming that it acquired
jurisdiction, was the compensation arrived at supported by evidence? (3) Can
Wycoco compel the DAR to purchase the entire land subject of the voluntary
offer to sell? (4) Were the awards of interest and damages for unrealized profits
valid?
Anent the issue of jurisdiction, the laws in point are Sections 50 and 57 of
Republic Act No. 6657 (Comprehensive Agrarian Reform Law of 1988) which,
in pertinent part, provide:

Section 50. Quasi-judicial Powers of the DAR. The DAR is hereby vested with
primary jurisdiction to determine and adjudicate agrarian reform matters and shall
have exclusive original jurisdiction over all matters involving the implementation of
agrarian reform, except those falling under the exclusive jurisdiction of the
Department of Agriculture (DA) and the Department of Environment and Natural
Resources (DENR).

Section 57. Special Jurisdiction. The Special Agrarian Court shall have original and
exclusive jurisdiction over all petitions for the determination of just compensation to
landowners, and the prosecution of all criminal offenses under this Act.

The Special Agrarian Courts shall decide all appropriate cases under their special
jurisdiction within thirty (30) days from submission of the case for decision.
 In Republic v. Court of Appeals, it was held that Special Agrarian Courts
[24]

are given original and exclusive jurisdiction over two categories of cases, to wit:
(1) all petitions for the determination of just compensation; and (2) the
prosecution of all criminal offenses under R.A. No. 6657. Section 50 must be
construed in harmony with Section 57 by considering cases involving the
determination of just compensation and criminal cases for violations of R.A. No.
6657 as excepted from the plenitude of power conferred to the DAR. Indeed,
there is a reason for this distinction. The DAR, as an administrative agency,
cannot be granted jurisdiction over cases of eminent domain and over criminal
cases. The valuation of property in eminent domain is essentially a judicial
function which is vested with the Special Agrarian Courts and cannot be lodged
with administrative agencies. In fact, Rule XIII, Section 11 of the New Rules
[25]

of Procedure of the DARAB acknowledges this power of the court, thus

Section 11. Land Valuation and Preliminary Determination and Payment of Just
Compensation. The decision of the Adjudicator on land valuation and preliminary
determination and payment of just compensation shall not be appealable to the Board
but shall be brought directly to the Regional Trial Courts designated as Special
Agrarian Courts within fifteen (15) days from receipt of the notice thereof. Any party
shall be entitled to only one motion for reconsideration. (Emphasis supplied)

Under Section 1 of Executive Order No. 405, Series of 1990, the Land Bank
of the Philippines is charged with the initial responsibility of determining the
value of lands placed under land reform and the just compensation to be paid
for their taking. Through a notice of voluntary offer to sell (VOS) submitted by
[26]

the landowner, accompanied by the required documents, the DAR evaluates

the application and determines the lands suitability for agriculture. The LBP
likewise reviews the application and the supporting documents and determines
the valuation of the land. Thereafter, the DAR issues the Notice of Land
Valuation to the landowner. In both voluntary and compulsory acquisition,
where the landowner rejects the offer, the DAR opens an account in the name
of the landowner and conducts a summary administrative proceeding. If the
landowner disagrees with the valuation, the matter may be brought to the
Regional Trial Court acting as a special agrarian court. This in essence is the
procedure for the determination of just compensation. [27]

In Land Bank of the Philippines v. Court of Appeals, the landowner filed an

[28]

action for determination of just compensation without waiting for the completion
of DARABs re-evaluation of the land. This, notwithstanding, the Court held that
the trial court properly acquired jurisdiction because of its exclusive and original
jurisdiction over determination of just compensation, thus
It is clear from Sec. 57 that the RTC, sitting as a Special Agrarian Court, has original
and exclusive jurisdiction over all petitions for the determination of just compensation
to landowners. This original and exclusive jurisdiction of the RTC would be
undermined if the DAR would vest in administrative officials original jurisdiction in
compensation cases and make the RTC an appellate court for the review of
administrative decisions. Thus, although the new rules speak of directly appealing the
decision of adjudicators to the RTCs sitting as Special Agrarian Courts, it is clear
from Sec. 57 that the original and exclusive jurisdiction to determine such cases is in
the RTCs. Any effort to transfer such jurisdiction to the adjudicators and to convert
the original jurisdiction of the RTCs into an appellate jurisdiction would be contrary
to Sec. 57 and therefore would be void. Thus, direct resort to the SAC [Special
Agrarian Court] by private respondent is valid. (Emphasis supplied) [29]

In the case at bar, therefore, the trial court properly acquired jurisdiction over
Wycocos complaint for determination of just compensation. It must be stressed
that although no summary administrative proceeding was held before the
DARAB, LBP was able to perform its legal mandate of initially determining the
value of Wycocos land pursuant to Executive Order No. 405, Series of
1990. What is more, DAR and LBPs conformity to the pre-trial order which
limited the issue only to the determination of just compensation estopped them
from questioning the jurisdiction of the special agrarian court. The pre-trial order
limited the issues to those not disposed of by admission or agreements; and
the entry thereof controlled the subsequent course of action. [30]

Besides, the issue of whether Wycoco violated the rule on exhaustion of

administrative remedies was rendered moot and academic in view of the
DARABs dismissal of the administrative case to give way to and in recognition
[31]

of the courts power to determine just compensation. [32]

In arriving at the valuation of Wycocos land, the trial court took judicial notice
of the alleged prevailing market value of agricultural lands in Licab, Nueva Ecija
without apprising the parties of its intention to take judicial notice thereof.
Section 3, Rule 129 of the Rules on Evidence provides:

Sec. 3. Judicial Notice, When Hearing Necessary. During the trial, the court, on its
own initiative, or on request of a party, may announce its intention to take judicial
notice of any matter and allow the parties to be heard thereon.

After trial and before judgment or on appeal, the proper court, on its own initiative, or
on request of a party, may take judicial notice of any matter and allow the parties to be
heard thereon if such matter is decisive of a material issue in the case.
 Inasmuch as the valuation of the property of Wycoco is the very issue in the
case at bar, the trial court should have allowed the parties to present evidence
thereon instead of practically assuming a valuation without basis. While market
value may be one of the bases of determining just compensation, the same
cannot be arbitrarily arrived at without considering the factors to be appreciated
in arriving at the fair market value of the property e.g., the cost of acquisition,
the current value of like properties, its size, shape, location, as well as the tax
declarations thereon. Since these factors were not considered, a remand of
[33]

the case for determination of just compensation is necessary.The power to take

judicial notice is to be exercised by courts with caution especially where the
case involves a vast tract of land. Care must be taken that the requisite notoriety
exists; and every reasonable doubt on the subject should be promptly resolved
in the negative. To say that a court will take judicial notice of a fact is merely
another way of saying that the usual form of evidence will be dispensed with if
knowledge of the fact can be otherwise acquired. This is because the court
assumes that the matter is so notorious that it will not be disputed. But judicial
notice is not judicial knowledge. The mere personal knowledge of the judge is
not the judicial knowledge of the court, and he is not authorized to make his
individual knowledge of a fact, not generally or professionally known, the basis
of his action.[34]

Anent the third issue, the DAR cannot be compelled to purchase the entire
property voluntarily offered by Wycoco. The power to determine whether a
parcel of land may come within the coverage of the Comprehensive Agrarian
Reform Program is essentially lodged with the DAR. That Wycoco will suffer
damages by the DARs non-acquisition of the approximately 10 hectare portion
of the entire land which was found to be not suitable for agriculture is no
justification to compel DAR to acquire the whole area.
We find Wycocos claim for payment of interest partly meritorious. In Land
Bank of the Philippines v. Court of Appeals, this Court struck down as void
[35]

DAR Administrative Circular No. 9, Series of 1990, which provides for the
opening of trust accounts in lieu of the deposit in cash or in bonds contemplated
in Section 16 (e) of RA 6657.

It is very explicit from [Section 16 (e)] that the deposit must be made only in cash or
in LBP bonds. Nowhere does it appear nor can it be inferred that the deposit can be
made in any other form. If it were the intention to include a trust account among the
valid modes of deposit, that should have been made express, or at least, qualifying
words ought to have appeared from which it can be fairly deduced that a trust account
is allowed. In sum, there is no ambiguity in Section 16(e) of RA 6657 to warrant an
expanded construction of the term deposit.
 xxxxxxxxx

In the present suit, the DAR clearly overstepped the limits of its powers to enact rules
and regulations when it issued Administrative Circular No. 9. There is no basis in
allowing the opening of a trust account in behalf of the landowner as compensation
for his property because, as heretofore discussed, Section 16(e) of RA 6657 is very
specific that the deposit must be made only in cash or in LBP bonds. In the same vein,
petitioners cannot invoke LRA Circular Nos. 29, 29-A and 54 because these
implementing regulations can not outweigh the clear provision of the law. Respondent
court therefore did not commit any error in striking down Administrative Circular No.
9 for being null and void.
[36]

Pursuant to the forgoing decision, DAR issued Administrative Order No. 2,

Series of 1996, converting trust accounts in the name of landowners into
deposit accounts. The transitory provision thereof states

VI. TRANSITORY PROVISIONS

All trust accounts issued pursuant to Administrative Order No. 1, S. 1993 covering
landholdings not yet transferred in the name of the Republic of the Philippines as of
July 5, 1996 shall immediately be converted to deposit accounts in the name of the
landowners concerned.

All Provincial Agrarian Reform Officers and Regional Directors are directed to
immediately inventory the claim folders referred to in the preceding paragraph,
wherever they may be found and request the LBP to establish the requisite deposit
under this Administrative Order and to issue a new certification to that effect. The
Original Certificate of Trust Deposit previously issued should be attached to the
request of the DAR in order that the same may be replaced with a new one.

All previously established Trust Deposits which served as the basis for the transfer of
the landowners title to the Republic of the Philippines shall likewise be converted to
deposits in cash and in bonds. The Bureau of Land Acquisition and Distribution shall
coordinate with the LBP for this purpose.

In light of the foregoing, the trust account opened by LBP in the name of
Wycoco as the mode of payment of just compensation should be converted to
a deposit account. Such conversion should be retroactive in application in order
to rectify the error committed by the DAR in opening a trust account and to grant
the landowners the benefits concomitant to payment in cash or LBP bonds prior
to the ruling of the Court in Land Bank of the Philippines v. Court of
Appeals. Otherwise, petitioners right to payment of just and valid compensation
for the expropriation of his property would be violated. The interest earnings
[37]

accruing on the deposit account of landowners would suffice to compensate

them pending payment of just compensation.
In some expropriation cases, the Court imposed an interest of 12% per
annum on the just compensation due the landowner. It must be stressed,
however, that in these cases, the imposition of interest was in the nature of
damages for delay in payment which in effect makes the obligation on the part
of the government one of forbearance. It follows that the interest in the form
[38]

of damages cannot be applied where there was prompt and valid payment of
just compensation. Conversely, where there was delay in tendering a valid
payment of just compensation, imposition of interest is in order. This is because
the replacement of the trust account with cash or LBP bonds did not ipso
facto cure the lack of compensation; for essentially, the determination of this
compensation was marred by lack of due process. [39]

Accordingly, the just compensation due Wycoco should bear 12% interest
per annum from the time LBP opened a trust account in his name up to the time
said account was actually converted into cash and LBP bonds deposit
accounts. The basis of the 12% interest would be the just compensation that
would be determined by the Special Agrarian Court upon remand of the instant
case. In the same vein, the amount determined by the Special Agrarian Court
would also be the basis of the interest income on the cash and bond deposits
due Wycoco from the time of the taking of the property up to the time of actual
payment of just compensation.
The award of actual damages for unrealized profits should be deleted. The
amount of loss must not only be capable of proof, but must be proven with a
reasonable degree of certainty. The claim must be premised upon competent
proof or upon the best evidence obtainable, such as receipts or other
documentary proof. None having been presented in the instant case, the claim
[40]

for unrealized profits cannot be granted.

From the foregoing discussion, it is clear that Wycocos petition for
mandamus in G.R. No. 146733 should be dismissed. The decision of the
Regional Trial Court of Cabanatuan City, Branch 23, acting as Special Agrarian
Court in Agrarian Case No. 91 (AF), cannot be enforced because there is a
need to remand the case to the trial court for determination of just
compensation. Likewise, the prayer for the inhibition of Judge Rodrigo S.
Caspillo in Agrarian Case No. 91 (AF) is denied for lack of basis.
WHEREFORE, in view of all the foregoing, the petition in G.R. No. 140160
is PARTIALLY GRANTED. Agrarian Case No. 91 (AF) is REMANDED to the
Regional Trial Court of Cabanatuan City, Branch 23, for the determination of
just compensation. The petition for mandamus in G.R. No. 146733
is DISMISSED.
SO ORDERED.
6. Garcia v. Garcia Recio 366 S 437
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree
is valid according to the national law of the foreigner. However, the divorce decree and the
governing personal law of the alien spouse who obtained the divorce must be proven. Our courts
do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the
divorce decree and the national law of the alien must be alleged and proven according to our law
on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the
January 7, 1999 Decision[1] and the March 24, 1999 Order[2] of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed Decision disposed as
follows:

WHEREFORE, this Court declares the marriage between Grace J. Garcia and
Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved
and both parties can now remarry under existing and applicable laws to any and/or
both parties.[3]

The assailed Order denied reconsideration of the above-quoted Decision.

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in

Malabon, Rizal, on March 1, 1987.[4] They lived together as husband and wife in Australia. On
May 18, 1989, [5] a decree of divorce, purportedly dissolving the marriage, was issued by an
Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of
Australian Citizenship issued by the Australian government.[6] Petitioner -- a Filipina -- and
respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan
City.[7] In their application for a marriage license, respondent was declared as single and Filipino.[8]
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial
dissolution of their marriage. While the two were still in Australia, their conjugal assets were
divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.[9]
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage[10] in
the court a quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage
at the time he married her on January 12, 1994. She claimed that she learned of respondents
marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his
prior marriage and its subsequent dissolution.[11] He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce decree obtained in Australia in
1989;[12] thus, he was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples wedding and while the suit for the
declaration of nullity was pending -- respondent was able to secure a divorce decree from a family
court in Sydney, Australia because the marriage ha[d] irretrievably broken down.[13]
Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated
no cause of action.[14] The Office of the Solicitor General agreed with respondent.[15] The court
marked and admitted the documentary evidence of both parties.[16] After they submitted their
respective memoranda, the case was submitted for resolution.[17]
Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorce issued in
Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on
the basis of any defect in an essential element of the marriage; that is, respondents alleged lack of
legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage; thus, there was no more marital union
to nullify or annul.
Hence, this Petition.[18]

Issues

Petitioner submits the following issues for our consideration:

1

The trial court gravely erred in finding that the divorce decree obtained in Australia by
the respondent ipso facto terminated his first marriage to Editha Samson thereby
capacitating him to contract a second marriage with the petitioner.
2

The failure of the respondent, who is now a naturalized Australian, to present a

certificate of legal capacity to marry constitutes absence of a substantial requisite
voiding the petitioners marriage to the respondent
 3

The trial court seriously erred in the application of Art. 26 of the Family Code in this
case.
4

The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40,
52 and 53 of the Family Code as the applicable provisions in this case.
5

The trial court gravely erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the divorce decree before our
courts.[19]

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two
pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2)
whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling
on these two, there is no more necessity to take up the rest.

The Courts Ruling

The Petition is partly meritorious.

First Issue:
Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial courts recognition of the divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng Gee,[20] petitioner argues that the divorce decree, like any
other foreign judgment, may be given recognition in this jurisdiction only upon proof of the
existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages
solemnized abroad are governed by the law of the place where they were celebrated (the lex loci
celebrationis). In effect, the Code requires the presentation of the foreign law to show the
conformity of the marriage in question to the legal requirements of the place where the marriage
was performed.
At the outset, we lay the following basic legal principles as the take-off points for our
discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant
it.[21] A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad,
because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages involving a Filipino
and a foreigner, Article 26[25] of the Family Code allows the former to contract a subsequent
marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her
to remarry.[26] A divorce obtained abroad by a couple, who are both aliens, may be recognized in
the Philippines, provided it is consistent with their respective national laws.[27]
A comparison between marriage and divorce, as far as pleading and proof are concerned, can
be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law.[28] Therefore,
before a foreign divorce decree can be recognized by our courts, the party pleading it must prove
the divorce as a fact and demonstrate its conformity to the foreign law allowing it.[29] Presentation
solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply
with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles
read as follows:

ART. 11. Where a marriage license is required, each of the contracting parties shall
file separately a sworn application for such license with the proper local civil registrar
which shall specify the following:

xxxxxxxxx

(5) If previously married, how, when and where the previous marriage was dissolved
or annulled;

xxxxxxxxx

ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to

ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate
required in the last preceding article, the death certificate of the deceased spouse or
the judicial decree of the absolute divorce, or the judicial decree of annulment or
declaration of nullity of his or her previous marriage. x x x.

ART. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of the
childrens presumptive legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect their persons.
 Respondent, on the other hand, argues that the Australian divorce decree is a public document
-- a written official act of an Australian family court. Therefore, it requires no further proof of its
authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive
evidentiary value, the document must first be presented and admitted in evidence.[30] A divorce
obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is
the judgment itself.[31] The decree purports to be a written act or record of an act of an official body
or tribunal of a foreign country.[32]
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be
proven as a public or official record of a foreign country by either (1) an official publication or (2)
a copy thereof attested[33] by the officer having legal custody of the document. If the record is not
kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his office. [34]
The divorce decree between respondent and Editha Samson appears to be an authentic one
issued by an Australian family court.[35] However, appearance is not sufficient; compliance with
the aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted
in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had
not been registered in the Local Civil Registry of Cabanatuan City. [36] The trial court ruled that it
was admissible, subject to petitioners qualification.[37] Hence, it was admitted in evidence and
accorded weight by the judge. Indeed, petitioners failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of Sydney, Australia.[38]
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary;
respondent was no longer bound by Philippine personal laws after he acquired Australian
citizenship in 1992.[39] Naturalization is the legal act of adopting an alien and clothing him with the
political and civil rights belonging to a citizen.[40] Naturalized citizens, freed from the protective
cloak of their former states, don the attires of their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to
Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner,
because she is the party challenging the validity of a foreign judgment. He contends that petitioner
was satisfied with the original of the divorce decree and was cognizant of the marital laws of
Australia, because she had lived and worked in that country for quite a long time. Besides, the
Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial
notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges the existence of a
fact or thing necessary in the prosecution or defense of an action.[41] In civil cases, plaintiffs have
the burden of proving the material allegations of the complaint when those are denied by the
answer; and defendants have the burden of proving the material allegations in their answer when
they introduce new matters.[42] Since the divorce was a defense raised by respondent, the burden of
proving the pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign
laws.[43] Like any other facts, they must be alleged and proved. Australian marital laws are not
among those matters that judges are supposed to know by reason of their judicial function.[44] The
power of judicial notice must be exercised with caution, and every reasonable doubt upon the
subject should be resolved in the negative.

Second Issue: Respondents Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce, respondent was
legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab
initio.
Respondent replies that the Australian divorce decree, which was validly admitted in
evidence, adequately established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal sense, divorce means the legal
dissolution of a lawful union for a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce
or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves
the bond in full force.[45] There is no showing in the case at bar which type of divorce was procured
by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional
judgment of divorce. It is in effect the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed period during which no reconciliation
is effected.[46]
Even after the divorce becomes absolute, the court may under some foreign statutes and
practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by
statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be
prohibited from marrying again. The court may allow a remarriage only after proof of good
behavior.[47]
On its face, the herein Australian divorce decree contains a restriction that reads:
1. A party to a marriage who marries again before this decree becomes absolute (unless the other
party has died) commits the offence of bigamy.[48]
This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national
law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the
Australian divorce ipso facto restored respondents capacity to remarry despite the paucity of
evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption
or presumptive evidence as to his civil status based on Section 48, Rule 39[49] of the Rules of Court,
for the simple reason that no proof has been presented on the legal effects of the divorce decree
obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family
Code was not submitted together with the application for a marriage license. According to her, its
absence is proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national
law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have
been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A
duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on
the part of the alien applicant for a marriage license.[50]
As it is, however, there is absolutely no evidence that proves respondents legal capacity to
marry petitioner. A review of the records before this Court shows that only the following exhibits
were presented before the lower court: (1) for petitioner: (a) Exhibit A Complaint;[51] (b) Exhibit B
Certificate of Marriage Between Rederick A. Recio (Filipino-Australian) and Grace J. Garcia
(Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of
Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1,
1987 in Malabon, Metro Manila;[53] (d) Exhibit D Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between Rederick A. Recio and Editha D. Samson
was in its records;[54] and (e) Exhibit E Certificate of Australian Citizenship of Rederick A.
Recio;[55] (2) for respondent: (a) Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law Act
1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia; [57] (c) Exhibit 3
Certificate of Australian Citizenship of Rederick A. Recio;[58] (d) Exhibit 4 Decree Nisi of
Dissolution of Marriage in the Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory
Declaration of the Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since
October 22, 1995.[60]
Based on the above records, we cannot conclude that respondent, who was then a naturalized
Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with
petitioners contention that the court a quo erred in finding that the divorce decree ipso facto
clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient
evidence to show the Australian personal law governing his status; or at the very least, to prove
his legal capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her marriage to respondent null and void on
the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated
to marry petitioner as a direct result of the divorce decree.Hence, we believe that the most judicious
course is to remand this case to the trial court to receive evidence, if any, which show petitioners
legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the
parties marriage on the ground of bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated
March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the
case to the court a quo for the purpose of receiving evidence which conclusively show respondents
legal capacity to marry petitioner; and failing in that, of declaring the parties marriage void on the
ground of bigamy, as above discussed. No costs.
SO ORDERED.
7. Calamba Steel v. CIR 457 S 482
A tax refund may be claimed even beyond the taxable year following that in
which the tax credit arises. Hence, excess income taxes paid in 1995 that have
not been applied to or used in 1996 may still be the subject of a tax refund in
1997, provided that the claim for such refund is filed with the internal revenue
commissioner within two years after payment of said taxes. As a caveat, the
Court stresses that the recognition of the entitlement to a tax refund does not
necessarily mean the automatic payment of the sum claimed in the final
adjustment return of the taxpayer. The amount of the claim must still be proven
in the normal course.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court,

assailing the January 10, 2002 Decision[2] of the Court of Appeals (CA) in CA-
GR SP No. 58838. The assailed Decision disposed as follows:

IN VIEW OF ALL THE FOREGOING, the instant petition is DISMISSED and

the assailed Decision and Resolution are AFFIRMED. Costs against Petitioner.[3]

The Facts

Quoting the Court of Tax Appeals (CTA), the CA narrated the antecedents
as follows:

Petitioner is a domestic corporation engaged in the manufacture of steel blanks for use
by manufacturers of automotive, electrical, electronics in industrial and household
appliances.

Petitioner filed an Amended Corporate Annual Income Tax Return on June 4, 1996
declaring a net taxable income of P9,461,597.00, tax credits of P6,471,246.00 and tax
due in the amount of P3,311,559.00.

Petitioner also reported quarterly payments for the second and third quarters of 1995
in the amounts of P2,328,747.26 and P1,082,108.00, respectively.
It is the proposition of the [p]etitioner that for the year 1995, several of its clients
withheld taxes from their income payments to [p]etitioner and remitted the same to
the Bureau of Internal Revenue (BIR) in the sum of P3,159,687.00. Petitioner further
alleged that due to its income/loss positions for the three quarters of 1996, it was
unable to use the excess tax paid for and in its behalf by the withholding agents.

Thus, an administrative claim was filed by the [p]etitioner on April 10, 1997 for the
refund of P3,159,687.00 representing excess or unused creditable withholding taxes
for the year 1995. The instant petition was subsequently filed on April 18, 1997.

Respondent, in his Answer, averred, among others, that:

1) Petitioner has no cause of action;

2) Petitioner failed to comply with the procedural requirements set out in Section 5 of
Revenue Regulations No. [(RR)] 12-94;

3) It is incumbent upon [p]etitioner to prove by competent and sufficient evidence that

the tax refund or tax credit being sought is allowed under the National Internal
Revenue Code and its implementing rules and regulations; and

4) Claims for tax refund or tax credit are construed strictly against the taxpayer as
they partake the nature of tax exemption.

To buttress its claim, [p]etitioner presented documentary and testimonial evidence.

Respondent, on the other hand, presented the [r]evenue [o]fficer who conducted the
examination of [p]etitioners claim and found petitioner liable for deficiency value
added tax. Petitioner also presented rebuttal evidence.

The sole issue submitted for [o]ur determination is whether or not [p]etitioner is
entitled to the refund of P3,159,687.00 representing excess or overpaid income tax for
the taxable year 1995.[4]

Ruling of the Court of Appeals

In denying petitioners refund, the CA reasoned out that no evidence other

than that presented before the CTA was adduced to prove that excess tax
payments had been made in 1995. From the inception of the case to the formal
offer of its evidence, petitioner did not present its 1996 income tax return to
disclose its total income tax liability, thus making it difficult to determine whether
such excess tax payments were utilized in 1996.
 Hence, this Petition.[5]

The Issue

Petitioner raises this sole issue for our consideration:

Whether the Court of Appeals gravely erred when, while purportedly requiring
petitioner to submit its 1996 annual income tax return to support its claim for refund,
nonetheless ignored the existence of the tax return extant on the record the
authenticity of which has not been denied or its admissibility opposed by the
Commissioner of Internal Revenue.[6]

The Courts Ruling

The Petition is partly meritorious.

Sole Issue:
Entitlement to Tax Refund

Section 69 of the National Internal Revenue Code (NIRC)[7] provides:

Sec. 69. Final adjustment return. -- Every corporation liable to tax under Section 24
shall file a final adjustment return covering the total taxable income for the preceding
calendar or fiscal year. If the sum of the quarterly tax payments made during the said
taxable year is not equal to the total tax due on the entire taxable net income of that
year the corporation shall either:

(a) Pay the excess tax still due; or

(b) Be refunded the excess amount paid, as the case may be.

In case the corporation is entitled to a refund of the excess estimated quarterly income
taxes paid, the refundable amount shown on its final adjustment return may be
credited against the estimated quarterly income tax liabilities for the taxable quarters
of the succeeding taxable year.

Tax Refund
Allowed by NIRC

A perusal of this provision shows that a taxable corporation is entitled to

a tax refund when the sum of the quarterly income taxes it paid during a taxable
year exceeds its total income tax due also for that year. Consequently, the
refundable amount that is shown on its final adjustment return may be credited,
at its option, against its quarterly income tax liabilities for the next taxable year.
Petitioner is a corporation liable to pay income taxes under Section 24 of
the NIRC. Hence, it is a taxable corporation. In 1995, it reported that it had
excess income taxes that had been paid for and on its behalf by its withholding
agents; and that, applying the above-quoted Section 69, this excess should be
credited against its income tax liabilities for 1996. However, it claimed in 1997
that it should get a refund, because it was still unable to use the excess income
taxes paid in 1995 against its tax liabilities in 1996. Is this possible? Stating the
argument otherwise, may excess income taxes paid in 1995 that could not be
applied to taxes due in 1996 be refunded in 1997?
The answer is in the affirmative. Here are the reasons:

Claim of Tax Refund Beyond the

Succeeding Taxable Year

First, a tax refund may be claimed even beyond the taxable year following
that in which the tax credit arises.
No provision in our tax law limits the entitlement to such a refund, other than
the requirement that the filing of the administrative claim for it be made by the
taxpayer within a two-year prescriptive period. Section 204(3) of the NIRC
states that no refund of taxes shall be allowed unless the taxpayer files in writing
with the Commissioner [the] claim for x x x refund within two years after the
payment of the tax.
Applying the aforequoted legal provisions, if the excess income taxes paid
in a given taxable year have not been entirely used by a taxable
corporation against its quarterly income tax liabilities for the next taxable year,
the unused amount of the excess may still be refunded, provided that
the claim for such a refund is made within two years after payment of the tax.
Petitioner filed its claim in 1997 -- well within the two-year prescriptive period.
Thus, its unused tax credits in 1995 may still be refunded.
 Even the phrase succeeding taxable year in the second paragraph of the
said Section 69 is a limitation that applies only to a tax credit, not a tax refund.
Petitioner herein does not claim a tax credit, but a tax refund. Therefore, the
statutory limitation does not apply.

Income Payments Merely

Declared Part of Gross Income

Second, to be able to claim a tax refund, a taxpayer only needs

to declare the income payments it received as part of its gross income and
to establish the fact of withholding.
Section 5 of RR 12-94[8] states:

xxxxxxxxx

(a) Claims for Tax Credit or Refund of income tax deducted and withheld on income
payments shall be given due course only when it is shown on the return that the
income payment received has been declared as part of the gross income and the fact of
withholding is established by a copy of the Withholding Tax Statement duly issued by
the payor to the payee showing the amount paid and the amount of tax withheld
therefrom.

(b) Excess Credits. -- A taxpayer's excess expanded withholding tax credits for the
taxable quarter/taxable year shall automatically be allowed as a credit for purposes of
filing his income tax return for the taxable quarter/taxable year immediately
succeeding the taxable quarter/taxable year in which the aforesaid excess credit arose,
provided, however, he submits with his income tax return a copy of his income tax
return for the aforesaid previous taxable period showing the amount of his
aforementioned excess withholding tax credits.

If the taxpayer, in lieu of the aforesaid automatic application of his excess credit,
wants a cash refund or a tax credit certificate for use in payment of his other national
internal tax liabilities, he shall make a written request therefor. Upon filing of his
request, the taxpayer's income tax return showing the excess expanded withholding
tax credits shall be examined. The excess expanded withholding tax, if any, shall be
determined and refunded/credited to the taxpayer-applicant. The refund/credit shall be
made within a period of sixty (60) days from date of the taxpayer's request provided,
however, that the taxpayer-applicant submitted for audit all his pertinent accounting
records and that the aforesaid records established the veracity of his claim for a
refund/credit of his excess expanded withholding tax credits.
 That petitioner filed its amended 1995 income tax return in 1996 is
uncontested. In addition, the resulting investigation by the BIR on August 15,
1997, reveals that the income accounts were correctly declared based on the
existing supporting documents.[9] Therefore, there is no need for petitioner to
show again the income payments it received in 1995 as part of its gross
income in 1996.
That petitioner filed its 1996 final adjustment return in 1997 is the crux of the
controversy. However, as will be demonstrated shortly, the lack of such a return
will not defeat its entitlement to a refund.

Tax Refund Provisions:

Question of Law

Third, it is a cardinal rule that only legal issues may be raised[10] in petitions
for review under Rule 45.[11]
The proper interpretation of the provisions on tax refund is a question of
law that does not call for an examination of the probative value of the evidence
presented by the parties-litigants.[12] Having been unable to use the excess
income taxes paid in 1995 against its other tax liabilities in 1996, petitioner
clearly deserves a refund. It cannot by any sweeping denial be deprived of what
rightfully belongs to it.
The truth or falsity of the contents of or entries in the 1996 final adjustment
return, which has not been formally offered in evidence and examined by
respondent, involves, however, a question of fact. This Court is not a trier of
facts. Neither is it a collection agency for the government. Although we rule that
petitioner is entitled to a tax refund, the amount of that refund is a matter for the
CTA to determine judiciously based on the records that include its own copy of
petitioners 1996 final adjustment return.

Liberal Construction
of Rules

Fourth, ordinary rules of procedure frown upon the submission of final

adjustment returns after trial has been conducted. However, both the CTA law
and jurisprudence mandate that the proceedings before the tax court shall not
be governed strictly by technical rules of evidence.[13] As a rule, its findings of
fact[14] (as well as that of the CA) are final, binding and conclusive [15] on the
parties and upon this Court; however, as an exception, such findings may be
reviewed or disturbed on appeal[16] when they are not supported by evidence.[17]
Our Rules of Court apply by analogy or in a suppletory[18] character and
whenever practicable and convenient[19] and shall be liberally construed in order
to promote their objective of securing a just, speedy and inexpensive disposition
of every action and proceeding.[20] After all, [t]he paramount consideration
remains the ascertainment of truth.[21]
In the present case, the 1996 final adjustment return was attached as Annex
A to the Reply to Comment filed by petitioner with the CA.[22] The return shows
a negative amount for its taxable income that year. Therefore, it could not have
applied or used the excess tax credits of 1995 against its tax liabilities in 1996.

Judicial Notice
of Attached Return

Fifth, the CA and CTA could have taken judicial notice of the 1996 final
adjustment return which had been attached in CTA Case No. 5799. Judicial
notice takes the place of proof and is of equal force.[23]
As a general rule, courts are not authorized to take judicial notice of the
contents of records in other cases tried or pending in the same court, even when
those cases were heard or are actually pending before the same judge.
However, this rule admits of exceptions, as when reference to such records is
sufficiently made without objection from the opposing parties:

. . . [I]n the absence of objection, and as a matter of convenience to all parties, a court
may properly treat all or any part of the original record of a case filed in its archives as
read into the record of a case pending before it, when, with the knowledge of the
opposing party, reference is made to it for that purpose, by name and number or in
some other manner by which it is sufficiently designated; or when the original record
of the former case or any part of it, is actually withdrawn from the archives by the
court's direction, at the request or with the consent of the parties, and admitted as a
part of the record of the case then pending.[24]

Prior to rendering its Decision on January 12, 2000, the CTA was already
well-aware of the existence of another case pending before it, involving the
same subject matter, parties and causes of action.[25] Because of the close
connection of that case with the matter in controversy, the CTA could have
easily taken judicial notice[26] of the contested document attached in that other
case.
 Furthermore, there was no objection raised to the inclusion of the said
1996 final adjustment return in petitioners Reply to Comment before the CA.
Despite clear reference to that return, a reference made with the knowledge of
respondent, the latter still failed to controvert petitioners claim. The appellate
court should have cast aside strict technicalities[27] and decided the case on the
basis of such uncontested return. Verily, it had the authority to take judicial
notice of its records and of the facts [that] the record establishes.[28]
Section 2 of Rule 129 provides that courts may take judicial notice of matters
x x x ought to be known to judges because of their judicial functions.[29] If the
lower courts really believed that petitioner was not entitled to a tax refund, they
could have easily required respondent to ascertain its veracity and
accuracy[30] and to prove that petitioner did not suffer any net loss in 1996.
Contrary to the contention of petitioner, BPI-Family Savings Bank v.
CA (on which it rests its entire arguments) is not on all fours with the facts of
[31]

this case.
While the petitioner in that case also filed a written claim for a tax refund,
and likewise failed to present its 1990 corporate annual income tax return, it
nonetheless offered in evidence its top-ranking officials testimony and
certification pertaining to only two taxable years (1989 and 1990). The said
return was attached only to its Motion for Reconsideration before the CTA.
Petitioner in this case offered documentary and testimonial evidence that
extended beyond two taxable years, because the excess credits in the first
(1995) taxable year had not been used up during the second (1996) taxable
year, and because the claim for the refund of those credits had been filed during
the third (1997) taxable year. Its final adjustment return was instead attached
to its Reply to Comment filed before the CA.
Moreover, in BPI-Family Savings Bank, petitioner was able to show the
undisputed fact: that petitioner had suffered a net loss in 1990 x x x.[32] In the
instant case, there is no such undisputed fact as yet. The mere admission into
the records of petitioners 1996 final adjustment return is not a sufficient proof
of the truth of the contents of or entries in that return.
In addition, the BIR in BPI-Family Savings Bank did not controvert the
veracity of the return or file an opposition to the Motion and the return. Despite
the fact that the return was ignored by both the CA and the CTA, the latter even
declared in another case (CTA Case No. 4897) that petitioner had suffered
a net loss for taxable year 1990. When attached to the Petition for Review filed
before this Court, that Decision was not at all claimed by the BIR to be
fraudulent or nonexistent. The Bureau merely contended that this Court should
not take judicial notice of the said Decision.
In this case, however, the BIR has not been given the chance to challenge
the veracity of petitioners final adjustment return. Neither has the CTA decided
any other case categorically declaring a net loss for petitioner in taxable
year 1996. After this return was attached to petitioners Reply to Comment
before the CA, the appellate court should have required the filing of other
responsive pleadings from respondent, as was necessary and proper for it to
rule upon the return.

Admissibility Versus Weight

Indeed, [a]dmissibility x x x is one thing, weight is another.[33] To admit

evidence and not to believe it are not incompatible with each other x x x.[34] Mere
allegations by petitioner of the figures in its 1996 final adjustment returnare not
a sufficient proof of the amount of its refund entitlement. They do not even
constitute evidence[35] adverse to respondent, against whom they are being
presented.[36]
While it seems that the [non-production] of a document which courts almost
invariably expect will be produced unavoidably throws a suspicion over the
cause,[37] this is not really the conclusion to be arrived at here. When petitioner
purportedly filed its administrative claim for a tax refund on April 10, 1997, the
deadline for filing the 1996 final adjustment return was not yet over. Hence, it
could not have attached this return to its claim.
For reasons unknown even to this Court, petitioner failed to offer such return
as evidence during the trial phase of this case. For its negligence, petitioner
cannot be allowed to seek refuge in a liberal application of the [r]ules[38] by giving
it a blanket approval of the total refund it claims. While in certain instances, we
allow a relaxation in the application of the rules, we never intend to forge a
weapon for erring litigants to violate the rules with impunity. The liberal
interpretation and application of rules apply only in proper cases of
demonstrable merit and under justifiable causes and circumstances.[39]
It would not be proper to allow petitioner to simply prevail and compel a
refund in the amount it claims, without affording the government a reasonable
opportunity to contest the formers allegations.[40] Negligence consisting of the
unexplained failure to offer the exhibit should not be rewarded with undeserved
leniency. Petitioner still bears the burden of proving the amount of its claim
for tax refund. After all, [t]ax refunds are in the nature of tax exemptions and ]41[

are to be construed strictissimi juris against the taxpayer.

Finally, even in the absence of a final adjustment return or any claim for
a tax refund, respondent is authorized by law to examine any book, paper,
record or other data that may be relevant or material to such inquiry.[42] Failure
to make an assessment of petitioners proper tax liability or to contest the return
could be errors or omissions of administrative officers that should never be
allowed to jeopardize the governments financial position.
Verily, the officers of the Bureau of Internal Revenue should receive the
support of the courts when these officers attempt to perform in a conscientious
and lawful manner the duties imposed upon them by law.[43] Only after it is
shown that if something is received when there is no right to demand it, and it
was duly delivered through mistake, the obligation to return it arises. ]44[

In brief, we hold that petitioner is entitled to a refund; however, the amount

must still be proved in proper proceedings before the CTA.
WHEREFORE, the Petition is hereby PARTLY GRANTED, and the assailed
Decision SET ASIDE. The case is REMANDED to the Court of Tax Appeals for
the proper and immediate determination of the amount to be refunded to
petitioner on the basis of the latters 1996 final adjustment return. No
pronouncement as to costs.
SO ORDERED.

8. Pp v. Tubdag GR 135695-96 10/12/2000

For automatic review is the judgment of the Regional Trial Court of Mandaue
City, Branch 28, in Criminal Cases Nos.DU-6186 and DU-6203, finding
appellant Tomas Tundag guilty of two counts of incestuous rape and sentencing
him to death twice.
On November 18, 1997, private complainant Mary Ann Tundag filed with
the Mandaue City Prosecutors Office two separate complaints for incestuous
rape. The first complaint, docketed as Criminal Case No. DU-6186, alleged:

That on or about the 5th day of September, 1997, in the City of Mandaue, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, being
the father of complainant MARY ANN TUNDAG, who is a 13-year-old girl, with
deliberate intent, did then and there wilfully, unlawfully and feloniously have sexual
intercourse with the said offended party against the latters will.
CONTRARY TO LAW.[1]

The other, docketed as Criminal Case No. DU-6203, averred:

That on or about the 7th day of November, 1997, in the City of Mandaue, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, being
the father of complainant MARY ANN TUNDAG, who is a 13-year-old girl, with
deliberate intent, did then and there wilfully, unlawfully and feloniously have sexual
intercourse with the said offended party against the latters will.

CONTRARY TO LAW.[2]

Upon arraignment appellant, assisted by counsel de parte, pleaded Not

Guilty to the charges.
The two cases were consolidated and a joint trial ensued.
Appellants defense was bare denial. He claimed that private complainant
had fabricated the rape charges against him since he and his daughter, had a
quarrel when he accordingly reprimanded her for going out whenever he was
not at home.[3]
Appellant did not present any witness to reinforce his testimony.
On August 31, 1998, the trial court rendered its decision, thus:

WHEREFORE, foregoing premises considered, Joint Judgment is hereby rendered, to

wit:

I. In Criminal Case No. DU-6186 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for
the crime of rape, said accused is hereby sentenced to the penalty of death;

b) To indemnify the offended party Mary Ann Tundag the following amounts:

(1) P50,000.00 by reason of the commission of the offense of rape upon her; and

(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in
relation to Articles 2217 and 2230 of the New Civil Code for the pain and moral
shock suffered by her and for the commission of the crime of rape with one qualifying
aggravating circumstance; and

c) To pay the costs.

II. In Criminal Case No. DU-6203 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for
the crime of rape, said accused is hereby sentenced to the penalty of death;

b) To indemnify the offended party Mary Ann Tundag the following amounts:

(1) P50,000.00 by reason of the commission of the offense of rape upon her; and

(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in
relation to Articles 2217 and 2230 of the New Civil Code for the pain and moral
shock suffered by her and for the commission of the crime of rape with one qualifying
aggravating circumstance; and

(3) To pay the costs.

SO ORDERED.[4]

In its judgment, the court below gave credence to complainants version of

what accused did to her.

The evidence for the prosecution as adduced during the trial on the merits clearly
shows that private complainant Mary Ann Tundag is a 13 year old girl who does not
know how to read and write and has an IQ of 76% which is a very low general mental
ability and was living with her father, the herein accused, at Galaxy Compound,
Mandaue City.

xxx

That on September 5, 1997 at about 10:00 oclock in the evening, she was in the house
together with her father. But before she went to sleep, her father was already lying
down on the mat while herself (sic) just lied down at his head side which was not
necessarily beside him. However, when she was already sleeping, she noticed that her
father who was already undressed was beside her and was embracing her. Then, he
undressed her which she resisted but her father used a knife and told her that he would
kill her if she shouts and after that, he inserted his penis into her vagina and told her
not to shout or tell anyone. In effect, his penis penetrated her genital, which made her
vagina bleed and was very painful.

That when the penis of her father was already inserted in her vagina, her father was all
the time asking by saying (sic) : Does it feel good? And at the same time, he was
laughing and further, told her that a woman who does not marry can never enter
heaven and he got angry with her when she contradicted his statement.

That while the penis of her father was inside her vagina and (he) was humping over
her, she felt intense pain that she cried and told him to pull it out but did not accede
and in fact, said: Why will I pull it out when it feels so good(?)

That after removing his penis from her vagina and after telling her that she could not
go to heaven if she did not get married, her father just stayed there and continued
smoking while she cried.

That in the evening of November 7, 1997, she was at home washing the dishes while
her father was just smoking and squatting. That after she finished washing the dishes,
she lied (sic) down to sleep when her father embraced her and since she does not like
what he did to her, she placed a stool between them but he just brushed it aside and
laid down with her and was able to take her womanhood again by using a very sharp
knife which he was holding and was pointing it at the right side of her neck which
made her afraid.

That in the early morning of the following day, she left her fathers place and went to
her neighbor by the name of Bebie Cabahug and told her what had happened to her,
who, in turn, advised her to report the matter to the police, which she did and
accompanied by the policemen, she went to the Southern Islands Hospital where she
was examined and after her medical examination, she was brought back by the police
and was investigated by them.[5]

Appellants claim that the complainants charges were manufactured did not
impress the trial court, which found him twice guilty of rape. Now before us,
appellant assails his double conviction, simply contending that:[6]

THE TRIAL COURT HAS COMMITTED AN ERROR IN NOT ABSOLVING THE

ACCUSED-APPELLANT OF THE CRIMES CHARGED IN THE
INFORMATIONS DESPITE THE PRESENCE OF REASONABLE DOUBT TO
EXCULPATE HIM OF THE SAME.

Appellant flatly denies that the incidents complained of ever took place. He
contends that on September 5, 1997, he was working as a watch repairman
near Gals Bakery in Mandaue City Market and went home tired and sleepy at
around 11:00 oclock that evening. On November 7, 1997, he claims he was at
work. In his brief, he argues that it was impossible for him to have raped his
daughter because when the incidents allegedly transpired, he went to work and
naturally, being exhausted and tired, it is impossible for him to do such
wrongdoings.[7]
The Office of the Solicitor General disagrees with appellant and urges the
Court to affirm the trial courts decision, with the recommendation that the award
of damages and indemnity ex delicto be modified to conform to prevailing
jurisprudence.
Considering the gravity of the offense charged as a heinous crime and the
irreversibility of the penalty of death imposed in each of these cases before us,
the Court leaves no stone unturned in its review of the records, including the
evidence presented by both the prosecution and the defense. Conviction must
rest on nothing less than a moral certainty of guilt.[8] But here we find no room
to disturb the trial courts judgment concerning appellants guilt, because his
defense is utterly untenable.
Appellants defense of alibi and denial is negative and self-serving. It hardly
counts as a worthy and weighty ground for exculpation in a trial involving his
freedom and his life. Against the testimony of private complainant who testified
on affirmative matters,[9] such defense is not only trite but pathetic. Denial is an
inherently weak defense, which becomes even weaker in the face of the
positive identification by the victim of the appellant as the violator of her
honor.[10] Indeed, we find that private complainant was unequivocal in charging
appellant with ravishing her. The victims account of the rapes complained of
was straightforward, detailed, and consistent.[11] Her testimony never wavered
even after it had been explained to her that her father could be meted out the
death penalty if found guilty by the court.[12]
In a prosecution for rape, the complainants credibility is the single most
important issue.[13] The determination of the credibility of witnesses is primarily
the function of the trial court. The rationale for this is that the trial court has the
advantage of having observed at first hand the demeanor of the witnesses on
the stand and, therefore, is in a better position to form an accurate impression
and conclusion.[14] Absent any showing that certain facts of value have clearly
been overlooked, which if considered could affect the result of the case, or that
the trial courts finding are clearly arbitrary, the conclusions reached by the court
of origin must be respected and the judgment rendered affirmed.[15]
Moreover, we note here that private complainants testimony is corroborated
by medical findings that lacerations were present in her hymen. The
examination conducted by Dr. Bessie Acebes upon the private complainant
yielded the following results:

Genitalia: grossly female

Pubic Hairs: scanty

Labia Majora: coaptated

Labia Minora: do

Fourchette: U-shaped

Vestibule: pinkish

Hymen: + old healed laceration at 3 and 9 oclock position(s).

Orifice: admits 2 fingers with ease

Vagina:

Walls: pinkish

Ruganities: prominent

Uterus: small

Cervix: closed

Discharges: Mucoid, minimal

Smears:

Conclusions: sperm identification (-)

Gram staining of vaginal disc.[16]

Dr. Acebes testified that her findings of healed hymenal lacerations in the
complainants private parts meant a history of sexual congress on her
part.[17] According to her, the lacerations may have been caused by the entry of
an erect male organ into complainants genitals. The examining physician
likewise pointed out that previous coitus may be inferred from complainants U-
shaped fourchette since the fourchette of a female who has not yet experienced
sexual intercourse is V-shaped.[18] While Dr. Acebes conceded under cross-
examination, that the existence of the datum U-shape(d) fourchette does not
conclusively and absolutely mean that there was sexual intercourse or contact
because it can be caused by masturbation of fingers or other
things,[19] nonetheless, the presence of the hymenal lacerations tends to support
private complainants claim that she was raped by appellant.
Appellant next contends that his daughter pressed the rape charges against
him because she had quarreled with him after he had castigated her for
misbehavior. He stresses that the prosecution did not rebut his testimony
regarding his quarrel or misunderstanding with private complainant. He urges
us to consider the charges filed against him as the result of his frequent
castigation of her delinquent behavior.[20]
Such allegation of a family feud, however, does not explain the charges
away. Filing a case for incestuous rape is of such a nature that a daughters
accusation must be taken seriously. It goes against human experience that a
girl would fabricate a story which would drag herself as well as her family to a
lifetime of dishonor, unless that is the truth, for it is her natural instinct to protect
her honor.[21] More so, where her charges could mean the death of her own
father, as in this case.
Appellant likewise points out that it was very unlikely for him to have
committed the crimes imputed to him considering that he and his wife had ten
children to attend to and care for. This argument, however, is impertinent and
immaterial. Appellant was estranged from his wife, and private complainant was
the only child who lived with him.[22] As pointed out by the Solicitor General,
appellant was thus free to do as he wished to satisfy his bestial lust on his
daughter.[23]
Nor does appellants assertion that private complainant has some
psychological problems and a low IQ of 76 in any way favor his defense. These
matters did not affect the credibility of her testimony that appellant raped her
twice.We note that the victim understood the consequences of prosecuting the
rape charges against her own father, as shown by the following testimony of
the victim on cross-examination:
Q : Were you informed that if, and when your father will be found guilty, your father will be
sentenced to death?
A : Yes.
Q : Until now you wanted that your father will be sentenced by death?
A (Witness nodding.)

xxx
Q : I will inform you, Miss Witness, that you have filed two cases against your father and in
case your father would be found guilty, two death sentences will be imposed against him?
A: Yes.
 Q: With that information, do you still want this case would proceed?
A: I want this to proceed.[24]

Indeed, appellant is guilty. But is the penalty of death imposed on him

correct?
Section 335 of the Revised Penal Code, as amended by Section 11 of R.A.
No. 7659,[25] penalizes rape of a minor daughter by her father as qualified
rape[26] and a heinous crime. In proving such felony, the prosecution must allege
and prove the elements of rape: (1) sexual congress; (2) with woman; (3) by
force or without her consent[27] and in order to warrant the imposition of capital
punishment, the additional elements that: (4) the victim is under 18 years of age
at the time of the rape and (5) the offender is a parent of the victim.[28]
In this case, it was sufficiently alleged and proven that the offender was the
victims father.[29] But the victims age was not properly and sufficiently proved
beyond reasonable doubt. She testified that she was thirteen years old at the
time of the rapes. However, she admitted that she did not know exactly when
she was born because her mother did not tell her. She further said that her birth
certificate was likewise with her mother. In her own words, the victim testified
- [30]
COURT TO WITNESS
Q: When were you born?
A: I do not know.
Q: You do not know your birthday?
A: My mama did not tell me exactly when I asked her.
COURT: Proceed.
FISCAL PEREZ: For our failure to secure the Birth Certificate Your Honor, may we just request
for judicial notice that the victim here is below 18 years old.
ATTY. SURALTA: Admitted.

Judicial notice is the cognizance of certain facts which judges may properly
take and act on without proof because they already know them.[31] Under the
Rules of Court, judicial notice may either be mandatory or discretionary.Section
1 of Rule 129 of the Rules of Court provides when court shall take mandatory
judicial notice of facts -

SECTION 1. Judicial notice, when mandatory. - A court shall take judicial notice
without the introduction of evidence, of the existence and territorial extent of states,
their political history, forms of government and symbols of nationality, the law of
nations, the admiralty and maritime courts of the world and their seals, the political
constitution and history of the Philippines, the official acts of the legislative, executive
and judicial departments of the Philippines, the laws of nature, the measure of time,
and the geographical divisions.

Section 2 of Rule 129 enumerates the instances when courts may take
discretionary judicial notice of facts -

SEC. 2. Judicial notice, when discretionary. - A court may take judicial notice of
matters which are of public knowledge, or are capable of unquestionable
demonstration or ought to be known to judges because of their judicial functions.

Thus, it can be considered of public knowledge and judicially noticed that

the scene of the rape is not always nor necessarily isolated or secluded for lust
is no respecter of time or place. The offense of rape can and has been
committed in places where people congregate, e.g. inside a house where there
are occupants, a five (5) meter room with five (5) people inside, or even in the
same room which the victim is sharing with the accuseds sister.[32]
The Court has likewise taken judicial notice of the Filipinas inbred modesty
and shyness and her antipathy in publicly airing acts which blemish her honor
and virtue.[33]
On the other hand, matters which are capable of unquestionable
demonstration pertain to fields of professional and scientific knowledge. For
example, in People v. Alicante,[34] the trial court took judicial notice of the clinical
records of the attending physicians concerning the birth of twin baby boys as
premature since one of the alleged rapes had occurred 6 to 7 months earlier.
As to matters which ought to be known to judges because of their judicial
functions, an example would be facts which are ascertainable from the record
of court proceedings, e.g. as to when court notices were received by a party.
With respect to other matters not falling within the mandatory or
discretionary judicial notice, the court can take judicial notice of a fact pursuant
to the procedure in Section 3 of Rule 129 of the Rules of Court which requires
that -

SEC. 3. Judicial notice, when hearing necessary. - During the trial, the court, on its
own initiative, or on request of a party, may announce its intention to take judicial
notice of any matter and allow the parties to be heard thereon.

After the trial, and before judgment or on appeal, the proper court, on its own
initiative or on request of a party, may take judicial notice of any matter and allow the
parties to be heard thereon if such matter is decisive of a material issue in the case.
 In this case, judicial notice of the age of the victim is improper, despite the
defense counsels admission, thereof acceding to the prosecutions motion. As
required by Section 3 of Rule 129, as to any other matters such as age, a
hearing is required before courts can take judicial notice of such fact. Generally,
the age of the victim may be proven by the birth or baptismal certificate of the
victim, or in the absence thereof, upon showing that said documents were lost
or destroyed, by other documentary or oral evidence sufficient for the purpose.
Thus, in People v. Rebancos, 172 SCRA 426 (1989), the victim was below
12 and we found that the rape committed was statutory rape. The mother
testified that her daughter was born on October 26, 1974, and so was only 9
years old at the time of the rape on February 12, 1984. Although no birth
certificate was presented because the victims birth had allegedly not been
registered, her baptismal certificate was duly presented. Hence, we ruled that
the mothers testimony coupled with the presentation of the baptismal certificate
was sufficient to establish that the victim was below 12 at the time of the rape.
However, in People v. Vargas, 257 SCRA 603 (1996), we ruled that
appellant can only be convicted of simple rape, and not statutory rape, because
of failure of the prosecution to prove the minority of the victim, who was
allegedly 10 years old at the time of the rape. The prosecution failed to present
either the birth or baptismal certificate of the victim. Also there was no showing
that the said documents were lost or destroyed to justify their non-
presentation. We held that testimony of the victim and her aunt were hearsay,
and that it was not correct for the trial court to judge the age of the victim by her
appearance.
In several recent cases, we have emphasized the need for independent
proof of the age of the victim, aside from testimonial evidence from the victim
or her relatives. In People v. Javier,[35] we stressed that the prosecution must
present independent proof of the age of the victim, even though it is not
contested by the defense. The minority of the victim must be proved with equal
certainty and clearness as the crime itself. In People v. Cula,[36] we reiterated
that it is the burden of the prosecution to prove with certainty the fact that the
victim was below 18 when the rape was committed in order to justify the
imposition of the death penalty. Since the record of the case was bereft of any
independent evidence thereon, such as the victims duly certified Certificate of
Live Birth, accurately showing private complainants age, appellant could not be
convicted of rape in its qualified form. In People v. Veloso,[37] the victim was
alleged to have been only 9 years of age at the time of the rape. It held that the
trial court was correct when it ruled that the prosecution failed to prove the
victims age other than through the testimony of her father and herself.
 Considering the statutory requirement in Section 335 of the Revised Penal
Code as amended by R.A. No. 7659 and R.A. No. 8353, we reiterate here what
the Court has held in Javier without any dissent, that the failure to sufficiently
establish victims age by independent proof is a bar to conviction for rape in its
qualified form. For, in the words of Melo, J., independent proof of the actual age
of a rape victim becomes vital and essential so as to remove an iota of doubt
that the case falls under the qualifying circumstances for the imposition of the
death penalty set by the law.
In this case, the first rape was committed on September 5, 1997 and is
therefore governed by the death penalty law, R.A. 7659. The penalty for the
crime of simple rape or rape in its unqualified form under Art. 335 of the Revised
Penal Code, as amended by Sec. 11 of R.A. 7659, is reclusion perpetua. The
second rape was committed on November 7, 1997, after the effectivity of R.A.
8353, also known as the Anti-Rape Law of 1997, which took effect on October
22, 1997. The penalty for rape in its unqualified form remains the same.
As to civil indemnity, the trial court correctly awarded P50,000.00 for each
count of rape as civil indemnity. However, the award of another P50,000.00 as
moral and exemplary damages under Article 2219 in relation to Articles 2217
and 2230 of the Civil Code for each count is imprecise. In rape cases, the
prevailing jurisprudence permits the award of moral damages without need for
pleading or proof as to the basis thereof.[38] Thus, pursuant to current
jurisprudence, we award the amount of P50,000.00 as moral damages for each
count of rape.
The award of exemplary damages separately is also in order, but on a
different basis and for a different amount. Appellant being the father of the
victim, a fact duly proved during trial, we find that the alternative circumstance
of relationship should be appreciated here as an aggravating
circumstance. Under Article 2230 of the New Civil Code, exemplary damages
may be imposed when the crime was committed with one or more aggravating
circumstances.Hence, we find an award of exemplary damages in the amount
of P25,000.00 proper. Note that generally, in rape cases imposing the death
penalty, the rule is that relationship is no longer appreciated as a generic
aggravating circumstance in view of the amendments introduced by R.A. Nos.
7659 and 8353. The father-daughter relationship has been treated by Congress
in the nature of a special circumstance which makes the imposition of the death
penalty mandatory.[39] However, in this case, the special qualifying circumstance
of relationship was proved but not the minority of the victim, taking the case out
of the ambit of mandatory death sentence. Hence, relationship can be
appreciated as a generic aggravating circumstance in this instance so that
exemplary damages are called for. In rapes committed by fathers on their own
daughters, exemplary damages may be imposed to deter other fathers with
perverse tendency or aberrant sexual behavior from sexually abusing their own
daughters.[40]
WHEREFORE, the judgment of the Regional Trial Court of Mandaue City,
Branch 28, in Criminal Case Nos. DU-6186 and DU-6203, is hereby MODIFIED
as follows: appellant Tomas Tundag is found guilty of two (2) counts of simple
rape; and for each count, sentenced to reclusion perpetua and ordered to pay
the victim the amount of P50,000.00 as indemnity, P50,000.00 as moral
damages, and P25,000.00 as exemplary damages.
No pronouncement as to costs.
SO ORDERED.
9. Cuenco v. Talisay Sports Complex 569 S 616
For resolution are the Partial Motion for Reconsideration[1] filed by petitioner and
the Motion for Reconsideration[2] filed by respondents of the Decision[3] of the Court
dated October 17, 2008.

The factual background of the case is as follows:

Petitioner leased from respondents the Talisay Tourist Sports Complex for the
operation of a cockpit. The lease was for a period of two (2) years, but was
subsequently renewed for a period of four (4) years. Compliant with the lease
contract, petitioner gave respondents a deposit equivalent to six (6) months rental,
amounting to Five Hundred Thousand Pesos (P500,000.00), to answer for whatever
damages may be caused to the premises during the period of the lease.

Upon expiration of the lease contract on May 8, 1998, a public bidding was
conducted. The contract was awarded to a new lessee. Thus, petitioner demanded
the return of the amount deposited. However, petitioners four (4) demand letters
remained unheeded. Thus, petitioner filed a complaint for sum of money, damages
and attorneys fees before the Regional Trial Court (RTC) of Cebu City.
The trial court ruled in favor of petitioner and directed the respondents to return the
full amount of the deposit plus interest of three percent (3%) per month from August
18, 1998 until full payment thereof. On appeal, the Court of Appeals (CA) reversed
the decision of the trial court. Hence, petitioner filed a petition for review
on certiorari[4] before this Court.
On October 17, 2008, the Court rendered a Decision, [5] the dispositive portion of
which reads:

WHEREFORE, the petition is PARTLY GRANTED. The Decision of

the Court of Appeals is hereby REVERSED AND SET ASIDE. The
Decision of the RTC in Civil Case No. CEB-22847 is
hereby REINSTATED with the following modifications:

(1) Talisay Tourist Sports Complex, Inc. is solely liable to return the
amount of the deposit after deducting the amount of the two-months
arrears in rentals; and

(2) The rate of legal interest to be paid is SIX PERCENT (6%) on the
amount due computed from October 21, 1998, and TWELVE PERCENT
(12%) interest, thereon upon finality of this decision until full payment
thereof.

SO ORDERED.[6]

Unsatisfied, both parties moved for reconsideration. Petitioner moves for partial
reconsideration as he denies that he overstayed for two months in the leased
premises. On the other hand, respondents aver that the expenses they incurred for
the repair of the cockpit amounting to Twenty-four Thousand Nine Hundred Pesos
(P24,900.00) should be deducted from the amount of deposit that will be returned to
petitioner. They also pray that the Court reconsider its decision and issue a new one
affirming the decision of the Court of Appeals.

The motions for reconsideration filed by the contending parties are substantially
factual and must be denied for lack of merit.

As a rule, the Supreme Court is not a trier of facts. In a petition for review
on certiorari, it is discretionary upon the Court whether it will look into the factual
determinations of the lower courts. However, due to the conflicting findings of the
RTC and the CA, the Court took exception and reviewed the records of the case to
arrive at a judicious resolution of the controversy, i.e., whether petitioner is entitled
to the return of the amount of the deposit.
Borne out by the records of the case is the testimony of Ateniso Coronado that
petitioner continued to hold cockfights for two months beyond the expiration of the
lease contract. Such declaration was neither questioned nor denied by petitioner
during the trial of the case in the RTC and on appeal before the CA. Neither was it
contested by petitioner in his Memorandum[7] filed with this Court. Binding is the
finding of the CA on the matter, viz.:

Witness Ateniso Coronado whose credibility has not been impeached, and
whose testimony has neither been overthrown by contradictory evidence,
gave the most telltale factual account. There is no gainsaying that the
contract of lease between herein parties for the occupation and use of the
complex expired on May 8, 1998, but appellee [petitioner] did not refute
the pronouncement of witness that he (appellee) [petitioner] continued to
hold cockfights during the months of June and July despite knowledge
that his lease would no longer be renewed as evidenced by the very first
letter he sent to appellants [respondents] dated June 8, 1998, and albeit the
non-objection of appellants [respondents] on his extended stay. The
assessment of rentals from appellee [petitoner] for two (2) extended
months therefore came as a necessary consequence pursuant to Articles
1670 and 1687 of the Civil Code of the Philippines in relation to the
contract of lease. The rental for the last month immediately preceding the
expiration of the contract is pegged at P97,916.67, hence the two month
extension requires a rent in the amount of P195,833.34.[8]

Well-settled is the rule that issues or grounds not raised below cannot be resolved
on review by the Supreme Court, for to allow the parties to raise new issues is
antithetical to the sporting idea of fair play, justice and due process. [9] Issues not
raised during the trial cannot be raised for the first time on appeal and more
especially on motion for reconsideration. Litigation must end at some point; once
the case is finally adjudged, the parties must learn to accept victory or defeat.

Furthermore, on June 27 2007, the Court required the parties to submit their
memoranda, and were apprised that no new issues may be raised; and the issues
raised in the pleadings not included in the memoranda shall be deemed waived or
abandoned, per Supreme Court Administrative Matter No. 99-2-04-SC.
As to the amount of repairs that respondents want to be credited in their favor, the
RTC ruled, as affirmed by the CA, that the new lessee underwrote the repairs and
not the respondents.[10] Thus, there is no basis for respondents claim for
reimbursement.

WHEREFORE, the Partial Motion for Reconsideration of Petitioner dated

November 26, 2008 and the Motion for Reconsideration of Respondents dated
November 25, 2008 of the Decision of the Court dated October 17, 20078 are
hereby DENIED.

10.Casent Realty v. Philbanking 533 S 390

 On appeal to this Court through Rule 45 of the Rules of Court is the March
29, 2001 Decision[1] and November 7, 2001 Resolution[2] of the Court of Appeals
(CA) in CA-G.R. CV No. 63979 entitled Philbanking Corporation v. Casent Realty
Development Corporation. The CA reversed the May 12, 1999 Order[3] of
the Makati City Regional Trial Court (RTC), Branch 145 in Civil Case No. 93-2612,
which granted petitioners demurrer to evidence and dismissed the complaint filed by
respondent.

The Facts

The facts according to the appellate court are as follows:

In 1984, petitioner Casent Realty Development Corporation executed two

promissory notes in favor of Rare Realty Corporation (Rare Realty) involving the
amounts of PhP 300,000 (PN No. 84-04) and PhP 681,500 (PN No. 84-05). It was
agreed in PN No. 84-04 that the loan it covered would earn an interest of 36% per
annum and a penalty of 12% in case of non-payment by June 27, 1985, while the
loan covered by PN No. 84-05 would earn an interest of 18% per annum and 12%
penalty if not paid by June 25, 1985.[4] On August 8, 1986, thesex promissory notes
were assigned to respondent Philbanking Corporation through a Deed of
Assignment.[5]

Respondent alleged that despite demands, petitioner failed to pay the

promissory notes upon maturity such that its obligation already amounted to
PhP 5,673,303.90 as of July 15, 1993. Respondent filed on July 20, 1993 a
complaint before the Makati City RTC for the collection of said amount. In its
Answer,[6] petitioner raised the following as special/affirmative defenses:

1. The complaint stated no cause of action or if there was any, the same
was barred by estoppel, statute of frauds, statute of limitations, laches, prescription,
payment, and/or release;
 2. On August 27, 1986, the parties executed a Dacion en
[7]
Pago (Dacion) which ceded and conveyed petitioners property
in Iloilo City to respondent, with the intention of totally extinguishing petitioners
outstanding accounts with respondent. Petitioner presented a Confirmation
Statement[8] dated April 3, 1989 issued by respondent stating that petitioner had no
loans with the bank as of December 31, 1988.

3. Petitioner complied with the condition in the Dacion regarding the

repurchase of the property since the obligation was fully paid. Respondent
sent confirmation statements in the latter months of 1989, which
showed that petitioner had no more outstanding loan; and

4. Assuming that petitioner still owed respondent, the latter was already
estopped since in October 1988, it reduced its authorized capital stock by 50% to
wipe out a deficit of PhP 41,265,325.12.[9]

Thus, petitioner, by way of compulsory counterclaim, alleged that it made an

overpayment of approximately PhP 4 million inclusive of interest based on Central
Bank Reference Lending Rates on dates of overpayment. Petitioner further claimed
moral and exemplary damages and attorneys fee, amounting to PhP 4.5 million plus
the costs of suit as a consequence of respondents insistence on collecting.[10]

The parties failed to reach an amicable settlement during the pre-trial

conference. Thereafter, respondent presented its evidence and formally offered its
exhibits. Petitioner then filed a Motion for Judgment on Demurrer to the
Evidence,[11] pointing out that the plaintiffs failure to file a Reply to the Answer
which raised the Dacion and Confirmation Statement constituted an admission of
the genuineness and execution of said documents; and that since
the Dacion obliterated petitioners obligation covered by the promissory notes, the
bank had no right to collect anymore.

Respondent subsequently filed an Opposition[12] which alleged that: (1) the

grounds relied upon by petitioner in its demurrer involved its defense and not
insufficiency of evidence; (2) the Dacion and Confirmation Statement had yet to be
offered in evidence and evaluated; and (3) since respondent failed to file a Reply,
then all the new matters alleged in the Answer were deemed controverted.[13]

The trial court ruled in favor of petitioner and dismissed the complaint
through the May 12, 1999 Order, the dispositive portion of which reads:

WHEREFORE, premises considered[,] finding defendants Motion For

Judgment On Demurrer To The Evidence to be meritorious[,] the same is
hereby GRANTED. Consequently, considering that the obligation of the
defendant to the plaintiff having been extinguish[ed] by a Dacion en Pago
duly executed by said parties, the instant complaint is
hereby DISMISSED, with prejudice. Without Cost.[14]

The Ruling of the Court of Appeals

On appeal, respondent alleged that the trial court gravely erred because the
promissory notes were not covered by the Dacion, and that respondent was able to
prove its causes of action and right to relief by overwhelming preponderance of
evidence. It explained that at the time of execution of the Dacion, the subject of
the promissory notes was the indebtedness of petitioner to Rare Realty and not to
the Bankthe party to the Dacion. It was only in 1989 after Rare Realty defaulted in
its obligation to respondent when the latter enforced the security provided under the
Deed of Assignment by trying to collect from petitioner, because it was only then
that petitioner became directly liable to respondent. It was also for this reason that
the April 3, 1989 Confirmation Statement stated that petitioner had no obligations
to repondent as of December 31, 1988. On the other hand, petitioner claimed that
the Deed of Assignment provided that Rare Realty lost its rights, title, and interest
to directly proceed against petitioner on the promissory notes since these were
transferred to respondent. Petitioner reiterated that the Dacion covered all
conceivable amounts including the promissory notes.[15]

The appellate court ruled that under the Rules of Civil Procedure, the only
issue to be resolved in a demurrer is whether the plaintiff has shown any right to
relief under the facts presented and the law. Thus, it held that the trial court erred
when it considered the Answer which alleged the Dacion, and that its genuineness
and due execution were not at issue. It added that the court a quo should have
resolved whether the two promissory notes were covered by the Dacion, and
that since petitioners demurrer was granted, it had already lost its right to present its
evidence.[16]

The CA found that under the Deed of Assignment, respondent clearly had the
right to proceed against the promissory notes assigned by Rare Realty. Thus, the CA
ruled, as follows:

WHEREFORE, premises considered, the Order dated May 12, 1999 of

the Regional Trial Court, National Capital Judicial Region, Branch
145, Makati City is hereby REVERSED and SET ASIDE.

Judgment is hereby entered ORDERING [petitioner] Casent

Realty [Development] Corporation to:

1. pay [respondent] Philbanking Corporation the amount of

P300,000.00 with an interest of 36% per annum and a penalty of
12% for failure to pay the same on its maturity date, June 27, 1985
as stipulated in Promissory Note No. 84-04;

2. pay [respondent] Philbanking Corporation the amount of

P681,500.00 with an interest of 18% per annum and a penalty of
12% for failure to pay the same on its maturity date, June 25, 1985
as stipulated in Promissory Note No. 84-05; and

3. pay [respondent] Philbanking Corporation, the amount

representing 25% of total amount due as attorneys fee as stipulated
in the promissory notes.
SO ORDERED.[17]

Petitioner filed a Motion for Reconsideration[18] which was denied by the CA

in its November 7, 2001 Resolution.[19]

The Issues
 WHETHER OR NOT THE COURT OF APPEALS ERRED IN
EXCLUDING THE PETITIONERS AFFIRMATIVE DEFENSES IN
ITS ANSWER IN RESOLVING A DEMURRER TO EVIDENCE; AND

WHETHER OR NOT PETITIONER IS LIABLE TO PAY THE

RESPONDENT

In other words, the questions posed by this case are:

1. Does respondents failure to file a Reply and deny the Dacion and
Confirmation Statement under oath constitute a judicial admission of the
genuineness and due execution of these documents?

2. Should judicial admissions be considered in resolving a demurrer to

evidence? If yes, are the judicial admissions in this case sufficient to warrant
the dismissal of the complaint?

Petitioner asserts that its obligation to pay under the promissory notes was
already extinguished as evidenced by the Dacion and Confirmation
Statement. Petitioner submits that when it presented these documents in its Answer,
respondent should have denied the same under oath. Since respondent failed to file
a Reply, the genuineness and due execution of said documents were deemed
admitted, thus also admitting that the loan was already paid. On the other hand,
respondent states that while it failed to file a Reply, all the new matters were deemed
controverted pursuant to Section 10, Rule 6 of the Rules of Court. Also, the loan
which was covered by the Dacion refers to another loan of petitioner amounting to
PhP 3,921,750 which was obtained directly from the respondent as of August
1986.[20] Furthermore, petitioner argued that assuming respondent admitted the
genuineness and due execution of the Dacion and Confirmation Statement, said
admission was not all-encompassing as to include the allegations and defenses
pleaded in petitioners Answer.

The Courts Ruling

The petition is partly meritorious.

 Rule 33, Section 1 of the 1997 Rules of Civil Procedure provides:

Section 1. Demurrer to evidence.After the plaintiff has completed the

presentation of his evidence, the defendant may move for dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to
relief. If his motion is denied, he shall have the right to present evidence. If
the motion is granted but on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to present evidence.

In Gutib v. Court of Appeals, we defined a demurrer to evidence as an

objection by one of the parties in an action, to the effect that the evidence which his
adversary produced is insufficient in point of law, whether true or not, to make out
a case or sustain the issue.[21]

What should be resolved in a motion to dismiss based on a demurrer to

evidence is whether the plaintiff is entitled to the relief based on the facts and the
law. The evidence contemplated by the rule on demurrer is that which pertains to
the merits of the case, excluding technical aspects such as capacity to
sue.[22] However, the plaintiffs evidence should not be the only basis in resolving a
demurrer to evidence. The facts referred to in Section 8 should include all the means
sanctioned by the Rules of Court in ascertaining matters in judicial
proceedings. These include judicial admissions, matters of judicial
notice, stipulations made during the pre-trial and trial, admissions, and
presumptions, the only exclusion being the defendants evidence.

Petitioner points out that the defense of Dacion and Confirmation Statement,
which were submitted in the Answer, should have been specifically denied under
oath by respondent in accordance with Rule 8, Section 8 of the Rules of Court:

Section 8. How to contest such documents.When an action or defense is

founded upon a written instrument, copied in or attached to the
corresponding pleading as provided in the preceding section, the
genuineness and due execution of the instrument shall be deemed admitted
unless the adverse party, under oath, specifically denies them, and sets
forth, what he claims to be the facts; but the requirement of an oath does
not apply when the adverse party does not appear to be a party to the
 instrument or when compliance with an order for an inspection of the
original instrument is refused.

Since respondent failed to file a Reply, in effect, respondent admitted the

genuineness and due execution of said documents. This judicial admission should
have been considered by the appellate court in resolving the demurrer to
evidence. Rule 129, Section 4 of the Rules of Court provides:

Section 4. Judicial admissions.An admission, verbal or written, made by

a party in the course of the proceeding in the same case, does not require
proof. The admission may be contradicted only by showing that it was
made through palpable mistake or that no such admission was made.

On appeal to the CA, respondent claimed that even though it failed to file a
Reply, all the new matters alleged in the Answer are deemed controverted anyway,
pursuant to Rule 6, Section 10:

Section 10. Reply.A reply is a pleading, the office or function of which is

to deny, or allege facts in denial or avoidance of new matters alleged by
way of defense in the answer and thereby join or make issue as to such
new matters. If a party does not file such reply, all the new matters alleged
in the answer are deemed controverted.

We agree with petitioner. Rule 8, Section 8 specifically applies to actions or

defenses founded upon a written instrument and provides the manner of denying it. It
is more controlling than Rule 6, Section 10 which merely provides the effect of
failure to file a Reply. Thus, where the defense in the Answer is based on an
actionable document, a Reply specifically denying it under oath must be made;
otherwise, the genuineness and due execution of the document will be deemed
admitted.[23] Since respondent failed to deny the genuineness and due execution of
the Dacion and Confirmation Statement under oath, then these are deemed admitted
and must be considered by the court in resolving the demurrer to evidence. We held
in Philippine American General Insurance Co., Inc. v. Sweet Lines, Inc. that [w]hen
the due execution and genuineness of an instrument are deemed admitted because of
the adverse partys failure to make a specific verified denial thereof, the instrument
need not be presented formally in evidence for it may be considered an admitted
fact.[24]

In any case, the CA found that:

From the facts of the case, the genuineness and due execution of
the Dacion en Pago were never put to issue. Genuineness merely refers to
the fact that the signatures were not falsified and/or whether there was no
substantial alteration to the document. While due execution refers to
whether the document was signed by one with authority.[25]
The more important issue now is whether the Dacion and Confirmation
Statement sufficiently prove that petitioners liability was extinguished. Respondent
asserts that the admission of the genuineness and due execution of the documents in
question is not all encompassing as to include admission of the allegations and
defenses pleaded in petitioners Answer. In executing the Dacion, the intention of the
parties was to settle only the loans of petitioner with respondent, not the obligation
of petitioner arising from the promissory notes that were assigned by Rare
Realty to respondent.

We AGREE.

Admission of the genuineness and due execution of the Dacion and

Confirmation Statement does not prevent the introduction of evidence showing that
the Dacion excludes the promissory notes. Petitioner, by way of defense, should
have presented evidence to show that the Dacion includes the promissory notes.

The promissory notes matured in June 1985, and Rare Realty assigned these
promissory notes to respondent through a Deed of Assignment dated August 8,
1986. The Deed of Assignment provides, thus:

Rare Realty Corporation, a corporation duly organized and existing in

accordance with law, with office at 8th Floor Philbanking Building, Ayala
Ave., Makati, Metro Manila (herein called Assignor) in consideration of
the sum of THREE MILLION SEVEN HUNDRED NINETY
THOUSAND & 00/100 pesos [PhP 3,790,000.00] and as security fee or
in the payment of the sum, obtained or to be obtained as loan or credit
accommodation of whatever form or nature from
 the [PHILBANKING] CORPORATION, with office at Ayala Ave.,
Makati, Metro Manila (herein called Assignee), including renewals or
extensions of such loan or credit accommodation, now existing or
hereinafter incurred, due or to become due, whether absolute or
contingent, direct or indirect, and whether incurred by the Assignor as
principal, guarantor, surety, co-maker, or in any other capacity, including
interest, charges, penalties, fees, liquidated damage, collection expenses
and attorneys fee, the Assignor hereby assigns, transfers and conveys to
Assignee all its rights, title and interest in and to: (a) contracts under which
monies are or will be due to Assignor, (b) moneys due or to be due
thereunder, or (c) letters of credit and/or proceeds or moneys arising from
negotiations under such credits, all which are herein called moneys or
receivables assigned or assigned moneys or receivables, and are attached,
or listed and described in the Attached Annex A (for contracts) or Annex
B (for letters of credit).[26]

It is clear from the foregoing deed that the promissory notes were given as
security for the loan granted by respondent to Rare Realty. Through the Deed of
Assignment, respondent stepped into the shoes of Rare Realty as petitioners
creditor.

Respondent alleged that petitioner obtained a separate loan of

PhP 3,921,750. Thus, when petitioner and respondent executed
the Dacion on August 27, 1986, what was then covered was petitioners loan from
the bank. The Dacion provides, thus:

NOW, THEREFORE, in consideration of the foregoing premises, the

DEBTOR hereby transfers and conveys in favor of the BANK by way of
Dacion en Pago, the above-described property in full satisfaction of its
outstanding indebtedness in the amount of P3,921,750.00 to the BANK,
subject to x x x terms and conditions.[27] (Emphasis supplied.)

The language of the Dacion is unequivocalthe property serves in full

satisfaction of petitioners own indebtedness to respondent, referring to the loan of
PhP 3,921,750. For this reason, the bank issued a Confirmation Statement saying
that petitioner has no unpaid obligations with the bank as of December 31, 1988.
 In 1989, however, Rare Realty defaulted in its payment
to respondent. Thus, respondent proceeded against the security assigned to it, that is,
the promissory notes issued by the petitioner. Under these promissory notes,
petitioner is liable for the amount of PhP 300,000 with an interest of 36% per annum
and a penalty of 12% for failure to pay on the maturity date, June 27, 1985; and for
the amount of PhP 681,500 with an interest of 18% per annum and a penalty of 12%
for failure to pay on the maturity date, June 25, 1985.

WHEREFORE, the March 29, 2001 Decision and November 7,

2001 Resolution of the CA are AFFIRMED. Costs against petitioner.

SO ORDERED.

11. Silot v. Dela Rosa 543 S 533

This is a petition for review of the Decision[1] dated July 9, 2003 of the Court
of Appeals in CA-G.R. CV No. 68062 entitled Estrella de la Rosa v. Gregorio Silot,
Jr. The appellate court had affirmed with modification the Joint Decision[2] dated
May 24, 2000 of the Regional Trial Court (RTC), Branch 61, Naga City, in Civil
Case Nos. 97-3736 and 97-3750, and decreed as follows:
WHEREFORE, premises considered, the assailed Joint Decision
dated May 24, 2000 of the RTC, Branch 61, Naga City in Civil Cases Nos.
97-3736 and 97-3750 is hereby AFFIRMED WITH MODIFICATION,
deleting the award for nominal damages and reducing the award of
attorneys fees to Twenty Thousand (P20,000.00) Pesos.
Other awards not otherwise modified or deleted stand.

SO ORDERED.[3]

As culled from the records by the Court of Appeals, the antecedent facts of
this case are as follows:

On January 19, 1996, petitioner Gregorio Silot, Jr. and respondent Estrella de
la Rosa entered into a contract for the construction of a dormitory-apartment building
on Lot 1-A-9-D, Bagumbayan Sur, Naga City.They expressly agreed that Silot shall
supply the labor and de la Rosa shall pay 33% of the total value of the materials
purchased for the project. Upon turnover in February 1997 of the completed
structure, the total cost of materials actually purchased was P2,504,469.65, 33% of
which is P826,474.98. Silot required de la Rosa to pay a total of P1,018,000.00,
or P191,525.02 more than the amount due. Through her son-in-law, de la Rosa
confronted Silot about the overpayment but the latter refused to return the
overpayment. After her repeated demands fell on deaf ears, de la Rosa filed a suit
against Silot.

Silot, in retaliation, sued de la Rosa for insufficient payment, claiming that he

was supposed to receive P1,281,872.40[4] but was only paid P1,008,000.00, thus still
leaving a balance of P273,872.40.

The two cases were consolidated by the trial court.

During trial, however, Atty. San Jose, counsel for Silot, dispensed with the
testimony of Ariel Goingo, a witness for de la Rosa. Atty. San Jose admitted
Goingos proposed testimony to the effect that in consideration of the 33% as
mentioned in the contract, all the material supplies during the making of the
additional works mentioned were already accounted for; that Silot was paid for all
works that were performed as well as all materials supplied; that the total sum
was P2,504,469.65, so that 33% of which is only P826,474.98; that de la Rosa paid
the amount of P1,018,000.00; hence, there was an excess payment of P191,525.02;
and that de la Rosa never received any demand from nor was she confronted by Silot
regarding an alleged balance.[5]

Consequently, after trial, the RTC ruled in favor of de la Rosa and ordered
Silot to return the overpaid amount, decreeing as follows:
WHEREFORE, premises considered, Civil Case No. 3736 is
hereby ordered DISMISSED for lack of merit; while in Civil Case No. 97-
3750, defendant Gregorio Silot is hereby ordered to return the amount
of P191,525.02 to the plaintiff, Estrella de la Rosa; to pay P100,000.00 for
[a]ttorneys fees and P50,000.00 as nominal damages.

SO ORDERED.[6]
 On appeal, the Court of Appeals affirmed the decision of the lower court.
Hence, the instant petition wherein Silot assigned the following errors:
I.
THE HONORABLE COURT OF APPEALS ERRED IN CONSTRUING
THE ADMISSION MA[D]E BY ATTY. SAN JOSE ON THE PURPOSE
FOR THE TESTIMONY OF WITNESS ARIEL [GOINGO] AS
ADMISSION OF EVIDENCE.

II.
THE HONORABLE COURT OF APPEALS ERRED IN DECIDING
AND ORDERING PETITIONER-APPELLANT TO RETURN THE
AMOUNT OF P191,525.02 TO RESPONDENT APPELLEE AND
ALSO TO PAY P20,000.00 ATTORNEY[]S FEES.[7]

Simply stated, petitioner is raising the following issues to be resolved: (1)

whether the admission by Atty. San Jose, counsel of petitioner Silot, constituted
judicial admission of respondents evidence; and (2) whether the appellate court erred
in ruling that Silot should return the claimed amount of P191,525.02 to de la Rosa.

Petitioner Silot contends that his counsel Atty. San Jose merely admitted that
the subject of Goingos testimony was that stated in the offer of testimony, but he did
not admit the truth or veracity of the testimony. Silot adds that Atty. San Jose could
not and should not have admitted the testimony because he had no special power of
attorney to enter into such stipulations or to compromise his clients right without the
latters direct intervention.[8]

Respondent de la Rosa counters that clients are bound by the admissions as

well as the negligence of their counsel. She enumerates several Court decisions to
support her contention, among them the following cases:

(1) Ongson v. People,[9] where petitioner was held bound by his unqualified
admission that he received private complainants demand letter with notice of
dishonor. The admission binds him considering that he never denied receipt of the
notice of dishonor.
 (2) Republic v. Sarabia,[10] where the Court held that an admission made in
the pleading cannot be controverted by the party making such admission and are
conclusive as to him.

(3) People v. Genosa,[11] Arroyo, Jr. v. Taduran,[12] Carandang v. Court of

Appeals,[13] in which cases the Court held that judicial admissions are conclusive
upon the party making it and may not be contradicted in the absence of prior showing
that the admission had been made through palpable mistake, or no admission was in
fact made.

(4) People v. Razul[14] and Lim v. Jabalde,[15] where it was held that
stipulations are recognized as declarations constituting judicial admissions, hence,
binding upon the parties.

Moreover, well-entrenched is the rule that the client is bound by the mistakes
arising from negligence of his own counsel.[16] The only exception to this rule is, as
the Court of Appeals itself cited in its decision, when the negligence is so gross that
the client is deprived of his day in court.[17]

In our considered view, however, that exception does not find any application
in this case. As the records would plainly show, Silot was not deprived of his day in
court. Also, as the appellate court observed, he could have introduced evidence,
testimonial or otherwise, in order to controvert or correct the admission made by his
counsel. Said the appellate court:
As gleaned from the records, defendant-appellant Silot was not deprived
of his day in court. He was given every opportunity to be heard through
his pleadings and manifestations. He was also presented in open court to
testify. As quoted earlier, Atty. Terbio, counsel for plaintiff-appellee de la
Rosa, even repeatedly asked Atty. San Jose, defendant-appellant Silots
counsel, if he would admit the purpose for which the witness Ariel Goingo
will testify to dispense with his testimony, and Atty. San Jose repeatedly
answered that We will admit that. And when asked by the judge if he will
admit it, he answered that they will admit P2,504,000.00.[18]

More importantly, Silots counsel clearly made admissions of the content of

the testimony of witness Goingo, whose presentation was dispensed with. In People
v. Hernandez,[19] we held that admissions made for the purpose of dispensing with
proof of some facts are in the nature of judicial admissions, to wit:
A stipulation of facts entered into by the prosecution and defense counsel
during trial in open court is automatically reduced into writing and
contained in the official transcript of the proceedings had in court. The
conformity of the accused in the form of his signature affixed thereto is
unnecessary in view of the fact that: [] an attorney who is employed to
manage a partys conduct of a lawsuit [] has prima facie authority to make
relevant admissions by pleadings, by oral or written stipulation, [] which
unless allowed to be withdrawn are conclusive. (Italics supplied.) In
fact, judicial admissions are frequently those of counsel or of the
attorney of record, who is, for the purpose of the trial, the agent of his
client. When such admissions are made [] for the purpose of
dispensing with proof of some fact, [] they bind the client, whether
made during, or even after, the trial.[20] (Emphasis supplied.)

Worth stressing, in this connection, judicial admissions do not require proof

and may not be contradicted in the absence of a prior showing that the admissions
had been made through palpable mistake.[21]

Furthermore, in the case of Toh v. Court of Appeals,[22] this Court emphasized

the consequence of admitting and dispensing with the testimony of the proposed
witness, thus:
The Court sees no cogent reason why the said witness should be examined
any further since his testimony as summarized in the offer made by
counsel was expressly admitted by opposing counsel. With the said
admission, the testimony of said witness is uncontroverted and even
admitted as fact by opposing counsel.[23]

On the issue of insufficient payment, Silot avers that he has rendered or

provided labor for the total amount of P1,281,872.40, and that de la Rosa has
benefited and profited from these labors.[24] Without the labors provided by Silot,
the constructed building would not have been painted, provided with electrical works
and other works which were additional works on the building, and that to sanction
de la Rosas claim would be to allow unjust enrichment on the part of de la
Rosa.[25] However, this claim has been belied by the admission made by his own
counsel, as plainly manifest in the transcript:

ATTY. TERBIO
The purpose for which this witness will testify are the following: If
admitted, we are willing to dispense the testimony. He will testify
that in consideration of the 33% as mentioned in the contract,
all the material supplies during the making of the additional
works mentioned were all considered; he will testify that Silot
was paid of all works that was performed as well as all
materials supplied were considered, and that the sum total of
which is P2,504,469.65 and 33% of which is P826,474.98, and
that De la Rosa paid the total amount of P1,018,000.00, and
therefore, there is an excess payment of P191,525.00; he will
testify that De la Rosa never received the demand or was
confronted by Silot regarding an alleged balance, now, if the
counsel wish to admit this.

ATTY. SAN JOSE

We admit that.

ATTY. TERBIO

Because these are all evidentiary and this has not been adequately covered.

ATTY. SAN JOSE

We will admit that.[26] (Emphasis supplied.)

Clearly, given the circumstances of this case, the Court of Appeals did not err
in ordering petitioner to return to respondent the amount of P191,525.02
overpayment.

WHEREFORE, the instant petition is DENIED for lack of merit. The

Decision dated July 9, 2003 of the Court of Appeals in CA-G.R. CV No. 68062
is AFFIRMED. Petitioner Gregorio Silot, Jr. is hereby ordered to return the amount
of P191,525.02 to respondent Estrella de la Rosa, and to pay P20,000.00 as attorneys
fees. Costs against petitioner.
SO ORDERED.