Presentatiom of Evidence defense, during its turn in the presentation of evidence, countered
1. Order of Presentation of Evidence
G.R. No. 146697. July 23, 2002.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.LEONARDO FABRE y VICENTE, accused-appellant.
Criminal Law; Rape; Evidence; Alibi; In order that alibi might
prosper, it would not be enough for an accused to prove that he was
somewhere else when the crime was committed; he would have to
demonstrate likewise that he could not have been physically present
at the place of the crime or in its immediate vicinity at the time of its
commission.—In any event, in order that alibi might prosper, it would
not be enough for an accused to prove that he was somewhere else
when the crime was committed; he would have to demonstrate
likewise that he could not have been physically present at the place
of the crime or in its immediate vicinity at the time of its commission.
Clearly, in the instant case, it was not at all impossible nor even
improbable for appellant to have been at the crime scene.
Same; Same; Same; The testimony of a rape victim, who is
young and still immature, deserves faith and credence.—It has been
stressed quite often enough that the testimony of a rape victim, who
is young and still immature, deserves faith and credence for it simply
would be unnatural for a young and innocent girl to invent a story of
defloration, allow an examination of her private parts and thereafter
subject herself and her family to the trauma of a public trial unless
she indeed has spoken the truth. Most especially, a daughter would
not accuse her own father of such a serious offense or allow herself
to be perverted if she were not truly motivated by a desire to seek a
just retribution for a violation brazenly committed against her.
Same; Same; Death Penalty; Qualifying circumstances of
relationship and minority are twin requirements that should be both
alleged in the information and established beyond reasonable doubt
during trial in order to sustain an imposition of the death penalty;
Judicial notice of the issue of age without the requisite hearing
conducted under Section 3, Rule 129, of the Rules of Court, would
not be considered sufficient compliance with the law.—These
qualifying circumstances of relationship and minority are twin
requirements that should be both alleged in the information and
established beyond reasonable doubt during trial in order to sustain
an imposition of the death penalty. Neither an obvious minority of
the victim nor the failure of the defense to contest her real age
always excuse the prosecution from the desired proof required by
law. Judicial notice of the
VITUG, J.:
Leonardo Fabre was adjudged guilty by the Regional Trial Court, Br.
VI, of Prosperidad, Agusan del Sur, of raping his own daughter
Marilou Fabre, and he was sentenced to suffer the extreme penalty
of death.
Fabre was indicted in an Information that read:[1]
That on or about 4:00 oclock in the afternoon of April 26, 1995 in the
house of the accused located at Manat, Trento, Agusan del Sur,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused by force, threats and intimidation, with lewd
design, did then and there willfully, unlawfully and feloniously
succeed in having sexual intercourse with his own daughter
MARILOU FABRE, a girl thirteen (13) years of age, of good
reputation, against her will and consent to the damage and prejudice
of the said victim consisting of moral, actual and compensatory
damages.
Accused pleaded not guilty to the crime charged. At the trial, the
prosecution presented the testimony of Marilou, that of Adela Fabre,
her mother and the wife of the accused, and that of Dr. Reinerio
Jalalon, the doctor who examined Marilou, along with the medico-
legal certificate issued by Dr. Jalalon, the sworn statement of Adela,
and the criminal complaint signed by both Marilou and Adela. The
with the testimony of the accused himself. It also called Adela Fabre
back to the witness stand.
The trial court gave credence to the evidence given by the
prosecution, particularly to the narration of the young complainant,
expressing a quote from an observation once made by this Tribunal
in one of its decision that even when consumed with revenge, it
(would) take a certain amount of psychological depravity for a young
woman to concoct a story which (could) put her own father for the
rest of his remaining life in jail and drag herself and the rest of her
family to a lifetime of shame.[2] Convinced that the accused
committed the crime of rape on his own daughter, the trial judge
disposed of the case thusly:
WHEREFORE, the Court finds accused LEONARDO FABRE y
VICENTE alias Nardo, GUILTY beyond reasonable doubt as
principal of the crime of RAPE as defined and penalized under
Article 335 of the Revised Penal Code as amended by R.A. No.
7659 Section 11 thereof and hereby imposes upon the accused
Leonardo Fabre y Vicente alias Nardo the penalty of DEATH; to pay
the victim Marilou Fabre civil indemnity in the amount of FIFTY
THOUSAND (P50,000.00) PESOS and the costs.[3]
In this automatic review, the convicted accused assigned the
following alleged errors committed by the court a quo.
I
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING
CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF ALIBI
AND DENIAL.
II
ASSUMING IN ARGUENDO THAT ACCUSED-APPELLANT IS
GUILTY, THE TRIAL COURT GRAVELY ERRED IN IMPOSING
THE DEATH SENTENCE UPON ACCUSED-APPELLANT
DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH
THE ACTUAL AGE OF MARILOU FABRE AT THE TIME OF THE
COMMISSION OF THE ALLEGED RAPE.[4]
The defense argues, rather desperately, that the testimony of
appellant should acquire added strength for the failure of the
prosecution to conduct cross-examination on him and to present any
rebuttal evidence. The cross-examination of a witness is a
prerogative of the party against whom the witness is called.[5] The
purpose of cross-examination is to test the truth or accuracy of the
statements of a witness made on direct examination.[6] The party
against whom the witness testifies may deem any further
examination unnecessary and instead rely on any other evidence
theretofore adduced or thereafter to be adduced or on what would
be believed is the perception of the court thereon. Certainly, the trial
court is not bound to give full weight to the testimony of a witness on
direct examination merely because he is not cross-examined by the
other party.
The alibi of appellant itself would not appear to be deserving of
serious consideration. His account that at the time of the alleged
rape he was working at a coconut plantation, just about one
kilometer away from the place of the crime, hardly would amount to
much. Nor would the testimony of Adela Fabre, his wife, merit any
better regard. At first, she testified that on the day of the rape
incident, she had left their house at four oclock in the afternoon.
Later, however, she changed her story by saying that she had left
the house in the morning and returned only at ten oclock that same
morning, staying home the whole day thereafter. In any event, in
order that alibi might prosper, it would not be enough for an accused
to prove that he was somewhere else when the crime was
committed; he would have to demonstrate likewise that he could not
have been physically present at the place of the crime or in its
immediate vicinity at the time of its commission.[7] Clearly, in the Q Where is your house located?
instant case, it was not at all impossible nor even improbable for
appellant to have been at the crime scene. A At Purok 4, Manat, Trento, Agusan del Sur, Your Honor.

Upon the other hand, the evidently candid and straightforward PROS. ENRIQUEZ:
testimony of Marilou should be more than enough to rebut the claim
of innocence made by appellant.[8] Q What did you do when your father dragged you to your house?

On 26 April 1995, around four oclock in the afternoon, Marilou Fabre A Because I was dragged by my father to our house I just went with
was alone in their house in Barangay Manat, Trento, Agusan del him, sir.
Sur. Adela Fabre, her mother, had gone to Purok 4 to buy fish while
her siblings were out strolling. After cleaning their yard, Marilou went Q While you were in your house after having been dragged by your
to the adjacent palm plantation, about fourteen to fifteen meters father, what happened if any?
away from their house, to gather palm oil. Marilou had been
gathering palm oil for about a minute when her father, appellant A He closed our house and he removed my panty, sir.
Leonardo Fabre, arrived. He suddenly gripped Marilous hands and
forcibly dragged her towards the house. He closed the door and Q And after removing your panty, what did your father do next?
removed his daughters underwear. He took off his pants and asked
Marilou to hold his sex organ. In tears, Marilou obeyed her father. A He removed his pants and he let me hold his penis, sir.
He then began touching the girls breasts and vagina. He forced her
to lie down, mounted her and sought to insert his penis into her Q And what did you do next after holding his penis?
organ. Marilou cried in pain. When after some time he still could not
insert his penis into Marilous vagina, he applied coconut oil to A I was crying, sir.
lubricate his and his daughters sexual organs. He was finally able to
penetrate her. Once inside her, appellant made push and pull Q While you were crying what did your father do?
movements until he was through with her. Appellant threatened to
kill her if she would tell anybody about the sexual encounter. The A He was touching my breast and my vagina, sir.
young girls mother, Adela Fabre, arrived home about five oclock that
afternoon but, remembering her fathers threats, she kept mum about Q After that what did he do next?
her ordeal.
A He let me lie down, sir.
The credibility of Marilou would not be all that difficult to discern from
her narration that, as so described by the prosecution, was full of Q And while lying down, what did your father do?
graphic details which a young provincial girl could not possibly have
concocted and which could only have come from someone who A He mounted me and he inserted his penis, to my vagina, sir.
must have personally experienced a brutal rape assault. She
testified: Q And what did you feel while your father was inserting his penis to
your vagina?
PROS. ENRIQUEZ:
A Very painful, sir.
Q Now, Miss Marilou, can you recall where were you on April 26,
1995 at about 4:00 oclock in the afternoon? Q And what did you do while your father was inserting his penis to
your vagina?
A Yes, sir.
A I was crying, sir.
Q Where were you that time?
Q And while you were crying what did your father do if any?
A In our house, sir.
A He told me not to tell anybody because if I will do it he will kill me,
Q What were you doing in your house? sir.

A I was cleaning our yard, sir. Q Now, did your father find it easy to insert his penis to your vagina?

Q How far is your yard where you were doing some works from your A It [took] a long time, sir.
house?
Q And did he use anything to facilitate the insertion of his penis to
A (Witness pointing a distance of around 2 to 3 meters.) your vagina?

Q Now, while you were doing your work in your yard, can you recall A Yes, sir.
if there was an incident that occurred?
Q What was that?
A Yes, sir.
A He used coconut oil in his penis and also in my vagina so that his
Q What was that incident that occurred? penis can easily insert my vagina, sir.

A While I was gathering a palm oil my father arrived and suddenly Q Now, while his penis was in your vagina, can you tell this
dragged me to our house, sir. Honorable Court if he did anything also on top of you and while his
penis was inside your vagina?
COURT:
A None, sir.
Q Did he make any movement?
A Yes, sir.
Q What was that movement?
A He made a push and pull movement on my body, sir.
Q Now, while your father was doing it to you where was your mother
that time?
A She was in Purok 4, Manat, Trento, Agusan del Sur, sir.
Q And did you report this incident to your mother?
A Not yet sir because he told me not to tell anybody.
Q So when did you had a chance to tell your mother about this
incident?
A On May 1, 1995, sir.
Q And what did your mother do after you reported to her this
incident?
A She reported [the matter] to the Kagawad, sir.[9]
It has been stressed quite often enough that the testimony of a rape
victim, who is young and still immature, deserves faith and
credence[10] for it simply would be unnatural for a young and
innocent girl to invent a story of defloration, allow an examination of
her private parts and thereafter subject herself and her family to the
trauma of a public trial unless she indeed has spoken the truth.[11]
Most especially, a daughter would not accuse her own father of such
a serious offense or allow herself to be perverted if she were not
truly motivated by a desire to seek a just retribution for a violation
brazenly committed against her.[12]
Confirming Marilous story was the medical report and testimony of
Dr. Reinerio Jalalon, the government physician stationed at the
Bunawan District Hospital in Agusan del Sur, who examined
Marilou. Dr. Jalalon made these findings; viz:
Abrasion at (L) labia minora at 3:00 oclock position.
Vaginal smear (-) negative for spermatozoa.[13]
The doctor concluded that it was possible that genital penetration on
the victim did occur and that a penis could have caused the abrasion
on the victims labia minora.
There is merit, however, in the plea of the defense, seconded by the
prosecution, that the penalty of death imposed by the trial court
should be reduced to the penalty of reclusion perpetua. Article 335
of the Revised Penal Code, as amended by Section 11 of Republic
Act No. 7659, provides:
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, stepparent, guardian, relative by
consanguinity or affinity within the third civil degree, or the common-
law-spouse of the parent of the victim.
While the father-daughter relationship between appellant and private
complainant has been sufficiently established, the fact of minority of
the victim, although specifically averred in the information, has not
been equally shown in evidence. These qualifying circumstances of
relationship and minority are twin requirements that should be both
alleged in the information and established beyond reasonable doubt
during trial in order to sustain an imposition of the death penalty.[14]
Neither an obvious minority of the victim nor the failure of the
defense to contest her real age always excuse the prosecution from
the desired proof required by law.[15] Judicial notice of the issue of
age without the requisite hearing conducted under Section 3, Rule
129, of the Rules of Court, would not be considered sufficient
compliance with the law. The birth certificate of the victim or, in lieu
thereof, any other documentary evidence, like a baptismal
certificate, school records and documents of similar nature, or
credible testimonial evidence, that can help establish the age of the
victim should be presented.[16] While the declaration of a victim as
to her age, being an exception to the hearsay proscription, would be
admissible under the rule on pedigree, the question on the relative
weight that may be accorded to it is a totally different matter.[17]
In the case at bar, the complainant claimed that she was 13 years
old at the time of the incident.[18] Her mother stated, however, that
she was 14.[19] The birth certificate of the victim, at least already in
her teens, was not presented to ascertain her true age on the bare
allegation that the document was lost when their house burned
down.[20] No other document that could somehow help establish the
real age of the victim was submitted.
The Court, in sum, upholds the decision of the trial court convicting
Leonardo Fabre of the crime of rape but must reduce, on account of
insufficiency of proof on the qualifying circumstance of minority of
the victim, the penalty of death to reclusion perpetua. With respect
to the civil liability, the Court sustains the award of P50,000.00 civil
indemnity but, in keeping with prevailing jurisprudence, must
additionally order the payment of P50,000.00 moral damages[21]
and P20,000.00 exemplary damages.[22]
WHEREFORE, the judgment of the court a quo finding LEONARDO
FABRE guilty of rape is AFFIRMED but the sentence of death
therein imposed should be, as it is hereby so, reduced to reclusion
perpetua. The award of P50,000.00 civil liability in favor of victim,
Marilou Fabre, is sustained; however, appellant is further ordered to
pay to the victim the amounts of P50,000.00 moral damages and
P20,000.00 exemplary damages.
SO ORDERED.
Bellosillo, (Acting C.J.), Puno, Kapunan, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, and Corona, JJ., concur.
Davide, Jr., C.J., on leave.
2. Leading and Misleading Questions
G.R. No. 142556. February 5, 2003
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS
PEREZ y SEBUNGA, accused-appellant.
Criminal Law; Rape; Evidence; Witnesses; Leading Questions;
General Rule; Exceptions.—As a rule, leading questions are not
allowed. However, the rules provide for exceptions when the witness
is a child of tender years as it is usually difficult for such child to
state facts without prompting or suggestion. Leading questions are
necessary to coax the truth out of their reluctant lips.
Same; Same; Same; Same; Child Witnesses; The trend in
procedural law is to give wide latitude to the courts in exercising
control over the questioning of a child witness.—“The trend in
procedural law is to give wide latitude to the courts in exercising
control over the questioning of a child witness. The reasons are
spelled out in our Rule on Examination of a Child Witness, which
took effect on December 15, 2000, namely, (1) to facilitate the
ascertainment of the truth, (2) to ensure that questions are stated in
a form appropriate to the developmental level of the child, (3) to
protect children from harassment or undue embarrassment, and (4)
avoid waste of
DECISION
PER CURIAM:
For automatic review is the Decision[1] dated October 26, 1999 of
the Regional Trial Court of Iba, Zambales, Branch 69, in Criminal
Case No. RTC-2116-I, finding appellant Jesus S. Perez (appellant
for brevity), guilty of raping Mayia P. Ponseca (Mayia for brevity) and
imposing on appellant the death penalty.
On January 22, 1997, the Second Assistant Provincial Prosecutor[2]
of Zambales filed an Information[3] charging appellant with the crime
of rape penalized under Article 335 of the Revised Penal Code in
relation to Section 5 (b), Article III of Republic Act No. 7610,
committed as follows:
That on or about the 17th day of January, 1997 at 12:00 noon at
Sitio Baco, Brgy. Macarang, in the Municipality of Palauig, Province
of Zambales, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with lewd design and by means
of coercion, inducement and other consideration, did then and there,
wilfully (sic), unlawfully and feloniously have sexual intercourse with
one Mayia P. Ponseca, a minor of 6 years old, without her consent
and against her will, to the damage and prejudice of the latter.
Upon arraignment, appellant, assisted by counsel de officio Atty.
Genaro N. Montefalcon, pleaded not guilty to the offense charged.[4]
Subsequently, the trial court allowed the withdrawal of Atty.
Montefalcon as counsel for health reasons. The trial court appointed
Atty. Roberto Blanco as appellants counsel de oficio.[5]
At the pre-trial, the prosecution and defense stipulated on the
following facts:
1. The identity of the accused;
2. The accused was at the time of the incident in the vicinity thereof;
3. The victim in this case, Mayia P. Ponseca, was born on 23 May
1990 as evidenced by her birth certificate;
4. That after the incident, the child was subjected to a medico-legal
examination to which a medico-legal certificate was issued by Dr.
Editha Divino.
The prosecution marked in evidence the birth certificate of the victim
Mayia O. Ponseca as Exhibit A, and the medico-legal certificate
issued by Dr. Editha Divino as Exhibit B.[6]
Thereafter, trial ensued. The prosecution presented the following
witnesses: the victim, Mayia Ponseca; the victims mother, Hermie
Ponseca; the victims father, Osias Ponseca; Virginia Espejo Giron;
and Dr. Editha dela Cruz Divino. On the other hand, the defense
presented appellant and his employer, Bartolome Tolentino.
The Office of the Solicitor General (OSG for brevity) summarized the
prosecutions version of the incident in the appellees brief, to wit:
On January 17, 1997, about noontime, in Sitio Baco, Barangay
Macarang, Palauig, Zambales, six-year old Mayia Ponseca was
walking along Sulok on her way to her house in Sitio Camiling when
appellant Jesus Sebunga Perez approached her (pp. 7-8, TSN,
December 15, 1998). Appellant introduced himself as Johnny and
immediately afterwards, strangled her neck and boxed her abdomen
(p. 10, TSN, December 15, 1998). Still in shock, Mayia fell down
(id.). At that point, a dog arrived and barked at them.
Appellant then proceeded to lower his black denim pants while
simultaneously removing Mayias panty. He then inserted his penis
inside Mayias vagina (p. 11, id.). Mayia felt excruciating pain in her
private parts (sic) but was not able to repel her aggressor whose
strength and weight totally engulfed her. Her only recourse was to
cry while her young body was being ravished (p. 13, id.).
After satisfying his beastly desires, appellant raised his pants and
ran away (p. 14, id.). Notwithstanding that her vagina was bleeding
profusely and her dress now covered with her own blood, Mayia
managed to stand up and seek help. She ran to the house of
Virginia Giron, which was only fifty (50) meters away from the scene
of the crime. In fact, Giron was outside when she heard her dog
barking (apparently, it was the same dog barking at appellant while
he was consummating his lust on Mayia, pp. 2-3, TSN, January 12,
1999; p. 11, TSN, December 15, 1998). Looking at the direction of
the noise, she saw a confused Mayia approaching her with blood
dripping from her private parts and thighs. When Giron asked Mayia
what happened, the latter shouted ni-rape ako, ni-rape ako (p. 4,
TSN, January 4, 1999). Giron then summoned her husband and
other companions to look for Mayias attacker but was unable to find
him. Giron then proceeded to Hermie Ponseca and Osias Ponseca,
Mayias parents, to inform them of what happened (p. 5, TSN,
January 5, 1999; p. 2, TSN, January 19, 1999).
When her parents asked Mayia if she knew her assailant, the latter
answered the name Johnny. (id.) The couple brought their daughter
to the President Ramon Magsaysay Memorial Hospital for medical
examination (p. 2, TSN, February 24, 1999). She was examined by
Dra. Editha Dela Cruz Divino, who issued a medico-legal certificate
dated January 23, 1997 stating the following:
a. Bleeding of genitalia coming from median laceration at the vaginal
floor around four (4) centimeters in size. Possible cause, a fall and
then hitting a sharp object and also an alleged sexual assault (p. 4,
TSN, February 24, 1999).
b. Genitalia had hymenal lacerations at 3, 6, 9 and 12 oclock
positions.
(pp. 4-6 id.)
Because of the extent of the damage on her genitals, Mayia
undertook an IV sedation operation to repair her lacerations (p. 6,
id.) During her confinement at the hospital, the Ponseca couple
reported the incident to the Palauig PNP Police Station and
recounted their daughters narration including the name of the culprit
as Johnny who, according to their neighbors, was a worker at the
fishpond of Bartolome Tolentino (pp. 11-12, TSN, January 5, 1999).
Police operatives then proceeded to the said fishpond and arrested
appellant. After her discharge from the hospital, Mayia learned that
appellant was already apprehended (pp. 3-8, TSN, January 5,
1999). In the police station, she was able to positively identify the
appellant as the person who sexually assaulted her (p. 18, TSN,
December 15, 1998).[7]
Appellant denied raping Mayia. Appellant testified that on the date of
the alleged rape incident, he was working at a fishpond at
Macarang, Zambales. He heard of the rape of a young girl from his
manager, Bartolome Tolentino (Tolentino for brevity).[8] Appellant
further testified that on January 25, 1997, policemen went to the
fishpond where he worked. The policemen arrested appellant and
brought him to the police station at Palauig. Later, the policemen
took him to the municipal jail of Palauig.
On cross-examination, appellant testified that his nickname is not
Johnny but Jessie.[9] He testified that on January 17, 1997, at
around 12 oclock noon, he left the fishpond and walked home to
Barangay Alwa which was about thirty meters from the fishpond.[10]
The defense formally offered the testimony of witness Tolentino to
prove that appellant was employed as caretaker of Tolentinos
fishpond for almost two years before the alleged rape incident.
Appellant was purportedly of good moral character while employed
as a fishpond caretaker. The prosecution admitted the offer of
testimony. Hence, the trial court dispensed with the testimony of
Tolentino in open court.[11]
After trial, the court a quo rendered judgment[12] on October 26,
1999, the dispositive portion of which reads:
WHEREFORE, foregoing considered, accused Jesus Perez y
Sabung (SIC) is found GUILTY beyond reasonable doubt of the
crime of Statutore Rape, defined and penalized under Article 335 of
the Revised Penal Code with the qualifying circumstance that the
victim was only 6 years old at the time of the commission of the
offense, in relation to Section 5 (b), Article III, Republic Act 7610,
and is sentenced to suffer the penalty of DEATH. Jesus Perez is
directed to pay to the private complainant the amount of Seventy-
Five Thousand Pesos (P75,000.00) as and by way of civil indemnity
and Fifty Thousand (P50,000.00) as and by way of moral damages.
Hence, this automatic review.
In his brief, appellant raises the following lone assignment of error:
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE
GUILT OF THE APPELLANT HAS BEEN PROVEN BEYOND
REASONABLE DOUBT.
Appellant contends that his identification in open court by Mayia was
highly irregular. Appellant points out that the prosecutor had already
identified him as the man wearing an orange t-shirt when the
prosecutor asked Mayia to identify her alleged rapist. Appellant
stresses that when Mayia identified him in open court, she referred
to him as a man named Johnny and did not give any description or
any identifying mark. Moreover, appellant claims he was alone in the
cell when Mayia identified him after the police arrested him.
Appellant bewails that the identification was not done with the usual
police line-up.
Appellants contention is untenable.
As a rule, leading questions are not allowed. However, the rules
provide for exceptions when the witness is a child of tender
years[13] as it is usually difficult for such child to state facts without
prompting or suggestion.[14] Leading questions are necessary to
coax the truth out of their reluctant lips.[15] In the case at bar, the
trial court was justified in allowing leading questions to Mayia as she
was evidently young and unlettered, making the recall of events
difficult, if not uncertain.[16] As explained in People v. Rodito
Dagamos:[17]
The trend in procedural law is to give wide latitude to the courts in
exercising control over the questioning of a child witness. The
reasons are spelled out in our Rule on Examination of a Child
Witness, which took effect on December 15, 2000, namely, (1) to
facilitate the ascertainment of the truth, (2) to ensure that questions
are stated in a form appropriate to the developmental level of the
child, (3) to protect children from harassment or undue
embarrassment, and (4) avoid waste of time. Leading questions in
all stages of examination of a child are allowed if the same will
further the interests of justice.
The Court has repeatedly stated that it is highly inconceivable for a
child of tender age, inexperienced in the ways of the world, to
fabricate a charge of defloration, undergo a medical examination of
her private part, subject herself to public trial, and tarnish her familys
honor and reputation, unless she was motivated by a strong desire
to seek justice for the wrong committed against her.[18]
Mayia recounted her harrowing experience, thus:
Q What time was this when Johnny introduced himself to you?
A I do not recall, mam.
Q Was it in the morning, noontime or in the afternoon or in the
evening?
A Noontime, mam.
Q So, when Johnny said, Ako si Johnny, what did you do?
A None, mam.
Q After that when Johnny said, Ako si Johnny, what happened?
A He strangled (sinakal) me.
Q Were there persons around in the place when Johnny strangled
you?
A None, mam.
Q So, what did he do then after he strangled you?
A He boxed me on my stomach, mam.
Q When he boxed you on your stomach, what happened to you?
A I was shocked, mam.
Q Did you fall down?
A Before that, I was already lying down, so when he boxed me, I
was shocked.
Q You said that you were already lying down. Who made you lie
down?
A The person, mam.
Q Why were you shocked, Mayia?
A Because he strangled me and boxed me.
Q After he boxed you on your abdomen, what happened? What else
did he do to you?
A There was a dog that arrived in the place and it barked at us.
Then Johnny moved in a hurry by penetrating my private part and
after he dressing (SIC) me, he ran away.
Q You said that Johnny penetrated your private part. With what
instrument did he use in penetrating your private part?
A His penis, mam.
Q What was he wearing at that time?
A A black denim, mam.
Q When he used his penis in entering your private part, did he
remove his pants?
A No, mam.
Q What did he do with his pants? Q Point to him.

A He brought out his penis, mam. A (Witness pointing to the person sitting at the accused bench and
when asked of his name answered Jesus Perez)
Q You mean to say Mayia, he lowered his pants?
Q Is this Johnny whom you point to the person whom you saw in
A Yes, mam. that Sulok?

Q What about you, were you wearing any panty? A Yes, sir. [21]

A Yes, mam. Mayias simple, positive and straightforward recounting on the

witness stand of her harrowing experience lends credence to her
Q What was your clothes at that time? accusation. Her tender age belies any allegation that her accusation
was a mere invention impelled by some ill-motive. As the Court has
A A dress, mam. stressed in numerous cases, when a woman or a child victim says
that she has been raped, she in effect says all that is necessary to
Q When his penis entered your vagina Mayia, did he remove your show that rape was indeed committed.[22]
panty?
Mayia had a clear sight of appellants face since the rape occurred at
A Yes, mam.[19] noontime.[23] Her proximity to appellant during the sexual assault
leaves no doubt as to the correctness of her identification for a man
The identity of appellant as the rapist has been established by the and woman cannot be physically closer to each other than during
clear, convincing and straightforward testimony of Mayia. During the the sexual act.[24] Thus, even if Mayia did not give the identifying
trial, she testified as follows: marks of appellant, her positive identification of appellant sufficed to
establish clearly the identity of her sexual assailant.
Q Mayia, there is a man sitting wearing orange t-shirt, do you know
this man? Appellants claim that the police improperly suggested to Mayia to
identify appellant is without basis. True, Mayia did not identify
A Yes, mam. appellant in a police line-up when Mayia identified appellant in his
cell. However, appellant, in his testimony admitted that he had two
Q Do you know his name? other companions in his cell.[25] Moreover, the Court has held that
there is no law requiring a police line-up as essential to a proper
A Yes, mam. identification. Even without a police line-up, there could still be a
proper identification as long as the police did not suggest such
Q What is his name? identification to the witnesses.[26] The records are bereft of any
indication that the police suggested to Mayia to identify appellant as
A Johnny, mam. the rapist.

Q Why do you know him?
A Because he introduced himself to me.
Q Where did he introduced himself to you?
Mayias identification in open court of appellant as her rapist dispels
any doubt as to the proper identification of appellant. Mayia
positively identified and pointed to appellant as her rapist. We are
satisfied that her testimony, by itself, is sufficient identification of her
rapist. As held in People v. Marquez:[27]

A At Sulok, mam. xxx. Indeed, the revelation of an innocent child whose chastity was
abused deserves full credit, as the willingness of complainant to face
Q Sulok is a place? police investigation and to undergo the trouble and humiliation of a
public trial is eloquent testimony of the truth of her complaint. Stated
A Yes, mam. differently, it is most improbable for a five-year old girl of tender
years, so innocent and so guileless as the herein offended party, to
Q Do you have any companion when this man introduced himself to brazenly impute a crime so serious as rape to any man if it were not
you? true.

A None, mam.
Q How did he introduce himself to you?
A The man introduced himself to me by saying, Kilala mo ba ako?
Hindi po. Ako si Johnny.[20]
The trial court further asked Mayia:
Q You were talking of a certain Johnny. s this Johnny in court now?
In his Reply Brief, appellant contends that even assuming that the
guilt of appellant has been proven beyond reasonable doubt, the
trial court erred in imposing the death penalty. Appellant maintains
that the death penalty cannot be imposed on him for failure of the
prosecution to prove Mayias age by independent evidence.
Appellant points out that while Mayias birth certificate was duly
marked during the pre-trial, it was not presented and identified
during the trial. Appellant asserts that Mayias minority must not only
be specifically alleged in the Information but must also be
established beyond reasonable doubt during the trial.

A Yes, sir. Appellants argument deserves scant consideration.

Q Can you point to him? At the pre-trial, the parties mutually worked out a satisfactory
disposition of the criminal case. Appellant, assisted by counsel,
A Yes, sir.
signed a Pre-Trial Agreement[28] which, as incorporated in the Pre-
Trial Order, stated that:
x x x.
3. The victim in this case, Mayia P. Ponseca was born on 23 May
1990 as evidenced by her birth certificate;
x x x. (Emphasis supplied)
3.
During the pre-trial, the prosecution marked in evidence Mayias birth
certificate as Exhibit A.[29] The prosecution submitted its Offer of
Evidence[30] which included Exhibit A, a certified true copy of
Mayias birth certificate. The trial court admitted Exhibit A[31] without
any objection from the defense.
The purpose of pre-trial is to consider the following: (a) plea
bargaining; (b) stipulation of facts; (c) marking for identification of
evidence of the parties; (d) waiver of objections to admissibility of
evidence; (e) modification of the order of trial if the accused admits
the charge but interposes lawful defenses; and (f) such matters as
will promote a fair and expeditious trial of the criminal and civil
aspects of the case.[32] Facts stipulated and evidence admitted
during pre-trial bind the parties. Section 4, Rule 118 of the Revised
Rules of Criminal Procedure[33] provides:
SEC. 4. Pre-trial order. - After the pre-trial conference, the court
shall issue an order reciting the actions taken, the facts stipulated,
and evidence marked. Such order shall bind the parties, limit the trial
to matters not disposed of, and control the course of the action
during the trial, unless modified by the court to prevent manifest
injustice. (Emphasis supplied)
Moreover, Mayia herself testified in open court as to her age. During
the trial on December 15, 1998, which was about twenty-three (23)
months after the rape incident occurred on January 17, 1997, Mayia
testified on cross-examination that she was 8 years old last May
23.[34] Thus, by deduction, since Mayia was born on May 23, 1990
as shown in her birth certificate, she was about six (6) years and
seven (7) months old on January 17, 1997, the day the crime took
place. We rule that the prosecution has indisputably proven that
Mayia was below seven years old at the time appellant raped her.
Finally, the trial court was correct in imposing the death penalty on
appellant. Under Article 335[35] of the Revised Penal Code, as
amended by Section 11 of Republic Act No. 7659,[36] the death
penalty shall be imposed if the crime of rape is committed against a
child below seven (7) years old. Mayia was six (6) years and seven
(7) months old when appellant raped her.
If rape is qualified by any of the circumstances[37] warranting the
imposition of the death penalty, the civil indemnity for actual or
compensatory damages is mandatory.[38] Following prevailing
jurisprudence, the civil indemnity is fixed at P75,000.00. In addition,
moral damages of P50,000.00 should also be awarded to the rape
victim without need for pleading or proving it.[39]
WHEREFORE, the Decision dated October 26, 1999 of the Regional
Trial Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-
2116-I, finding appellant Jesus S. Perez guilty beyond reasonable
doubt of the crime of qualified rape, sentencing him to suffer the
death penalty,[40] and ordering him to pay the victim Mayia P.
Ponseca the amount of P75,000.00 as civil indemnity and
P50,000.00 as moral damages, is AFFIRMED in toto.
In accordance with Article 83 of the Revised Penal Code, as
amended by Section 25 of the Republic Act No. 7659, upon the
finality of this Decision, let the records of this case be forthwith
forwarded to the Office of the President of the Philippines for
possible exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Ynares-Santiago, J., on leave.
Impeachment
G.R. No. 139412. April 2, 2003.*
THE PEOPLE OF THE PHILIPPINES, appellee, vs. JAIME
CASTILLANO, SR., alias “Talino,” RONALD CASTILLANO alias
“Nono” and JAIME CASTILLANO, JR. alias “Junjun,” accused.
RONALD CASTILLANO alias “Nono” and JAIME CASTILLANO,
JR., alias “Junjun,”appellants.
Criminal Law; Murder; Evidence; Self-defense and Defense of
Relatives; Elements.—The Court has consistently held that like alibi,
self-defense is inherently weak because it is easy to fabricate. In a
case where self-defense and defense of relatives is invoked by the
accused, the burden of evidence is shifted to him to prove with clear
and convincing evidence the essential requisites of self-defense,
namely (a) unlawful aggression on the part of the victim; (b)
reasonable necessity of the means employed to repel or prevent it;
and (c) lack of sufficient provocation on the part of the person
defending himself. There can be no complete or incomplete self-
defense or defense of relatives unless the accused proves unlawful
aggression on the part of the victim.
Same; Same; Same; Same; The accused must rely on the strength
of his evidence and not on the weakness of the evidence of the
prosecution.—The accused must rely on the strength of his
evidence and not on the weakness of the evidence of the
prosecution for by pleading self-defense, the accused thereby
admits having killed the victim and he can no longer be exonerated
of the crime charged if he fails to prove the confluence of the
essential requisites for self-defense and defense of a relative.
Same; Same; Same; Witnesses; Flight; Flight from the situs of the
crime is a veritable badge of guilt.—Flight from the situs of the crime
is a veritable badge of guilt and negates his plea of self-defense.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision[1] of the Regional Trial Court of
Pili, Camarines Sur, Branch 31, in Criminal Case No. P-2542,
convicting appellants Ronald Castillano alias Nono and Jaime
Castillano, Jr. of murder, meting on each of them the penalty of
reclusion perpetua and ordering them to pay, jointly and severally,
damages to the heirs of the victim Diosdado Volante.
The Evidence or the Prosecution
Diosdado Volante, who eked out a living as a farmer, his wife Luz,[2]
and their four children lived in their farmland located in the outskirt of
Sitio Danawan, Barangay Sagrada, Bula, Camarines Sur.
About 200 meters away from Diosdados farmland was the
farmhouse of Jaime Castillano, Sr.[3] He tasked his son, Jaime
Castillano, Jr., to take care of the farmhouse and allowed him to
reside there.[4] Jaime, Sr., his wife Concepcion, their son Ronald
(Nono) Castillano and other children lived at their family residence in
Sagrada, Bula, Camarines Sur, approximately three kilometers away
from their farmhouse in Sitio Danawan.[5]
Sometime in the early part of June 1996,[6] Jaime, Sr. fired his gun
indiscriminately. Afraid that a stray bullet might hit any member of
his family, Diosdado accosted Jaime, Sr. and asked him to desist
from firing his gun indiscriminately. Jaime, Sr. resented the intrusion.
He remonstrated that neighbors did not even complain about him
firing his gun. A heated altercation ensued. Jaime, Sr. then fired his
gun towards the house of Diosdado. The incident germinated deep
animosity between the two and their respective families.[7] Jaime,
Sr. always carried a bolo whenever he passed by the house of
Diosdado.
On July 8, 1996, between 5:00 p.m. to 6:00 p.m., Levy Avila, a
teacher, was in his house doing some repairs. He noticed Jaime, Jr.
and Ronald talking by the roadside near the gate of his (Levys)
house. Levy overheard the two planning to go to Diosdados house.
Jaime, Jr. and Ronald even told Levy: Ayaw namin kasing inaasar.
Suspecting that the two were intending to harm Diosdado, Levy
urged them to amicably settle their differences with Diosdado.
At around 8:00 p.m., Luz and Diosdado were about to retire for the
night. Their children were already fast asleep. Diosdado was tired
after a days work of spraying chemicals at the rice field. He reclined
on a bamboo bench near the main door of their house. A kerosene
lamp lighted the house. Suddenly, Luz heard voices near their
house. She saw Jaime, Sr. holding a flashlight and his two sons,
Jaime Jr. and Ronald, on their way to the house. Luz immediately
alerted her husband and told him that the Castillanos were in their
yard. However, Diosdado was nonchalant and simply told Luz not to
mind them. All of a sudden, Jaime, Sr. fired his gun at Diosdados
house. Terrified, Luz hastily carried her baby daughter Mary Jane,
sought cover and hid near the rear door. She was about five meters
away from her husband when the Castillanos barged inside their
house and ganged up on Diosdado. Jaime, Jr. and Ronald, armed
with bladed weapons, took turns in stabbing Diosdado. Ronald
stabbed Diosdado on the right side of his breast, right thigh and on
the back. He also struck him with a one-meter long pipe. Not
satisfied, Jaime, Sr. fired his gun hitting the right thigh of Diosdado.
Luz was so shocked by the sudden turn of events. To silence her
one year old baby, she breastfed her. As soon as she could, Luz
fled to the rice paddies where she hid for a time. The Castillanos fled
on board a jeep parked in the NIA road about 200 meters from the
house of Diosdado. When Luz returned to their house, she saw her
husband sprawled on the ground in a pool of his own blood.
Diosdado, at the point of death, asked her for help. Not knowing
what to do, Luz lost no time and ran to the house of their neighbor
Celedonio Espiritu for help. Celedonio rushed to the Bula Police
Station and reported the incident.
A team composed of SPO4 Jaime Javier, SPO3 Jaime Bellano and
SPO3 Nilo Fornillos,[8] the duty investigator,[9] went to the crime
scene[10] to conduct an on-the-spot investigation. Photographs
were taken of the cadaver.[11] SPO3 Fornillo drew rough sketch[12]
of the scene. The policemen saw a bolo at the place where
Diosdado was sprawled near the door of their house. A scabbard of
a bolo was found a meter away from the house of Diosdado.[13] The
policemen also found a bullet hole on the wall of the house.[14]
Thereafter, the cadaver was placed on a hamak [hammock] brought
to the police station. The police investigators turned over the
scabbard and bolo to the desk officer of the police station.[15]
From the police station, SPO4 Javier, SPO3 Bellano and Sgt.
Rogelio Palacio boarded their mobile police car and set out a
manhunt for the malefactors. They proceeded towards the boundary
in Sto. Domingo where they put up a checkpoint. The police officers
inspected every vehicle that passed by. At around 12:45 a.m., SPO4
Javier halted a passenger jeepney. On board were Jaime, Sr. and
his two sons, Jaime Jr. and Ronald, each of whom carried a bag
containing their clothes. The policemen brought the Castillanos to
the police station.[16] The bags of Jaime, Jr. and Ronald were
turned over to the police investigators. The three were placed under
arrest for the killing of Diosdado. The policemen submitted their
investigation report.[17]
In the meantime, at 7:00 a.m., Dr. Evangeline Consolacion, the
Municipal Health Officer of Bula, conducted an autopsy on the
cadaver of Diosdado. Her autopsy report revealed the following
findings:
External Findings
1. Incise Wound 3 cm Superior pinna R ear
2. Incise woud (sic) 10 cm. from nasal bridge extending to mandible
R
3. Stab wound 2 cm.x 5 cm. Epigastrium R
4. Stab wound 2 cm.x 4 cm. Epigastrium L
5. Stab wound 2.5 cm. Middle third Arm R
6. Stab wound 2cm x 5 cm. posterior Back.
7. Amputating middle third finger L
8. Hacked wound posterior ankle L
9. Gunshot wound POE 2 x 2cm. with contusion collar medial aspect
middle third R thigh
No point of exit noted
Internal Findings:
Fracture femur with Foreign body bullet lodge in middle third femur
with hematoma about about 100 cc R thigh
Cause of Death; Hypovolemia secondary to Multiple Stab
Wound[18]
The doctor recovered a slug from the right thigh of Diosdado. She
later signed the victims post-mortem certificate of death.[19] Senior
Inspector Edgardo B. Sambo, Chief of Police of Bula Police Station,
filed with the Municipal Trial Court of Bula, Camarines Sur, a
criminal complaint[20] for murder against the Castillano brothers.[21]
Judge Francisco O. Tolentino conducted the preliminary
examination and thereafter issued an order of arrest against the
Castillanos.[22] No bail was recommended for their provisional
release. On July 9, 1996, Luz gave a sworn statement to the police
investigators.[23]
On July 10, 1996, the accused were transferred to the Tinangis
Penal Farm. Senior Inspector Sambo requested the PNP-CLRU5
Provincial Unit to conduct a paraffin test on the Castillanos.[24]
On July 12, 1997, Major Lorlie Arroyo, the Head Forensic Chemist of
PNP-Region 5, conducted the paraffin test on the Castillanos.
Ronald was found positive for gunpowder residue.[25] Jaime, Sr.
and Jaime, Jr. were found negative for gunpowder residue.
The MTC issued a subpoena requiring the accused to submit their
counter-affidavits from notice thereof. However, the accused failed
to submit any counter-affidavit.[26]
On August 2, 1996, an Information for murder was filed against
Jaime, Sr., Ronald and Jaime Jr. with the Regional Trial Court of
Pili, Camarines Sur, Branch 31. The accusatory portion of the
Information reads:
That on or about the 8th day of July 1996 at about 8:00 oclock in the
evening at Barangay Sagrada, Municipality of Bula, Province of
Camarines Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused conspiring,
confederating and mutually helping one another with intent to kill
with treachery and evident premeditation armed with a handgun,
bladed weapon and piece of wood did then and there wilfully,
unlawfully and feloniously attack, assault and shot and stab one
DIOSDADO VOLANTE y LOZANO inflicting upon the latter several
mortal wounds on the different parts of his body which caused his
instantaneous death, to the damage and prejudice of the heirs of
said Diosdado Volante the amount of which to be proven in Court.
ACTS CONTRARY TO LAW.[27]
Upon their arraignment[28] on August 29, 1996, accused Jaime Sr.,
Jaime, Jr and Ronald, duly assisted by counsel de parte, Atty.
Avelino Sales Jr., pleaded not guilty to the offense charged.
Thereafter, trial on the merits ensued.
Luz testified that when Diosdado was still alive, he had an annual
income of over P65,000. She spent P18,000 for the funeral
services,[29] P300 for religious services,[30] P9,111 for food and
other expenses[31] during her husbands wake and funeral. She
suffered sleepless nights and mental anguish for his sudden death.
The Defenses and Evidence of the Accused
Ronald admitted when he testified that he killed Diosdado but
insisted that he did so in self-defense and in defense of his brother
Jaime, Jr. He asserted that his father Jaime, Sr. and brother Jaime,
Jr. had nothing to do with Diosdados death. Ronald alleged that on
September 8, 1996, at about 7:30 p.m., he was driving a passenger
jeepney on his way to the poblacion of Bula. Jaime, Jr. flagged down
the jeepney. He boarded the jeepney and told Ronald that he was
instructed by their mother to go to the house of Jose del Socorro to
ask the latter to accompany them to their farmhouse in order to fetch
Gilda Albes. Ronald was armed with a .38 paltik gun, while Jaime,
Jr. was armed with a bolo sheathed in a scabbard. They fetched
Jose and then Ronald parked the jeepney at the NIA road. Jaime,
Jr., who was holding a flashlight, walked along the footpath on top of
a pilapil (a narrow earthen barrier between two rice fields). Ronald
and Jose walked behind Jaime, Jr. As they passed by the house of
Diosdado, a man suddenly shouted: you shit, I have await (sic) for
you for a while, why just now. Surprised, Jaime, Jr. forthwith focused
his flashlight towards the man who shouted. He was aghast when he
saw Diosdado armed with a bolo running towards them and about to
attack them with his bolo. Ronald shoved Jaime, Jr. who fell on the
muddy rice paddies below the pilapil. Ronald forthwith shot
Diosdado. Diosdado took a step but fell on a kneeling position.
Diosdado brandished his bolo. Ronald shot Diosdado once more but
his gun misfired. To defend himself, Ronald took Jaime, Jr.s bolo
and hacked Diosdado to death.[32] Ronald then fled from the scene
and ran to the jeepney at the NIA road. Jaime, Jr. and Jose boarded
the jeep and left the scene. Ronald threw the bolo along the way. He
threw his gun into a rice farm in Danawan.
Jaime, Jr. corroborated the testimony of his brother. He, however,
testified that he did not see his brother hack and kill Diosdado. He
claimed that when Ronald got hold of his bolo, he ran away and
proceeded to their jeepney which was then parked at the roadside.
Minutes later, Ronald followed. They then hastily went home to
Sagrada and told their father Jaime, Sr. of the incident.[33]
Jose Del Socorro corroborated the testimony of Ronald. He testified
that on July 8, 1996, at about 5:00 p.m. he was on his way home
when he met Diosdado whom he noticed to be inebriated and unruly
Diosdado was throwing dried mud at the farmhouse of the
Castillanos and challenging the occupants of the farmhouse to a
fight. He advised Diosdado to stop what he was doing and warned
him that he was only inviting trouble. Diosdado told him to mind his
own business and not to intervene. Jose thereafter left Diosdado
and went, home.[34] When Jose arrived home, Dominador Bria was
waiting for him. He and Dominador talked business for a while and
subsequently had dinner. After some time, Jaime, Jr. and Ronald
arrived at Joses house.
Concepcion Castillano testified that on July 8, 1996 at around 5:00
a.m., her son Jaime, Jr. arrived home and told her that Diosdado
threw stones at their farmhouse and challenged everybody to a fight.
She felt nervous and reported the incident to the police and caused
the same to be entered in the police blotter.[35] Thereafter, she went
home and told her sons Jaime, Jr. and Ronald to immediately fetch
Gilda. She, likewise, instructed her sons to first drop by the house of
Jose so that the latter could accompany them to the farmhouse.
Jaime, Sr. vehemently denied any participation in the killing of
Diosdado. He claimed that at the time of the alleged incident, he
was at their house in Sagrada, bedridden due to his debilitating
diabetes. He narrated to the trial court his medical history and his
confinement at the Mandaluyong Medical Center sometime in
1994.[36] He presented documents and receipts showing that he
had been and is still under medication.[37] He declared that upon
learning from his son Ronald that the latter killed Diosdado, he
advised his sons to look for a lawyer for legal representation. He told
the trial court that at around 11:30 p.m., he and his two sons had
decided to go to Andangnan in order to meet a cousin of his who
knew of a lawyer named Atty. Rotor. As they traversed the road to
Andangan, they were stopped by some policemen at a checkpoint
and were invited to the police station where they were investigated
and eventually incarcerated.[38]
Gilda Abes, the last witness for the defense, affirmed that she was
the girlfriend of Jaime, Jr. She told the trial court that on July 8, 1996
she was at the farmhouse of the Castillanos. She corroborated the
testimony of Jose that Diosdado was combative and drunk.
According to Gilda, Jaime, Jr. left the farmhouse before sundown to
go to his parents place at Sagrada. Jaime, Jr. never returned to the
farmhouse that night. Gilda learned of the incident the next morning
when she went home.[39]
The Verdict of the Trial Court
On December 22, 1998, the trial court rendered a decision
convicting Jaime, Jr. and Ronald of murder qualified by evident
premeditation and treachery. The trial court exonerated Jaime, Sr. of
the crime on reasonable doubt. The trial court gave no credence to
Ronalds claim that he acted in self-defense. The decretal portion of
the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby
rendered, finding the two (2) accused RONALD CASTILLANO and
JAIME CASTILLANO, JR. guilty beyond reasonable doubt of the
offense of MURDER and they are hereby sentenced to suffer the
penalty of imprisonment of RECLUSION PERPETUA with all the
accessory penalties imposed thereby. Further, as civil liability, the
said two (2) accused are hereby ordered to pay the legal heirs of the
late Diosdado L. Volante, through his widow Luz R. Volante, the
total sum of ONE HUNDRED SEVENTY-SEVEN THOUSAND
FOUR HUNDRED TWENTY ONE PESOS (P177,421.00) Philippine
Currency as actual and moral damages including death indemnity,
with costs against both accused.
The accused Jaime Castillano, Sr. is hereby acquitted on the ground
of reasonable doubt.
SO ORDERED.[40]
The accused, now appellants, interposed their appeal from the
decision of the trial court contending that it committed reversible
errors:
(a) in rejecting appellant Ronalds plea of self-defense; and (b) in not
acquitting appellant Jaime, Jr. of the crime charged for failure of the
prosecution to prove his guilt beyond reasonable doubt.
Anent the first issue, appellant Ronald posits that he adduced proof
that he acted in self-defense when he stabbed the victim.
The Court disagrees with appellant Ronald. The Court has
consistently held that like alibi, self-defense is inherently weak
because it is easy to fabricate.[41] In a case where self-defense and
defense of relatives is invoked by the accused, the burden of
evidence is shifted to him to prove with clear and convincing
evidence the essential requisites of self-defense, namely (a)
unlawful aggression on the part of the victim; (b) reasonable
necessity of the means employed to repel or prevent it; and (c) lack
of sufficient provocation on the part of the person defending himself.
There can be no complete or incomplete self-defense or defense of
relatives unless the accused proves unlawful aggression on the part
of the victim.[42] The accused must rely on the strength of his
evidence and not on the weakness of the evidence of the
prosecution for by pleading self-defense, the accused thereby
admits having killed the victim and he can no longer be exonerated
of the crime charged if he fails to prove the confluence of the
essential requisites for self-defense and defense of a relative.[43]
Appellant Ronald failed to discharge his burden.
First. After shooting and stabbing Diosdado, appellant Ronald fled
from the situs criminis. Flight from the situs of the crime is a veritable
badge of guilt and negates his plea of self-defense.[44]
Second. Appellant Ronald threw away his paltik .38 gun and the
bolo he used in hacking Diosdado as he fled from the scene of the
crime instead of surrendering the same to the police authorities.
Appellant Ronald admitted that he had no license for the gun:
Q Where is that gun now that you use?
A I do not know, Your Honor, I think I was able to throw it away.
Q Where?
A At Danawan, Your Honor.
Q Danawan, is that a lake?
A No, Your Honor, it is a ricefarm.
Q What kind of gun is this?
A Paltik .38, Your Honor.[45]
ATTY. BALLEBAR:
q By the way, where is that bolo that you used in hacking and
stabbing Diosdado Volante?
a I do not know anymore because I was able to throw it away also
when I ran away.
q Where is that place where you throw it?
a It was by the NIA road.
q You mentioned also a while ago that this gun that you said is a
paltik and you throw it away also, is it not?
a Yes, Maam.
q And that gun had been in your possession the whole day that you
are driving up to the time you shot the victim, Diosdado Volante?
a Yes, Maam.
q Do you have license to possess that firearm?
a None, Maam.[46]
The failure of appellant Ronald to surrender the bolo and his gun to
the police authorities belies his claim of self-defense.
Third. Appellant Ronald failed to report the incident to the police
authorities even when they arrested him. Curiously, he failed to
inform the police officers who arrested him that he acted in self-
defense when he shot and stabbed the victim The resounding
silence of the appellant is another indicium of the incredibility of his
defense.[47] Moreover, the records show that the municipal trial
court issued a subpoena on July 9, 1996 requiring appellant Ronald
to submit his counter-affidavit but he refused and/or failed to submit
the same despite service on him of the subpoena. It was only during
the trial that appellant Ronald, for the first time, invoked self-defense
and defense of a relative.
Fourth. The cadaver of the victim was found inside his house when
the police investigators arrived.[48] This belies appellant Ronalds
claim that he shot the victim in the rice paddies, near his house and
that he (appellant Ronald) took the bolo of appellant Jaime, Jr. and
used it to stab the victim. Appellant Ronald failed to prove his claim
that when the police investigators arrived in the victims house, they
carried his (the victims) body from the rice paddies to the house.
The only evidence adduced by appellant Ronald was his testimony
which is hearsay, and besides being hearsay, it is speculative and
mere conjecture.
Fifth. Appellant Ronald hacked the victim no less than five times.
Two of the stab wounds sustained by the victim were at his back
and posterior portion of his left ankle. The number and nature of the
wounds of the victim negate the appellants claim that he shot the
victim in self-defense. On the contrary, they prove that appellant
Ronald was determined to kill the victim.[49]
Appellant Jaime, Jr. avers that the prosecution failed to prove his
guilt beyond reasonable doubt of the crime charged. He asserts that
the testimony of Luz Volante, the widow of Diosdado, was
inconsistent with her testimony during the preliminary examination in
the municipal trial court and her sworn statement before the police
investigators as well as the testimonies of SPO1 Fornillos and SPO4
Jaime Favier, and the physical evidence on record. The appellant
catalogued said inconsistencies, thus:
1. He was lying on the bench inside just upon entering. (Tsn p. 9,
2/17/97).
-I was lying down with my husband inside our house but we were
still awake (9th Answer, Prel. Exam. MTC, 7/9/96).
2. JCS fired towards our house hitting the wall (Tsn p. 11, 2/17/96).
JCS fired twice (16th answer, Prel. Exam. MTC, 7/9/96).
JCS kept on firing the gun pointing towards the body of my husband
(9th Answer, Sworn Statement, PNP, 7/9/96).
JCS shot my husband three (3) times (Tsn p. 16, 2/17/97)
3. My husband was shot and hit on the right thigh (Tsn p. 14,
2/17/97). He was hit on the left lap (23rd Answer, Prel. Exam. MTC,
7/9/96). He was hit on his side (Tsn p. 43, 2/17/97).
4. RC struck my husband with a 1-meter long Pipe (Tsn p. 13,
2/17/97). RC & JCJ smashed my husband with a hard object (5th
Answer, Sworn Statement, 7/9/96).
RC smashed my husband (22nd Answer, Prel. Exam. MTC, 7/9/96).
5. He was not able to fight back (Tsn p. 43, 2/17/97). He was
standing and was trying to parry the attack of the accused (26th
Answer, Prel. Exam. 7/9/96).
6. When I went back to the house, he was still alive (Tsn p. 19,
2/17/97). - LV Yes, the victim could have died instantly (Tsn p. 35,
2/3/97) With wounds sustained, he could have died instantly (p. 8,
Complainants Memorandum).
7. It was bright inside our house with a kerosene and a bottle
lamp (Tsn pp. 33-34, 2/17/97). Only one kerosene lamp - bottle of
gin with wick and light (Tsn p. 10, 4/1/97 - SPO1 Pornillos
Surrounding house, dark, total darkness (Tsn pp. 12-13, 4/1/97).
8. Scene Photography by Jaime Jornales (Tsn, p. 21, 2/17/97).
-do- by Mr. Lozano (Tsn., p. 12, 3/7/97).
9. SPO1 Nilo Pornillos learned of the incident at 8:00 oclock of
July 8, 1996 (page 5 of Complainants Memorandum.
SPO4 Jaime Javier received report at 9:00 oclock P.M. of July 8,
1996 of Complainants Memorandum.
SPO4 Jaime Javier received report at 8:00 P.M. (page 7 of
Complainants Memorandum).[50]
On the other hand, the Office of the Solicitor General asserts that
the credibility of the testimony of Luz, the prosecutions principal
witness, cannot be impeached via her testimony during the
preliminary examination before the municipal trial court nor by her
sworn statement given to the police investigators for the reason that
the transcripts and sworn statement were neither marked and
offered in evidence by the appellants nor admitted in evidence by
the trial court. Moreover, the appellants did not confront Luz with her
testimony during the preliminary examination and her sworn
statement to the police investigators. Luz was not, therefore,
accorded a chance to explain the purported inconsistencies, as
mandated by Section 13, Rule 132 of the Revised Rules of Evidence
which reads:
How witness is impeached by evidence of inconsistent statement. -
Before a witness can be impeached by evidence that he has made
at other times statements inconsistent with his present testimony,
the statements must be related to him, with the circumstances of the
times and places and the persons present, and he must be asked
whether he made such statements, and if so, allowed to explain
them. If the statements be in writing they must be shown to the
witness before any question is put to him concerning them.
The Court agrees with the Office of the Solicitor General. Before the
credibility of a witness and the truthfulness of his testimony can be
impeached by evidence consisting of his prior statements which are
inconsistent with his present testimony, the cross-examiner must lay
the predicate or the foundation for impeachment and thereby
prevent an injustice to the witness being cross-examined. The
witness must be given a chance to recollect and to explain the
apparent inconsistency between his two statements and state the
circumstances under which they were made.[51] This Court held in
People v. Escosura[52] that the statements of a witness prior to her
present testimony cannot serve as basis for impeaching her
credibility unless her attention was directed to the inconsistencies or
discrepancies and she was given an opportunity to explain said
inconsistencies. In a case where the cross-examiner tries to
impeach the credibility and truthfulness of a witness via her
testimony during a preliminary examination, this Court outlined the
procedure in United States vs. Baluyot,[53] thus:
...For instance, if the attorney for the accused had information that a
certain witness, say Pedro Gonzales, had made and signed a sworn
statement before the fiscal materially different from that given in his
testimony before the court, it was incumbent upon the attorney when
cross-examining said witness to direct his attention to the
discrepancy and to ask him if he did not make such and such
statement before the fiscal or if he did not there make a statement
different from that delivered in court. If the witness admits the
making of such contradictory statement, the accused has the benefit
of the admission, while the witness has the opportunity to explain
the discrepancy, if he can. On the other hand, if the witness denies
making any such contradictory statement, the accused has the right
to prove that the witness did make such statement; and if the fiscal
should refuse upon due notice to produce the document, secondary
evidence of the contents thereof would be admissible. This process
of cross-examining a witness upon the point of prior contradictory
statements is called in the practice of the American courts laying a
predicate for the introduction of contradictory statements. It is almost
universally accepted that unless a ground is thus laid upon cross-
examination, evidence of contradictory statements are not
admissible to impeach a witness; though undoubtedly the matter is
to a large extent in the discretion of the court.
In this case, the appellants never confronted Luz with her testimony
during the preliminary examination and her sworn statement. She
was not afforded any chance to explain any discrepancies between
her present testimony and her testimony during the preliminary
examination and her sworn statement. The appellants did not even
mark and offer in evidence the said transcript and sworn statement
for the specific purpose of impeaching her credibility and her present
testimony. Unless so marked and offered in evidence and accepted
by the trial court, said transcript and sworn statement cannot be
considered by the court.[54]
On the purported inconsistencies or discrepancies catalogued by the
appellants relating to the testimony of Luz during the preliminary
examination and her sworn statement, the Office of the Solicitor
General posits that:
Sixth, Volante indeed testified that when she returned to their house
from the ricefield, after the three accused had left the premises, her
husband was still alive (TSN, February 17, 1997, p. 19) as he was
still able to ask for her assistance (Ibid, p. 20). But it is not
inconsistent with the expert opinion of Dr. Consolacion that by the
nature of the wounds sustained by the victim, the latter could have
died thereof instantaneously (TSN, February 3, 1997, p. 35). It is
clear that the said physician was merely stating a possibility and not
what happened in the instant case because in the first place, she
was not present at the scene right after the incident.
Seventh, Volante was insistent in her testimony that at the time of
the commission of the subject crime, it was bright inside their house
because they had a kerosene lamp and a bottle lamp both lighted
up, one placed on the wall and the other on the ceiling (Ibid, pp. 33,
52-53). While it may appear contradictory to SPO1 Pornillos
testimony that there was only a kerosene lamp at the time, he could
not have been expected to notice all the things found inside the
house, including the bottle lamp, because he might not have been
familiar with its interiors. Or, he could have focused his attention
primarily on the body of the fallen victim and the objects that may be
used later as evidence against the perpetrators of the crime.
Eight, it is admitted that the testimonies of Volante and SPO1
Pornillos as to who took pictures of the crime scene including the
lifeless body of the victim are contradictory. But again, such
contradiction, being only minor and irrelevant, does not affect the Q Now, you said Ronald Castillano struck your husband, now with
credibility of their testimonies. what instrument did he use in strucking (sic) your husband?

And ninth, the apparently inconsistent statements of the prosecution ATTY. BERNALES:
witnesses (SPO1 Pornillos and SPO4 Javier) as to the exact time
the subject incident was reported to the police authorities are We object, misleading, your Honor.
similarly irrelevant to the matters in issue. Of consequence here is
the fact that on the night the crime was committed, it was reported to COURT:
the authorities who later effected the arrest of the perpetrators
thereof.[55] Witness may answer.

The Court fully agrees with the foregoing ruminations of the Office of WITNESS:
the Solicitor General. The inconsistencies adverted to by the
appellants pertained only to minor and collateral matters and not to A A pipe.
the elements of the crime charged; hence, they do not dilute the
probative weight of the testimony. It bears stressing that even the ATTY. BALLEBAR:
most truthful witness can make mistakes but such innocent lapses
do not necessarily affect his credibility. The testimonies of witnesses Q Now, will you tell us more or less how long was that pipe that was
must be considered and calibrated in their entirety and not by their used by Ronald Castillano?
truncated portions or isolated passages.[56] And then again, minor
contradictions among several witnesses of a particular incident and A About one (1) meter, Maam.[58]
aspect thereof which do not relate to the gravamen of the crime
charged are to be expected in view of their differences in Luz was merely five meters away from where Diosado was attacked
impressions, memory, vantage points and other related factors.[57] and stabbed by the appellants. Appellant Jaime, Jr. even tried to cut
the ankle of the victim:
Contrary to appellant Jaime, Jr.s claim, the prosecution adduced
proof that he and appellant Ronald conspired to kill and did kill ATTY. BALLEBAR:
Diosdado by their simultaneous acts of stabbing the victim. As
narrated by Luz: Q Now during this incident, how far were you from the accused and
your husband?
ATTY. BALLEBAR:
A From where I am sitting up to that window which is about five (5)
Q Now after Jaime Castillano Sr. fired at your house, what meters.
happened next if any?
Q Now after the accused strucked (sic) and shot your husband, what
A They entered our house. else happened if any?

Q Now, when you say they to whom are you referring to?
A Jaime Castillano Sr., Jaime Castillano, Jr., and Ronald Castillano.
Q Now, where did they enter?
A In the other door.
Q Now at the time they entered your house was the door of your
house closed or opened?
A Jaime Castillano Jr. stabbed my husband on his breast (Witness
is pointing to her breast).
ATTY. BERNALES:
We will move that the answer be striken off from the records
because it is not responsive to the question. The question is after
your husband has been stabbed strucked (sic) and shot.
COURT:

A It was closed. Q Your are being asked what happened after the accused was
already stabbed, strucked (sic) and shot, what happened next?
Q Now, after the accused entered your house what happened next,
if any? WITNESS:

A Jaime Castillano Jr. stabbed my husband and also Ronal Q Jaime Castillano Junior still stabbed my husband and try to cut his
Castillano stabbed my husband. ankle, Your Honor.

Q Now, was your husband hit by the stabbing of Ronald Castillano, COURT:
Jr. (sic)?
Strike our (sic) the previous answer of the witness.
A Yes, sir.
ATTY. BALLEBAR:
Q Will you tell us on what part of his body was he hit?
Q By the way, will you tell us how many times did Ronald Castillano
A My husband was still struck by Ronald Castillano hitting him on his stab your husband?
right side of his body including on his right thigh and also on his
back.. A I cannot determine how many times he even stabbed my husband
on his left eye.
ATTY. BALLEBAR:
Q How about Jaime Castillano Jr., how many times did he stab your
husband?

A I cannot determine exactly how many times but he repeatedly
stabbed my husband.[59]
The mere denial appellant Jaime, Jr. of the crime charged is but a
negative self-serving which cannot prevail over the positive and
straightforward testimony of Luz and the physical evidence on
record.[60]
The Crime Committed by Appellants
The trial court correctly convicted the appellants of murder, qualified
by treachery, under Article 248 of the Revised Penal Code. The
Court, however, does not agree with the trial courts finding that
evident premeditation attended the commission of the crime.
Case law has it that the prosecution has the burden to prove beyond
reasonable doubt qualifying circumstances in the commission of the
crime. For evident premeditation to qualify a crime, the prosecution
must prove the confluence of the essential requites thereof: (a) the
time when the offender has determined to commit the crime; (b) an
act manifestly indicating that the offender has clung to his
determination; (c) an interval of time between the determination and
the execution of the crime enough to allow him to reflect upon the
consequences of his act.[61] There must be proof beyond cavil
when and how the offender planned to kill the victim and that
sufficient time had elapsed between the time he had decided to kill
the victim and the actual killing of the victim, and that in the interim,
the offender performed overt acts positively and conclusively
showing his determination to commit the said crime.[62] In this case,
the only evidence adduced by the prosecution to prove evident
premeditation is the testimony of Levy Avila that between 5:00 p.m.
and 6:00 p.m. on July 8, 1996, he heard the appellants planning to
go to the house of Diosdado and that he heard them say: Ayaw
namin kasing inaasar, and that at 8:00 p.m., the appellants arrived in
the house of the victim and stabbed him to death. There is no
evidence of any overt acts of the appellants when they decided to
kill Diosdado and how they would consummate the crime. There is
no evidence of any overt acts perpetrated by the appellants between
5:00 and 8:00 p.m. that they clung to their determination to kill
Diosdado.
There is treachery in the commission of a crime when (a) at the time
of attack, the victim was not in a position to defend himself; (b) the
offender consciously and deliberately adopted the particular means,
methods and forms of attack employed by him.[63] Even a frontal
attack may be treacherous when unexpected on an unarmed victim
who would not be in a position to repel the attack or avoid it.[64] In
this case, the victim was unarmed and was supinely resting before
sleeping after a hard days work. Although Luz warned the victim that
the appellants were already approaching their house, however, the
victim remained unperturbed when the appellants barged into the
victims house. They stabbed him repeatedly with diverse deadly
weapons. The victim had nary a chance to defend himself and avoid
the fatal thrusts of the appellants.
The crime was committed in the house of the victim. There was no
provocation on the part of the victim. Dwelling thus aggravated the
crime. However, dwelling was not alleged in the information, as
mandated by Section 8, Rule 110 of the Revised Rules of Criminal
Procedure:
Sec. 8. Designation of the offense. - The complaint or information
shall state the designation of the offense given by the statute, aver
the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation
of the offense, reference shall be made to the section or subsection
of the statute punishing it.
The use by appellant Ronald of an unlicensed firearm to shoot
Diosdado on the thigh is not an aggravating circumstance because
(1) there is no allegation in the information that said appellant had
no license to possess the firearm. That appellant lacked the license
to possess the firearm is an essential element of the crime and must
be alleged in the information.[65] Although the crime was committed
before the new rule took effect on December 1, 2002, the rule
should, however, be applied retroactively as it is favorable to the
appellants.[66]
The appellants are not entitled to the mitigating circumstance of
voluntary surrender. The evidence shows that the appellants were
arrested when the police officers manning the checkpoint stopped
the passenger jeepney driven by appellant Ronald and arrested the
appellants. The fact that the appellants did not resist but went
peacefully with the peace officers does not mean that they
surrendered voluntarily.[67]
There being no mitigating and aggravating circumstances in the
commission of the crime, the appellants should be meted the
penalty of reclusion perpetua conformably with Article 63 of the
Revised Penal Code.
The Civil Liabilities of the Appellants
The trial court awarded the total amount of P177,421 as civil
indemnity, actual and moral damages in favor of the heirs of the
victim Diosdado. The Court has to modify the awards.
Appellants Ronald and Jaime, Jr. are obliged to pay jointly and
severally the amount of P50,000 as civil indemnity; P50,000 as
moral damages; P25,000 as exemplary damages in view of the
aggravating circumstance of dwelling;[68] and the amount of
P18,300 for funeral and religious services. The heirs of the victim
failed to adduce in evidence any receipts or documentary evidence
to prove their claim for food and other expenses during the wake.
However, they are entitled to temperate damages in the amount of
P5,000, conformably with the ruling of the Court in People v. dela
Tongga.[69] His wife Luzs testimony that the victim had an annual
income of more than P65,000 is not sufficient as basis for an award
for unearned income for being self-serving. There was no proof of
the average expense of the victim and his family and his net income.
In People v. Ereo,[70] this Court held that:
It bears stress that compensation for lost income is in the nature of
damages and as such requires due proof of the damage suffered;
there must be unbiased proof of the deceaseds average income. In
the instant case, the victims mother, Lita Honrubia, gave only a self-
serving hence unreliable statement of her deceased daughters
income. Moreover, the award for lost income refers to the net
income of the deceased, that is, her total income less her average
expenses. No proof of the victims average expenses was presented.
Hence, there can be no reliable estimate of the deceaseds lost
income.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional
Trial Court of Camarines Sur, Branch 31 in Criminal Case No. P-
2542 is AFFIRMED with MODIFICATION. Appellants Ronald
Castillano alias Nono and Jaime Castillano, Jr. alias Junjun are
found guilty beyond reasonable doubt of murder, qualified by
treachery, punishable by reclusion perpetua to death, under Article
248 of the Revised Penal Code. There being no modifying
circumstances in the commission of the crime, the appellants are
sentenced to suffer the penalty of reclusion perpetua, conformably
with Article 63 of the Revised Penal Code. They are, likewise,
ordered to pay jointly and severally to the heirs of the victim,
Diosdado Volante, the amounts of P50,000 as civil indemnity;
P50,000 as moral damages; P18,300 as actual damages; P25,000
as exemplary damages; and P5,000 as temperate damages. Costs
against the appellants.

SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Austria-Martinez,
JJ., concur.
4. Reference to Memorandum
a. Present Memory Revived
G.R. No. 90198. November 7, 1995.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ANTONIO
PLASENCIA y DESAMPARADO alias ‘Tonying,” ROBERTO
DESCARTIN y PASICARAN alias “Ruby” and JOELITO (JULITO)
DESCARTIN y PASICARAN, accused-appellants.
Evidence; Witnesses; Judgments; Judges; Transcript of Steno-
graphic Notes; The initial assessment on the testimony of a witness
is done by the trial court, and its findings still deserve due regard
notwithstanding that the presiding judge who pens the decision is
not the one who personally may have heard the testimony; Reliance
on the transcript of stenographic notes should not, for that reason
alone, render the judgment subject to challenge.—The focus of this
appeal is clearly one of credibility. The initial assessment on the
testimony of a witness is done by the trial court, and its findings still
deserve due regard notwithstanding that the presiding judge who
pens the decision is not the one who personally may have heard the
testimony. The reliance on the transcript of stenographic notes
should not, for that reason alone, render the judgment subject to
challenge. The continuity of the court and the efficacy of its decision
are not affected by the cessation from the service of the judge
presiding it or by the fact that its writer merely took over from a
colleague who presided at the trial.
Same; Same; Allowing a witness to refer to her notes rests on the
sound discretion of the trial court.—The use of memory aids during
an examination of a witness is not altogether proscribed. Section 16,
Rule 132, of the Rules of Court states: “Sec. 16. When witness may
refer to memorandum.—A witness may be allowed to refresh his
memory respecting a fact, by anything written or recorded by himself
or under his direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact was fresh
in his memory and he knew that the same was correctly written or
recorded;but in such casethe writing or record must be produced
and may be inspected by the adverse party, who may, if he
chooses, cross-examine the witness upon it and may read it in
evidence. So, also, a witness may testify from such a writing or
record, though he retain no recollection of the particular facts, if he is
able to swear that the writing or record correctly stated the
transaction when made; but such evidence must be received with
caution.” (Italics supplied.) Allowing a witness to refer to her notes
rests on the sound discretion of the trial court. In this case, the
exercise of that discretion has not been abused; the witness herself
has explained that she merely wanted to be accurate on dates and
like details.
Same; Same; Nervousness and anxiety of a witness is a natural
reaction particularly in the case of those who are called to testify for
the first time—the real concern should be when they show no such
emotions.—Appellants see inadvertency on Francisca’s appearing
to be jittery” on the witness stand. Nervousness and anxiety of a
witness is a natural reaction particularly in the case of those who are
called to testify for the first time. The real concern, in fact, should be
when they show no such emotions.
Same; Same; Delay or vacillation in making a criminal accusation
does not necessarily adulterate the credibility of witnesses.—
Francisca did fail in immediately reporting the killing to the police
authorities. Delay or vacillation, however, in making a criminal
accusation does not necessarily adulterate the credibility of the
witness. Francisca, in her case, has expressed fears for her life
considering that the assailants, being her neighbors, could easily
exact retribution on her. Also, the hesitancy in reporting the
occurrence of a crime in rural areas is not unknown.
Same; Same; Minor inconsistencies in the testimonies of witnesses
do not detract from their credibility—on the contrary, they serve to
strengthen their credibility and are taken as badges of truth rather
than as indicia of falsehood even as they also erase suspicion of
rehearsed testimony.—The alleged inconsistencies in Francisca’s
testimony and in her sworn statement of 18 December 1984, cover
matters of little significance. Minor inconsistencies in the testimonies
of witnesses do not detract from their credibility; on the contrary,
they serve to strengthen their credibility and are taken as badges of
truth rather than as indicia of falsehood even as they also erase
suspicion of rehearsed testimony.
Criminal Law; Murder; Robbery with Homicide; Murder is a crime
technically lower than robbery with homicide.—The trial court was
correct when it concluded that the crime committed was murder, a
crime technically lower than robbery with homicide, not, however,
because of the attendance of treachery but of abuse of superior
strength.
Same; Same; Same; Aggravating Circumstances; The aggravating
circumstance of abuse of superior strength qualified the killing to
murder where three assailants utilized superiority in numbers and
employed deadly weapons in assaulting an unarmed victim.—
Treachery, in our view, was not satisfactorily proven by the
prosecution. Francisca Espina simply testified that appellant
Plasencia stabbed Mansueto while the latter and the appellants
were in a huddle. There was nothing adduced on whether or not the
victim gave provocation, an indispensable issue in the proper
appreciation of treachery. The presence, nonetheless, of the
aggravating circumstance of abuse of superior strength qualified the
killing to murder. The three appellants utilized superiority in numbers
and employed deadly weapons in assaulting the unarmed
Mansueto.
APPEAL from a decision of the Regional Trial Court of Cebu City,
Br. 5.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Alex L. Monteclar for Joelito Descartin.
Cesar Gonzales for Roberto Descartin.
Gabriel T. Ingles for Antonio Plasencia.
VITUG, J.:
Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin
were accused of robbery with homicide in an information, dated 20
December 1984, that read:
That on or about the 29th day of November, 1984 at around 3:00
o'clock in the afternoon, more or less, in sitio San Juan, Barangay
Patao, Municipality of Bantayan, Province of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the said accused
conspiring and confederating together and mutually helping one
another, did then and there wilfully, unlawfully and feloniously, and
with treachery, evident premeditation and taking advantage of their
superior number and strength and with intent to kill, treacherously
attack, assault and use personal violence upon Herminio Mansueto,
thereby inflicting upon him the following physical injuries:
1. Stab wounds which was approximately two inches in
length, parallel to the ribs and is located 1 1/2 inches below the right
nipple on the right anterior axillary line and on the fifth intercostal
space. On probing the wound was penetrating immediately up to the
left parasternal border approximately hitting the heart;
2. Hacking wound 9 inches in length extending from the
coracoid process of the left clavicle passing between the left anterior
and the left mid axillary line up to the left 4th intercostal space
including all muscle underlying the skin exposing the ribs.
Cause of death: Internal hemorrhage due to stab wound.
after which the body was placed inside a plastic bag and brought to
an open sea by the pump boat owned by Roberto Descartin y
Pasicaran and operated by Joelito Descartin y Pasicaran and
dumped to the water by herein accused, and as a result of which
said Herminio Mansueto died, herein accused, in pursuance of their
conspiracy, wilfully, unlawfully and feloniously and with intent to
gain, took and carried away the personal property belonging to
Herminio Mansueto, namely: one (1) Seiko 5 "Stop Watch" valued at
P3,000.00; one (1) Bicycle (standard size) valued at P1,000.00; and
cash in the amount of P10,000.00, all in the total amount of FOUR-
TEEN THOUSAND PESOS (P14,000.00), Philippine Currency, to
the damage and prejudice of said oner (sic) in the said total sum.
All contrary to law, and with the qualifying circumstance of alevosia,
and the generic aggravating circumstance of known premeditation.
CONTRARY TO LAW. 1
When arraigned, all the accused entered a plea of "not guilty" to the
charge; whereupon, trial commenced.
The prosecution sought to establish, as follows:
At around ten o'clock in the morning of 29 November 1984, Herminio
Mansueto, wearing a blue and white striped t-shirt, maong pants,
Seiko 5 stop watch and a pandan hat, left on his bicycle for
Barangay Patao, Bantayan, Cebu. He had with him P10,000.00
cash which he would use to purchase hogs from a certain "Ruby."
In Patao, Francisca Espina, also known in the locality as Pansing
and whose house was just across the street from the respective
residences of the three accused, saw at the roadside Herminio
Mansueto and Roberto Descartin alias "Ruby" engaged in
conversation. Pansing approached them and asked Mansueto if he
would be interested in buying two of her pigs for P1,400.00.
Mansueto said "yes" and promised that he would be right back.
Mansueto and Ruby meantime proceeded to the latter's piggery.
Joelito Descartin and his brother-in-law Rene were also seen going
to the place. After some time, Pansing noticed Joelito take
Mansueto's bicycle. Believing that Mansueto was already preparing
to leave and in her desire to catch up with him, Pansing promptly
walked towards the piggery which was around 100 meters away
from her house. She could see Mansueto leaning on the pigsty with
Ruby on his right side and Antonio Plasencia alias "Tonying" on his
left; behind was Joelito.2 Midway, she was halted on her tracks; she
suddenly saw Antonio stab Mansueto. The latter staggered towards
Ruby who himself then delivered another stab blow. Mansueto fell
on his back. Joelito started hitting Mansueto on the forehead while
Rene held Mansueto's legs.3 Except for a coconut tree and some
ipil-ipil trees around the area, nothing obstructed Pansing's line of
vision. Pansing rushed back home. The image of Antonio waving the
weapon and the thought that she might herself be killed kept her
from revealing to anyone what she saw.4
The following day, in Kodia, Madridejos, Cebu, where Mansueto
resided, his daughter Rosalinda reported to Francisca Tayo, the
barangay captain, that her father had not returned home. Tayo
proceeded to Putian, which was in Mansueto's itinerary, and then to
Ruby's piggery in Patao, where a youngster, who turned out to be
Ruby's son, innocently informed her that Mansueto's bicycle was
taken by Joelito.5
The day after, Francisca Tayo, accompanied by police officers of
Madridejos, Cebu, and some relatives of Mansueto, went back to
Ruby's place. On a railing of the pigpen, she saw blood stains.
When she asked Ruby's father about it, he said that the stains had
come from chicken blood. Going around the piggery, she also saw
blood stains on a bamboo pole, which Ruby's father once again so
identified as chicken blood. At the back of the piggery, Francisca
noticed a digging which looked like an empty grave. The digging
was measured and photos were taken. The police found a hat at the
back of a hut beside the piggery, which was later recognized to be
that which belonged to Mansueto.6
In the morning of 30 November 1984, Patrolman Elpidio Desquitado
of the Bantayan police went back to the piggery. This time, the
police learned from Pansing herself that Joelito took Mansueto's
bicycle.7 Joelito was invited to the police headquarters to shed light
on the case. Later, Joelito, waiving his right to counsel, executed a
"confession."8
Joelito narrated that, upon Ruby's instruction, he brought the bicycle
to the piggery. Unexpectedly, he said, Tonying Plasencia stabbed
Mansueto. Stunned, Joelito tried to run away but Tonying stopped
him. Tonying then dragged the victim to a nearby house. Threatened
by Tonying, Joelito agreed to later return to where the victim's body
was dragged. At around eleven o'clock that evening, tonying and
Joelito placed the body in a sack. Tonying asked Ruby to allow the
use of the latter's pumpboat to ferry the body. Tonying paddled the
pumpboat to the island of Po-Po'o where he picked up some pieces
of stones. Then, again paddling the pumpboat farther away from the
island, he ordered Joelito to start the engine of the boat. They
headed for the islet of Gilotongin (Hilotongan). On the way, Tonying
filled the sack with stones and, using a rope, tied to it the body of the
victim. Tonying then unloaded their cargo into the sea.
Guided by Joelito, members of the Bantayan police force headed for
the islet of Hilotongan on two pumpboats9 in the area pinpointed to
be the place where the body was dumped. On the second day of the
search, the group was informed that the body had already surfaced
near the vicinity of the search and delivered to the municipal
building. 10
The municipal health officer of Bantayan, Dr. Oscar Quirante,
examined the body and concluded that the victim died of internal
hemorrhage due to stab wounds. 11 The bloated body was in a late
stage of decomposition and its skin had sloughed off. 12 He found
the victim's face to be "beyond recognition." There were "some rope
signs in the body particularly in the waistline and in the knees." 13
The main defense interposed is one of alibi.
Antonio stated that on the whole day of 29 November 1984, he was
out at sea fishing with his son. Joelito, on his part, asserted that he
was in Barrio Baod, about an hour's walk from his residence, at the
house of his fiancee. He returned to his house, he said, only the day
after. Roberto ("Ruby"), Joelito's uncle, testified that on that fateful
day, he was in Samoco Purok 2, Iligan City, and then left for Cebu
on 06 December 1984 only after receiving a telegraph that Joelito
was implicated in the crime.
The Regional Trial Court 14 did not give credence to the defense of
alibi. It convicted the three accused of murder (punishable under
Article 248 of the Revised Penal Code), instead of robbery with
homicide, explaining that the term "homicide" was used in the
information in its generic sense. 15 Finding conspiracy, the trial
court ruled that the killing was qualified by both treachery and abuse
of superior strength with the latter, however, being absorbed by the
former. No other aggravating or mitigating circumstances being
attendant in the commission of the crime, the trial court said, the
penalty that could be imposed upon each of the accused was
reclusion perpetua with a joint and several civil liability for
indemnification to the heirs of Herminio Mansueto in the amount of
P30,000.00.
The instant appeal was interposed by the three convicted
appellants.
Appellant Antonio Plasencia attacks the credibility of the
prosecution's lone eyewitness, Francisca Espina, alleging that she is
a pejured witness who has an axe to grind against him because his
dog had once bitten Francisca's child. 16 He bewails the fact that it
has taken Francisca until 29 December 1984 to reveal what she
supposedly has seen to the police authorities. Contending that
treachery has not been duly proven as "no wound was inflicted at
the back and as a matter of fact only one wound was fatal," 17
appellant argues that even if conspiracy were to be considered to
have attended the commission of the crime, he could be held liable
with the others, if at all, only for homicide.
Appellant Roberto Descartin, likewise challenging Francisca
Espina's credibility because of her alleged inconsistencies, faults the
trial court for allowing the witness to glance at the notes written on
her palm while testifying. He also argues that his alibi, being
corroborated, should have been given weight.
Appellant Joelito Descartin, in assailing the credibility of Francisca,
has noted her "jittery actuation" while giving her testimony. He also
questions the findings of the ponente for not being the presiding
judge during the examination of Francisca on the witness stand.
The focus of this appeal is clearly one of credibility. The initial
assessment on the testimony of a witness is done by the trial court,
and its findings still deserve due regard notwithstanding that the
presiding judge who pens the decision is not the one who personally
may have heard the testimony. 18 The reliance on the transcript of
stenographic notes should not, for that reason alone, render the
judgment subject to challenge. 19 The continuity of the court and the
efficacy of its decision are not affected by the cessation from the
service of the judge presiding it 20 or by the fact that its writer
merely took over from a colleague who presided at the trial. 21
It is asserted that the testimony of Francisca Espina should not be
given worth since, while testifying, she would at times be seen
reading some notes written on her left palm. Thus —
Q. May I see your left hand, may I see what is written there?
A. Witness showing to the court her left palm and the
following words have been written in her palm in ball pen
handwritten words and number of the pumpboat No. 56 and there is
another word "petsa" and there are words which cannot be
deciphered and all found in the palm of the left hand.
ATTY. MONTECLAR:
That is all.
ATTY. GONZALES: RE-CROSS
Q Mrs. witness, you cannot deny of what these physical
evidences or writings on the palm of your left hand. I want you to be
honest, the law will not allow you to lie, you are subject to
punishment and penalty. My question is, who wrote this on the palm
of your left hand?
A I was the one who wrote this.
Q Why did you write that down?
A I was the one who wrote this.
Q Why, what was your purpose of writing that in your palm?
A I wrote this in my palm because I wanted to be sure of
what time the incident happened, was the same as that I wrote in my
palm.
Q And who furnished you the data in which you wrote in the
palm of your hand?
A I was the one who made that.
ATTY. GONZALES:
Q You don't understand my question. You wrote that writing
but where did you get that data?
A. This is just of what I know.
Q Since you claim to have all this knowledge of your mind,
why did you find it necessary to write that in the palm of your hand
and I notice during the trial that you used to look in your palm, why,
is that necessary in your believe to testify here to what you knew
about the incident.
A Because of the fact that I have an headache.
Q When did this headache occur?
A After I left my house because my sick child.
Q Now, knowing that you have an headache, did you not
bring this to the attention of the Fiscal?
A No, I did not tell the Fiscal.
Q Do you know of your own that doing this is unfair and is
not allowable while testifying in open court, do you know that is
illegal act?
A No, I did not, know.
Q And you did all of this claiming that you do not know about
the incident for the purpose of giving here testimony against the
accused?
A Yes, sir. 22
The use of memory aids during an examination of a witness is not
altogether proscribed. Section 16, Rule 132, of the Rules of Court
states:
Sec. 16. When witness may refer to memorandum. — A witness
may be allowed to refresh his memory respecting a fact, by anything
written or recorded by himself or under his direction at the time when
the fact occurred, or immediately thereafter, or at any other time
when the fact was fresh in his memory and he knew that the same
was correctly written or recorded; but in such case the writing or
record must be produced and may be inspected by the adverse
party, who may, if he chooses, cross-examine the witness upon it
and may read it in evidence. So, also, a witness may testify from
such a writing or record, though he retain no recollection of the
particular facts, if he is able to swear that the writing or record
correctly stated the transaction when made; but such evidence must
be received with caution. (Emphasis supplied.)
Allowing a witness to refer to her notes rests on the sound discretion
of the trial court. 23 In this case, the exercise of that discretion has
not been abused; the witness herself has explained that she merely
wanted to be accurate on dates and like details.
Appellants see inadvertency on Francisca's appearing to be "jittery"
on the witness stand. Nervousness and anxiety of a witness is a
natural reaction particularly in the case of those who are called to
testify for the first time. The real concern, in fact, should be when
they show no such emotions.
Francisca did fail in immediately reporting the killing to the police
authorities. Delay or vacillation, however, in making a criminal
accusation does not necessarily adulterate the credibility of the
witness. 24 Francisca, in her case, has expressed fears for her life
considering that the assailants, being her neighbors, could easily
exact retribution on her. 25 Also, the hesitancy in reporting the
occurrence of a crime in rural areas is not unknown. 26
Francisca's inability to respond to the summons for another
appearance in court for further questioning was satisfactorily
explained by the prosecution. Francisca at the time just had a
miscarriage and was found to be too weak to travel. The recall of the
witness was, after all, at the sound discretion of the trial court. 27
The claim of appellant Roberto Descartin that Francisca and her
husband, a tuba-gatherer, owed him P300.00, and the assertion
made by appellant Antonio Plasencia on the dog-biting story
involving Francisca's son truly were too petty to consider. It would be
absurd to think that Francisca, for such trivial reasons was actually
impelled to falsely implicate appellants for so grave an offense as
murder.
Appellants questioned Francisca's ability to recognize them from a
distance. Francisca knew appellants well; they all were her
neighbors while Antonio Plasencia himself was her cousin. 28 The
crime occurred at around three o'clock in the afternoon only about
fifty (50) meters away from her. With an unobstructed view,
Francisca's positive identification of the culprits should be a
foregone matter. 29
The alleged inconsistencies in Francisca's testimony and in her
sworn statement of 18 December 1984, cover matters of little
significance. Minor inconsistencies in the testimonies of witnesses
do not detract from their credibility; 30 on the contrary, they serve to
strengthen their credibility and are taken as badges of truth rather
than as indicia of falsehood 31 even as they also erase suspicion of
rehearsed testimony.32
All considered, the case against the appellants has been proven
beyond reasonable doubt even with the retracted extra-judicial
admission of Joelito Descartin. 33 The testimony of a single witness,
if found to be credible, is adequate for conviction, 34 The defense of
alibi hardly can overcome the positive identification of an
unprejudiced eyewitness. 35
Like the trial court, we are not persuaded that robbery has been
proven to be the principal motive for the crime that can warrant the
conviction of appellants for the complex crime of robbery with
homicide. 36 Appellants could only thus be held responsible for the
killing of Mansueto. Conspiracy among the appellants has been
established beyond doubt by the sum of their deeds pointing to a
joint purpose and design. 37
Three aggravating circumstances were alleged in the information,
i.e., treachery, evident premeditation and abuse of superior strength.
The trial court disregarded the circumstance of evident
premeditation and concluded that the attack upon Mansueto was
committed with treachery and abuse of superior strength. On its
finding that the assault was unexpectedly perpetrated upon the
unarmed victim to ensure its execution without risk to themselves
from the defense that the victim might make, the trial court
appreciated treachery, which it deemed as having so absorbed
abuse of superior strength.
The trial court was correct when it concluded that the crime
committed was murder, a crime technically lower than robbery with
homicide, 38 not, however, because of the attendance of treachery
but of abuse of superior strength. Treachery, in our view, was not
satisfactorily proven by the prosecution. Francisca Espina simply
testified that appellant Plasencia stabbed Mansueto while the latter
and the appellants were in a huddle. There was nothing adduced on
whether or not the victim gave provocation, an indispensable issue
in the proper appreciation of treachery. 39 The presence,
nonetheless, of the aggravating circumstance of abuse of superior
strength qualified the killing to murder. 40 The three appellants
utilized superiority in numbers and employed deadly weapons in
assaulting the unarmed Mansueto.
There being no other aggravating or mitigating circumstances to
consider, the trial court aptly imposed the penalty of reclusion
perpetua, the medium period 41 of the penalty of reclusion temporal
maximum to death prescribed by Article 248 of the Revised Penal
Code. In conformity with prevailing jurisprudential law, the heirs of
the victim should be indemnified in the amount of P50,000.00. 42
WHEREFORE, the decision of the trial court convicting appellants
Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin
of the crime of murder and imposing on each of them the penalty of
reclusion perpetua is hereby AFFIRMED with the modification that
the indemnity to the heirs of the victim, Herminio Mansueto, is raised
to P50,000.00. Costs against appellants.
SO ORDERED.
Feliciano, Romero, Melo and Panganiban, JJ., concur.
b. Past Recollection Recovery
G.R. No. 96202. April 13, 1999.*
ROSELLA D. CANQUE, petitioner, vs. THE COURT OF
APPEALS and SOCOR CONSTRUCTION CORPORATION,
respondents.
Remedial Law; Evidence; Conditions to be satisfied before entries in
corporate books may be admitted in evidence.—The admission in
evidence of entries in corporate books requires the satisfaction of
the following conditions: 1. The person who made the entry must be
dead, outside the country or unable to testify; 2. The entries were
made at or near the time of the transactions to which they refer; 3.
The entrant was in a position to know the facts stated in the entries;
4. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or religious;
and 5. The entries were made in the ordinary or regular course of
business or duty
Same; Same; There was neither justification nor necessity for the
presentation of the entries as the person who made them was
available to testify in court.—As petitioner points out, the business
entries in question (Exh. K) do not meet the first and third requisites.
Dolores Aday, who made the entries, was presented by private
respondent to testify on the account of RDC Construction. It was in
the course of her testimony that the entries were presented and
marked in evidence. There was, therefore, neither justification nor
necessity for the presentation of the entries as the person who made
them was available to testify in court. Necessity is given as a ground
for admitting entries, in that they are the best available evidence.
Said a learned judge: “What a man has actually done and committed
to writing when under obligation to do the act, it being in the course
of the business he has undertaken, and he being dead, there seems
to be no danger in submitting to the consideration of the court.” The
person who may be called to court to testify on these entries being
dead, there arises the necessity of their admission without the one
who made them being called to court be sworn and subjected to
cross-examination. And this is permissible in order to prevent a
failure of justice.
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Zosa & Quijano Law Offices for petitioner.
Ramon B. Ceniza for private respondent.
MENDOZA, J.:
This petition for review on certiorari seeks a reversal of the
decision1 of the Court of Appeals affirming the judgment2 of the
Regional Trial Court of Cebu City ordering petitioner—
. . . to pay [private respondent] the principal sum of Two Hundred
Ninety Nine Thousand Seven Hundred Seventeen Pesos and
______________
1 Per Justice Pedro A. Ramirez and concurred in by Justices
Rodolfo A. Nocon and Jesus M. Elbinias.
2 Per Judge Juanito A. Bernad.
MENDOZA, J.:
This petition for review on certiorari seeks a reversal of the
decision[1] of the Court of Appeals affirming the judgment[2] of the
Regional Trial Court of Cebu City ordering petitioner -
. . . to pay [private respondent] the principal sum of Two Hundred
Ninety Nine Thousand Seven Hundred Seventeen Pesos and
Seventy Five Centavos (P299,717.75) plus interest thereon at 12%
per annum from September 22, 1986, the date of the filing of the
complaint until fully paid; to pay [private respondent] the further sum
of Ten Thousand Pesos (P10,000.00) for reasonable attorneys fees;
to pay the sum of Five Hundred Fifty Two Pesos and Eighty Six
Centavos (P552.86) for filing fees and to pay the costs of suit. Since
[private respondent] withdrew its prayer for an alias writ of
preliminary attachment vis-a-vis the [petitioners] counterbound, the
incident on the alias writ of preliminary attachment has become
moot and academic.
The facts are as follows:
Petitioner Rosella D. Canque is a contractor doing business under
the name and style RDC Construction. At the time material to this
case, she had contracts with the government for (a) the restoration
of Cebu-Toledo wharf road; (b) the asphalting of Lutopan access
road; and (c) the asphalting of Babag road in Lapulapu City.[3] In
connection with these projects, petitioner entered into two contracts
with private respondent Socor Construction Corporation. The first
contract (Exh. A),[4] dated April 26, 1985, provided:
The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC
Construction) for the consideration hereinafter named, hereby agree
as follows:
1. SCOPE OF WORK:
a. The Sub-Contractor agrees to perform and execute the Supply,
Lay and Compact Item 310 and Item 302;
b. That Contractor shall provide the labor and materials needed to
complete the project;
c. That the Contractor agrees to pay the Sub-Contractor the price of
One Thousand Pesos only (P1,000.00) per Metric Ton of Item 310
and Eight Thousand Only (P8,000.00) per Metric Ton of Item 302.
d. That the Contractor shall pay the Sub-Contractor the volume of
the supplied Item based on the actual weight in Metric Tons
delivered, laid and compacted and accepted by the MPWH;
e. The construction will commence upon the acceptance of the offer.
The second contract (Exh. B),[5] dated July 23, 1985, stated:
The Supplier (SOCOR Construction) and the Contractor (RDC
Construction) for the consideration hereinafter named, hereby agree
as follows:
1. SCOPE OF WORK:
a. The Supplier agrees to perform and execute the delivery of Item
310 and Item 302 to the jobsite for the Asphalting of DAS Access
Road and the Front Gate of ACMDC, Toledo City;
b. That the Contractor should inform or give notice to the Supplier
two (2) days before the delivery of such items;
c. That the Contractor shall pay the Supplier the volume of the
supplied items on the actual weight in metric tons delivered and
accepted by the MPWH fifteen (15) days after the submission of the
bill;
d. The delivery will commence upon the acceptance of the offer.
On May 28, 1986, private respondent sent petitioner a bill (Exh. C),
containing a revised computation,[6] for P299,717.75, plus interest
at the rate of 3% a month, representing the balance of petitioners
total account of P2,098,400.25 for materials delivered and services
rendered by private respondent under the two contracts. However,
petitioner refused to pay the amount, claiming that private
respondent failed to submit the delivery receipts showing the actual
weight in metric tons of the items delivered and the acceptance
thereof by the government.[7]
Hence, on September 22, 1986, private respondent brought suit in
the Regional Trial Court of Cebu to recover from petitioner the sum
of P299,717.75, plus interest at the rate of 3% a month.
In her answer, petitioner admitted the existence of the contracts with
private respondent as well as receipt of the billing (Exh. C), dated
May 28, 1986. However, she disputed the correctness of the bill
. . . considering that the deliveries of [private respondent] were not
signed and acknowledged by the checkers of [petitioner], the
bituminous tack coat it delivered to [petitioner] consisted of 60%
water, and [petitioner] has already paid [private respondent] about
P1,400,000.00 but [private respondent] has not issued any receipt to
[petitioner] for said payments and there is no agreement that [private
respondent] will charge 3% per month interest.[8]
Petitioner subsequently amended her answer denying she had
entered into sub-contracts with private respondent.[9]
During the trial, private respondent, as plaintiff, presented its vice-
president, Sofia O. Sanchez, and Dolores Aday, its bookkeeper.
Petitioners evidence consisted of her lone testimony.[10]
On June 22, 1988, the trial court rendered its decision ordering
petitioner to pay private respondent the sum of P299,717.75 plus
interest at 12% per annum, and costs. It held:
. . . . [B]y analyzing the plaintiffs Book of Collectible Accounts
particularly page 17 thereof (Exh. K) this Court is convinced that the
entries (both payments and billings) recorded thereat are credible.
Undeniably, the book contains a detailed account of SOCORs
commercial transactions with RDC which were entered therein in the
course of business. We cannot therefore disregard the entries
recorded under Exhibit K because the fact of their having been
made in the course of business carries with it some degree of
trustworthiness. Besides, no proof was ever offered to demonstrate
the irregularity of the said entries thus, there is then no cogent
reason for us to doubt their authenticity.[11]
The trial court further ruled that in spite of the fact that the contracts
did not have any stipulation on interest, interest may be awarded in
the form of damages under Article 2209 of the Civil Code.[12]
On appeal, the Court of Appeals affirmed. It upheld the trial courts
reliance on private respondents Book of Collectible Accounts (Exh.
K) on the basis of Rule 130, 37[13] of the Rules of Court.
Hence, this appeal. Petitioner contends that
I. THE RESPONDENT COURT ERRED IN ADMITTING IN
EVIDENCE AS ENTRIES IN THE COURSE OF BUSINESS THE
ENTRIES IN PRIVATE RESPONDENTS BOOK OF COLLECTIBLE
ACCOUNTS CONSIDERING THAT THE PERSON WHO MADE
SAID ENTRIES ACTUALLY TESTIFIED IN THIS CASE BUT
UNFORTUNATELY HAD NO PERSONAL KNOWLEDGE OF SAID
ENTRIES.
II. THE DECISION OF THE RESPONDENT COURT SHOULD BE
REVERSED AS IT HAS ONLY INADMISSIBLE EVIDENCE TO
SUPPORT IT.
First. Petitioner contends that the presentation of the delivery
receipts duly accepted by the then Ministry of Public Works and
Highways (MPWH) is required under the contracts (Exhs. A and B)
and is a condition precedent for her payment of the amount claimed
by private respondent. Petitioner argues that the entries in private
respondents Book of Collectible Accounts (Exh. K) cannot take the
place of the delivery receipts and that such entries are mere hearsay
and, thus, inadmissible in evidence.[14]
We agree with the appellate court that the stipulation in the two
contracts requiring the submission of delivery receipts does not
preclude proof of delivery of materials by private respondent in some
other way. The question is whether the entries in the Book of
Collectible Accounts (Exh. K) constitute competent evidence to
show such delivery. Private respondent cites Rule 130, 37 of the
Rules of Court and argues that the entries in question constitute
entries in the course of business sufficient to prove deliveries made
for the government projects. This provision reads:
Entries in the course of business. Entries made at, or near the time
of the transactions to which they refer, by a person deceased,
outside of the Philippines or unable to testify, who was in a position
to know the facts therein stated, may be received as prima facie
evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or regular
course of business or duty.[15]
The admission in evidence of entries in corporate books requires the
satisfaction of the following conditions:
1. The person who made the entry must be dead, outside the
country or unable to testify;
2. The entries were made at or near the time of the transactions to
which they refer;
3. The entrant was in a position to know the facts stated in the
entries;
4. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or religious;
and
5. The entries were made in the ordinary or regular course of
business or duty.[16]
As petitioner points out, the business entries in question (Exh. K) do
not meet the first and third requisites. Dolores Aday, who made the
entries, was presented by private respondent to testify on the
account of RDC Construction. It was in the course of her testimony
that the entries were presented and marked in evidence. There was,
therefore, neither justification nor necessity for the presentation of
the entries as the person who made them was available to testify in
court.
Necessity is given as a ground for admitting entries, in that they are
the best available evidence. Said a learned judge: What a man has
actually done and committed to writing when under obligation to do
the act, it being in the course of the business he has undertaken,
and he being dead, there seems to be no danger in submitting to the
consideration of the court. The person who may be called to court to
testify on these entries being dead, there arises the necessity of
their admission without the one who made them being called to
court be sworn and subjected to cross-examination. And this is
permissible in order to prevent a failure of justice.[17]
Moreover, Aday admitted that she had no personal knowledge of the
facts constituting the entry. She said she made the entries based on
the bills given to her. But she has no knowledge of the truth or falsity
of the facts stated in the bills. The deliveries of the materials stated
in the bills were supervised by an engineer for (such) functions.[18]
The person, therefore, who has personal knowledge of the facts
stated in the entries, i.e., that such deliveries were made in the
amounts and on the dates stated, was the companys project
engineer. The entries made by Aday show only that the billings had
been submitted to her by the engineer and that she faithfully
recorded the amounts stated therein in the books of account.
Whether or not the bills given to Aday correctly reflected the
deliveries made in the amounts and on the dates indicated was a
fact that could be established by the project engineer alone who,
however, was not presented during trial. The rule is stated by former
Chief Justice Moran, thus:
[W]hen the witness had no personal knowledge of the facts entered
by him, and the person who gave him the information is individually
known and may testify as to the facts stated in the entry which is not
part of a system of entries where scores of employees have
intervened, such entry is not admissible without the testimony of the
informer.[19]
Second. It is nonetheless argued by private respondent that
although the entries cannot be considered an exception to the
hearsay rule, they may be admitted under Rule 132, 10[20] of the
Rules of Court which provides:
SEC. 10. When witness may refer to memorandum. A witness may
be allowed to refresh his memory respecting a fact, by anything
written by himself or under his direction at the time when the fact
occurred, or immediately thereafter, or at any other time when the
fact was fresh in his memory and he knew that the same was
correctly stated in the writing; but in such case the writing must be
produced and may be inspected by the adverse party, who may, if
he chooses, cross-examine the witness upon it, and may read it in
evidence. So, also, a witness may testify from such a writing, though
he retain no recollection of the particular facts, if he is able to swear
that the writing correctly stated the transaction when made; but such
evidence must be received with caution.
On the other hand, petitioner contends that evidence which is
inadmissible for the purpose for which it was offered cannot be
admitted for another purpose. She cites the following from Chief
Justice Morans commentaries:
The purpose for which the evidence is offered must be specified.
Where the offer is general, and the evidence is admissible for one
purpose and inadmissible for another, the evidence should be
rejected. Likewise, where the offer is made for two or more purposes
and the evidence is incompetent for one of them, the evidence
should be excluded. The reason for the rule is that it is the duty of a
party to select the competent from the incompetent in offering
testimony, and he cannot impose this duty upon the trial court.
Where the evidence is inadmissible for the purpose stated in the
offer, it must be rejected, though the same may be admissible for
another purpose. The rule is stated thus: If a party x x x opens the
particular view with which he offers any part of his evidence, or
states the object to be attained by it, he precludes himself from
insisting on its operation in any other direction, or for any other
object; and the reason is, that the opposite party is prevented from
objecting to its competency in any view different from the one
proposed.[21]
It should be noted, however, that Exh. K is not really being
presented for another purpose. Private respondents counsel offered
it for the purpose of showing the amount of petitioners indebtedness.
He said:
Exhibit K, your Honor - faithful reproduction of page (17) of the book
on Collectible Accounts of the plaintiff, reflecting the principal
indebtedness of defendant in the amount of Two hundred ninety-
nine thousand seven hundred seventeen pesos and seventy-five
centavos (P299,717.75) and reflecting as well the accumulated
interest of three percent (3%) monthly compounded such that as of
December 11, 1987, the amount collectible from the defendant by
the plaintiff is Six hundred sixteen thousand four hundred thirty-five
pesos and seventy-two centavos (P616,435.72);[22]
This is also the purpose for which its admission is sought as a
memorandum to refresh the memory of Dolores Aday as a witness.
In other words, it is the nature of the evidence that is changed, not
the purpose for which it is offered.
Be that as it may, considered as a memorandum, Exh. K does not
itself constitute evidence. As explained in Borromeo v. Court of
Appeals:[23]
Under the above provision (Rule 132, 10), the memorandum used to
refresh the memory of the witness does not constitute evidence, and
may not be admitted as such, for the simple reason that the witness
has just the same to testify on the basis of refreshed memory. In
other words, where the witness has testified independently of or
after his testimony has been refreshed by a memorandum of the
events in dispute, such memorandum is not admissible as
corroborative evidence. It is self-evident that a witness may not be
corroborated by any written statement prepared wholly by him. He
cannot be more credible just because he supports his open-court
declaration with written statements of the same facts even if he did
prepare them during the occasion in dispute, unless the proper
predicate of his failing memory is priorly laid down. What is more,
even where this requirement has been satisfied, the express
injunction of the rule itself is that such evidence must be received
with caution, if only because it is not very difficult to conceive and
fabricate evidence of this nature. This is doubly true when the
witness stands to gain materially or otherwise from the admission of
such evidence . . . .[24]
As the entries in question (Exh. K) were not made based on
personal knowledge, they could only corroborate Dolores Adays
testimony that she made the entries as she received the bills.
Third. Does this, therefore, mean there is no competent evidence of
private respondents claim as petitioner argues?[25] The answer is in
the negative. Aside from Exh. K, private respondent presented the
following documents:
1) Exhibit A - Contract Agreement dated 26 April 1985 which
contract covers both the Toledo wharf project and the Babag Road
project in Lapulapu City.
2) Exhibit B - Contract Agreement dated 23 July 1985 which covers
the DAS Asphalting Project.
3) Exhibit C - Revised Computation of Billings submitted on May 28,
1986.
4) Exhibit D - an affidavit executed by [petitioner] to the effect that
she has no more pending or unsettled obligations as far as Toledo
Wharf Road is concerned.
5) Exhibit D-1 - Statement of Work Accomplished on the Road
Restoration of Cebu-Toledo wharf project.
6) Exhibit E - another affidavit executed by [petitioner] attesting that
she has completely paid her laborers at the project located at
Babag, Lapulapu City
7) Exhibits F, G, G-1, G-2, G-3 - Premiums paid by [private
respondent] together with the receipts for filing fees.
8) Exhibits H, I, J - certifications issued by OIC, MPWH, Regional
Office; Lapulapu City, City Engineer; Toledo City Treasurers Office
respectively, proving that RDC construction has no more collectibles
with all the said government offices in connection with its projects.
10) Exhibit L - Bill No. 057 under the account of RDC Construction in
the amount of P153,382.75 dated August 24, 1985.
11) Exhibit M - Bill No. 069 (RDCs account), in the amount of
P1,701,795.00 dated November 20, 1985.
12) Exhibit N - Bill No. 071 (RDCs account) in the amount of
P47,250.00 dated November 22, 1985.
13) Exhibit O - Bill No. 079 (RDCs account) in the amount of
P7,290.00 dated December 6, 1985.
As the trial court found:
The entries recorded under Exhibit K were supported by Exhibits L,
M, N, O which are all Socor Billings under the account of RDC
Construction. These billings were presented and duly received by
the authorized representatives of defendant. The circumstances
obtaining in the case at bar clearly show that for a long period of
time after receipt thereof, RDC never manifested its dissatisfaction
or objection to the aforestated billings submitted by plaintiff. Neither
did defendant immediately protest to plaintiffs alleged incomplete or
irregular performance. In view of these facts, we believe Art. 1235 of
the New Civil Code is applicable.
Art. 1235. When the obligee accepts the performance, knowing its
incompleteness and irregularity and without expressing any protest
or objection, the obligation is deemed complied with.
FINALLY, after a conscientious scrutiny of the records, we find
Exhibit D-1 (p. 85 record) to be a material proof of plaintiffs complete
fulfillment of its obligation.
There is no question that plaintiff supplied RDC Construction with
Item 302 (Bitunimous Prime Coat), Item 303 (Bituminous Tack Coat)
and Item 310 (Bitunimous Concrete Surface Course) in all the three
projects of the latter. The Lutopan Access Road project, the Toledo
wharf project and the Babag-Lapulapu Road project.
On the other hand, no proof was ever offered by defendant to show
the presence of other contractors in those projects. We can
therefore conclude that it was Socor Construction Corp. ALONE who
supplied RDC with Bituminous Prime Coat, Bituminous Tack Coat
and Bituminous Concrete Surface Course for all the aforenamed
three projects.[26]
Indeed, while petitioner had previously paid private respondent
about P1,400,000.00 for deliveries made in the past, she did not
 show that she made such payments only after the delivery receipts
had been presented by private respondent. On the other hand, it
appears that petitioner was able to collect the full amount of project
costs from the government, so that petitioner would be unjustly
enriched at the expense of private respondent if she is not made to
pay what is her just obligation under the contracts.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Puno, Quisumbing, and Buena, JJ., concur.
5. Classes of Docuements
a. Public Documents
G.R. No. 204169. September 11, 2013.*
YASUO IWASAWA, petitioner, vs. FELISA CUSTODIO
GANGAN1 (a.k.a FELISA GANGAN ARAMBULO, and FELISA
GANGAN IWASAWA) and the LOCAL CIVIL REGISTRAR OF
PASAY CITY, respondents.
Remedial Law; Evidence; Public Documents; As public documents,
they are admissible in evidence even without further proof of their
due execution and genuineness; Not only are said documents
admissible, they deserve to be given evidentiary weight because
they constitute prima facie evidence of the facts stated therein.—
There is no question that the documentary evidence submitted by
petitioner are all public documents. As provided in the Civil Code:
ART. 410. The books making up the civil register and all documents
relating thereto shall be considered public documents and shall be
prima facie evidence of the facts therein contained. As public
documents, they are admissible in evidence even without further
proof of their due execution and genuineness. Thus, the RTC erred
when it disregarded said documents on the sole ground that the
petitioner did not present the records custodian of the NSO who
issued them to testify on their authenticity and due execution since
proof of authenticity and due execution was not anymore necessary.
Moreover, not only are said documents admissible, they deserve to
be given evidentiary
weight because they constitute prima facie evidence of the facts
stated therein. And in the instant case, the facts stated therein
remain unrebutted since neither the private respondent nor the
public prosecutor presented evidence to the contrary.
Civil Law; Marriages; Judicial Declaration of Nullity of Marriage;
Annulment of Marriage; The Supreme Court has consistently held
that a judicial declaration of nullity is required before a valid
subsequent marriage can be contracted; or else, what transpires is a
bigamous marriage, which is void from the beginning as provided in
Article 35(4) of the Family Code of the Philippines.—This Court has
consistently held that a judicial declaration of nullity is required
before a valid subsequent marriage can be contracted; or else, what
transpires is a bigamous marriage, which is void from the beginning
as provided in Article 35(4) of the Family Code of the Philippines.
And this is what transpired in the instant case. As correctly pointed
out by the OSG, the documentary exhibits taken together concretely
establish the nullity of the marriage of petitioner to private
respondent on the ground that their marriage is bigamous. The
exhibits directly prove the following facts: (1) that private respondent
married Arambulo on June 20, 1994 in the City of Manila; (2) that
private respondent contracted a second marriage this time with
petitioner on November 28, 2002 in Pasay City; (3) that there was
no judicial declaration of nullity of the marriage of private respondent
with Arambulo at the time she married petitioner; (3) that Arambulo
died on July 14, 2009 and that it was only on said date that private
respondent’s marriage with Arambulo was deemed to have been
dissolved; and (4) that the second marriage of private respondent to
petitioner is bigamous, hence null and void, since the first marriage
was still valid and subsisting when the second marriage was
contracted.
PETITION for review on certiorari of the decision and order of the
Regional Trial Court of Manila, Br. 43.
The facts are stated in the opinion of the Court.
Lorenzo U. Padilla for petitioner.
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, assailing the
September 4, 2012 Decision2 and October 16, 2012 Order3 of the
Regional Trial Court (RTC), Branch 43, of Manila in Civil Case No.
11-126203. The RTC denied the petition for declaration of nullity of
the marriage of petitioner Yasuo Iwasawa with private respondent
Felisa Custodio Gangan due to insufficient evidence.
The antecedents follow:
Petitioner, a Japanese national, met private respondent sometime in
2002 in one of his visits to the Philippines. Private respondent
introduced herself as "single" and "has never married before." Since
then, the two became close to each other. Later that year, petitioner
came back to the Philippines and married private respondent on
November 28, 2002 in Pasay City. After the wedding, the couple
resided in Japan.4
In July 2009, petitioner noticed his wife become depressed.
Suspecting that something might have happened in the Philippines,
he confronted his wife about it. To his shock, private respondent
confessed to him that she received news that her previous husband
passed away.5
Petitioner sought to confirm the truth of his wife’s confession and
discovered that indeed, she was married to one Raymond Maglonzo
Arambulo and that their marriage took place on June 20, 1994.6
This prompted petitioner to file a petition7 for the declaration of his
marriage to private respondent as null and void on the ground that
their marriage is a bigamous one, based on Article 35(4) in relation
to Article 41 of the Family Code of the Philippines.
During trial, aside from his testimony, petitioner also offered the
following pieces of documentary evidence issued by the National
Statistics Office (NSO):
(1)
Certificate of Marriage8 between petitioner and private respondent
marked as Exhibit "A" to prove the fact of marriage between the
parties on November 28, 2002;
(2)
Certificate of Marriage9 between private respondent and Raymond
Maglonzo Arambulo marked as Exhibit "B" to prove the fact of
marriage between the parties on June 20, 1994;
(3)
Certificate of Death10 of Raymond Maglonzo Arambulo marked as
Exhibits "C" and "C-1" to prove the fact of the latter’s death on July
14, 2009; and
(4)
Certification11 from the NSO to the effect that there are two entries
of marriage recorded by the office pertaining to private respondent
marked as Exhibit "D" to prove that private respondent in fact
contracted two marriages, the first one was to a Raymond Maglonzo
Arambulo on June 20, 1994, and second, to petitioner on November
28, 2002.
The prosecutor appearing on behalf of the Office of the Solicitor
General (OSG) admitted the authenticity and due execution of the
above documentary exhibits during pre-trial.12
On September 4, 2012, the RTC rendered the assailed decision. It
ruled that there was insufficient evidence to prove private
respondent’s prior existing valid marriage to another man. It held
that while petitioner offered the certificate of marriage of private
respondent to Arambulo, it was only petitioner who testified about
said marriage. The RTC ruled that petitioner’s testimony is
unreliable because he has no personal knowledge of private
respondent’s prior marriage nor of Arambulo’s death which makes
him a complete stranger to the marriage certificate between private
respondent and Arambulo and the latter’s death certificate. It further
ruled that petitioner’s testimony about the NSO certification is
likewise unreliable since he is a stranger to the preparation of said
document.
Petitioner filed a motion for reconsideration, but the same was
denied by the RTC in an Order dated October 16, 2012.
Hence this petition raising the sole legal issue of whether the
testimony of the NSO records custodian certifying the authenticity
and due execution of the public documents issued by said office was
necessary before they could be accorded evidentiary weight.
Petitioner argues that the documentary evidence he presented are
public documents which are considered self-authenticating and thus
it was unnecessary to call the NSO Records Custodian as witness.
He cites Article 410 of the Civil Code which provides that books
making up the civil register and all documents relating thereto shall
be considered public documents and shall be prima facie evidence
of the facts stated therein. Moreover, the trial prosecutor himself
also admitted the authenticity of said documents.
The OSG, in its Comment,13 submits that the findings of the RTC
are not in accord with law and established jurisprudence. It contends
that both Republic Act No. 3753, otherwise known as the Law on
Registry of Civil Status, and the Civil Code elaborated on the
character of documents arising from records and entries made by
the civil registrar and categorically declared them as public
documents. Being public documents, said documents are admissible
in evidence even without further proof of their due execution and
genuineness and consequently, there was no need for the court to
require petitioner to present the records custodian or officer from the
NSO to testify on them. The OSG further contends that public
documents have probative value since they are prima facie evidence
of the facts stated therein as provided in the above-quoted provision
of the Civil Code. Thus, the OSG submits that the public documents
presented by petitioner, considered together, completely establish
the facts in issue.
In her letter14 dated March 19, 2013 to this Court, private
respondent indicated that she is not against her husband’s petition
to have their marriage declared null and void. She likewise admitted
therein that she contracted marriage with Arambulo on June 20,
1994 and contracted a second marriage with petitioner on
November 28, 2002. She further admitted that it was due to poverty
and joblessness that she married petitioner without telling the latter
that she was previously married. Private respondent also confirmed
that it was when she found out that Arambulo passed away on July
14, 2009 that she had the guts to confess to petitioner about her
previous marriage. Thereafter, she and petitioner have separated.
We grant the petition.
There is no question that the documentary evidence submitted by
petitioner are all public documents.1âwphi1 As provided in the Civil
Code:
ART. 410. The books making up the civil register and all documents
relating thereto shall be considered public documents and shall be
prima facie evidence of the facts therein contained.
As public documents, they are admissible in evidence even without
further proof of their due execution and genuineness.15 Thus, the
RTC erred when it disregarded said documents on the sole ground
that the petitioner did not present the records custodian of the NSO
who issued them to testify on their authenticity and due execution
since proof of authenticity and due execution was not anymore
necessary. Moreover, not only are said documents admissible, they
deserve to be given evidentiary weight because they constitute
prima facie evidence of the facts stated therein. And in the instant
case, the facts stated therein remain unrebutted since neither the
private respondent nor the public prosecutor presented evidence to
the contrary.
This Court has consistently held that a judicial declaration of nullity
is required before a valid subsequent marriage can be contracted; or
else, what transpires is a bigamous marriage,16 which is void from
the beginning as provided in Article 35(4) of the Family Code of the
Philippines. And this is what transpired in the instant case.
As correctly pointed out by the OSG, the documentary exhibits taken
together concretely establish the nullity of the marriage of petitioner
to private respondent on the ground that their marriage is bigamous.
The exhibits directly prove the following facts: (1) that private
respondent married Arambulo on June 20, 1994 in the City of
Manila; (2) that private respondent contracted a second marriage
this time with petitioner on November 28, 2002 in Pasay City; (3)
that there was no judicial declaration of nullity of the marriage of
private respondent with Arambulo at the time she married petitioner;
(3) that Arambulo died on July 14, 2009 and that it was only on said
date that private respondent’s marriage with Arambulo was deemed
to have been dissolved; and (4) that the second marriage of private
respondent to petitioner is bigamous, hence null and void, since the
first marriage was still valid and subsisting when the second
marriage was contracted.
WHEREFORE, the petition for review on certiorari is GRANTED.
The September 4, 2012 Decision and October 16, 2012 Order of the
Regional Trial Court of Manila, Branch 43, in Civil Case No. 11-
126203 are hereby SET ASIDE. The marriage of petitioner Yasuo
Iwasawa and private respondent Felisa Custodio Gangan is
declared NULL and VOID.
The Local Civil Registrar of Pasay City and the National Statistics
Office are hereby ORDERED to make proper entries into the
records of the abovementioned parties in accordance with this
Decision.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
G.R. No. 181319. July 24, 2013.*
WESTWIND SHIPPING CORPORATION, petitioner, vs. PHILAM
INSURANCE CO., INC. (now Chartis Philippines Insurance, Inc.)
and ASIAN TERMINALS, INC., respondents.
Remedial Law; Civil Procedure; “Question of Law” and “Question of
Fact,” Distinguished.—There is a question of law if the issue raised
is capable of being resolved without need of reviewing the probative
value of the evidence. The resolution of the issue must rest solely on
what the law provides on the given set of circumstances. Once it is
clear that the issue invites a review of the evidence presented, the
question posed is one of fact. If the query requires a re-evaluation of
the credibility of witnesses, or the existence or relevance of
surrounding circumstances and their relation to each other, the issue
in that query is factual.
Same; Same; Supreme Court; The Supreme Court may resolve
questions of fact when the case falls under any of the exceptions.—
But while it is not our duty to review, examine and evaluate or weigh
all over again the probative value of the evidence presented, the
Court may nonetheless resolve questions of fact when the case falls
under any of the following exceptions: (1) when the findings are
grounded entirely on speculation, surmises, or conjectures; (2) when
the inference made is manifestly mistaken, absurd, or impossible;
(3) when there is grave abuse of discretion; (4) when the judgment
is based on a misapprehension of facts; (5) when the findings of fact
are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee; (7) when the
findings are contrary to those of the trial court; (8) when the findings
are conclusions without citation of specific evidence on which they
are based; (9) when the facts set forth in the petition as well as in
the petitioner’s main and reply briefs are not disputed by the
respondent; and (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on
record.
Insurance Law; Right of Subrogation; The right of subrogation
accrues simply upon payment by the insurance company of the
insurance claim.—The Court holds that petitioner Philam has
adequately
established the basis of its claim against petitioners ATI and
Westwind. Philam, as insurer, was subrogated to the rights of the
consignee, Universal Motors Corporation, pursuant to the
Subrogation Receipt executed by the latter in favor of the former.
The right of subrogation accrues simply upon payment by the
insurance company of the insurance claim. Petitioner Philam’s
action finds support in Article 2207 of the Civil Code, which provides
as follows: Art. 2207. If the plaintiff’s property has been insured, and
he has received indemnity from the insurance company for the injury
or loss arising out of the wrong or breach of contract complained of,
the insurance company shall be subrogated to the rights of the
insured against the wrongdoer or the person who has violated the
contract.
Remedial Law; Evidence; Public Documents; Private Documents;
The nature of documents as either public or private determines how
the documents may be presented as evidence in court. Public
documents, as enumerated under Section 19, Rule 132 of the Rules
of Court, are self-authenticating and require no further authentication
in order to be presented as evidence in court. In contrast, a private
document is any other writing, deed or instrument executed by a
private person without the intervention of a notary or other person
legally authorized by which some disposition or agreement is proved
or set forth.—The nature of documents as either public or private
determines how the documents may be presented as evidence in
court. Public documents, as enumerated under Section 19, Rule 132
of the Rules of Court, are self-authenticating and require no further
authentication in order to be presented as evidence in court. In
contrast, a private document is any other writing, deed or instrument
executed by a private person without the intervention of a notary or
other person legally authorized by which some disposition or
agreement is proved or set forth. Lacking the official or sovereign
character of a public document, or the solemnities prescribed by
law, a private document requires authentication in the manner
prescribed under Section 20, Rule 132 of the Rules: SEC. 20. Proof
of private document.—Before any private document offered as
authentic is received in evidence, its due execution and authenticity
must be proved either: (a) By anyone who saw the document
executed or written; or (b) By evidence of the genuineness of the
signature or handwriting of the maker. Any other private document
need only be identified as that which it is claimed to be. The
requirement of authentication of a private document is excused only
in four instances,
specifically: (a) when the document is an ancient one within the
context of Section 21, Rule 132 of the Rules; (b) when the
genuineness and authenticity of the actionable document have not
been specifically denied under oath by the adverse party; (c) when
the genuineness and authenticity of the document have been
admitted; or (d) when the document is not being offered as genuine.
Mercantile Law; Carriage of Goods by Sea Act (COGSA); The
Carriage of Goods by Sea Act (COGSA) or Public Act No. 521 of the
74th US Congress, was accepted to be made applicable to all
contracts for the carriage of goods by sea to and from Philippine
ports in foreign trade by virtue of Commonwealth Act (C.A.) No.
65.—The Carriage of Goods by Sea Act (COGSA) or Public Act No.
521 of the 74th US Congress, was accepted to be made applicable
to all contracts for the carriage of goods by sea to and from
Philippine ports in foreign trade by virtue of Commonwealth Act
(C.A.) No. 65. Section 1 of C.A. No. 65 states: Section 1. That the
provisions of Public Act Numbered Five hundred and twenty-one of
the Seventy-fourth Congress of the United States, approved on April
sixteenth, nineteen hundred and thirty-six, be accepted, as it is
hereby accepted to be made applicable to all contracts for the
carriage of goods by sea to and from Philippine ports in foreign
trade: Provided, That nothing in the Act shall be construed as
repealing any existing provision of the Code of Commerce which is
now in force, or as limiting its application.
Same; Letter of Credit; Words and Phrases; A letter of credit is a
financial device developed by merchants as a convenient and
relatively safe mode of dealing with sales of goods to satisfy the
seemingly irreconcilable interests of a seller, who refuses to part
with his goods before he is paid, and a buyer, who wants to have
control of his goods before paying.—A letter of credit is a financial
device developed by merchants as a convenient and relatively safe
mode of dealing with sales of goods to satisfy the seemingly
irreconcilable interests of a seller, who refuses to part with his goods
before he is paid, and a buyer, who wants to have control of his
goods before paying. However, letters of credit are employed by the
parties desiring to enter into commercial transactions, not for the
benefit of the issuing bank but mainly for the benefit of the parties to
the original transaction, in these cases, Nichimen Corporation as the
seller and Universal Motors as the buyer. Hence, the latter, as the
buyer of the Nissan CKD parts, should be regarded as the person
entitled to delivery of
the goods. Accordingly, for purposes of reckoning when notice of
loss or damage should be given to the carrier or its agent, the date
of delivery to Universal Motors is controlling.
Same; Common Carriers; Extraordinary Diligence; Common
carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance
over the goods transported by them.—Common carriers, from the
nature of their business and for reasons of public policy, are bound
to observe extraordinary diligence in the vigilance over the goods
transported by them. Subject to certain exceptions enumerated
under Article 1734 of the Civil Code, common carriers are
responsible for the loss, destruction, or deterioration of the goods.
The extraordinary responsibility of the common carrier lasts from the
time the goods are unconditionally placed in the possession of, and
received by the carrier for transportation until the same are
delivered, actually or constructively, by the carrier to the consignee,
or to the person who has a right to receive them.
Same; Same; It is settled in maritime law jurisprudence that cargoes
while being unloaded generally remain under the custody of the
carrier.—It is settled in maritime law jurisprudence that cargoes
while being unloaded generally remain under the custody of the
carrier. The Damage Survey Report of the survey conducted by Phil.
Navtech Services, Inc. from April 20-21, 1995 reveals that Case No.
03-245-42K/1 was damaged by ATI stevedores due to
overtightening of a cable sling hold during discharge from the
vessel’s hatch to the pier. Since the damage to the cargo was
incurred during the discharge of the shipment and while under the
supervision of the carrier, the latter is liable for the damage caused
to the cargo.
Same; Arrastre Operators; The functions of an arrastre operator
involve the handling of cargo deposited on the wharf or between the
establishment of the consignee or shipper and the ship’s tackle.—
The functions of an arrastre operator involve the handling of cargo
deposited on the wharf or between the establishment of the
consignee or shipper and the ship’s tackle. Being the custodian of
the goods discharged from a vessel, an arrastre operator’s duty is to
take good care of the goods and to turn them over to the party
entitled to their possession. Handling cargo is mainly the arrastre
operator’s principal work so its drivers/operators or employees
should observe the
standards and measures necessary to prevent losses and damage
to shipments under its custody. While it is true that an arrastre
operator and a carrier may not be held solidarily liable at all times,
the facts of these cases show that apart from ATI’s stevedores being
directly in charge of the physical unloading of the cargo, its foreman
picked the cable sling that was used to hoist the packages for
transfer to the dock. Moreover, the fact that 218 of the 219 packages
were unloaded with the same sling unharmed is telling of the
inadequate care with which ATI’s stevedore handled and discharged
Case No. 03-245-42K/1.
PETITION for review on certiorari of the decision and resolution of
the Court of Appeals.
The facts are stated in the opinion of the Court.
Cruz, Capule, Marcon & Nabaza Law Office for Asian Terminals,
Inc.
Albert R. Palacios Law Office for Philam Insurance Co., Inc.
Balane, Tamase, Alampay Law Offices for Westwind Shipping
Corp.
VILLARAMA, JR., J.:
Before us are three consolidated petitions for review on certiorari
assailing the Decision1 dated October 15, 2007 and the Resolution2
dated January 11, 2008 of the Court of Appeals (CA) which affirmed
with modification the Decision3 of the Regional Trial Court (RTC) of
Makati City, Branch 148, in Civil Case No. 96-062. The RTC had
ordered Westwind Shipping Corporation (Westwind) and Asian
Terminals, Inc. (ATI) to pay, jointly and severally, Philam Insurance
Co., Inc. (Philam) the sum of ₱633,957.15, with interest at 12% per
annum from the date of judicial demand and ₱158,989.28 as
attorney’s fees.
The facts of the case follow:
On April 15, 1995, Nichimen Corporation shipped to Universal
Motors Corporation (Universal Motors) 219 packages containing 120
units of brand new Nissan Pickup Truck Double Cab 4x2 model,
without engine, tires and batteries, on board the vessel S/S
"Calayan Iris" from Japan to Manila. The shipment, which had a
declared value of US$81,368 or ₱29,400,000, was insured with
Philam against all risks under Marine Policy No. 708-8006717-4.4
The carrying vessel arrived at the port of Manila on April 20, 1995,
and when the shipment was unloaded by the staff of ATI, it was
found that the package marked as 03-245-42K/1 was in bad order.5
The Turn Over Survey of Bad Order Cargoes6 dated April 21, 1995
identified two packages, labeled 03-245-42K/1 and 03/237/7CK/2,
as being dented and broken. Thereafter, the cargoes were stored for
temporary safekeeping inside CFS Warehouse in Pier No. 5.
On May 11, 1995, the shipment was withdrawn by R.F. Revilla
Customs Brokerage, Inc., the authorized broker of Universal Motors,
and delivered to the latter’s warehouse in Mandaluyong City. Upon
the request7 of Universal Motors, a bad order survey was conducted
on the cargoes and it was found that one Frame Axle Sub without
LWR was deeply dented on the buffle plate while six Frame
Assembly with Bush were deformed and misaligned.8 Owing to the
extent of the damage to said cargoes, Universal Motors declared
them a total loss.
On August 4, 1995, Universal Motors filed a formal claim for
damages in the amount of ₱643,963.84 against Westwind,9 ATI10
and R.F. Revilla Customs Brokerage, Inc.11 When Universal
Motors’ demands remained unheeded, it sought reparation from and
was compensated in the sum of ₱633,957.15 by Philam.
Accordingly, Universal Motors issued a Subrogation Receipt12
dated November 15, 1995 in favor of Philam.
On January 18, 1996, Philam, as subrogee of Universal Motors, filed
a Complaint13 for damages against Westwind, ATI and R.F. Revilla
Customs Brokerage, Inc. before the RTC of Makati City, Branch
148.
On September 24, 1999, the RTC rendered judgment in favor of
Philam and ordered Westwind and ATI to pay Philam, jointly and
severally, the sum of ₱633,957.15 with interest at the rate of 12%
per annum, ₱158,989.28 by way of attorney’s fees and expenses of
litigation.
The court a quo ruled that there was sufficient evidence to establish
the respective participation of Westwind and ATI in the discharge of
and consequent damage to the shipment. It found that the subject
cargoes were compressed while being hoisted using a cable that
was too short and taut.
The trial court observed that while the staff of ATI undertook the
physical unloading of the cargoes from the carrying vessel,
Westwind’s duty officer exercised full supervision and control
throughout the process. It held Westwind vicariously liable for failing
to prove that it exercised extraordinary diligence in the supervision
of the ATI stevedores who unloaded the cargoes from the vessel.
However, the court absolved R.F. Revilla Customs Brokerage, Inc.
from liability in light of its finding that the cargoes had been
damaged before delivery to the consignee.
The trial court acknowledged the subrogation between Philam and
Universal Motors on the strength of the Subrogation Receipt dated
November 15, 1995. It likewise upheld Philam’s claim for the value
of the alleged damaged vehicle parts contained in Case Nos. 03-
245-42K/1 and 03-245-51K or specifically for "7 pieces of Frame
Axle Sub Without Lower and Frame Assembly with Bush."14
Westwind filed a Motion for Reconsideration15 which was, however,
denied in an Order16 dated October 26, 2000.
On appeal, the CA affirmed with modification the ruling of the RTC.
In a Decision dated October 15, 2007, the appellate court directed
Westwind and ATI to pay Philam, jointly and severally, the amount
of ₱190,684.48 with interest at the rate of 12% per annum until fully
paid, attorney’s fees of ₱47,671 and litigation expenses.
The CA stressed that Philam may not modify its allegations by
claiming in its Appellee’s Brief17 that the six pieces of Frame
Assembly with Bush, which were purportedly damaged, were also
inside Case No. 03-245-42K/1. The CA noted that in its Complaint,
Philam alleged that "one (1) pc. FRAME AXLE SUB W/O LWR from
Case No. 03-245-42K/1 was completely deformed and misaligned,
and six (6) other pcs. of FRAME ASSEMBLY WITH BUSH from
Case No. 03-245-51K were likewise completely deformed and
misaligned."18
The appellate court accordingly affirmed Westwind and ATI’s joint
and solidary liability for the damage to only one (1) unit of Frame
Axle Sub without Lower inside Case No. 03-245-42K/1. It also noted
that when said cargo sustained damage, it was not yet in the
custody of the consignee or the person who had the right to receive
it. The CA pointed out that Westwind’s duty to observe extraordinary
diligence in the care of the cargoes subsisted during unloading
thereof by ATI’s personnel since the former exercised full control
and supervision over the discharging operation.
Similarly, the appellate court held ATI liable for the negligence of its
employees who carried out the offloading of cargoes from the ship to
the pier. As regards the extent of ATI’s liability, the CA ruled that ATI
cannot limit its liability to ₱5,000 per damaged package. It explained
that Section 7.0119 of the Contract for Cargo Handling Services20
does not apply in this case since ATI was not yet in custody and
control of the cargoes when the Frame Axle Sub without Lower
suffered damage.
Citing Belgian Overseas Chartering and Shipping N.V. v. Philippine
First Insurance Co., Inc.,21 the appellate court also held that
Philam’s action for damages had not prescribed notwithstanding the
absence of a notice of claim.
All the parties moved for reconsideration, but their motions were
denied in a Resolution dated January 11, 2008. Thus, they each
filed a petition for review on certiorari which were consolidated
together by this Court considering that all three petitions assail the
same CA decision and resolution and involve the same parties.
Essentially, the issues posed by petitioner ATI in G.R. No. 181163,
petitioner Philam in G.R. No. 181262 and petitioner Westwind in
G.R. No. 181319 can be summed up into and resolved by
addressing three questions: (1) Has Philam’s action for damages
prescribed? (2) Who between Westwind and ATI should be held
liable for the damaged cargoes? and (3) What is the extent of their
liability?
Petitioners’ Arguments
G.R. No. 181163
Petitioner ATI disowns liability for the damage to the Frame Axle
Sub without Lower inside Case No. 03-245-42K/1. It shifts the blame
to Westwind, whom it charges with negligence in the supervision of
the stevedores who unloaded the cargoes. ATI admits that the
damage could have been averted had Westwind observed
extraordinary diligence in handling the goods. Even so, ATI suspects
that Case No. 03-245-42K/1 is "weak and defective"22 considering
that it alone sustained damage out of the 219 packages.
Notwithstanding, petitioner ATI submits that, at most, it can be held
liable to pay only ₱5,000 per package pursuant to its Contract for
Cargo Handling Services. ATI maintains that it was not properly
notified of the actual value of the cargoes prior to their discharge
from the vessel.
G.R. No. 181262
Petitioner Philam supports the CA in holding both Westwind and ATI
liable for the deformed and misaligned Frame Axle Sub without
Lower inside Case No. 03-245-42K/1. It, however, faults the
appellate court for disallowing its claim for the value of six Chassis
Frame Assembly which were likewise supposedly inside Case Nos.
03-245-51K and 03-245-42K/1. As to the latter container, Philam
anchors its claim on the results of the Inspection/Survey Report23 of
Chartered Adjusters, Inc., which the court received without objection
from Westwind and ATI. Petitioner believes that with the offer and
consequent admission of evidence to the effect that Case No. 03-
245-42K/1 contains six pieces of dented Chassis Frame Assembly,
Philam’s claim thereon should be treated, in all respects, as if it has
been raised in the pleadings. Thus, Philam insists on the
reinstatement of the trial court’s award in its favor for the payment of
₱633,957.15 plus legal interest, ₱158,989.28 as attorney’s fees and
costs.
G.R. No. 181319
Petitioner Westwind denies joint liability with ATI for the value of the
deformed Frame Axle Sub without Lower in Case No. 03-245-42K/1.
Westwind argues that the evidence shows that ATI was already in
actual custody of said case when the Frame Axle Sub without Lower
inside it was misaligned from being compressed by the tight cable
used to unload it. Accordingly, Westwind ceased to have
responsibility over the cargoes as provided in paragraph 4 of the Bill
of Lading which provides that the responsibility of the carrier shall
cease when the goods are taken into the custody of the arrastre.
Westwind contends that sole liability for the damage rests on ATI
since it was the latter’s stevedores who operated the ship’s gear to
unload the cargoes. Westwind reasons that ATI is an independent
company, over whose employees and operations it does not
exercise control. Moreover, it was ATI’s employees who selected
and used the wrong cable to lift the box containing the cargo which
was damaged.
Westwind likewise believes that ATI is bound by its acceptance of
the goods in good order despite a finding that Case No. 03-245-
42K/1 was partly torn and crumpled on one side. Westwind also
notes that the discovery that a piece of Frame Axle Sub without
Lower was completely deformed and misaligned came only on May
12, 1995 or 22 days after the cargoes were turned over to ATI and
after the same had been hauled by R.F. Revilla Customs Brokerage,
Inc.
Westwind further argues that the CA erred in holding it liable
considering that Philam’s cause of action has prescribed since the
latter filed a formal claim with it only on August 17, 1995 or four
months after the cargoes arrived on April 20, 1995. Westwind
stresses that according to the provisions of clause 20, paragraph
224 of the Bill of Lading as well as Article 36625 of the Code of
Commerce, the consignee had until April 20, 1995 within which to
make a claim considering the readily apparent nature of the
damage, or until April 27, 1995 at the latest, if it is assumed that the
damage is not readily apparent.
Lastly, petitioner Westwind contests the imposition of 12% interest
on the award of damages to Philam reckoned from the time of
extrajudicial demand. Westwind asserts that, at most, it can only be
charged with 6% interest since the damages claimed by Philam
does not constitute a loan or forbearance of money.
The Court’s Ruling
The three consolidated petitions before us call for a determination of
who between ATI and Westwind is liable for the damage suffered by
the subject cargo and to what extent. However, the resolution of the
issues raised by the present petitions is predicated on the
appreciation of factual issues which is beyond the scope of a petition
for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended. It is settled that in petitions for review on
certiorari, only questions of law may be put in issue. Questions of
fact cannot be entertained.26
There is a question of law if the issue raised is capable of being
resolved without need of reviewing the probative value of the
evidence. The resolution of the issue must rest solely on what the
law provides on the given set of circumstances. Once it is clear that
the issue invites a review of the evidence presented, the question
posed is one of fact. If the query requires a re-evaluation of the
credibility of witnesses, or the existence or relevance of surrounding
circumstances and their relation to each other, the issue in that
query is factual.27
In the present petitions, the resolution of the question as to who
between Westwind and ATI should be liable for the damages to the
cargo and to what extent would have this Court pass upon the
evidence on record. But while it is not our duty to review, examine
and evaluate or weigh all over again the probative value of the
evidence presented,28 the Court may nonetheless resolve
questions of fact when the case falls under any of the following
exceptions:
(1) when the findings are grounded entirely on speculation,
surmises, or conjectures; (2) when the inference made is manifestly
mistaken, absurd, or impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when in
making its findings the Court of Appeals went beyond the issues of
the case, or its findings are contrary to the admissions of both the
appellant and the appellee; (7) when the findings are contrary to
those of the trial court; (8) when the findings are conclusions without
citation of specific evidence on which they are based; (9) when the
facts set forth in the petition as well as in the petitioner’s main and
reply briefs are not disputed by the respondent; and (10) when the
findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record.29
In the cases at bar, the fifth and seventh exceptions apply. While the
CA affirmed the joint liability of ATI and Westwind, it held them liable
only for the value of one unit of Frame Axle Sub without Lower
inside Case No. 03-245-42K/1. The appellate court disallowed the
award of damages for the six pieces of Frame Assembly with Bush,
which petitioner Philam alleged, for the first time in its Appellee’s
Brief, to be likewise inside Case No. 03-245-42K/1. Lastly, the CA
reduced the award of attorney’s fees to ₱47,671.
Foremost, the Court holds that petitioner Philam has adequately
established the basis of its claim against petitioners ATI and
Westwind. Philam, as insurer, was subrogated to the rights of the
consignee, Universal Motors Corporation, pursuant to the
Subrogation Receipt executed by the latter in favor of the former.
The right of subrogation accrues simply upon payment by the
insurance company of the insurance claim.30 Petitioner Philam’s
action finds support in Article 2207 of the Civil Code, which provides
as follows:
Art. 2207. If the plaintiff’s property has been insured, and he has
received indemnity from the insurance company for the injury or loss
arising out of the wrong or breach of contract complained of, the
insurance company shall be subrogated to the rights of the insured
against the wrongdoer or the person who has violated the contract. x
x x.
In their respective comments31 to Philam’s Formal Offer of
Evidence,32 petitioners ATI and Westwind objected to the
admission of Marine Certificate No. 708-8006717-4 and the
Subrogation Receipt as documentary exhibits "B" and "P,"
respectively. Petitioner Westwind objects to the admission of both
documents for being hearsay as they were not authenticated by the
persons who executed them. For the same reason, petitioner ATI
assails the admissibility of the Subrogation Receipt. As regards
Marine Certificate No. 708-8006717-4, ATI makes issue of the fact
that the same was issued only on April 27, 1995 or 12 days after the
shipment was loaded on and transported via S/S "Calayan Iris."
The nature of documents as either public or private determines how
the documents may be presented as evidence in court. Public
documents, as enumerated under Section 19,33 Rule 132 of the
Rules of Court, are self-authenticating and require no further
authentication in order to be presented as evidence in court.34
In contrast, a private document is any other writing, deed or
instrument executed by a private person without the intervention of a
notary or other person legally authorized by which some disposition
or agreement is proved or set forth. Lacking the official or sovereign
character of a public document, or the solemnities prescribed by
law, a private document requires authentication35 in the manner
prescribed under Section 20, Rule 132 of the Rules:
SEC. 20. Proof of private document. – Before any private document
offered as authentic is received in evidence, its due execution and
authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting
of the maker.
Any other private document need only be identified as that which it
is claimed to be.
The requirement of authentication of a private document is excused
only in four instances, specifically: (a) when the document is an
ancient one within the context of Section 21,36 Rule 132 of the
Rules; (b) when the genuineness and authenticity of the actionable
document have not been specifically denied under oath by the
adverse party; (c) when the genuineness and authenticity of the
document have been admitted; or (d) when the document is not
being offered as genuine.37
Indubitably, Marine Certificate No. 708-8006717-4 and the
Subrogation Receipt are private documents which Philam and the
consignee, respectively, issue in the pursuit of their business. Since
none of the exceptions to the requirement of authentication of a
private document obtains in these cases, said documents may not
be admitted in evidence for Philam without being properly
authenticated.
Contrary to the contention of petitioners ATI and Westwind,
however, Philam presented its claims officer, Ricardo Ongchangco,
Jr. to testify on the execution of the Subrogation Receipt, as follows:
ATTY. PALACIOS
Q How were you able to get hold of this subrogation receipt?
A Because I personally delivered the claim check to consignee and
have them receive the said check.
Q I see. Therefore, what you are saying is that you personally
delivered the claim check of Universal Motors Corporation to that
company and you have the subrogation receipt signed by them
personally?
A Yes, sir.
Q And it was signed in your presence?
A Yes, sir.38
Indeed, all that the Rules require to establish the authenticity of a
document is the testimony of a person who saw the document
executed or written. Thus, the trial court did not err in admitting the
Subrogation Receipt in evidence despite petitioners ATI and
Westwind’s objections that it was not authenticated by the person
who signed it.
However, the same cannot be said about Marine Certificate No.
708-8006717-4 which Ongchangcho, Jr. merely identified in court.
There is nothing in Ongchangco, Jr.’s testimony which indicates that
he saw Philam’s authorized representative sign said document,
thus:
ATTY. PALACIOS
Q Now, I am presenting to you a copy of this marine certificate 708-
8006717-4 issued by Philam Insurance Company, Inc. to Universal
Motors Corporation on April 15, 1995. Will you tell us what relation
does it have to that policy risk claim mentioned in that letter?
A This is a photocopy of the said policy issued by the consignee
Universal Motors Corporation.
ATTY. PALACIOS
I see. May I request, if Your Honor please, that this marine risk
policy of the plaintiff as submitted by claimant Universal Motors
Corporation be marked as Exhibit B.
COURT
Mark it.39
As regards the issuance of Marine Certificate No. 708-8006717-4
after the fact of loss occurred, suffice it to say that said document
simply certifies the existence of an open insurance policy in favor of
the consignee. Hence, the reference to an "Open Policy Number
9595093" in said certificate. The Court finds it completely absurd to
suppose that any insurance company, of sound business practice,
would assume a loss that has already been realized, when the
profitability of its business rests precisely on the non-happening of
the risk insured against.
Yet, even with the exclusion of Marine Certificate No. 708-8006717-
4, the Subrogation Receipt, on its own, is adequate proof that
petitioner Philam paid the consignee’s claim on the damaged goods.
Petitioners ATI and Westwind failed to offer any evidence to
controvert the same. In Malayan Insurance Co., Inc. v. Alberto,40
the Court explained the effect of payment by the insurer of the
insurance claim in this wise:
We have held that payment by the insurer to the insured operates as
an equitable assignment to the insurer of all the remedies that the
insured may have against the third party whose negligence or
wrongful act caused the loss. The right of subrogation is not
dependent upon, nor does it grow out of, any privity of contract. It
accrues simply upon payment by the insurance company of the
insurance claim. The doctrine of subrogation has its roots in equity.
It is designed to promote and accomplish justice; and is the mode
that equity adopts to compel the ultimate payment of a debt by one
who, in justice, equity, and good conscience, ought to pay.41
Neither do we find support in petitioner Westwind’s contention that
Philam’s right of action has prescribed.
The Carriage of Goods by Sea Act (COGSA) or Public Act No. 521
of the 74th US Congress, was accepted to be made applicable to all
contracts for the carriage of goods by sea to and from Philippine
ports in foreign trade by virtue of Commonwealth Act (C.A.) No.
65.42 Section 1 of C.A. No. 65 states:
Section 1. That the provisions of Public Act Numbered Five hundred
and twenty-one of the Seventy-fourth Congress of the United States,
approved on April sixteenth, nineteen hundred and thirty-six, be
accepted, as it is hereby accepted to be made applicable to all
contracts for the carriage of goods by sea to and from Philippine
ports in foreign trade: Provided, That nothing in the Act shall be
construed as repealing any existing provision of the Code of
Commerce which is now in force, or as limiting its application.
The prescriptive period for filing an action for the loss or damage of
the goods under the COGSA is found in paragraph (6), Section 3,
thus:
(6) Unless notice of loss or damage and the general nature of such
loss or damage be given in writing to the carrier or his agent at the
port of discharge before or at the time of the removal of the goods
into the custody of the person entitled to delivery thereof under the
contract of carriage, such removal shall be prima facie evidence of
the delivery by the carrier of the goods as described in the bill of
lading. If the loss or damage is not apparent, the notice must be
given within three days of the delivery.
Said notice of loss or damage maybe endorsed upon the receipt for
the goods given by the person taking delivery thereof.
The notice in writing need not be given if the state of the goods has
at the time of their receipt been the subject of joint survey or
inspection.
In any event the carrier and the ship shall be discharged from all
liability in respect of loss or damage unless suit is brought within one
year after delivery of the goods or the date when the goods should
have been delivered: Provided, That if a notice of loss or damage,
either apparent or concealed, is not given as provided for in this
section, that fact shall not affect or prejudice the right of the shipper
to bring suit within one year after the delivery of the goods or the
date when the goods should have been delivered.
In the Bill of Lading43 dated April 15, 1995, Rizal Commercial
Banking Corporation (RCBC) is indicated as the consignee while
Universal Motors is listed as the notify party. These designations are
in line with the subject shipment being covered by Letter of Credit
No. I501054, which RCBC issued upon the request of Universal
Motors.
A letter of credit is a financial device developed by merchants as a
convenient and relatively safe mode of dealing with sales of goods
to satisfy the seemingly irreconcilable interests of a seller, who
refuses to part with his goods before he is paid, and a buyer, who
wants to have control of his goods before paying.44 However, letters
of credit are employed by the parties desiring to enter into
commercial transactions, not for the benefit of the issuing bank but
mainly for the benefit of the parties to the original transaction,45 in
these cases, Nichimen Corporation as the seller and Universal
Motors as the buyer. Hence, the latter, as the buyer of the Nissan
CKD parts, should be regarded as the person entitled to delivery of
the goods. Accordingly, for purposes of reckoning when notice of
loss or damage should be given to the carrier or its agent, the date
of delivery to Universal Motors is controlling.
S/S "Calayan Iris" arrived at the port of Manila on April 20, 1995,
and the subject cargoes were discharged to the custody of ATI the
next day. The goods were then withdrawn from the CFS Warehouse
on May 11, 1995 and the last of the packages delivered to Universal
Motors on May 17, 1995. Prior to this, the latter filed a Request for
Bad Order Survey46 on May 12,1995 following a joint inspection
where it was discovered that six pieces of Chassis Frame Assembly
from two bundles were deformed and one Front Axle Sub without
Lower from a steel case was dented. Yet, it was not until August 4,
1995 that Universal Motors filed a formal claim for damages against
petitioner Westwind.
Even so, we have held in Insurance Company of North America v.
Asian Terminals, Inc. that a request for, and the result of a bad order
examination, done within the reglementary period for furnishing
notice of loss or damage to the carrier or its agent, serves the
purpose of a claim. A claim is required to be filed within the
reglementary period to afford the carrier or depositary reasonable
opportunity and facilities to check the validity of the claims while
facts are still fresh in the minds of the persons who took part in the
transaction and documents are still available.47 Here, Universal
Motors filed a request for bad order survey on May 12, 1995, even
before all the packages could be unloaded to its warehouse.
Moreover, paragraph (6), Section 3 of the COGSA clearly states that
failure to comply with the notice requirement shall not affect or
prejudice the right of the shipper to bring suit within one year after
delivery of the goods. Petitioner Philam, as subrogee of Universal
Motors, filed the Complaint for damages on January 18, 1996, just
eight months after all the packages were delivered to its possession
on May 17, 1995. Evidently, petitioner Philam’s action against
petitioners Westwind and ATI was seasonably filed.
This brings us to the question that must be resolved in these
consolidated petitions. Who between Westwind and ATI should be
liable for the damage to the cargo?
It is undisputed that Steel Case No. 03-245-42K/1 was partly torn
and crumpled on one side while it was being unloaded from the
carrying vessel. The damage to said container was noted in the Bad
Order Cargo Receipt48 dated April 20, 1995 and Turn Over Survey
of Bad Order Cargoes dated April 21, 1995. The Turn Over Survey
of Bad Order Cargoes indicates that said steel case was not opened
at the time of survey and was accepted by the arrastre in good
order. Meanwhile, the Bad Order Cargo Receipt bore a notation
"B.O. not yet t/over to ATI." On the basis of these documents,
petitioner ATI claims that the contents of Steel Case No. 03-245-
42K/1 were damaged while in the custody of petitioner Westwind.
We agree.
Common carriers, from the nature of their business and for reasons
of public policy, are bound to observe extraordinary diligence in the
vigilance over the goods transported by them. Subject to certain
exceptions enumerated under Article 173449 of the Civil Code,
common carriers are responsible for the loss, destruction, or
deterioration of the goods. The extraordinary responsibility of the
common carrier lasts from the time the goods are unconditionally
placed in the possession of, and received by the carrier for
transportation until the same are delivered, actually or
constructively, by the carrier to the consignee, or to the person who
has a right to receive them.50
The court a quo, however, found both petitioners Westwind and ATI,
jointly and severally, liable for the damage to the cargo. It observed
that while the staff of ATI undertook the physical unloading of the
cargoes from the carrying vessel, Westwind’s duty officer exercised
full supervision and control over the entire process. The appellate
court affirmed the solidary liability of Westwind and ATI, but only for
the damage to one Frame Axle Sub without Lower.
Upon a careful review of the records, the Court finds no reason to
deviate from the finding that petitioners Westwind and ATI are
concurrently accountable for the damage to the content of Steel
Case No. 03-245-42K/1.
Section 251 of the COGSA provides that under every contract of
carriage of goods by the sea, the carrier in relation to the loading,
handling, stowage, carriage, custody, care and discharge of such
goods, shall be subject to the responsibilities and liabilities and
entitled to the rights and immunities set forth in the Act. Section 3
(2)52 thereof then states that among the carrier’s responsibilities are
to properly load, handle, stow, carry, keep, care for and discharge
the goods carried.53
At the trial, Westwind’s Operation Assistant, Menandro G. Ramirez,
testified on the presence of a ship officer to supervise the unloading
of the subject cargoes.
ATTY. LLAMAS
Q Having been present during the entire discharging operation, do
you remember who else were present at that time?
A Our surveyor and our checker the foreman of ATI.
Q Were there officials of the ship present also?
A Yes, sir there was an officer of the vessel on duty at that time.54
xxxx
Q Who selected the cable slink to be used?
A ATI Operation.
Q Are you aware of how they made that selection?
A Before the vessel arrived we issued a manifesto of the storage
plan informing the ATI of what type of cargo and equipment will be
utilitized in discharging the cargo.55
xxxx
Q You testified that it was the ATI foremen who select the cable
slink to be used in discharging, is that correct?
A Yes sir, because they are the one who select the slink and they
know the kind of cargoes because they inspected it before the
discharge of said cargo.
Q Are you aware that the ship captain is consulted in the selection of
the cable sling?
A Because the ship captain knows for a fact the equipment being
utilized in the discharge of the cargoes because before the ship
leave the port of Japan the crew already utilized the proper
equipment fitted to the cargo.56 (Emphasis supplied.)
It is settled in maritime law jurisprudence that cargoes while being
unloaded generally remain under the custody of the carrier.57 The
Damage Survey Report58 of the survey conducted by Phil. Navtech
Services, Inc. from April 20-21, 1995 reveals that Case No. 03-245-
42K/1 was damaged by ATI stevedores due to overtightening of a
cable sling hold during discharge from the vessel’s hatch to the pier.
Since the damage to the cargo was incurred during the discharge of
the shipment and while under the supervision of the carrier, the
latter is liable for the damage caused to the cargo.
This is not to say, however, that petitioner ATI is without liability for
the damaged cargo.
The functions of an arrastre operator involve the handling of cargo
deposited on the wharf or between the establishment of the
consignee or shipper and the ship’s tackle. Being the custodian of
the goods discharged from a vessel, an arrastre operator’s duty is to
take good care of the goods and to turn them over to the party
entitled to their possession.59
Handling cargo is mainly the arrastre operator’s principal work so its
drivers/operators or employees should observe the standards and
measures necessary to prevent losses and damage to shipments
under its custody.60
While it is true that an arrastre operator and a carrier may not be
held solidarily liable at all times,61 the facts of these cases show
that apart from ATI’s stevedores being directly in charge of the
physical unloading of the cargo, its foreman picked the cable sling
that was used to hoist the packages for transfer to the dock.
Moreover, the fact that 218 of the 219 packages were unloaded with
the same sling unharmed is telling of the inadequate care with which
ATI’s stevedore handled and discharged Case No. 03-245-42K/1.
 With respect to petitioners ATI and Westwind’s liability, we agree
with the CA that the same should be confined to the value of the one
piece Frame Axle Sub without Lower.
In the Bad Order Inspection Report62 prepared by Universal Motors,
the latter referred to Case No. 03-245-42K/1 as the source of said
Frame Axle Sub without Lower which suffered a deep dent on its
buffle plate. Yet, it identified Case No. 03-245-51K as the container
which bore the six pieces Frame Assembly with Bush. Thus, in
Philam’s Complaint, it alleged that "the entire shipment showed one
(1) pc. FRAME AXLE SUB W/O LWR from Case No. 03-245-42K/1
was completely deformed and misaligned, and six (6) other pcs. of
FRAME ASSEMBLY WITH BUSH from Case No. 03-245-51K were
likewise completely deformed and misaligned."63 Philam later
claimed in its Appellee’s Brief that the six pieces of Frame Assembly
with Bush were also inside the damaged Case No. 03-245-42K/1.
However, there is nothing in the records to show conclusively that
the six Frame Assembly with Bush were likewise contained in and
damaged inside Case No. 03-245-42K/1. In the Inspection Survey
Report of Chartered Adjusters, Inc., it mentioned six pieces of
chassis frame assembly with deformed body mounting bracket.
However, it merely noted the same as coming from two bundles with
no identifying marks.
Lastly, we agree with petitioner Westwind that the CA erred in
imposing an interest rate of 12% on the award of damages. Under
Article 2209 of the Civil Code, when an obligation not constituting a
loan or forbearance of money is breached, an interest on the
amount of damages awarded may be imposed at the discretion of
the court at the rate of 6% per annum.64 In the similar case of
Belgian Overseas Chartering and Shipping NV v. Philippine First
Insurance Co., lnc.,65 the Court reduced the rate of interest on the
damages awarded to the carrier therein to 6% from the time of the
filing of the complaint until the finality of the decision.
WHEREFORE, the Court AFFIRMS with MODIFICATION the
Decision dated October 15,2007 and the Resolution dated January
11, 2008 of the Court of Appeals in CA-G.R. CV No. 69284 in that
the interest rate on the award of ₱190,684.48 is reduced to 6% per
annum from the date of extrajudicial demand, until fully paid.
With costs against the petitioners in G.R. No. 181163 and G.R. No.
181319, respectively.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
c. Private documents
6. Offer of Evidence
G.R. No. 165285. June 18, 2012.*
LOMISES ALUDOS, deceased, substituted by FLORA ALUDOS,
petitioner, vs. JOHNNY M. SUERTE,** respondent.
Civil Law; Equitable Mortgage; Words and Phrases; An equitable
mortgage has been defined ‘as one which although lacking in some
formality, or form or words, or other requisites demanded by a
statute, nevertheless reveals the intention of the parties to charge
real property as security for a debt, there being no impossibility nor
anything contrary to law in this intent.’—Lomises questions the
nature of the agreement between him and Johnny, insisting that it
was a contract of loan, not an assignment of leasehold rights and
sale of improvements. In other words, what existed was an equitable
mortgage, as contemplated in Article 1602, in relation with Article
1604, of the Civil Code. “An equitable mortgage has been defined
‘as one which although lacking in some formality, or form or words,
or other requisites demanded by a statute, nevertheless reveals the
intention of the parties to charge real property as security for a
debt, there being no impossibility nor anything contrary to law in this
intent.’”
Evidence; Formal Offer of Evidence; The court shall consider no
evidence which has not been formally offered. The offer of evidence
is necessary because it is the duty of the court to rest its findings of
fact and its judgment only and strictly upon the evidence offered by
the parties.—Under Section 34, Rule 132 of the Rules of Court, the
court shall consider no evidence which has not been formally
offered. “The offer of evidence is necessary because it is the duty of
the court to rest its findings of fact and its judgment only and strictly
upon the evidence offered by the parties. Unless and until admitted
by the court in evidence for the purpose or purposes for which such
document is offered, the same is merely a scrap of paper barren of
probative weight.”
PETITION for review on certiorari of the decision and resolution of
the Court of Appeals.
The facts are stated in the opinion of the Court.
Rodolfo A. Lockey for petitioner.
Gacayan, Paredes, Agmata & Associates Law Offices for
respondent.
BRION, J.:
Before the Court is a petition for review on certiorari filed under Rule
45 of the Rules of Court by Lomises Aludos, through his wife Flora
Aludos (Lomises).[1] Lomises seeks the reversal of the decision[2]
dated August 29, 2002 of the Court of Appeals (CA) in CA-G.R. CV
No. 63113, as well as the resolution[3] dated August 17, 2004.
THE FACTS
Sometime in January 1969, Lomises acquired from the Baguio City
Government the right to occupy two stalls in the Hangar Market in
Baguio City, as evidenced by a permit issued by the City
Treasurer.[4]
On September 8, 1984, Lomises entered into an agreement with
respondent Johnny M. Suerte for the transfer of all improvements
and rights over the two market stalls (Stall Nos. 9 and 10) for the
amount of P260,000.00. Johnny gave a down payment of
P45,000.00 to Lomises, who acknowledged receipt of the amount in
a document[5] executed on the same date as the agreement:
RECEIPT
P45,000.00 September 8, 1984
Received the Sum of Forty Five Thousand Pesos (P45,000.00) from
JOHNNY M. SUERTE, with postal address at Kamog, Sablan, [Signature affixed]
Benguet Province, Philippine Currency as an advance or partial
downpayment of Improvements and Rights over Stall Nos. 9 and 10, Ana Comnad (witness)
situated at Refreshment Section, Hangar Market Compound, Baguio
City, and the said amount will be deducted from the agreed
proceeds of the transaction in the amount of Two Hundred Sixty
Thousand Pesos (P260,000.00), Philippine Currency and payable [Signature affixed]
starting from September 1984 up to December 1985, and/or (16)
months. Dolores Aludos (with

her consent/witness)

This receipt will be formalise (sic) later, and the Deed of Absolute
Transfer of Improvements and Rights over the said Stall be
executed immediately upon full payment of the balance stated in the
above.

Right hand thumbmark: Johnny made a subsequent payment of P23,000.00; hence, a total
of P68,000.00 of the P260,000.00 purchase price had been made as
of 1984. Before full payment could be made, however, Lomises
backed out of the agreement and returned the P68,000.00 to Domes
and Jaime Suerte, the mother and the father of Johnny, respectively.
[Thumbmark affixed] The return of the P68,000.00 down payment was embodied in a
handwritten receipt[6] dated October 9, 1985:
LOMISES F. ALUDOS

(Registered Stall Holder)

RECEIPT

With the Consent of the Wife: P68,000.00

Received from Mr. Lomises Aludos the sum of Sixty-eight thousand

[Signature affixed] (P68,000.00) Pesos as reimbursement of my money.

FLORA MENES

(Wife) Baguio City, October 9, 1985.

Witness to Thumbmark and/or [Signature affixed]

Paid in the presence of: JAIME SUERTE

[Signature affixed]

DOMES SUERTE

[Signature affixed] Witnesses

Domes M. Suerte (witness)

[Illegible signature]

[Illegible signature]
[Signature affixed]

Agnes M. Boras (witness)


Through a letter dated October 15, 1985, Johnny protested the
return of his money, and insisted on the continuation and
enforcement of his agreement with Lomises. When Lomises refused
Johnnys protest, Johnny filed a complaint against Lomises before
the Regional Trial Court (RTC), Branch 7, Baguio City, for specific
performance with damages, docketed as Civil Case No. 720-R.
Johnny prayed that, after due proceedings, judgment be rendered
ordering Lomises to (1) accept the payment of the balance of
P192,000.00; and (2) execute a final deed of sale and/or transfer the
improvements and rights over the two market stalls in his favor.
In a decision dated November 24, 1998,[7] the RTC nullified the
agreement between Johnny and Lomises for failure to secure the
consent of the Baguio City Government to the agreement. The RTC
found that Lomises was a mere lessee of the market stalls, and the
Baguio City Government was the owner-lessor of the stalls. Under
Article 1649 of the Civil Code, [t]he lessee cannot assign the lease
without the consent of the lessor, unless there is a stipulation to the
contrary. As the permit issued to Lomises did not contain any
provision that the lease of the market stalls could further be
assigned, and in the absence of the consent of the Baguio City
Government to the agreement, the RTC declared the agreement
between Lomises and Johnny null and void. The nullification of the
agreement required the parties to return what had been received
under the agreement; thus, the RTC ordered Lomises to return the
down payment made by Johnny, with interest of 12% per annum,
computed from the time the complaint was filed until the amount is
fully paid. It dismissed the parties claims for damages.
Lomises appealed the RTC decision to the CA, arguing that the real
agreement between the parties was merely one of loan, and not of
sale; he further claimed that the loan had been extinguished upon
the return of the P68,000.00 to Johnnys mother, Domes.
In a decision dated August 29, 2002,[8] the CA rejected Lomises
claim that the true agreement was one of loan. The CA found that
there were two agreements entered into between Johnny and
Lomises: one was for the assignment of leasehold rights and the
other was for the sale of the improvements on the market stalls. The
CA agreed with the RTC that the assignment of the leasehold rights
was void for lack of consent of the lessor, the Baguio City
Government. The sale of the improvements, however, was valid
because these were Lomises private properties. For this reason, the
CA remanded the case to the RTC to determine the value of the
improvements on the two market stalls, existing at the time of the
execution of the agreement.
Lomises moved for the reconsideration of the CA ruling, contending
that no valid sale of the improvements could be made because the
lease contract, dated May 1, 1985, between Lomises and the
Baguio City Government, supposedly marked as Exh. A, provided
that [a]ll improvements [introduced shall] ipso facto become
properties of the City of Baguio.[9]
In a resolution dated August 17, 2004,[10] the CA denied the motion
after finding that Lomises lawyer, Atty. Rodolfo Lockey,
misrepresented Exh. A as the governing lease contract between
Lomises and the Baguio City Government; the records reveal that
Exh. A was merely a permit issued by the City Treasurer in favor of
Lomises. The contract of lease dated May 1, 1985 was never
formally offered in evidence before the RTC and could thus not be
considered pursuant to the rules of evidence.
Lomises now appeals the CA rulings through the present petition for
review on certiorari.
THE PARTIES ARGUMENTS
Lomises insists that the agreement was merely one of loan, not of
sale of improvements and leasehold rights. Johnny could not afford
to purchase from Lomises the two market stalls for P260,000.00
because the former was a mere college student when the
agreement was entered into in 1984 and was dependent on his
parents for support. The actual lender of the amount was Johnnys
mother, Domes; Johnnys name was placed on the receipt dated
September 8, 1984 so that in case the loan was not paid, the rights
over the market stalls would be transferred to Johnnys name, not to
Domes who already had a market stall and was thus disqualified
from acquiring another. The receipt dated September 8, 1984,
Lomises pointed out, bears the signature of Domes, not of Johnny.
Even assuming that Johnny was the real creditor, Lomises alleges
that the loan had been fully paid when he turned over the amount of
P68,000.00 to Johnnys parents, as evidenced by the receipt dated
October 9, 1985. Domes claim that she was pressured to accept the
amount is an implied admission that payment had nonetheless been
received. When Johnny died during the pendency of the case before
the RTC, his parents became his successors and inherited all his
rights. For having received the full amount of the loan, Johnnys
parents can no longer enforce payment of the loan.
Lomises contends that there were no improvements made on the
market stalls other than the stalls themselves, and these belong to
the Baguio City Government as the lessor. A transfer of the stalls
cannot be made without a transfer of the leasehold rights, in which
case, there would be an indirect violation of the lease contract with
the Baguio City Government. Lomises further alleges that, at
present, the market stalls are leased by Flora and her daughter who
both obtained the lease in their own right and not as Lomises
successors.
Johnny, through his remaining successor Domes (Johnnys mother),
opposed Lomises claim. The receipt dated September 8, 1984
clearly referred to a contract of sale of the market stalls and not a
contract of loan that Lomises alleges. Although Johnny conceded
that the sale of leasehold rights to the market stalls were void for
lack of consent of the Baguio City Government, he alleged that the
sale of the improvements should be upheld as valid, as the CA did.
THE COURTS RULING
The Court does not find the petition meritorious.
The Nature of the Agreement between the Parties
Lomises questions the nature of the agreement between him and
Johnny, insisting that it was a contract of loan, not an assignment of
leasehold rights and sale of improvements. In other words, what
existed was an equitable mortgage, as contemplated in Article 1602,
in relation with Article 1604, of the Civil Code. An equitable
mortgage has been defined as one which although lacking in some
formality, or form or words, or other requisites demanded by a
statute, nevertheless reveals the intention of the parties to charge
real property as security for a debt, there being no impossibility nor
anything contrary to law in this intent.[11] Article 1602 of the Civil
Code lists down the circumstances that may indicate that a contract
is an equitable mortgage:
Art. 1602. The contract shall be presumed to be an equitable
mortgage, in any of the following cases:
(1) When the price of a sale with right to repurchase is unusually
inadequate;
(2) When the vendor remains in possession as lessee or otherwise;
(3) When upon or after the expiration of the right to repurchase
another instrument extending the period of redemption or granting a
new period is executed;
(4) When the purchaser retains for himself a part of the purchase
price;
(5) When the vendor binds himself to pay the taxes on the thing
sold;
(6) In any other case where it may be fairly inferred that the real
intention of the parties is that the transaction shall secure the
payment of a debt or the performance of any other obligation.
In any of the foregoing cases, any money, fruits, or other benefit to
be received by the vendee as rent or otherwise shall be considered
as interest which shall be subject to the usury laws. [Emphases
ours.]
Based on Lomises allegations in his pleadings, we consider three
circumstances to determine whether his claim is well-supported.
First, Johnny was a mere college student dependent on his parents
for support when the agreement was executed, and it was Johnnys
mother, Domes, who was the party actually interested in acquiring
the market stalls. Second, Lomises received only P48,000.00 of the
P68,000.00 that Johnny claimed he gave as down payment;
Lomises said that the P20,000.00 represented interests on the loan.
Third, Lomises retained possession of the market stalls even after
the execution of the agreement.
Whether separately or taken together, these circumstances do not
support a conclusion that the parties only intended to enter into a
contract of loan.
That Johnny was a mere student when the agreement was executed
does not indicate that he had no financial capacity to pay the
purchase price of P260,000.00. At that time, Johnny was a 26-year
old third year engineering student who operated as a businessman
as a sideline activity and who helped his family sell goods in the
Hangar Market.[12] During trial, Johnny was asked where he was to
get the funds to pay the P260,000.00 purchase price, and he said he
would get a loan from his grandfather.[13] That he did not have the
full amount at the time the agreement was executed does not
necessarily negate his capacity to pay the purchase price, since he
had 16 months to complete the payment. Apart from Lomises bare
claim that it was Johnnys mother, Domes, who was interested in
acquiring his market stalls, we find no other evidence supporting the
claim that Johnny was merely acting as a dummy for his mother.
Lomises contends that of the P68,000.00 given by Johnny, he only
received P48,000.00, with the remaining P20,000.00 retained by
Johnny as interest on the loan. However, the testimonies of the
witnesses presented during trial, including Lomises himself, negate
this claim. Judge Rodolfo Rodrigo (RTC of Baguio City, Branch VII)
asked Lomises lawyer, Atty. Lockey, if they deny receipt of the
P68,000.00; Atty. Lockey said that they were not denying receipt,
and added that they had in fact returned the same amount.[14]
Judge Rodrigo accurately summarized their point by stating that
there is no need to dispute whether the P68,000.00 was given,
because if [Lomises] tried to return that x x x he had received
that.[15] Witness Atty. Albert Umaming said he counted the money
before he drafted the October 9, 1985 receipt evidencing the return;
he said that Lomises returned P68,000.00 in total.[16] Thus, if the
transaction was indeed a loan and the P20,000.00 interest was
already prepaid by Lomises, the return of the full amount of
P68,000.00 by Lomises to Johnny (through his mother, Domes)
would not make sense.
That Lomises retained possession of the market stalls even after the
execution of his agreement with Johnny is also not an indication that
the true transaction between them was one of loan. Johnny had yet
to complete his payment and, until Lomises decided to forego with
their agreement, had four more months to pay; until then, Lomises
retained ownership and possession of the market stalls.[17]
Lomises cannot feign ignorance of the import of the terms of the
receipt of September 8, 1984 by claiming that he was an illiterate old
man. A witness (Ana Comnad) testified not only of the fact of the
sale, but also that Lomises daughter, Dolores, translated the terms
of the agreement from English to Ilocano for Lomises benefit;[18]
Lomises himself admitted this fact.[19] If Lomises believed that the
receipt of September 8, 1984 did not express the parties true intent,
he could have refused to sign it or subsequently requested for a
reformation of its terms. Lomises rejected the agreement only after
Johnny sought to enforce it.
Hence, the CA was correct in characterizing the agreement between
Johnny and Lomises as a sale of improvements and assignment of
leasehold rights.
The Validity of the Agreement
Both the RTC and the CA correctly declared that the assignment of
the leasehold rights over the two market stalls was void since it was
made without the consent of the lessor, the Baguio City
Government, as required under Article 1649 of the Civil Code.[20]
Neither party appears to have contested this ruling.
Lomises, however, objects to the CA ruling upholding the validity of
the agreement insofar as it involved the sale of improvements on the
stalls. Lomises alleges that the sale of the improvements should
similarly be voided because it was made without the consent of the
Baguio City Government, the owner of the improvements, pursuant
to the May 1, 1985 lease contract.[21] Lomises further claims that
the stalls themselves are the only improvements on the property and
a transfer of the stalls cannot be made without transferring the
leasehold rights. Hence, both the assignment of leasehold rights and
the sale of improvements should be voided.
The CA has already rejected the evidentiary value of the May 1,
1985 lease contract between the Baguio City Government and
Lomises, as it was not formally offered in evidence before the RTC;
in fact, the CA admonished Lomises lawyer, Atty. Lockey, for
making it appear that it was part of the records of the case. Under
Section 34, Rule 132 of the Rules of Court, the court shall consider
no evidence which has not been formally offered. The offer of
evidence is necessary because it is the duty of the court to rest its
findings of fact and its judgment only and strictly upon the evidence
offered by the parties. Unless and until admitted by the court in
evidence for the purpose or purposes for which such document is
offered, the same is merely a scrap of paper barren of probative
weight.[22] Although the contract was referred to in Lomises answer
to Johnnys complaint[23] and marked as Exhibit 2 in his pre-trial
brief,[24] a copy of it was never attached. In fact, a copy of the May
1, 1985 lease contract surfaced only after Lomises filed a motion for
reconsideration of the CA decision. What was formally offered was
the 1969 permit, which only stated that Lomises was permitted to
occupy a stall in the Baguio City market and nothing else.[25] In
other words, no evidence was presented and formally offered
showing that any and all improvements in the market stalls shall be
owned by the Baguio City Government.
Likewise unsupported by evidence is Lomises claim that the stalls
themselves were the only improvements. Hence, the CA found it
proper to order the remand of the case for the RTC to determine the
value of the improvements on the market stalls existing as of
September 8, 1984.[26] We agree with the CAs order of remand.
We note, however, that Lomises had already returned the
P68,000.00 and receipt of the amount has been duly acknowledged
by Johnnys mother, Domes. Johnny testified on October 6, 1986
that the money was still with his mother.[27] Thus, upon
determination by the RTC of the actual value of the improvements
on the market stalls, the heirs of Johnny Suerte should pay the
ascertained value of these improvements to Lomises, who shall
thereafter be required to execute the deed of sale over the
improvements in favor of the heirs of Johnny.
WHEREFORE, under these premises, the Court hereby AFFIRMS
the ruling of the Court of Appeals for the remand of the case to the
Regional Trial Court of Baguio City, Branch 7, for the determination
of the value of the improvements on Stall Nos. 9 and 10 at the
Refreshment Section of the Hangar Market Compound, Baguio City
as of September 8, 1984. After this determination, the Court
ORDERS the heirs of Johnny M. Suerte to pay the amount
determined to the heirs of Lomises Aludos, who shall thereafter
execute the deed of sale covering the improvements in favor of the
heirs of Johnny M. Suerte and deliver the deed to them. Costs
against the petitioner.
SO ORDERED.
G.R. No. 194128. December 7, 2011.*
WESTMONT INVESTMENT CORPORATION, petitioner, vs.
AMOS P. FRANCIA, JR., CECILIA ZAMORA, BENJAMIN
FRANCIA, and PEARLBANK SECURITIES, INC., respondents.
Civil Procedure; Appeals; As a rule, a petition for review under Rule
45 of the Rules of Court covers only questions of law; Questions of
fact are not reviewable and cannot be passed upon by the Court in
the exercise of its power to review; Distinction between Questions of
Law and Questions of Fact.—As a rule, a petition for review under
Rule 45 of the Rules of Court covers only questions of law.
Questions of fact are not reviewable and cannot be passed upon by
this Court in the exercise of its power to review. The distinction
between questions of law and questions of fact is established. A
question of law exists when the doubt or difference centers on what
the law is on a certain state of facts. A question of fact, on the other
hand, exists if the doubt centers on the truth or falsity of the alleged
facts. This being so, the findings
of fact of the CA are final and conclusive and this Court will not
review them on appeal.
Civil Law; Agency; In a contract of agency, a person binds himself to
render some service or to do something in representation or on
behalf of another with the latter’s consent; Elements of the Contract
of Agency.—In a contract of agency, a person binds himself to
render some service or to do something in representation or on
behalf of another with the latter’s consent. It is said that the
underlying principle of the contract of agency is to accomplish
results by using the services of others—to do a great variety of
things. Its aim is to extend the personality of the principal or the
party for whom another acts and from whom he or she derives the
authority to act. Its basis is representation. Significantly, the
elements of the contract of agency are: (1) consent, express or
implied, of the parties to establish the relationship; (2) the object is
the execution of a juridical act in relation to a third person; (3) the
agent acts as a representative and not for himself; (4) the agent acts
within the scope of his authority.
Remedial Law; Evidence; Offer of Evidence; The offer of evidence is
necessary because it is the duty of the court to rest its findings of
fact and its judgment only and strictly upon the evidence offered by
the parties.—It bears stressing too that all the documents attached
by Wincorp to its pleadings before the CA cannot be given any
weight or evidentiary value for the sole reason that, as correctly
observed by the CA, these documents were not formally offered as
evidence in the trial court. To consider them now would deny the
other parties the right to examine and rebut them. “The offer of
evidence is necessary because it is the duty of the court to rest its
findings of fact and its judgment only and strictly upon the evidence
offered by the parties. Unless and until admitted by the court in
evidence for the purpose or purposes for which such document is
offered, the same is merely a scrap of paper barren of probative
weight.”
Same; Same; Same; It is elementary that objection to evidence must
be made after evidence is formally offered.—The Court cannot,
likewise, disturb the findings of the RTC and the CA as to the
evidence presented by the Francias. It is elementary that objection
to evidence must be made after evidence is formally offered. It
appears that Wincorp was given ample opportunity to file its
Comment/Objection to the formal offer of evidence of the Francias
but it chose not to file any.
PETITION for review on certiorari of the decision and resolution of
the Court of Appeals.
The facts are stated in the opinion of the Court.
MENDOZA, J.:
At bench is a petition for review on certiorari under Rule 45 of the
Rules of Court assailing the (1) July 27, 2010 Decision[1] of the
Court of Appeals (CA) in CA-G.R. CV No. 84725, which affirmed
with modification the September 27, 2004 Decision[2] of the
Regional Trial Court, Branch 56, Makati City (RTC) in Civil Case No.
01-507; and (2) its October 14, 2010 Resolution,[3] which denied the
motion for the reconsideration thereof.
THE FACTS:
On March 27, 2001, respondents Amos P. Francia, Jr.,
Cecilia Zamora and Benjamin Francia (the Francias) filed a
Complaint for Collection of Sum of Money and Damages[4] arising
from their investments against petitioner Westmont Investment
Corporation (Wincorp) and respondent Pearlbank Securities Inc.
(Pearlbank) before the RTC.
Wincorp and Pearlbank filed their separate motions to dismiss.[5]
Both motions were anchored on the ground that the complaint of the
Francias failed to state a cause of action. On July 16, 2001, after
several exchanges of pleadings, the RTC issued an order[6]
dismissing the motions to dismiss of Wincorp and Pearlbank for lack
of merit.
Wincorp then filed its Answer,[7] while Pearlbank filed its Answer
with Counterclaim and Crossclaim (against Wincorp).[8]
The case was set for pre-trial but before pre-trial conference could
be held, Wincorp filed its Motion to Dismiss Crossclaim[9] of
Pearlbank to which the latter filed an opposition.[10] The RTC
denied Wincorps motion to dismiss crossclaim.[11]
The pre-trial conference was later conducted after the parties had
filed their respective pre-trial briefs. The parties agreed on the
following stipulation of facts, as contained in the Pre-Trial Order[12]
issued by the RTC on April 17, 2002:
1. The personal and juridical circumstances of the parties meaning,
the plaintiffs and both corporate defendants;
2. That plaintiffs caused the service of a demand letter on Pearl
Bank on February 13, 2001 marked as Exhibit E;
3. Plaintiffs do not have personal knowledge as to whether or not
Pearl Bank indeed borrowed the funds allegedly invested by the
plaintiff from Wincorp; and
4. That the alleged confirmation advices which indicate Pearl Bank
as alleged borrower of the funds allegedly invested by the plaintiffs
in Wincorp do not bear the signature or acknowledgment of Pearl
Bank. (Emphases supplied)
After several postponements requested by Wincorp, trial on the
merits finally ensued. The gist of the testimony of Amos Francia, Jr.
(Amos) is as follows:
1. Sometime in 1999, he was enticed by Ms. Lalaine Alcaraz, the
bank manager of Westmont Bank, Meycauayan, Bulacan Branch, to
make an investment with Wincorp, the banks financial investment
arm, as it was offering interest rates that were 3% to 5% higher than
regular bank interest rates. Due to the promise of a good return of
investment, he was convinced to invest. He even invited his sister,
Cecilia Zamora and his brother, Benjamin Francia, to join him.
Eventually, they placed their investment in the amounts of
₱1,420,352.72 and ₱2,522,745.34 with Wincorp in consideration of
a net interest rate of 11% over a 43-day spread. Thereafter,
Wincorp, through Westmont Bank, issued Official Receipt Nos.
470844[13] and 470845,[14] both dated January 27, 2000,
evidencing the said transactions.[15]
2. When the 43-day placement matured, the Francias wanted to
retire their investments but they were told that Wincorp had no
funds. Instead, Wincorp rolled-over their placements and issued
Confirmation Advices[16] extending their placements for another 34
days. The said confirmation advices indicated the name of the
borrower as Pearlbank. The maturity values were ₱1,435,108.61
and ₱2,548,953.86 with a due date of April 13, 2000.
3. On April 13, 2000, they again tried to get back the principal
amount they invested plus interest but, again, they were
frustrated.[17]
4. Constrained, they demanded from Pearlbank[18] their
investments. There were several attempts to settle the case, but all
proved futile.
After the testimony of Amos Francia, Jr., the Francias filed their
Formal Offer of Evidence.[19] Pearlbank filed its
Comment/Objection,[20] while Wincorp did not file any comment or
objection. After all the exhibits of the Francias were admitted for the
purposes they were offered, the Francias rested their case.
Thereafter, the case was set for the presentation of the defense
evidence of Wincorp. On March 7, 2003, three (3) days before the
scheduled hearing, Wincorp filed a written motion to postpone the
hearing on even date, as its witness, Antonio T. Ong, was
unavailable because he had to attend a congressional hearing.
Wincorps substitute witness, Atty. Nemesio Briones, was likewise
unavailable due to a previous commitment in the Securities and
Exchange Commission.
The RTC denied Wincorps Motion to Postpone and considered it to
have waived its right to present evidence.[21] The Motion for
Reconsideration of Wincorp was likewise denied.[22]
On August 14, 2003, Pearlbank filed its Demurrer to Evidence.[23]
The RTC granted the same in its Order[24] dated January 12, 2004.
Hence, the complaint against Pearlbank was dismissed, while the
case was considered submitted for decision insofar as Wincorp was
concerned.
On September 27, 2004, the RTC rendered a decision[25] in favor of
the Francias and held Wincorp solely liable to them. The dispositive
portion thereof reads:
WHEREFORE, judgment is rendered ordering defendant Westmont
Investment Corporation to pay the plaintiffs, the following amounts:
1. ₱3,984,062.47 representing the aggregate amount of
investment placements made by plaintiffs, plus 11% per annum by
way of stipulated interest, to be counted from 10 March 2000 until
fully paid; and
2. 10% of the above-mentioned amount as and for attorneys fees
and costs of suit.
SO ORDERED.
Wincorp then filed a motion for reconsideration, but it was denied by
the RTC in its Order[26] dated November 10, 2004.
Not in conformity with the pronouncement of the RTC, Wincorp
interposed an appeal with the CA, alleging the following arguments:
I. THE REGIONAL TRIAL COURT ERRED WHEN IT HELD THAT
WINCORP AS AGENT OF PLAINTIFFS-APPELLEES WAS LIABLE
TO THE LATTER NOTWITHSTANDING THE CLEAR WRITTEN
AGREEMENT TO THE CONTRARY;
II. THE REGIONAL TRIAL COURT ALSO ERRED WHEN IT HELD
THAT PEARLBANK, THE ACTUAL BORROWER AND RECIPIENT
OF THE MONEY INVOLVED IS NOT LIABLE TO THE
PLAINTIFFS-APPELLEES; and
III. THE REGIONAL TRIAL COURT ERRED IN DISMISSING ALL
TOGETHER THE CROSS-CLAIM OF WINCORP AGAINST
PEARLBANK.[27]
The CA affirmed with modification the ruling of the RTC in its July
27, 2010 Decision, the decretal portion of which reads:
WHEREFORE, premises considered, the present Appeal is
DENIED. The Decision dated 27 September 2004 of the Regional
Trial Court, Branch 56, Makati City in Civil Case No. 01-507 is
hereby AFFIRMED WITH MODIFICATION of the awards.
Defendant-appellant Wincorp is hereby ordered to pay plaintiffs-
appellees the amounts of ₱3,984,062.47 plus 11% per annum by
way of stipulated interest to be computed from 13 April 2000 until
fully paid and ₱100,000.00 as attorneys fees and cost of suit.
SO ORDERED.
The CA explained:
After a careful and judicious scrutiny of the records of the present
case, together with the applicable laws and jurisprudence, this Court
finds defendant-appellant Wincorp solely liable to pay the amount of
₱3,984,062.47 plus 11% interest per annum computed from 10
March 2000 to plaintiffs-appellees.
Preliminarily, the Court will rule on the procedural issues raised to
know what pieces of evidence will be considered in this appeal.
Section 34, Rule 132 of the Rules on Evidence states that:
The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be
specified.

A formal offer is necessary because judges are mandated to rest
their findings of facts and their judgment only and strictly upon the
evidence offered by the parties at the trial. Its function is to enable
the trial judge to know the purpose or purposes for which the
proponent is presenting the evidence. On the other hand, this allows
opposing parties to examine the evidence and object to its
admissibility. Moreover, it facilitates review as the appellate court will
not be required to review documents not previously scrutinized by
the trial court. Evidence not formally offered during the trial can not
be used for or against a party litigant. Neither may it be taken into
account on appeal.
The rule on formal offer of evidence is not a trivial matter. Failure to
make a formal offer within a considerable period of time shall be
deemed a waiver to submit it. Consequently, any evidence that has
not been offered shall be excluded and rejected.
Prescinding therefrom, the very glaring conclusion is that all the
documents attached in the motion for reconsideration of the decision
of the trial court and all the documents attached in the defendant-
appellants brief filed by defendant-appellant Wincorp cannot be
given any probative weight or credit for the sole reason that the said
documents were not formally offered as evidence in the trial court
because to consider them at this stage will deny the other parties
the right to rebut them.
The arguments of defendant-appellant Wincorp that the plaintiffs-
appellees made an erroneous offer of evidence as the documents
were offered to prove what is contrary to its content and that they
made a violation of the parol evidence rule do not hold water.
It is basic in the rule of evidence that objection to evidence must be
made after the evidence is formally offered. In case of documentary
evidence, offer is made after all the witnesses of the party making
the offer have testified, specifying the purpose for which the
evidence is being offered. It is only at this time, and not at any other,
that objection to the documentary evidence may be made.
As to oral evidence, objection thereto must likewise be raised at the
earliest possible time, that is, after the objectionable question is
asked or after the answer is given if the objectionable issue
becomes apparent only after the answer was given.
xxx
In the case at bench, a perusal of the records shows that the
plaintiffs-appellees have sufficiently established their cause of action
by preponderance of evidence. The fact that on 27 January 2000,
plaintiffs-appellees placed their investment in the amounts of
₱1,420,352.72 and ₱2,522,754.34 with defendant-appellant Wincorp
to earn a net interest at the rate of 11% over a 43-day period was
distinctly proved by the testimony of plaintiff-appellee Amos Francia,
Jr. and supported by Official Receipt Nos. 470844 and 470845
issued by defendant-appellant Wincorp through Westmont Bank.
The facts that plaintiffs-appellees failed to get back their investment
after 43 days and that their investment was rolled over for another
34 days were also established by their oral evidence and confirmed
by the Confirmation Advices issued by defendant-appellant Wincorp,
which indicate that their investment already amounted to
₱1,435,108.61 and ₱2,548,953.86 upon its maturity on 13 April
2000. Likewise, the fact that plaintiffs-appellees investment was not
returned to them until this date by defendant-appellant Wincorp was
proved by their evidence. To top it all, defendant-appellant Wincorp
never negated these established facts because defendant-appellant
Wincorps claim is that it received the money of plaintiffs-appellees
but it merely acted as an agent of plaintiffs-appellees and that the
actual borrower of plaintiffs-appellees money is defendant-appellee
PearlBank. Hence, defendant-appellant Wincorp alleges that it
should be the latter who must be held liable to the plaintiffs-
appellees.
However, the contract of agency and the fact that defendant-
appellee PearlBank actually received their money were never
proven. The records are bereft of any showing that defendant-
appellee PearlBank is the actual borrower of the money invested by
plaintiffs-appellees as defendant-appellant Wincorp never presented
any evidence to prove the same.
Moreover, the trial court did not err in dismissing defendant-
appellant Wincorps crossclaim as nothing in the records supports its
claim. And such was solely due to defendant-appellant Wincorp
because it failed to present any scintilla of evidence that would
implicate defendant-appellee PearlBank to the transactions involved
in this case. The fact that the name of defendant-appellee
PearlBank was printed in the Confirmation Advices as the actual
borrower does not automatically makes defendant-appellee
PearlBank liable to the plaintiffs-appellees as nothing therein shows
that defendant-appellee PearlBank adhered or acknowledged that it
is the actual borrower of the amount specified therein.
Clearly, the plaintiffs-appellees were able to establish their cause of
action against defendant-appellant Wincorp, while the latter failed to
establish its cause of action against defendant-appellee PearlBank.
Hence, in view of all the foregoing, the Court finds defendant-
appellant Wincorp solely liable to pay the amount of ₱3,984,062.47
representing the matured value of the plaintiffs-appellees investment
as of 13 April 2000 plus 11% interest per annum by way of
stipulated interest counted from maturity date (13 April 2000).
As to the award of attorneys fees, this Court finds that the
undeniable source of the present controversy is the failure of
defendant-appellant Wincorp to return the principal amount and the
interest of the investment money of plaintiffs-appellees, thus, the
latter was forced to engage the services of their counsel to protect
their right. It is elementary that when attorneys fees is awarded, they
are so adjudicated, because it is in the nature of actual damages
suffered by the party to whom it is awarded, as he was constrained
to engage the services of a counsel to represent him for the
protection of his interest. Thus, although the award of attorneys fees
to plaintiffs-appellees was warranted by the circumstances obtained
in this case, this Court finds it equitable to reduce the same from
10% of the total award to a fixed amount of ₱100,000.00.[28]

Wincorps Motion for Reconsideration was likewise denied by the CA
in its October 14, 2010 Resolution.[29]
Not in conformity, Wincorp seeks relief with this Court via this
petition for review alleging that −
PLAINTIFFS-RESPONDENTS HAVE NO CAUSE OF ACTION
AGAINST WINCORP AS THE EVIDENCE ON RECORD SHOWS
THAT THE ACTUAL BENEFICIARY OF THE PROCEEDS OF THE
LOAN TRANSACTIONS WAS PEARLBANK
SUBSTANTIAL JUSTICE DICTATES THAT THE EVIDENCE
PROFERRED BY WINCORP SHOULD BE CONSIDERED TO
DETERMINE WHO, AMONG THE PARTIES, ARE LIABLE TO
PLAINTIFFS-RESPONDENTS[30]
ISSUE
The core issue in this case is whether or not the CA is correct in
finding Wincorp solely liable to pay the Francias the amount of
₱3,984,062.47 plus interest of 11% per annum.
Quite clearly, the case at bench presents a factual issue.
As a rule, a petition for review under Rule 45 of the Rules of Court
covers only questions of law. Questions of fact are not reviewable
and cannot be passed upon by this Court in the exercise of its power
to review. The distinction between questions of law and questions of
fact is established. A question of law exists when the doubt or
difference centers on what the law is on a certain state of facts. A
question of fact, on the other hand, exists if the doubt centers on the
truth or falsity of the alleged facts.[31] This being so, the findings of
fact of the CA are final and conclusive and this Court will not review
them on appeal.
While it goes without saying that only questions of law can be raised
in a petition for review on certiorari under Rule 45, the same admits
of exceptions, namely: (1) when the findings are grounded entirely
on speculations, surmises, or conjectures; (2) when the inference
made is manifestly mistaken, absurd, or impossible; (3) when there
is a grave abuse of discretion; (4) when the judgment is based on
misappreciation of facts; (5) when the findings of fact are conflicting;
(6) when in making its findings, the same are contrary to the
admissions of both appellant and appellee; (7) when the findings are
contrary to those of the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondent;
and (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record.[32]
The Court finds that no cogent reason exists in this case to deviate
from the general rule.
Wincorp insists that the CA should have based its decision on the
express terms, stipulations, and agreements provided for in the
documents offered by the Francias as the legal relationship of the
parties was clearly spelled out in the very documents introduced by
them which indicated that it merely brokered the loan transaction
between the Francias and Pearlbank.[33]
Wincorp would want the Court to rule that there was a contract of
agency between it and the Francias with the latter authorizing the
former as their agent to lend money to Pearlbank. According to
Wincorp, the two Confirmation Advices presented as evidence by
the Francias and admitted by the court, were competent proof that
the recipient of the loan proceeds was Pearlbank.[34]
The Court is not persuaded.
In a contract of agency, a person binds himself to render some
service or to do something in representation or on behalf of another
with the latters consent.[35] It is said that the underlying principle of
the contract of agency is to accomplish results by using the services
of others to do a great variety of things. Its aim is to extend the
personality of the principal or the party for whom another acts and
from whom he or she derives the authority to act. Its basis is
representation.[36]
Significantly, the elements of the contract of agency are: (1)
consent, express or implied, of the parties to establish the
relationship; (2) the object is the execution of a juridical act in
relation to a third person; (3) the agent acts as a representative and
not for himself; (4) the agent acts within the scope of his
authority.[37]
In this case, the principal-agent relationship between the Francias
and Wincorp was not duly established by evidence. The records are
bereft of any showing that Wincorp merely brokered the loan
transactions between the Francias and Pearlbank and the latter was
the actual recipient of the money invested by the former. Pearlbank
did not authorize Wincorp to borrow money for it. Neither was there
a ratification, expressly or impliedly, that it had authorized or
consented to said transaction.
As to Pearlbank, records bear out that the Francias anchor their
cause of action against it merely on the strength of the subject
Confirmation Advices bearing the name PearlBank as the supposed
borrower of their investments. Apparently, the Francias ran after
Pearlbank only after learning that Wincorp was reportedly
bankrupt.[38] The Francias were consistent in saying that they only
dealt with Wincorp and not with Pearlbank. It bears noting that even
in their Complaint and during the pre-trial conference, the Francias
alleged that they did not have any personal knowledge if Pearlbank
was indeed the recipient/beneficiary of their investments.
Although the subject Confirmation Advices indicate the name of
Pearlbank as the purported borrower of the said investments, said
documents do not bear the signature or acknowledgment of
Pearlbank or any of its officers. This cannot prove the position of
Wincorp that it was Pearlbank which received and benefited from
the investments made by the Francias. There was not even a
promissory note validly and duly executed by Pearlbank which
would in any way serve as evidence of the said borrowing.
Another significant point which would support the stand of Pearlbank
that it was not the borrower of whatever funds supposedly invested
by the Francias was the fact that it initiated, filed and pursued
several cases against Wincorp, questioning, among others, the
latters acts of naming it as borrower of funds from investors.[39]
It bears stressing too that all the documents attached by Wincorp to
its pleadings before the CA cannot be given any weight or
evidentiary value for the sole reason that, as correctly observed by
the CA, these documents were not formally offered as evidence in
the trial court. To consider them now would deny the other parties
the right to examine and rebut them. Section 34, Rule 132 of the
Rules of Court provides:
Section 34. Offer of evidence The court shall consider no evidence
which has not been formally offered. The purpose for which the
evidence is offered must be specified.
The offer of evidence is necessary because it is the duty of the court
to rest its findings of fact and its judgment only and strictly upon the
evidence offered by the parties. Unless and until admitted by the
court in evidence for the purpose or purposes for which such
document is offered, the same is merely a scrap of paper barren of
probative weight.[40]
The Court cannot, likewise, disturb the findings of the RTC and the
CA as to the evidence presented by the Francias. It is elementary
that objection to evidence must be made after evidence is formally
offered.[41] It appears that Wincorp was given ample opportunity to
file its Comment/Objection to the formal offer of evidence of the
Francias but it chose not to file any.
All told, the CA committed no reversible error in rendering the
assailed July 27, 2010 Decision and in issuing the challenged
October 14, 2010 Resolution.
WHEREFORE, the petition is DENIED.
SO ORDERED.
7. Tender of Excluded Evidence
G.R. No. 192024. July 1, 2015.*
FORTUNE TOBACCO CORPORATION, petitioner, vs.COM-
MISSIONER OF INTERNAL REVENUE, respondent.
Remedial Law; Civil Procedure; Appeals; Petition for Review on
Certiorari; The settled rule is that only questions of law may be
raised in a petition under Rule 45 of the Rules of Court.—The settled
rule is that only questions of law may be raised in a petition under
Rule 45 of the Rules of Court. It is not this Court’s function to
analyze or weigh all over again the evidence already considered in
the proceedings below, the Court’s jurisdiction being limited to
reviewing only errors of law that may have been committed by the
lower court. The resolution of factual issues is the function of the
lower courts, whose findings on these matters are received with
respect. A question of law which the Court may pass upon must not
involve an examination of the probative value of the evidence
presented by the litigants. This is in accordance with Section 1, Rule
45 of the Rules of Court, as amended.
_______________
* SECOND DIVISION.
174
Same; Same; Same; Same; Tax Refunds; It has been said that the
proper interpretation of the provisions on tax refund that does not
call for an examination of the probative value of the evidence
presented by the parties-litigants is a question of law.—It has been
said that the proper interpretation of the provisions on tax refund that
does not call for an examination of the probative value of the
evidence presented by the parties-litigants is a question of
law.Conversely, it may be said that if the appeal essentially calls for
the reexamination of the probative value of the evidence presented
by the appellant, the same raises a question of fact. Often repeated
is the distinction that there is a question of law in a given case when
doubt or difference arises as to what the law is on a certain state of
facts; there is a question of fact when doubt or difference arises as
to the truth or falsehood of alleged facts.
Same; Same; Same; Documentary Evidence; Where documentary
evidence was rejected by the lower court and the offeror did not
move that the same be attached to the record, the same cannot be
considered by the appellate court, as documents forming no part of
proofs before the appellate court cannot be considered in disposing
the case.—It has been repeatedly ruled that where documentary
evidence was rejected by the lower court and the offeror did not
move that the same be attached to the record, the same cannot be
considered by the appellate court, as documents forming no part of
proofs before the appellate court cannot be considered in disposing
the case. For the appellate court to consider as evidence, which was
not offered by one party at all during the proceedings below, would
infringe the constitutional right of the adverse party — in this case,
the CIR, to due process of law. It also bears pointing out that at no
point during the proceedings before the CTA En Banc and before
this Court has petitioner offered any plausible explanation as to why
it failed to properly make an offer of proof or tender of excluded
evidence. Instead, petitioner harps on the fact that respondent CIR
simply refused its claim for refund on the ground that RR 17-99 was
a valid issuance. Thus, for its failure to seasonably avail of the
proper remedy provided under Section 40, Rule 132 of the Rules of
Court, petitioner is precluded from doing so at this late stage of the
case. Clearly, estoppel has already stepped in.
Tax Refunds; Burden of Proof; It is petitioner’s burden to prove the
allegations made in its claim for refund.—Clearly, it is peti-
175
tioner’s burden to prove the allegations made in its claim for refund.
For a claim for refund to be granted, the manner in proving it must
be in accordance with the prescribed rules of evidence. It would
have been erroneous had the CTA En Banc relied on petitioner’s
own Excise Tax Refund Computation Summary or the unsatisfactory
explanation of its lone witness to justify its claim for tax refund.
Indeed, while it is true that litigation is not a game of technicalities —
it is equally true, however, that every case must be established in
accordance with the prescribed procedure to ensure an orderly and
speedy administration of justice. In all, the Court finds that the failure
of petitioner to prove its claim in accordance with the settled
evidentiary rules merits its dismissal.
Same; As it has been said, time and again, that claims for tax
refunds are in the nature of tax exemptions which result in loss of
revenue for the government.—As it has been said, time and again,
that claims for tax refunds are in the nature of tax exemptions which
result in loss of revenue for the government. Upon the person
claiming an exemption from tax payments rests the burden of
justifying the exemption by words too plain to be mistaken and too
categorical to be misinterpreted; it is never presumed nor be allowed
solely on the ground of equity. In addition, one who claims that he is
entitled to a tax refund must not only claim that the transaction
subject of tax is clearly and unequivocally not subject to tax — the
amount of the claim must still be proven in the normal course, in
accordance with the prescribed rules on evidence.
PETITION for review on certiorari of the decision and resolution of
the Court of Tax Appeals En Banc.
The facts are stated in the opinion of the Court.
Office of the General Counsel of Lucio Tan Group of Companies
for petitioner.
Office of the Solicitor General for petitioner.
MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules
of Court filed by Fortune Tobacco Corporation (petitioner), assailing
the March 12, 2010 Decision1 of the Court of Tax Appeals En Banc
(CTA En Banc) and its April 26, 2010 Resolution2 in CTA EB Case
No. 533, which affirmed in toto the April 30, 2009 Decision3 and the
August 18, 2009 Resolution4 of the Former First Division of the
Court of Tax Appeals (CTA Division) in CTA Case No. 7367.
The facts of this case are akin to those obtaining in G.R. Nos.
167274-275 and G.R. No. 180006. In G.R. No. 167274-275, the
Court eventually sustained petitioner’s claim for refund of overpaid
excise taxes for the period covering January 1, 2002 to December
31, 2002. In G.R. No. 180006, the Court likewise sustained
petitioner’s claim for refund of overpaid excise tax paid during in
2003 and the period covering January 1 to May 31, 2004.
The subject claim for refund involves the amount of excise taxes
allegedly overpaid during the period beginning June 1, 2004 up to
December 31, 2004. For a better understanding of the controversy,
a recapitulation of the factual and procedural antecedents is in
order. Thus, as stated in the following portions of the CTA En Banc
decision:
Petitioner is the manufacturer/producer of, among others, the
following cigarette brands, with tax rate classification based on net
retail price prescribed by Annex "D" to Republic Act (R.A.) No. 4280,
to wit:
Brand Tax Rate
Champion M 100 P 1.00
Camel F King P 1.00
Camel Lights Box 20's P 1.00
Camel Filters Box 20's P 1.00
Winston F King P 5.00
Winston Lights P 5.00
Immediately prior to January 1, 1997, the above-mentioned cigarette
brands were subject to ad valorem tax pursuant to then Section 142
of the Tax Code of 1977, as amended. However, on January 1,
1997, R.A. No. 8240 took effect causing a shift from the ad valorem
tax (AVT) system to the specific tax system. As a result of such shift,
the aforesaid cigarette brands were subjected to specific tax under
Section 142 thereof, now renumbered as Section 145 of the Tax
Code of 1997. Section 145 is quoted thus:
'Section 145. Cigars and Cigarettes- (A) Cigars. – There shall be
levied, assessed and collected on cigars a tax of One peso (P 1.00)
per cigar.
(B) Cigarettes Packed by Hand. -There shall be levied, assessed
and collected on cigarettes packed by hand a tax of Forty centavos
(P0.40) per pack.
(C) Cigarettes Packed by Machine. - There shall be levied,
assessed and collected on cigarettes packed by machine a tax at
the rates prescribed below:
[1] If the net retail price (excluding the excise tax and the value-
added tax) is above Ten pesos (P 10.00) per pack, the tax shall be
Twelve (P12.00) per pack:
[2] If the net retail price (excluding the excise tax and the value
added tax) exceeds Six pesos and Fifty centavos (P6.50) but does
not exceed Ten pesos (P10.00) per pack, the tax shall be Eight
Pesos (P8.00) per pack.
[3] If the net retail price (excluding the excise tax and the value-
added tax) is Five pesos (P5.00) but does not exceed Six Pesos and
fifty centavos (P6.50) per pack, the tax shall be Five pesos (P5.00)
per pack;
[4] If the net retail price (excluding the excise tax and the value-
added tax] is below Five pesos (P5.00) per pack, the tax shall be
One peso (P1.00) per pack;
Variants of existing brands of cigarettes which are introduced in the
domestic market after the effectivity of R.A. No. 8240 shall be taxed
under the highest classification of any variant of that brand.
The excise tax from any brand of cigarettes within the next three (3)
years from the effectivity of R.A. No. 8240 shall not be lower than
the tax, which is due from each brand on October 1, 1996. Provided,
however, that in cases where the excise tax rate imposed in
paragraphs (1), (2), (3) and (4) hereinabove will result in an increase
in excise tax of more than seventy percent (70%), for a brand of
cigarette, the increase shall take effect in two tranches: fifty percent
(50%) of the increase shall be effective in 1997 and one hundred
percent (100%) of the increase shall be effective in 1998.
Duly registered or existing brands of cigarettes or new brands
thereof packed by machine shall only be packed in twenties.
The rates of excise tax on cigars and cigarettes under paragraphs
(1), (2), (3) and (4) hereof, shall be increased by twelve percent
(12%) on January 1, 2000.
New brands shall be classified according to their current net retail
price.
For the above purpose, 'net retail price' shall mean the price at
which the cigarette is sold on retail in twenty (20) major
supermarkets in Metro Manila (for brands of cigarettes marketed
nationally), excluding the amount intended to cover the applicable
excise tax and value-added tax. For brands which are marketed only
outside Metro Manila, the 'net retail price' shall mean the price at
which the cigarette is sold in five (5) major supermarkets in the
region excluding the amount intended to cover the applicable excise
tax and the value-added tax.
The classification of each brand of cigarettes based on its average
net retail price as of October 1, 1996, as set forth in Annex "D," shall
remain in force until revised by Congress.
'Variant of a brand' shall refer to a brand on which a modifier is
prefixed and/or suffixed to the root name of the brand and/or a
different brand which carries the same logo or design of the existing
brand.
To implement the provisions for a twelve percent (12%) increase of
excise tax on cigars and cigarettes packed by machines by January
1, 2000, the Secretary of Finance, upon recommendation of the
respondent Commissioner of Internal Revenue, issued Revenue
Regulations No. 17-99, dated December 16, 1999, xxx RR No. 17-
99 likewise provides in the last paragraph of Section 1 thereof, "that
the new specific tax rate for any existing brand of cigars, cigarettes
packed by machine, distilled spirits, wines and fermented liquor shall
not be lower than the excise tax that is actually being paid prior to
January 1, 2000."
On 31 March 2005, petitioner filed a claim for tax credit or refund
under Section 229 of the National Internal Revenue Code of 1997
(1997 NIRC) for erroneously or illegally collected specific taxes
covering the period June to December 31, 2004 in the total amount
of Php219,566,450.00.
On November 14, 2005, petitioner filed a Petition for Review which
was raffled to the Former First Division of this Court. Respondent in
his Answer raised among others, as a Special and Affirmative
Defense, that the amount of TWO HUNDRED NINETEEN MILLION
FIVE HUNDRED SIXTY SIX THOUSAND FOUR HUNDRED FIFTY
PESOS (Php219,566,450.00) being claimed by petitioner as alleged
overpaid excise tax for the period covering 1 June to 31 December
2004, is not properly documented.
After trial on the merits, the Former First Division of this Court
rendered the assailed Decision, dated April 30, 2009, which
consistently ruled that RR 17-99 is contrary to law and that there is
insufficiency of evidence on the claim for refund.
Petitioner filed its motion for reconsideration therefrom, and which
was denied by the Former First Division on August 18, 2009.
Petitioner elevated its claim to the CTA En Banc, but was rebuffed
after the tax tribunal found no cause to reverse the findings and
conclusions of the CTA Division.
Hence, this petition.
Essentially, petitioner claims that it paid a total amount of
P219,566,450.00 in overpaid excise taxes. For petitioner,
considering that the CTA found Revenue Regulation No. 17-99 (RR
17-99) to be contrary to law, there should be no obstacle to the
refund of the total amount excess excise taxes it had paid.5
In a nutshell, the sole issue for the resolution of the Court is:
whether or not there is sufficient evidence to warrant the grant of
petitioner’s claim for tax refund.
The petition lacks merit.
The question of sufficiency of
petitioner’s evidence to support
its claim for tax refund is a
question of fact
Unlike in the proceeding had in G.R. Nos. 167274-275 and G.R. No.
180006, the denial of petitioner’s claim for tax refund in this case is
based on the ground that petitioner failed to provide sufficient
evidence to prove its claim and the amount thereof. As a result,
petitioner seeks that the Court re-examine the probative value of its
evidence and determine whether it should be refunded the amount
of excise taxes it allegedly overpaid.
This cannot be done.
The settled rule is that only questions of law may be raised in a
petition under Rule 45 of the Rules of Court. It is not this Court’s
function to analyze or weigh all over again the evidence already
considered in the proceedings below, the Court’s jurisdiction being
limited to reviewing only errors of law that may have been committed
by the lower court. The resolution of factual issues is the function of
the lower courts, whose findings on these matters are received with
respect. A question of law which the Court may pass upon must not
involve an examination of the probative value of the evidence
presented by the litigants.6 This is in accordance with Section 1,
Rule 45 of the Rules of Court, as amended, which reads:
Section 1. Filing of petition with Supreme Court. – A party desiring to
appeal by certiorari from a judgment, final order or resolution of the
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the
Regional Trial Court or other courts, whenever authorized by law,
may file with the Supreme Court a verified petition for review on
certiorari. The petition may include an application for a writ of
preliminary injunction or other provisional remedies and shall raise
only questions of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any time during its
pendency.
[Emphasis and Underlining Supplied]
In fact, the rule finds greater significance with respect to the findings
of specialized courts such as the CTA, the conclusions of which are
not lightly set aside because of the very nature of its functions which
is dedicated exclusively to the resolution of tax problems and has
accordingly developed an expertise on the subject, unless there has
been an abuse or improvident exercise of authority.7
Moreover, it has been said that the proper interpretation of the
provisions on tax refund that does not call for an examination of the
probative value of the evidence presented by the parties-litigants is
a question of law.8 Conversely, it may be said that if the appeal
essentially calls for the re-examination of the probative value of the
evidence presented by the appellant, the same raises a question of
fact. Often repeated is the distinction that there is a question of law
in a given case when doubt or difference arises as to what the law is
on a certain state of facts; there is a question of fact when doubt or
difference arises as to the truth or falsehood of alleged facts.9
Verily, the sufficiency of a claimant’s evidence and the determination
of the amount of refund, as called for in this case, are questions of
fact,10 which are for the judicious determination by the CTA of the
evidence on record.

Significantly, it bears noting that Section 5, Rule 45 of the Rules of
Court provides that the failure of petitioner to comply with the
requirements on the contents of the petition shall be sufficient
ground for its dismissal. While jurisprudence provides exceptions to
these rules, the subject petition does not fall under any of those so
excepted. Thus, for this reason alone, the petition must fail.
The CTA committed no
reversible error in denying
petitioner’s claim for tax refund
for insufficient evidence.
A. Petitioner relied heavily on photocopied documents to prove its
claim.
Granting that the Court could take a second look and review
petitioner’s evidence, the result would be the same.
The claim for refund hinges on the admissibility and the probative
value of the following photocopied documents that allegedly contain
a recording of petitioner’s excise payments for the period covering
June 1, 2004 up to December 31, 2004:
(1) Production, Removals and Payments for All FTC Brands;11 and
(2) Excise Tax Refund Computation Summary.12
Although both the CTA Division and the CTA En Banc provisionally
admitted petitioner’s Exhibit "C,"13 the above-mentioned
documents, as well as the other documentary evidence submitted by
petitioner were refused admission for being merely photocopies.14
Section 3 of Administrative Matter (A.M.) No. 05-11-07 CTA, the
Revised Rules of the Court of Tax Appeals, provides that the Rules
of Court shall apply suppletorily in the proceeding before the tax
tribunal.
In this connection, Section 3 of Rule 130 of the Rules of Court lays
down the Best Evidence Rule with respect to the presentation of
documentary evidence. Thus:
Section 3. Original document must be produced; exceptions. —
When the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself,
except in the following cases:
(a) When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the
general result of the whole; and
(d) When the original is a public record in the custody of a public
officer or is recorded in a public office. (2a)
In this case, petitioner did not even attempt to provide a plausible
reason as to why the original copies of the documents presented
could not be produced before the CTA or any reason that the
application of any of the foregoing exceptions could be justified.
Although petitioner presented one (1) witness to prove its claim, it
appears that this witness was not even a signatory to any of the
disputed documentary evidence.
As correctly pointed out by the CTA Division, petitioner knew all
along that it had committed the foregoing procedural lapses when it
filed its Formal Offer of Evidence. Although petitioner orally
manifested that it was going to seek reconsideration of the CTA
Division order excluding its evidence, in the end, petitioner did not
even bother to file any such motion for reconsideration at all.
B. Petitioner failed to offer any proof or tender of excluded evidence.
At any rate, even if the Court should find fault in the ruling of the
CTA Division in denying the admission of petitioner’s evidence, the
result would be the same because petitioner failed to offer any proof
or tender of excluded evidence. As aptly discussed by the CTA En
Banc:
Petitioner posits that if their exhibits, specifically Exhibits "G", "G-1"
to "G-7" and Exhibit "H", are admitted together with the testimony of
their witness, the same would sufficiently prove their claim. A closer
scrutiny of the records shows that petitioner did not file any offer of
proof or tender of excluded evidence.
Section 40, Rule 132 of the Rules of Court provides:
Sec. 40. Tender of excluded evidence. – If documents or things
offered in evidence are excluded by the court, the offeror may have
the same attached to or made part of the record. If the evidence
excluded is oral, the offeror may state for the record the name and
other personal circumstances of the witness and the substance of
the proposed testimony.
The rule is that evidence formally offered by a party may be
admitted or excluded by the court. If a party's offered documentary
or object evidence is excluded, he may move or request that it be
attached to form part of the records of the case. If the excluded
evidence is oral, he may state for the record the name and other
personal circumstances of the witness and the substance of the
proposed testimony. These procedures are known as offer of proof
or tender of excluded evidence and are made for purposes of
appeal. If an adverse judgment is eventually rendered against the
offeror, he may in his appeal assign as error the rejection of the
excluded evidence.
It is of record that the denial of the excluded evidence was never
assigned as an error in this appeal. Thus, this Court cannot pass
upon nor consider the propriety of their denial. Moreover, this Court
cannot and should not consider the documentary and oral evidence
presented which are not considered to be part of the records in the
first place. Thus, Exhibits "G", "G- 1" to "G-7" and Exhibit "H",
together with the testimony of petitioner's witness thereon, cannot be
admitted and be given probative value.15
It has been repeatedly ruled that where documentary evidence was
rejected by the lower court and the offeror did not move that the
same be attached to the record, the same cannot be considered by
the appellate court,16 as documents forming no part of proofs
before the appellate court cannot be considered in disposing the
case.17 For the appellate court to consider as evidence, which was
not offered by one party at all during the proceedings below, would
infringe the constitutional right of the adverse party – in this case,
the CIR, to due process of law.
It also bears pointing out that at no point during the proceedings
before the CTA En Banc and before this Court has petitioner offered
any plausible explanation as to why it failed to properly make an
offer of proof or tender of excluded evidence. Instead, petitioner
harps on the fact that respondent CIR simply refused its claim for
refund on the ground that RR 17-99 was a valid issuance. Thus, for
its failure to seasonably avail of the proper remedy provided under
Section 40, Rule 132 of the Rules of Court, petitioner is precluded
from doing so at this late stage of the case. Clearly, estoppel has
already stepped in.
Although it may be suggested that the CTA should have been more
liberal in the application of technical rules of evidence, it should be
stressed that a liberal application, or suspension of the application of
procedural rules, must remain as the exception to the well-settled
principle that rules must be complied with for the orderly
administration of justice. As pointed out in Marohomsalic v. Cole,18
While procedural rules may be relaxed in the interest of justice, it is
well-settled that these are tools designed to facilitate the
adjudication of cases. The relaxation of procedural rules in the
interest of justice was never intended to be a license for erring
litigants to violate the rules with impunity. Liberality in the
interpretation and application of the rules can be invoked only in
proper cases and under justifiable causes and circumstances. While
litigation is not a game of technicalities, every case must be
prosecuted in accordance with the prescribed procedure to ensure
an orderly and speedy administration of justice.19
[Emphases Supplied]
And, as stressed in the case of Daikoku Electronics Phils., Inc. v.
Raza:20
To be sure, the relaxation of procedural rules cannot be made
without any valid reasons proffered for or underpinning it. To merit
liberality, petitioner must show reasonable cause justifying its
noncompliance with the rules and must convince the Court that the
outright dismissal of the petition would defeat the administration of
substantive justice. x x x The desired leniency cannot be accorded
absent valid and compelling reasons for such a procedural lapse. x x
x As it has been said, time and again, that claims for tax refunds are in
We must stress that the bare invocation of "the interest of
substantial justice" line is not some magic wand that will
automatically compel this Court to suspend procedural rules.
Procedural rules are not to be belittled, let alone dismissed simply
because their non-observance may have resulted in prejudice to a
party’s substantial rights. Utter disregard of the rules cannot be justly
rationalized by harping on the policy of liberal construction.21
[Emphases Supplied]
In this case, as explained above, petitioner utterly failed to not only
comply with the basic procedural requirement of presenting only the
original copies of its documentary evidence, but also to adhere to
the requirement to properly make its offer of proof or tender of
excluded evidence for the proper consideration of the appellate
tribunal.
Indeed, to apply technical rules strictly against the CIR because it
simply relied on the validity of RR 17-99 – but not be strict with
respect to petitioner’s shortcomings, would be unfair. For this would
go against the principle that taxation is the rule, exemption/refund,
the exception.
C. Petitioner’s evidence, even if considered, fails to prove that it is
entitled to its claim for refund.
Finally, as correctly held by the CTA En Banc, even if the Court
would consider petitioner’s otherwise excluded evidence, the same
would still fail to sufficiently prove the petitioner’s entitlement to its
claim for refund. The disquisition of the CTA Division, as quoted in
the CTA En Banc decision, is hereby reiterated with approval:
xxx, the documentary exhibits are not sufficient to prove the
amounts being claimed by petitioner as refund. Looking at Exhibit
‘G,’ the same is a mere summary of excise taxes paid by petitioner
for ALL of its cigarette brands. This Court cannot verify the amounts
of excise taxes paid for the brands in issue which are Champion M-
100s, Camel Filter Kings, Winston Filter Kings, and Winston Lights.
This Court cannot likewise rely solely on petitioner's Excise Tax
Refund Computation Summary. The figures therein must be verified
through other documentary evidence which this Court must look into
and which petitioner failed to properly provide.22 [Emphases
Supplied]
Clearly, it is petitioner’s burden to prove the allegations made in its
claim for refund. For a claim for refund to be granted, the manner in
proving it must be in accordance with the prescribed rules of
evidence. It would have been erroneous had the CTA En Banc
relied on petitioner's own Excise Tax Refund Computation Summary
or the unsatisfactory explanation of its lone witness to justify its
claim for tax refund.
Indeed, while it is true that litigation is not a game of technicalities –
it is equally true, however, that every case must be established in
accordance with the prescribed procedure to ensure an orderly and
speedy administration of justice. In all, the Court finds that the failure
of petitioner to prove its claim in accordance with the settled
evidentiary rules merits its dismissal.
Lest it be misunderstood, this Court is not reversing, directly or
indirectly, its pronouncements in G.R. Nos. 167274-75 and G.R. No.
180006 that RR 17-99 is invalid.1âwphi1 This Court is simply
pointing to the rule that claims for refunds are the exception, rather
than the rule, and that each claim for refund, in order to be granted,
must be clearly set forth and established in accordance with the
rules of evidence.
the nature of tax exemptions which result in loss of revenue for the
government. Upon the person claiming an exemption from tax
payments rests the burden of justifying the exemption by words too
plain to be mistaken and too categorical to be misinterpreted; it is
never presumed nor be allowed solely on the ground of equity.23 In
addition, one who claims that he is entitled to a tax refund must not
only claim that the transaction subject of tax is clearly and
unequivocally not subject to tax - the amount of the claim must still
be proven in the normal course,24 in accordance with the prescribed
rules on evidence.
After all, taxes are the lifeblood of the nation.25
WHEREFORE, the petition is DENIED.
SO ORDERED.