2011

G.R. No. 192898

January 31, 2011

SPOUSES ALEXANDER TRINIDAD and CECILIA TRINIDAD, Petitioners, vs. VICTOR ANG, Respondent. RESOLUTION BRION, J.: We resolve the motion for reconsideration filed by petitioner spouses Alexander Trinidad and Cecilia Trinidad (petitioners) to challenge our Resolution of September 29, 2010. Our Resolution denied the petition for review on certiorari for its failure to state the material dates of receipt of the order1 of the Regional Trial Court (RTC), Branch 44, Masbate City, and of filing the motion for reconsideration, in violation of Sections 4(b)2 and 5,3 Rule 45, in relation to Section 5(d),4 Rule 56 of the Rules of Court. Antecedent Facts On September 3, 2007, the Office of the City Prosecutor, Masbate City, issued a Resolution recommending the filing of an Information for Violation of Batas Pambansa Bilang 22 against the petitioners. On October 10, 2007, the petitioners filed with the Department of Justice (DOJ) a petition for review challenging this Resolution. On March 3, 2009, the Office of the City Prosecutor filed before the Municipal Trial Court in Cities (MTCC), Fifth Judicial Region, Masbate City, an Information for Violation of Batas Pambansa Bilang 22 against the petitioners. As the case was covered by the Rules on Summary Procedure, the MTCC ordered the petitioners to submit their counter affidavits and to appear in court within 10 days from receipt of the said order. The petitioners filed a Manifestation and Motion to Defer Arraignment and Proceedings and Hold in Abeyance the Issuance of Warrants of Arrest5 praying, among others, for the deferment of their arraignment in view of the pendency of their petition for review before the DOJ. The MTCC, in its Order6 dated May 28, 2009, granted the motion, "subject x x x to paragraph c[,] Section 11, Rule 116 of the Revised Rules of Criminal Procedure." On August 10, 2009, the MTCC reconsidered this order, and set the petitioners arraignment on September 10, 2009.7 The petitioners filed a petition for certiorari before the RTC, docketed as SCA No. 05-2009. The RTC, in its decision8 of January 6, 2010, denied this petition. The petitioners moved to reconsider this decision, but the RTC denied their motion in its order9 dated July 5, 2010. The RTC held that the MTCC judge did not err in setting the arraignment of the petitioners after the lapse of one (1) year and ten (10) months from the filing of the petition for review with the DOJ. It explained that the cases cited by the petitioners were decided before the amendment of the Revised Rules of Criminal Procedure. After the amendment of the Rules on December 1, 2000, the Supreme Court applied the 60-day limit on suspension of arraignment in case of a pendency of a petition for review with the DOJ.

The petitioners filed with this Court a petition for review on certiorari essentially claiming that the 60day limit on suspension of arraignment is only a general rule. They cited several cases to show that the arraignment of an accused should be deferred until the petition for review with the DOJ is resolved. As earlier stated, we denied the petition for its failure to state the material dates of receipt of the assailed RTC order and of filing the motion for reconsideration. The Motion for Reconsideration In the present motion for reconsideration, the petitioners claim that the date of receipt of the assailed RTC order was stated in the petition. The petitioners further state that they filed the motion for reconsideration on January 2, 2010. The Courts Ruling We grant the motion for reconsideration and reinstate the petition for review on certiorari. A careful examination of the petition reveals that it stated the date when the petitioners received a copy of the RTCs assailed order. In addition, the petitioners failure to state the material date of filing the motion for reconsideration is only a formal requirement that warrants the relaxation of the rules in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice. Nevertheless, we resolve to deny the petition for its failure to show any reversible error in the challenged RTC order. The grounds for suspension of arraignment are provided under Section 11, Rule 116 of the Rules of Court, which provides: SEC. 11. Suspension of Arraignment. Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; (b) There exists a prejudicial question; and (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; Provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. In Samson v. Daway,10 the Court explained that while the pendency of a petition for review is a ground for suspension of the arraignment, the aforecited provision limits the deferment of the arraignment to a period of 60 days reckoned from the filing of the petition with the reviewing office. It follows, therefore, that after the expiration of said period, the trial court is bound to arraign the accused or to deny the motion to defer arraignment.

In the present case, the petitioners filed their petition for review with the DOJ on October 10, 2007. When the RTC set the arraignment of the petitioners on August 10, 2009, 1 year and 10 months had already lapsed. This period was way beyond the 60-day limit provided for by the Rules. In addition, the cases cited by the petitioners Solar Team Entertainment, Inc. v. How,11 Roberts, Jr. v. CA,12 and Dimatulac v. Villon13 were all decided prior to the amendment to Section 11 of the Revised Rules of Criminal Procedure which took effect on December 1, 2000. At the time these cases were decided, there was no 60-day limit on the suspension of arraignment.
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WHEREFORE, premises considered, the Court resolves to: (1) GRANT the present motion for reconsideration, and REINSTATE the petition for review on certiorari; and (2) DENY the said petition for petitioners failure to show any reversible error in the challenged RTC order. SO ORDERED.

G.R. No. 187320

January 26, 2011

ATLANTA INDUSTRIES, INC. and/or ROBERT CHAN, Petitioners, vs. APRILITO R. SEBOLINO, KHIM V. COSTALES, ALVIN V. ALMOITE, and JOSEPH S. SAGUN, Respondents. DECISION BRION, J.: For resolution is the petition for review on certiorari1 assailing the decision2 and the resolution3 of the Court of Appeals (CA) rendered on November 4, 2008 and March 25, 2009, respectively, in CA-G.R. SP. No. 99340.4 The Antecedents The facts are summarized below. In the months of February and March 2005, complainants Aprilito R. Sebolino, Khim V. Costales, Alvin V. Almoite, Joseph S. Sagun, Agosto D. Zao, Domingo S. Alegria, Jr., Ronie Ramos, Edgar Villagomez, Melvin Pedregoza, Teofanes B. Chiong, Jr., Leonardo L. dela Cruz, Arnold A. Magalang, and Saturnino M. Mabanag filed several complaints for illegal dismissal, regularization, underpayment, nonpayment of wages and other money claims, as well as claims for moral and exemplary damages and attorneys fees against the petitioners Atlanta Industries, Inc. (Atlanta) and its President and Chief Operating Officer Robert Chan. Atlanta is a domestic corporation engaged in the manufacture of steel pipes. The complaints were consolidated and were raffled to Labor Arbiter Daniel Cajilig, but were later transferred to Labor Arbiter Dominador B. Medroso, Jr.

The complainants alleged that they had attained regular status as they were allowed to work with Atlanta for more than six (6) months from the start of a purported apprenticeship agreement between them and the company. They claimed that they were illegally dismissed when the apprenticeship agreement expired. In defense, Atlanta and Chan argued that the workers were not entitled to regularization and to their money claims because they were engaged as apprentices under a government-approved apprenticeship program. The company offered to hire them as regular employees in the event vacancies for regular positions occur in the section of the plant where they had trained. They also claimed that their names did not appear in the list of employees (Master List)5 prior to their engagement as apprentices. On May 24, 2005, dela Cruz, Magalang, Zao and Chiong executed a Pagtalikod at Pagwawalang Saysay before Labor Arbiter Cajilig. The Compulsory Arbitration Rulings On April 24, 2006, Labor Arbiter Medroso dismissed the complaint with respect to dela Cruz, Magalang, Zao and Chiong, but found the termination of service of the remaining nine to be illegal.6 Consequently, the arbiter awarded the dismissed workers backwages, wage differentials, holiday pay and service incentive leave pay amounting to P1,389,044.57 in the aggregate. Atlanta appealed to the National Labor Relations Commission (NLRC). In the meantime, or on October 10, 2006, Ramos, Alegria, Villagomez, Costales and Almoite allegedly entered into a compromise agreement with Atlanta.7The agreement provided that except for Ramos, Atlanta agreed to pay the workers a specified amount as settlement, and to acknowledge them at the same time as regular employees. On December 29, 2006,8 the NLRC rendered a decision, on appeal, modifying the ruling of the labor arbiter, as follows: (1) withdrawing the illegal dismissal finding with respect to Sagun, Mabanag, Sebolino and Pedregoza; (2) affirming the dismissal of the complaints of dela Cruz, Zao, Magalang and Chiong; (3) approving the compromise agreement entered into by Costales, Ramos, Villagomez, Almoite and Alegria, and (4) denying all other claims. Sebolino, Costales, Almoite and Sagun moved for the reconsideration of the decision, but the NLRC denied the motion in its March 30, 20079 resolution. The four then sought relief from the CA through a petition for certiorari under Rule 65 of the Rules of Court. They charged that the NLRC committed grave abuse of discretion in: (1) failing to recognize their prior employment with Atlanta; (2) declaring the second apprenticeship agreement valid; (3) holding that the dismissal of Sagun, Mabanag, Sebolino and Melvin Pedregoza is legal; and (4) upholding the compromise agreement involving Costales, Ramos, Villagomez, Almoite and Alegria. The CA Decision The CA granted the petition based on the following findings:10 1. The respondents were already employees of the company before they entered into the first and second apprenticeship agreements Almoite and Costales were employed as early as December 2003 and, subsequently, entered into a first apprenticeship agreement from May 13, 2004 to October 12, 2004; before this first agreement expired, a second apprenticeship agreement, from October 9, 2004 to March 8, 2005 was executed. The same is true with Sebolino and Sagun, who were employed by Atlanta as early as March 3, 2004.

Sebolino entered into his first apprenticeship agreement with the company from March 20, 2004 to August 19, 2004, and his second apprenticeship agreement from August 20, 2004 to January 19, 2005. Sagun, on the other hand, entered into his first agreement from May 28, 2004 to October 8, 2004, and the second agreement from October 9, 2004 to March 8, 2005. 2. The first and second apprenticeship agreements were defective as they were executed in violation of the law and the rules.11 The agreements did not indicate the trade or occupation in which the apprentice would be trained; neither was the apprenticeship program approved by the Technical Education and Skills Development Authority (TESDA). 3. The positions occupied by the respondents machine operator, extruder operator and scaleman are usually necessary and desirable in the manufacture of plastic building materials, the companys main business. Costales, Almoite, Sebolino and Sagun were, therefore, regular employees whose dismissals were illegal for lack of a just or authorized cause and notice. 4. The compromise agreement entered into by Costales and Almoite, together with Ramos, Villagomez and Alegria, was not binding on Costales and Almoite because they did not sign the agreement. The petitioners themselves admitted that Costales and Almoite were initially planned to be a part of the compromise agreement, but their employment has been regularized as early as January 11, 2006; hence, the company did not pursue their inclusion in the compromise agreement.12 The CA faulted the NLRC for failing to appreciate the evidence regarding the respondents prior employment with Atlanta. The NLRC recognized the prior employment of Costales and Almoite on Atlantas monthly report for December 2003 for the CPS Department/Section dated January 6, 2004.13 This record shows that Costales and Almoite were assigned to the companys first shift from 7:00 a.m. to 3:00 p.m. The NLRC ignored Sebolino and Saguns prior employment under the companys Production and Work Schedule for March 7 to 12, 2005 dated March 3, 2004,14 as they had been Atlantas employees as early as March 3, 2004, with Sebolino scheduled to work on March 7-12, 2005 at 7:00 a.m. to 7:00 p.m., while Sagun was scheduled to work for the same period but from 7:00 p.m. to 7:00 a.m. The CA noted that Atlanta failed to challenge the authenticity of the two documents before it and the labor authorities. Atlanta and Chan moved for reconsideration, but the CA denied the motion in a resolution rendered on March 25, 2009.15 Hence, the present petition. The Petition Atlanta seeks a reversal of the CA decision, contending that the appellate court erred in (1) concluding that Costales, Almoite, Sebolino and Sagun were employed by Atlanta before they were engaged as apprentices; (2) ruling that a second apprenticeship agreement is invalid; (3) declaring that the respondents were illegally dismissed; and (4) disregarding the compromise agreement executed by Costales and Almoite. It submits the following arguments: First. The CAs conclusion that the respondent workers were company employees before they were engaged as apprentices was primarily based on the Monthly Report16 and the Production and Work Schedule for March 7-12, 2005,17 in total disregard of the Master List18 prepared by the company accountant, Emelita M. Bernardo. The names of Costales, Almoite, Sebolino and Sagun do not appear as employees in the Master List which "contained the names of all the persons who were employed by and at petitioner."19

Atlanta faults the CA for relying on the Production and Work Schedule and the Monthly Report which were not sworn to, and in disregarding the Master List whose veracity was sworn to by Bernardo and by Alex Go who headed the companys accounting division. It maintains that the CA should have given more credence to the Master List. Second. In declaring invalid the apprenticeship agreements it entered into with the respondent workers, the CA failed to recognize the rationale behind the law on apprenticeship. It submits that under the law,20 apprenticeship agreements are valid, provided they do not exceed six (6) months and the apprentices are paid the appropriate wages of at least 75% of the applicable minimum wage. The respondents initially executed a five-month apprenticeship program with Atlanta, at the end of which, they "voluntarily and willingly entered into another apprenticeship agreement with the petitioner for the training of a second skill"21 for five months; thus, the petitioners committed no violation of the apprenticeship period laid down by the law. Further, the apprenticeship agreements, entered into by the parties, complied with the requisites under Article 62 of the Labor Code; the companys authorized representative and the respondents signed the agreements and these were ratified by the companys apprenticeship committee. The apprenticeship program itself was approved and certified by the TESDA.22 The CA, thus, erred in overturning the NLRCs finding that the apprenticeship agreements were valid. Third. There was no illegal dismissal as the respondent workers tenure ended with the expiration of the apprenticeship agreement they entered into. There was, therefore, no regular employeremployee relationship between Atlanta and the respondent workers. The Case for Costales, Almoite, Sebolino and Sagun In a Comment filed on August 6, 2009,23 Costales, Almoite, Sebolino and Sagun pray for a denial of the petition for being procedurally defective and for lack of merit. The respondent workers contend that the petition failed to comply with Section 4, Rule 45 of the Rules of Court which requires that the petition be accompanied by supporting material portions of the records. The petitioners failed to attach to the petition a copy of the Production and Work Schedule despite their submission that the CA relied heavily on the document in finding the respondent workers prior employment with Atlanta. They also did not attach a copy of the compromise agreement purportedly executed by Costales and Almoite. For this reason, the respondent workers submit that the petition should be dismissed. The respondents posit that the CA committed no error in holding that they were already Atlantas employees before they were engaged as apprentices, as confirmed by the companys Production and Work Schedule.24 They maintain that the Production and Work Schedule meets the requirement of substantial evidence as the petitioners failed to question its authenticity. They point out that the schedule was prepared by Rose A. Quirit and approved by Adolfo R. Lope, head of the companys PE/Spiral Section. They argue that it was highly unlikely that the head of a production section of the company would prepare and assign work to the complainants if the latter had not been company employees. The respondent workers reiterate their mistrust of the Master List25 as evidence that they were not employees of the company at the time they became apprentices. They label the Master List as "selfserving, dubious and even if considered as authentic, its content contradicts a lot of petitioners claim and allegations,"26 thus -

1. Aside from the fact that the Master List is not legible, it contains only the names of inactive employees. Even those found by the NLRC to have been employed in the company (such as Almoite, Costales and Sagun) do not appear in the list. If Costales and Almoite had been employed with Atlanta since January 11, 2006, as the company claimed,27 their names would have been in the list, considering that the Master List accounts for all employees "as of May 2006" the notation carried on top of each page of the document. 2. There were no entries of employees hired or resigned in the years 2005 and 2006 despite the "as of May 2006" notation; several pages making up the Master List contain names of employees for the years 1999 - 2004. 3. The fact that Atlanta presented the purported Master List instead of the payroll raised serious doubts on the authenticity of the list. In sum, the respondent workers posit that the presentation of the Master List revealed the "intention of the herein petitioner[s] to perpetually hide the fact of [their] prior employment."28 On the supposed apprenticeship agreements they entered into, Costales, Almoite, Sebolino and Sagun refuse to accept the agreements validity, contending that the companys apprenticeship program is merely a ploy "to continually deprive [them] of their rightful wages and benefits which are due them as regular employees."29 They submit the following "indubitable facts and ratiocinations:"30 1. The apprenticeship agreements were submitted to TESDA only in 2005 (with dates of receipt on "1/4/05" & "2/22/05"31 ), when the agreements were supposed to have been executed in April or May 2004. Thus, the submission was made long after the starting date of the workers apprenticeship or even beyond the agreements completion/termination date, in violation of Section 23, Rule VI, Book II of the Labor Code. 2. The respondent workers were made to undergo apprenticeship for occupations different from those allegedly approved by TESDA. TESDA approved Atlantas apprenticeship program on "Plastic Molder"32and not for extrusion molding process, engineering, pelletizing process and mixing process. 3. The respondents were already skilled workers prior to the apprenticeship program as they had been employed and made to work in the different job positions where they had undergone training. Sagun and Sebolino, together with Mabanag, Pedregoza, dela Cruz, Chiong, Magalang and Alegria were even given production assignments and work schedule at the PE/Spiral Section from May 11, 2004 to March 23, 2005, and some of them were even assigned to the 3:00 p.m. 11:00 p.m. and graveyard shifts (11:00 p.m. 7:00 a.m.) during the period.33 4. The respondent workers were required to continue as apprentices beyond six months. The TESDA certificate of completion indicates that the workers apprenticeship had been completed after six months. Yet, they were suffered to work as apprentices beyond that period. Costales, Almoite, Sebolino and Sagun resolutely maintain that they were illegally dismissed, as the reason for the termination of their employment notice of the completion of the second apprenticeship agreement did not constitute either a just or authorized cause under Articles 282 and 283 of the Labor Code.

Finally, Costales and Almoite refuse to be bound by the compromise agreement34 that Atlanta presented to defeat the two workers cause of action. They claim that the supposed agreement is invalid as against them, principally because they did not sign it. The Courts Ruling The procedural issue The respondent workers ask that the petition be dismissed outright for the petitioners failure to attach to the petition a copy of the Production and Work Schedule and a copy of the compromise agreement Costales and Almoite allegedly entered into material portions of the record that should accompany and support the petition, pursuant to Section 4, Rule 45 of the Rules of Court. In Mariners Polytechnic Colleges Foundation, Inc. v. Arturo J. Garchitorena35 where the Court addressed essentially the same issue arising from Section 2(d), Rule 42 of the Rules of Court,36 we held that the phrase "of the pleadings and other material portions of the record xxx as would support the allegation of the petition clearly contemplates the exercise of discretion on the part of the petitioner in the selection of documents that are deemed to be relevant to the petition. The crucial issue to consider then is whether or not the documents accompanying the petition sufficiently supported the allegations therein."37 As in Mariners, we find that the documents attached to the petition sufficiently support the petitioners allegations. The accompanying CA decision38 and resolution,39 as well as those of the labor arbiter40 and the NLRC,41referred to the parties position papers and even to their replies and rejoinders. Significantly, the CA decision narrates the factual antecedents, defines the complainants cause of action, and cites the arguments, including the evidence the parties adduced. If any, the defect in the petition lies in the petitioners failure to provide legible copies of some of the material documents mentioned, especially several pages in the decisions of the labor arbiter and of the NLRC. This defect, however, is not fatal as the challenged CA decision clearly summarized the labor tribunals rulings. We, thus, find no procedural obstacle in resolving the petition on the merits. The merits of the case We find no merit in the petition. The CA committed no reversible error in nullifying the NLRC decision42 and in affirming the labor arbiters ruling,43 as it applies to Costales, Almoite, Sebolino and Sagun. Specifically, the CA correctly ruled that the four were illegally dismissed because (1) they were already employees when they were required to undergo apprenticeship and (2) apprenticeship agreements were invalid. The following considerations support the CA ruling. First. Based on company operations at the time material to the case, Costales, Almoite, Sebolino and Sagun were already rendering service to the company as employees before they were made to undergo apprenticeship. The company itself recognized the respondents status through relevant operational records in the case of Costales and Almoite, the CPS monthly report for December 200344 which the NLRC relied upon and, for Sebolino and Sagun, the production and work schedule for March 7 to 12, 200545 cited by the CA. Under the CPS monthly report, Atlanta assigned Costales and Almoite to the first shift (7:00 a.m. to 3:00 p.m.) of the Sections work. The Production and Work Schedules, in addition to the one noted by the CA, showed that Sebolino and Sagun were scheduled on different shifts vis--vis the production and work of the companys PE/Spiral Section for the periods July 5-10, 2004;46 October

25-31, 2004;47 November 8-14, 2004;48 November 16-22, 2004;49 January 3-9, 2005;50 January 1015, 2005;51 March 7-12, 200552 and March 17-23, 2005.53 We stress that the CA correctly recognized the authenticity of the operational documents, for the failure of Atlanta to raise a challenge against these documents before the labor arbiter, the NLRC and the CA itself. The appellate court, thus, found the said documents sufficient to establish the employment of the respondents before their engagement as apprentices. Second. The Master List54 (of employees) that the petitioners heavily rely upon as proof of their position that the respondents were not Atlantas employees, at the time they were engaged as apprentices, is unreliable and does not inspire belief. The list, consisting of several pages, is hardly legible. It requires extreme effort to sort out the names of the employees listed, as well as the other data contained in the list. For this reason alone, the list deserves little or no consideration. As the respondents also pointed out, the list itself contradicts a lot of Atlantas claims and allegations, thus: it lists only the names of inactive employees; even the names of those the NLRC found to have been employed by Atlanta, like Costales and Almoite, and those who even Atlanta claims attained regular status on January 11, 2006,55 do not appear in the list when it was supposed to account for all employees "as of May 6, 2006." Despite the "May 6, 2006" cut off date, the list contains no entries of employees who were hired or who resigned in 2005 and 2006. We note that the list contains the names of employees from 1999 to 2004. We cannot fault the CA for ignoring the Master List even if Bernardo, its head office accountant, swore to its correctness and authenticity.56 Its substantive unreliability gives it very minimal probative value. Atlanta would have been better served, in terms of reliable evidence, if true copies of the payroll (on which the list was based, among others, as Bernardo claimed in her affidavit) were presented instead.
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Third. The fact that Costales, Almoite, Sebolino and Sagun were already rendering service to the company when they were made to undergo apprenticeship (as established by the evidence) renders the apprenticeship agreements irrelevant as far as the four are concerned. This reality is highlighted by the CA finding that the respondents occupied positions such as machine operator, scaleman and extruder operator - tasks that are usually necessary and desirable in Atlantas usual business or trade as manufacturer of plastic building materials.57 These tasks and their nature characterized the four as regular employees under Article 280 of the Labor Code. Thus, when they were dismissed without just or authorized cause, without notice, and without the opportunity to be heard, their dismissal was illegal under the law.58 Even if we recognize the companys need to train its employees through apprenticeship, we can only consider the first apprenticeship agreement for the purpose. With the expiration of the first agreement and the retention of the employees, Atlanta had, to all intents and purposes, recognized the completion of their training and their acquisition of a regular employee status. To foist upon them the second apprenticeship agreement for a second skill which was not even mentioned in the agreement itself,59 is a violation of the Labor Codes implementing rules60 and is an act manifestly unfair to the employees, to say the least. This we cannot allow. Fourth. The compromise agreement61 allegedly entered into by Costales and Almoite, together with Ramos, Villagomez and Alegria, purportedly in settlement of the case before the NLRC, is not binding on Costales and Almoite because they did not sign it. The company itself admitted62 that while Costales and Almoite were initially intended to be a part of the agreement, it did not pursue their inclusion "due to their regularization as early as January 11, 2006."63

WHEREFORE, premises considered, we hereby DENY the petition for lack of merit. The assailed decision and resolution of the Court of Appeals are AFFIRMED. Costs against the petitioner Atlanta Industries, Inc.
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SO ORDERED. G.R. No. 167622 January 25, 2011

GREGORIO V. TONGKO, Petitioner, vs. THE MANUFACTURERS LIFE INSURANCE CO. (PHILS.), INC. and RENATO A. VERGEL DE DIOS,Respondents. RESOLUTION BRION, J.: We resolve petitioner Gregorio V. Tongkos bid, through his Motion for Reconsideration,1 to set aside our June 29, 2010 Resolution that reversed our Decision of November 7, 2008.2 With the reversal, the assailed June 29, 2010 Resolution effectively affirmed the Court of Appeals ruling3 in CA-G.R. SP No. 88253 that the petitioner was an insurance agent, not the employee, of the respondent The Manufacturers Life Insurance Co. (Phils.), Inc. (Manulife). In his Motion for Reconsideration, petitioner reiterates the arguments he had belabored in his petition and various other submissions. He argues that for 19 years, he performed administrative functions and exercised supervisory authority over employees and agents of Manulife, in addition to his insurance agent functions.4 In these 19 years, he was designated as a Unit Manager, a Branch Manager and a Regional Sales Manager, and now posits that he was not only an insurance agent for Manulife but was its employee as well. We find no basis or any error to merit the reconsideration of our June 29, 2010 Resolution. A. Labor Law Control = Employment Relationship Control over the performance of the task of one providing service both with respect to the means and manner, and the results of the service is the primary element in determining whether an employment relationship exists. We resolve the petitioners Motion against his favor since he failed to show that the control Manulife exercised over him was the control required to exist in an employer-employee relationship; Manulifes control fell short of this norm and carried only the characteristic of the relationship between an insurance company and its agents, as defined by the Insurance Code and by the law of agency under the Civil Code. The petitioner asserts in his Motion that Manulifes labor law control over him was demonstrated (1) when it set the objectives and sales targets regarding production, recruitment and training programs; and (2) when it prescribed the Code of Conduct for Agents and the Manulife Financial Code of Conduct to govern his activities.5 We find no merit in these contentions. In our June 29, 2010 Resolution, we noted that there are built-in elements of control specific to an insurance agency, which do not amount to the elements of control that characterize an employment relationship governed by the Labor Code. The Insurance Code provides definite parameters in the way an agent negotiates for the sale of the companys insurance products, his collection activities

and his delivery of the insurance contract or policy.6 In addition, the Civil Code defines an agent as a person who binds himself to do something in behalf of another, with the consent or authority of the latter.7 Article 1887 of the Civil Code also provides that in the execution of the agency, the agent shall act in accordance with the instructions of the principal. All these, read without any clear understanding of fine legal distinctions, appear to speak of control by the insurance company over its agents. They are, however, controls aimed only at specific results in undertaking an insurance agency, and are, in fact, parameters set by law in defining an insurance agency and the attendant duties and responsibilities an insurance agent must observe and undertake. They do not reach the level of control into the means and manner of doing an assigned task that invariably characterizes an employment relationship as defined by labor law. From this perspective, the petitioners contentions cannot prevail. To reiterate, guidelines indicative of labor law "control" do not merely relate to the mutually desirable result intended by the contractual relationship; they must have the nature of dictating the means and methods to be employed in attaining the result.8 Tested by this norm, Manulifes instructions regarding the objectives and sales targets, in connection with the training and engagement of other agents, are among the directives that the principal may impose on the agent to achieve the assigned tasks. They are targeted results that Manulife wishes to attain through its agents. Manulifes codes of conduct, likewise, do not necessarily intrude into the insurance agents means and manner of conducting their sales. Codes of conduct are norms or standards of behavior rather than employer directives into how specific tasks are to be done. These codes, as well as insurance industry rules and regulations, are not per se indicative of labor law control under our jurisprudence.9 The duties10 that the petitioner enumerated in his Motion are not supported by evidence and, therefore, deserve scant consideration. Even assuming their existence, however, they mostly pertain to the duties of an insurance agent such as remitting insurance fees to Manulife, delivering policies to the insured, and after-sale services. For agents leading other agents, these include the task of overseeing other insurance agents, the recruitment of other insurance agents engaged by Manulife as principal, and ensuring that these other agents comply with the paperwork necessary in selling insurance. That Manulife exercises the power to assign and remove agents under the petitioners supervision is in keeping with its role as a principal in an agency relationship; they are Manulife agents in the same manner that the petitioner had all along been a Manulife agent. The petitioner also questions Manulifes act of investing him with different titles and positions in the course of their relationship, given the respondents position that he simply functioned as an insurance agent.11 He also considers it an unjust and inequitable situation that he would be unrewarded for the years he spent as a unit manager, a branch manager, and a regional sales manager.12 Based on the evidence on record, the petitioners occupation was to sell Manulifes insurance policies and products from 1977 until the termination of the Career Agents Agreement (Agreement). The evidence also shows that through the years, Manulife permitted him to exercise guiding authority over other agents who operate under their own agency agreements with Manulife and whose commissions he shared.13 Under this scheme an arrangement that pervades the insurance industry petitioner in effect became a "lead agent" and his own commissions increased as they included his share in the commissions of the other agents;14 he also received greater reimbursements for expenses and was allowed to use Manulifes facilities. His designation also changed from unit manager to branch manager and then to regional sales manager, to reflect the increase in the number of agents he recruited and guided, as well as the increase in the area where these agents operated.

As our assailed Resolution concluded and as we now similarly conclude, these arrangements, and the titles and positions the petitioner was invested with, did not change his status from the insurance agent that he had always been (as evidenced by the Agreement that governed his relationship with Manulife from the start to its disagreeable end). The petitioner simply progressed from his individual agency to being a lead agent who could use other agents in selling insurance and share in the earnings of these other agents. In sum, we find absolutely no evidence of labor law control, as extensively discussed in our Resolution of June 29, 2010, granting Manulifes motion for reconsideration. The Dissent, unfortunately, misses this point. B. No Resulting Inequity We also do not agree that our assailed Resolution has the effect of fostering an inequitable or unjust situation. The records show that the petitioner was very amply paid for his services as an insurance agent, who also shared in the commissions of the other agents under his guidance. In 1997, his income was P2,822,620; in 1998,P4,805,166.34; in 1999, P6,797,814.05; in 2001, P6,214,737.11; and in 2002, P8,003,180.38. All these he earned as an insurance agent, as he failed to ever prove that he earned these sums as an employee. In technical terms, he could not have earned all these as an employee because he failed to provide the substantial evidence required in administrative cases to support the finding that he was a Manulife employee. No inequity results under this legal situation; what would be unjust is an award of backwages and separation pay amounts that are not due him because he was never an employee. The Dissents discussion on this aspect of the case begins with the wide disparity in the status of the parties that Manulife is a big Canadian insurance company while Tongko is but a single agent of Manulife. The Dissent then went on to say that "[i]f is but just, it is but right, that the Court interprets the relationship between Tongko and Manulife as one of employment under labor laws and to uphold his constitutionally protected right, as an employee, to security of tenure and entitlement to monetary award should such right be infringed."15 We cannot simply invoke the magical formula by creating an employment relationship even when there is none because of the unavoidable and inherently weak position of an individual over a giant corporation. The Dissent likewise alluded to an ambiguity in the true relationship of the parties after Tongkos successive appointments. We already pointed out that the legal significance of these appointments had not been sufficiently explained and that it did not help that Tongko never bothered to present evidence on this point. The Dissent recognized this but tried to excuse Tongko from this failure in the subsequent discussion, as follows: [o]ther evidence was adduced to show such duties and responsibilities. For one, in his letter of November 6, 2001, respondent De Dios addressed petitioner as sales manager. And as I wrote in my Dissent to the June 29, 2010 Resolution, it is difficult to imagine that Manulife did not issue promotional appointments to petitioner as unit manager, branch manager, and, eventually, regional sales manager. Sound management practice simply requires an appointment for any upward personnel movement, particularly when additional functions and the corresponding increase in compensation are involved. Then, too, the adverted affidavits of the managers of Manulife as to the duties and responsibilities of a unit manager, such as petitioner, point to the conclusion that these managers were employees of Manulife, applying the "four-fold" test.16 This Court (and all adjudicators for that matter) cannot and should not fill in the evidentiary gaps in a partys case that the party failed to support; we cannot and should not take the cudgels for any party.

Tongko failed to support his cause and we should simply view him and his case as they are; our duty is to sit as a judge in the case that he and the respondent presented. To support its arguments on equity, the Dissent uses the Constitution and the Civil Code, using provisions and principles that are all motherhood statements. The mandate of the Court, of course, is to decide cases based on the facts and the law, and not to base its conclusions on fundamental precepts that are far removed from the particular case presented before it. When there is no room for their application, of capacity of principles, reliance on the application of these fundamental principles is misplaced. C. Earnings were Commissions That his earnings were agents commissions arising from his work as an insurance agent is a matter that the petitioner cannot deny, as these are the declarations and representations he stated in his income tax returns through the years. It would be doubly unjust, particularly to the government, if he would be allowed at this late point to turn around and successfully claim that he was merely an employee after he declared himself, through the years, as an independent self-employed insurance agent with the privilege of deducting business expenses. This aspect of the case alone considered together with the probative value of income tax declarations and returns filed prior to the present controversy should be enough to clinch the present case against the petitioners favor. D. The Dissents Solution: Unwieldy and Legally Infirm The Dissent proposes that Tongko should be considered as part employee (as manager) and part insurance agent; hence, the original decision should be modified to pertain only to the termination of his employment as a manager and not as an insurance agent. Accordingly, the backwages component of the original award to him should not include the insurance sales commissions. This solution, according to the line taken by the Dissent then, was justified on the view that this was made on a case-to-case basis. Decisions of the Supreme Court, as the Civil Code provides, form part of the law of the land. When the Court states that the determination of the existence of an employment relationship should be on a case-to-case basis, this does not mean that there will be as many laws on the issue as there are cases. In the context of this case, the four-fold test is the established standard for determining employer-employee relationship and the existence of these elements, most notably control, is the basis upon which a conclusion on the absence of employment relationship was anchored. This simply means that a conclusion on whether employment relationship exists in a particular case largely depends on the facts and, in no small measure, on the parties evidence vis--vis the clearly defined jurisprudential standards. Given that the parties control what and how the facts will be established in a particular case and/or how a particular suit is to be litigated, deciding the issues on a case-to-case basis becomes an imperative. Another legal reality, a more important one, is that the duty of a court is to say what the law is.17 This is the same duty of the Supreme Court that underlies the stare decisis principle. This is how the public, in general and the insurance industry in particular, views the role of this Court and courts in general in deciding cases. The lower courts and the bar, most specially, look up to the rulings of this Court for guidance. Unless extremely unavoidable, the Court must, as a matter of sound judicial policy, resist the temptation of branding its ruling pro hac vice. The compromise solution of declaring Tongko both an employee and an agent is legally unrealistic, unwieldy and is, in fact, legally infirm, as it goes against the above basic principles of judicial

operation. Likewise, it does not and cannot realistically solve the problem/issue in this case; it actually leaves more questions than answers. As already pointed out, there is no legal basis (be it statutory or jurisprudential) for the partemployee/part-insurance agent status under an essentially principal-agent contractual relation which the Dissent proposes to accord to Tongko. If the Dissent intends to establish one, this is highly objectionable for this would amount to judicial legislation. A legal relationship, be it one of employment or one based on a contract other than employment, exists as a matter of law pursuant to the facts, incidents and legal consequences of the relationship; it cannot exist devoid of these legally defined underlying facts and legal consequences unless the law itself creates the relationship an act that is beyond the authority of this Court to do. Additionally, the Dissents conclusion completely ignores an unavoidable legal reality that the parties are bound by a contract of agency that clearly subsists notwithstanding the successive designation of Tongko as a unit manager, a branch manager and a regional sales manager. (As already explained in our Resolution granting Manulifes motion for reconsideration, no evidence on record exists to provide the Court with clues as to the precise impact of all these designations on the contractual agency relationship.) The Dissent, it must be pointed out, concludes that Tongkos employment as manager was illegally terminated; thus, he should be accordingly afforded relief therefor. But, can Tongko be given the remedies incidental to his dismissal as manager separately from his status as an insurance agent? In other words, since the respondents terminated all relationships with Tongko through the termination letter, can we simply rule that his role as a manager was illegally terminated without touching on the consequences of this ruling on his status as an insurance agent? Expressed in these terms, the inseparability of his contract as agent with any other relationship that springs therefrom can thus be seen as an insurmountable legal obstacle. The Dissents compromise approach would also sanction split jurisdiction. The labor tribunals shall have jurisdiction over Tongkos employment as manager while another entity shall decide the issues/cases arising from the agency relationship. If the managerial employment is anchored on the agency, how will the labor tribunals decide an issue that is inextricably linked with a relationship that is outside the loop of their jurisdiction? As already mentioned in the Resolution granting Manulifes reconsideration, the DOMINANT relationship in this case is agency and no other. E. The Dissents Cited Cases The Dissent cites the cases of Great Pacific Life Assurance Corporation v. National Labor Relations Commission18and Insular Life Assurance Co., Ltd. v. National Labor Relations Commission19 to support the allegation that Manulife exercised control over the petitioner as an employer. In considering these rulings, a reality that cannot but be recognized is that cases turn and are decided on the basis of their own unique facts; the ruling in one case cannot simply be bodily lifted and applied to another, particularly when notable differences exist between the cited cases and the case under consideration; their respective facts must be strictly examined to ensure that the ruling in one applies to another. This is particularly true in a comparison of the cited cases with the present case. Specifically, care should be taken in reading the cited cases and applying their rulings to the present case as the cited cases all dealt with the proper legal characterization of subsequent management contracts that superseded the original agency contract between the insurance company and the agent. In Great Pacific Life, the Ruiz brothers were appointed to positions different from their original positions as insurance agents, whose duties were clearly defined in a subsequent contract. Similarly, in Insular, de los Reyes, a former insurance agent, was appointed as acting unit manager based on

a subsequent contract. In both cases, the Court anchored its findings of labor control on the stipulations of these subsequent contracts. In contrast, the present case is remarkable for the absence of evidence of any change in the nature of the petitioners employment with Manulife. As previously stated above and in our assailed Resolution, the petitioner had always been governed by the Agreement from the start until the end of his relationship with Manulife. His agency status never changed except to the extent of being a lead agent. Thus, the cited cases where changes in company-agent relationship expressly changed and where the subsequent contracts were the ones passed upon by the Court cannot be totally relied upon as authoritative. We cannot give credit as well to the petitioners claim of employment based on the affidavits executed by other Manulife agents describing their duties, because these same affidavits only affirm their status as independent agents, not as employees. To quote these various claims:20 1.a. I have no fixed wages or salary since my services are compensated by way of commissions based on the computed premiums paid in full on the policies obtained thereat; 1.b. I have no fixed working hours and employ my own method in soliciting insurance at a time and place I see fit; 1.c. I have my own assistant and messenger who handle my daily work load; 1.d. I use my own facilities, tools, materials and supplies in carrying out my business of selling insurance; xxxx 6. I have my own staff that handles day to day operations of my office; 7. My staff are my own employees and received salaries from me; xxxx 9. My commission and incentives are all reported to the Bureau of Internal Revenue (BIR) as income by a self-employed individual or professional with a ten (10) percent creditable withholding tax. I also remit monthly for professionals. The petitioner cannot also rely on the letter written by respondent Renato Vergel de Dios to prove that Manulife exercised control over him. As we already explained in the assailed Resolution: Even de Dios letter is not determinative of control as it indicates the least amount of intrusion into Tongkos exercise of his role as manager in guiding the sales agents. Strictly viewed, de Dios directives are merely operational guidelines on how Tongko could align his operations with Manulifes re-directed goal of being a "big league player." The method is to expand coverage through the use of more agents. This requirement for the recruitment of more agents is not a meansand-method control as it relates, more than anything else, and is directly relevant, to Manulifes objective of expanded business operations through the use of a bigger sales force whose members are all on a principal-agent relationship. An important point to note here is that Tongko was not supervising regular full-time employees of Manulife engaged in the running of the insurance business; Tongko was effectively guiding his corps of sales agents, who are bound to Manulife

through the same agreement that he had with manulife, all the while sharing in these agents commissions through his overrides.21 Lastly, in assailing the Agreement between him and Manulife, the petitioner cites Paguio v. National Labor Relations Commission22 on the claim that the agreement that the parties signed did not conclusively indicate the legal relationship between them. The evidentiary situation in the present case, however, shows that despite the petitioners insistence that the Agreement was no longer binding between him and Manulife, no evidence was ever adduced to show that their relationship changed so that Manulife at some point controlled the means and method of the petitioners work. In fact, his evidence only further supports the conclusion that he remained an independent insurance agent a status he admits, subject only to the qualification that he is at the same time an employee. Thus, we can only conclude that the Agreement governed his relations with Manulife. Additionally, it is not lost on us that Paguio is a ruling based on a different factual setting; it involves a publishing firm and an account executive, whose repeated engagement was considered as an indication of employment. Our ruling in the present case is specific to the insurance industry, where the law permits an insurance company to exercise control over its agents within the limits prescribed by law, and to engage independent agents for several transactions and within an unlimited period of time without the relationship amounting to employment. In light of these realities, the petitioners arguments on his last argument must also fail. The dissent also erroneously cites eight other cases Social Security System v. Court of Appeals,23Cosmopolitan Funeral Homes, Inc. v. Maalat,24 Algon Engineering Construction Corporation v. National Labor Relations Commission,25 Equitable Banking Corporation v. National Labor Relations Commission,26 Lazaro v. Social Security Commission,27 Dealco Farms, Inc. v. National Labor Relations Commission,28 South Davao Development Company, Inc. v. Gamo,29 and Abante, Jr. v. Lamadrid Bearing & Parts Corporation.30 The dissent cited these cases to support its allegation that labor laws and jurisprudence should be applied in cases, to the exclusion of other laws such as the Civil Code or the Insurance Code, even when the latter are also applicable. In Social Security System, Cosmopolitan Funeral Homes, Dealco Farms, and South Davao Development, the issue that repeats itself is whether complainants were employees or independent contractors; the legal relationships involved are both labor law concepts and make no reference to the Civil Code (or even the Insurance Code). The provisions cited in the Dissent Articles 14581637 of the Civil Code31 and Articles 1713-1720 of the Civil Code32 do not even appear in the decisions cited. In Algon, the issue was whether the lease contract should dictate the legal relationship between the parties, when there was proof of an employer-employee relationship. In the cited case, the lease provisions on termination were thus considered irrelevant because of a substantial evidence of an employment relationship. The cited case lacks the complexity of the present case; Civil Code provisions on lease do not prescribe that lessees exercise control over their lessors in the way that the Insurance Code and the Civil provide that insurance companies and principals exercised control over their agents. The issue in Equitable, on the other hand, is whether a lawyer-client relationship or an employment relationship governs the legal relation between parties. Again, this case is inapplicable as it does not illustrate the predominance of labor laws and jurisprudence over other laws, in general, and the Insurance Code and Civil Code, in particular. It merely weighed the evidence in favor of an employment relationship over that of a lawyer-client relationship. Similarly in Lazaro, the Court found

ample proof of control determinative of an employer-employee relationship. Both cases are not applicable to the present case, which is attended by totally different factual considerations as the petitioner had not offered any evidence of the companys control in the means and manner of the performance of his work.
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On the other hand, we find it strange that the dissent cites Abante as a precedent, since the Court, in this case, held that an employee-employer relationship is notably absent in this case as the complainant was a sales agent. This case better supports the majoritys position that a sales agent, who fails to show control in the concept of labor law, cannot be considered an employee, even if the company exercised control in the concept of a sales agent.33 It bears stressing that our ruling in this case is not about which law has primacy over the other, but that we should be able to reconcile these laws. We are merely saying that where the law makes it mandatory for a company to exercise control over its agents, the complainant in an illegal dismissal case cannot rely on these legally prescribed control devices as indicators of an employer-employee relationship. As shown in our discussion, our consideration of the Insurance Code and Civil Code provisions does not negate the application of labor laws and jurisprudence; ultimately, we dismissed the petition because of its failure to comply with the control test. WHEREFORE, premises considered, we hereby DENY the Motion for Reconsideration WITH FINALITY for lack of merit. No further pleadings shall be entertained. Let entry of judgment proceed in due course. SO ORDERED. G.R. No. 185715 January 19, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ERLINDA CAPUNO y TISON, Appellant. DECISION BRION, J.: We review the May 27, 2008 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 30215, affirming with modification the April 3, 2006 decision2 of the Regional Trial Court (RTC), Branch 75, San Mateo, Rizal. The RTC decision found Erlinda Capuno y Tison (appellant) guilty beyond reasonable doubt of illegal sale of shabu, under Section 5, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. ANTECEDENT FACTS The prosecution charged the appellant with violation of Section 5, Article II of R.A. No. 9165 before the RTC, under an Information that states: That on or about the 21st day of July 2002, in the Municipality of Rodriguez, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give away to another, one (1) heat-sealed transparent plastic sachet of white crystalline substance weighing 0.04 gram which was found positive to the test for Methamphetamine Hydrochloride, a

dangerous drug, and which substance produces a physiological action similar to amphetamine or other compound thereof providing similar physiological effects. CONTRARY TO LAW.3 The appellant pleaded not guilty to the charge.4 The prosecution presented Police Officer 1 (PO1) Jose Gordon Antonio and PO1 Fortunato Jiro III at the trial. The appellant and Maria Cecilia Salvador took the witness stand for the defense. PO1 Antonio narrated that at around 11:10 a.m. of July 21, 2002, he was at the Rodriguez Police Station when a civilian informant arrived and told him that a woman was openly selling dangerous drugs on Manggahan Street, Barangay Burgos, Montalban, Rizal. Upon receiving this information, he, PO1 Joseph G. Fernandez, and PO1 Jiro planned an entrapment operation: he (PO1 Antonio) was designated as the poseur-buyer, while his two companions would act as back-up. Before leaving the police station, they asked the desk officer to record their operation.5 They went to Manggahan Street, and when they were near this place, the informant pointed to them the appellant. PO1 Antonio alighted from the vehicle, approached the appellant, and told her, "Paiskor ng halagang piso"; he then handed the pre-marked one hundred peso bill to her. The appellant pulled out a plastic sachet from her left pocket and gave it to PO1 Antonio. PO1 Antonio immediately held the appellants arm, introduced himself to her, and stated her constitutional rights. It was at this time that PO1 Fernandez and PO1 Jiro approached them; PO1 Jiro recovered the marked money from the appellant. They brought the appellant to the police station for investigation.6 According to PO1 Antonio, the police forwarded the seized item to the Eastern Police District Crime Laboratory for examination.7 PO1 Jiro testified that at around 11:00 a.m. of July 21, 2002, he was at the Rodriguez Police Station when a confidential asset called and informed the police that he saw one "alias Erlinda" selling illegal drugs. The police planned a buy-bust operation wherein they prepared a one hundred peso bill (P100.00) marked money, and designated PO1 Antonio as the poseur buyer. Afterwards, PO1 Jiro, PO1 Antonio, PO1 Fernandez, and the confidential asset left the police station and proceeded to Manahan Street. On their arrival there, the confidential asset pointed to them the appellant.8 PO1 Antonio alighted from the vehicle, approached the appellant, and talked to her. Thereafter, PO1 Antonio handed the marked money to the appellant; the appellant took "something" from her pocket and handed it to PO1 Antonio.9 Immediately after, PO1 Antonio arrested the appellant. He (PO1 Jiro) and PO1 Fernandez approached the appellant; he recovered the marked money from the appellants left pocket. They brought the appellant to the police station and asked the duty officer to blotter the incident. Afterwards, they brought the appellant to the police investigator; they also made a request for a laboratory examination.10 On cross-examination, PO1 Jiro stated that he was 10 meters away from PO1 Antonio when the latter was transacting with the appellant. He maintained that the buy-bust operation took place outside the appellants house.11 He recalled that the appellant had two other companions when they arrived. When they arrested the appellant, some residents of the area started a commotion and tried to grab her.12 The testimony of Police Inspector Abraham Tecson, the Forensic Chemist, was dispensed with after both parties stipulated on the result of the examination conducted on the specimen submitted to the crime laboratory. On the hearing of April 14, 2004, the prosecution offered the following as exhibits: Exhibit "A" the Sinumpaang Salaysay of PO1 Antonio, PO1 Jiro and PO1 Fernandez

Exhibit "B" the request for laboratory examination Exhibit "C" Chemistry Report No. D-1373-02E Exhibit "D" the buy-bust money Exhibit "E" Chemistry Report No. RD-78-03 Exhibit "F" the specimen confiscated from the appellant Exhibit "G" Police Blotter13 The defense presented a different version of the events. The appellant testified that at around 11:00 a.m. of July 21, 2002, she was inside her house and lying on the bed, together with her 15-year old daughter, when two persons, who introduced themselves as police officers, entered her house. They wore maong pants and sando. They asked her if she was Erlinda Capuno and when she answered in the affirmative, they searched her house.14 They invited the appellant and her daughter to the Municipal Hall of Montalban, Rizal when they did not find anything in the house. Upon arriving there, the police told her to reveal the identity of the person who gave her shabu. When she answered that she had no idea what they were talking about, the police put her in jail.15 The appellant further stated that she saw the seized specimen only in court.16 On cross-examination, the appellant denied that she had been selling illegal drugs. She explained that she consented to the search because she believed that the two persons who entered her house were policemen.17 Maria, the appellants daughter, corroborated her mothers testimony on material points, but stated that the two policemen did not search their house but merely "looked around."18 The RTC, in its decision19 of April 3, 2006, convicted the appellant of the crime charged, and sentenced her to suffer the indeterminate penalty of imprisonment for twelve (12) years and one (1) day to twelve (12) years, ten (10) months and twenty (20) days. The RTC likewise ordered the appellant to pay a P100,000.00 fine. The appellant appealed to the CA, docketed as CA-G.R. CR No. 30215. The CA, in its decision20 dated May 27, 2008, affirmed the RTC decision with the modification that the appellant be sentenced to life imprisonment, and that the amount of fine be increased to P500,000.00. The CA found unmeritorious the appellants claim that the prosecution witnesses were not credible due to their conflicting statements regarding the place of the buy-bust operation. As the records bore, PO1 Antonio stated that they conducted the entrapment operation on Manggahan Street; PO1 Jiro testified that it was held on Manahan Street. The CA, nevertheless, ruled that PO1 Jiro made a slip of the tongue as there was no Manahan Street in Barangay Burgos, Montalban, Rizal.21 The CA added that despite the minor inconsistencies in the testimonies of PO1 Antonio and PO1 Jiro, the records do not show that they were ever motivated by any ulterior motive other than their desire to help wipe out the drug menace. It added that the appellants denial cannot prevail over the positive identification made by the prosecution witnesses, who, as police officers, performed their duties in a regular manner.22

Finally, the CA held that all the elements of illegal sale of dangerous drugs had been established.23 In her brief,24 the appellant claims that the lower courts erred in convicting her of the crime charged despite the prosecutions failure to prove her guilt beyond reasonable doubt. She harps on the fact that PO1 Antonio and PO1 Jiro gave conflicting statements on how they came to know of her alleged illegal activities. On one hand, PO1 Antonio claimed that an informant went to the police station and told them that the appellant was openly selling illegal drugs; PO1 Jiro, on the other hand, stated that a civilian informant called the police and informed them of the appellants illegal activities. The appellant also alleges that the testimonies of these two witnesses differ as regards the actual place of the entrapment operation. She further argues that the police did not coordinate with the Philippine Drug Enforcement Agency (PDEA) in conducting the buy-bust operation. The appellant likewise contends that the prosecution failed to show an unbroken chain of custody in the handling of the seized specimen. She claims that the apprehending team did not mark the seized items upon confiscation. Moreover, there was no showing that the police inventoried or photographed the seized items in her presence or her counsel, a representative of the media and the Department of Justice (DOJ), and any elected public official.25 For the State, the Office of the Solicitor General (OSG) counters with the argument that the testimonies of the police officers prevail over the appellants bare denial, more so since there was nothing in the records to show that they were motivated by any evil motive other than their desire to curb the vicious drug trade.26 The OSG added that when the buy-bust operation took place on July 21, 2002, there was no institution yet known as the PDEA, as the Implementing Rules of R.A. No. 9165 (IRR) took effect only on November 27, 2002.27 It further claimed that the failure to comply with the Dangerous Drugs Board Regulations was not fatal to the prosecution of drug cases.28 THE COURTS RULING After due consideration, we resolve to acquit the appellant for the prosecutions failure to prove her guilt beyond reasonable doubt. In considering a criminal case, it is critical to start with the laws own starting perspective on the status of the accused in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt.29 The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. In so doing, the prosecution must rest on its own merits and must not rely on the weakness of the defense. And if the prosecution fails to meet the required amount of evidence, the defense may logically not even present evidence on its own behalf. In which case, the presumption prevails and the accused should necessarily be acquitted.30 The requirements of paragraph 1, Section 21 of Article II of R.A. No. 9165 In a prosecution for the illegal sale of a prohibited drug under Section 5 of R.A. No. 9165, the prosecution must prove the following elements: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. All these require evidence that the sale transaction transpired, coupled with the presentation in court of the corpus delicti, i.e., the body or substance of the crime that establishes that a crime has actually been committed, as shown by presenting the object of the illegal transaction. To remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the

illegal drug presented in court is the same illegal drug actually recovered from the appellant; otherwise, the prosecution for possession or for drug pushing under R.A. No. 9165 fails.31 The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof[.] This procedure, however, was not shown to have been complied with by the members of the buybust team, and nothing on record suggests that they had extended reasonable efforts to comply with the said statutory requirement in handling the evidence. The deficiency is patent from the following exchanges at the trial: FISCAL ROMNIEL MACAPAGAL: Q: Upon arrival at Manggahan Street, what did x x x your group do? PO1 JOSE GORDON ANTONIO: A: We proceeded to the place and before we reach[ed] that place[,] our civilian asset pointed to us the suspect. Q: After your civilian informer pointed to the suspect, what did your group do? A: I alighted from our private vehicle at the time and I was the one who talked to Erlinda Capuno. Q: You said [that] you talked to Erlinda Capuno, what did you tell her when you approached her? A: I told her "Paiskor ng halagang piso." Q: When you told this to Erlinda that you buy one Hundred Peso of shabu, what did he do? [sic] A: When I gave her on [sic] piece of the marked money[,] he [sic] pulled out something from her pocket. Q: What is the denomination of the marked money? A: One Hundred Peso bill. Q: Upon receiving the plastic sachet, what did you do next?

A: After she gave me the suspected shabu, I held her by the arm and my two companions who [were] then seeing me approached me. [sic] Q: What is the purpose of holding the hands of Erlinda when you received this plastic sachet? A: When I took the plastic sachet that was the time I held her and after that I introduced myself and explained to her Constitutional rights. [sic] Q: After arresting Erlinda, where did you proceed? A: We brought her to the Police Station for investigation where she gave her full name and also turned over the suspected items[.] Q: Who recovered the buy-bust money? A: Police Officer Hero [sic], Sir. Q: You stated you were the one who handed the buy bust money to Erlinda. Do you have that buy bust money with you? A: After I gave the marked money to her[,] she picked from her left pocket the suspected shabu and Police Officer Hero recovered the money. [sic] xxxx Q: The alleged specimen you got from Erlinda, where is it now? A: We brought it to the Eastern Police District Crime Laboratory for examination. Q: Were you able to know the result of this examination? A: Yes, Sir. When we returned we already have the result.32 From the foregoing exchanges, it is clear that the apprehending team, upon confiscation of the drug, immediately brought the appellant and the seized specimen to the police station. No physical inventory and photograph of the seized items were taken in the presence of the appellant or her counsel, a representative from the media and the DOJ, and an elective official. We stress that PO1 Antonios testimony was corroborated by another member of the apprehending team, PO1 Jiro, who narrated that after arresting the appellant, they brought her and the seized item to the police station. At no time during PO1 Jiros testimony did he even intimate that they inventoried or photographed the confiscated item. A review of jurisprudence, even prior to the passage of R.A. No. 9165, shows that this Court did not hesitate to strike down convictions for failure to follow the proper procedure for the custody of confiscated dangerous drugs. Prior to R.A. No. 9165, the Court applied the procedure required by Dangerous Drugs Board Regulation No. 3, Series of 1979, amending Board Regulation No. 7, Series of 1974.33 Section 1 of this Regulation requires the apprehending team, having initial custody and control of the seized drugs, to immediately inventory and photograph the same in the presence of the accused and/or his representatives, who shall be required to sign the copies of the inventory and be given a copy thereof.

The Court remained vigilant in ensuring that the prescribed procedures in the handling of the seized drugs were observed after the passage of R.A. No. 9165. In People v. Lorenzo,34 we acquitted the accused for failure of the buy-bust team to photograph and inventory the seized items. People v. Garcia35 likewise resulted in an acquittal because no physical inventory was ever made, and no photograph of the seized items was taken under the circumstances required by R.A. No. 9165. In Bondad, Jr. v. People,36 we also acquitted the accused for the failure of the police to conduct an inventory and to photograph the seized item, without justifiable grounds. We had the same rulings in People v. Gutierrez,37 People v. Denoman,38 People v. Partoza,39 People v. Robles,40 and People v. dela Cruz,41 where we emphasized the importance of complying with the required procedures under Section 21 of R.A. No. 9165. To be sure, Section 21(a), Article II of the IRR offers some flexibility in complying with the express requirements under paragraph 1, Section 21, Article II of R.A. No. 9165, i.e.,"non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items[.]" This saving clause, however, applies only where the prosecution recognized the procedural lapses, and, thereafter, explained the cited justifiable grounds, and when the prosecution established that the integrity and evidentiary value of the evidence seized had been preserved.42 These conditions were not met in the present case, as the prosecution did not even attempt to offer any justification for its failure to follow the prescribed procedures in the handling of the seized items. The "Chain of Custody" Requirement Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti - the body of the crime whose core is the confiscated illicit drug. Thus, every fact necessary to constitute the crime must be established. The chain of custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed.43 Board Regulation No. 1, Series of 2002, defines chain of custody as "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction." As a method of authenticating evidence, the chain of custody rule requires that the admission of the exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would, thus, include a testimony about the every link in the chain, from the moment the item was seized to the time it was offered in court as evidence, such that every person who handled the same would admit as to how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. The same witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. It is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused.44 In the present case, the prosecutions evidence failed to establish the chain that would have shown that the shabu presented in court was the very same specimen seized from the appellant.

The first crucial link in the chain of custody starts with the seizure of the plastic sachet from the appellant. From the testimonies and joint affidavit of PO1 Antonio and PO1 Jiro, it is clear that the police did not mark the confiscated sachet upon confiscation. Marking after seizure is the starting point in the custodial link, thus it is vital that the seized contraband is immediately marked because succeeding handlers of the specimen will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, "planting," or contamination of evidence.45 The second link in the chain of custody is its turnover from PO1 Antonio to the police station. Both PO1 Antonio and PO1 Jiro testified that they brought the appellant and the seized item to the police station. They, however, failed to identify the person to whose custody the seized item was given. Although the records show that the request for laboratory examination of the seized item was prepared by the Chief of Police, Police Senior Inspector Anastacio Benzon, the evidence does not show that he was the official who received the marked plastic sachet from PO1 Antonio. As for the subsequent links in the chain of custody, the records show that the seized item was forwarded to the Philippine National Police Crime Laboratory by a certain PO1 Sanchez. We stress, however, that PO1 Sanchez forwarded the said specimen only on the next day, or on July 22, 2002. To harp back to what we earlier discussed, there was a missing link in the custody of the seized drug after it left the hands of PO1 Antonio. We cannot, therefore, presume that PO1 Sanchez had custody of the specimen in the interim. We also stress that the identity of the person who received the seized item at the crime laboratory was not clearly identified. Due to the procedural lapses pointed out above, serious uncertainty hangs over the identification of the seized shabu that the prosecution introduced into evidence. In effect, the prosecution failed to fully prove the elements of the crime charged, creating a reasonable doubt on the criminal liability of the accused. Credibility of the Prosecution Witnesses We likewise cannot acquiesce to the credibility accorded to the prosecution witnesses by the courts a quo. Contrary to the lower courts ruling, the inconsistencies in the statements of the prosecution witnesses are substantial, not trivial. To recall, PO1 Antonio, PO1 Jiro and PO1 Fernandez stated in their Pinagsamang Sinumpaang Salaysay46 that a civilian asset arrived at the police station on July 21, 2002, and informed them that one "alias Erlinda" was selling illegal drugs on Manahan Street, Barangay Burgos, Rodriguez, Rizal. PO1 Antonio reiterated this fact when he testified in court that a civilian informant arrived at the police station on July 21, 2002 and told them that a woman was openly selling dangerous drugs on Manggahan Street, Barangay Burgos, Montalban, Rizal. PO1 Jiro, however, changed his story in court and testified that the confidential informant called the police and informed then that one "alias Erlinda" was selling illegal drugs. We are at a loss how PO1 Antonio and PO1 Jiro could have given different accounts regarding how the confidential asset informed them of the appellants illegal activities when both of them were present at the police station on July 21, 2002. What baffles us even more is why PO1 Jiros gave conflicting statements in his joint affidavit and in his court testimony. To us, the conflicting statements and declarations of PO1 Antonio and PO1 Jiro destroyed their credibility; it made their testimonies unreliable. Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself, such as the common experience and observation of mankind can approve as probable under the circumstances.47

Presumption of Regularity in the Performance of Official Duties In sustaining the appellants conviction, the CA also relied on the evidentiary presumption that official duties have been regularly performed. This presumption, it must be stressed, is not conclusive. It cannot, by itself, overcome the constitutional presumption of innocence. Any taint of irregularity affects the whole performance and should make the presumption unavailable.48 The presumption, in other words, obtains only when nothing in the records suggests that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. But where the official act in question is irregular on its face, as in this case, an adverse presumption arises as a matter of course.49 As we explained in People v. Sanchez: While the Court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot, by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant's conviction because "First, the presumption is precisely just that - a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt." The presumption also cannot prevail over positive averments concerning violations of the constitutional rights of the accused. In short, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.50 All told, we find merit in the appellant's claim that the prosecution failed to discharge its burden of proving her guilt beyond reasonable doubt, due to the unreliability of the testimonies of the prosecution witnesses and substantial gaps in the chain of custody, raising reasonable doubt on the authenticity of the corpus delicti.
1avvphi1

WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the May 27, 2008 Decision of the Court of Appeals in CA-G.R. CR No. 30215. Appellant Erlinda Capuno y Tison is hereby ACQUITTED for failure of the prosecution to prove her guilt beyond reasonable doubt. She is ordered immediately RELEASED from detention unless she is confined for another lawful cause. Let a copy of this Decision be furnished the Superintendent, Correctional Institution for Women, Mandaluyong City, for immediate implementation. The Superintendent of the Correctional Institution for Women is directed to report the action she has taken to this Court within five (5) days from receipt of this Decision. SO ORDERED. A.M. No. RTJ-11-2267 January 19, 2011 (Formerly A.M. OCA IPI No. 03-1788-RTJ) MANSUETA T. RUBIN, Complainant, vs. JUDGE JOSE Y. AGUIRRE, JR., Regional Trial Court, Branch 55, Himamaylan, Negros Occidental,Respondent. DECISION

BRION, J.: In a verified complaint, dated June 14, 2003,1 filed before the Office of the Court Administrator (OCA), Mansueta T. Rubin (complainant) charged Judge Jose Y. Aguirre, Jr.2 of Graft and Corruption, Betrayal of Public Trust, Grave Abuse of Authority of a Judge, Manifest Bias and Partiality, and Violation of Judicial Conduct. In her verified complaint, the complainant alleged: II That Complainant is the widow of the late Feliciano Rubin who was appointed as the Judicial Administrator of the Estate of the Spouses Dioscoro Rubin and Emperatriz Rubin; III That Complainant, during the lifetime of her husband, Feliciano Rubin, who is the aforesaid Judicial Administrator, had witnessed and experienced that her husband and their family were victims of Graft and Corruption, Grave Injustice amounting to Violation of the Constitution, Betrayal of Public Trust, Grave Misconduct, Grave Abuse of Authority, Gross Ignorance of Law, Conduct Unbecoming of a Judge or Judicial Magistrate, Manifest Bias and Partiality, and Violation of the Code of Judicial Conduct, on the part of the respondent Judge committed during the conduct of the proceedings in Special Proceeding No. 28, Intestate Estate of the Spouses Dioscoro Rubin and Emperatriz Rubin, and in Civil Case No. 184, an Annulment of Adoption pending before him, as follows: A The respondent Judge, by way of devious schemes and clever machinations extorted money from the aforesaid Estate by lending expertise in connivance with other lawyer in pursuing an alleged claim against the Estate allegedly intended for workers wages as money claims against the Estate, in a labor case entitled "Constancia Amar, et.(sic) al. versus Hacienda Fanny and Dioscoro Rubin," RAB Case Nos. 1092-81 and A-593-81, both consolidated and numbered as 0104-82, which was then pending and decided by Labor Arbiter Ricardo T. Octavio; B That the aforesaid consolidated labor cases were decided and became final and executory and the judgment was already satisfied and paid for personally by Dioscoro Rubin when he was still alive in the amount of P44,000.00 in the form of check which was given to Atty. Corral, counsel for the claimants, through Atty. Rogelio Necessario, counsel for Hacienda Fanny and Dioscoro Rubin x x x. C That respondent Judge acted with grave abuse of discretion and grave abuse of authority by ordering the aforesaid Estate to pay P205,125.00 upon a Motion based on a non-existing final or executory decision, which order was illegal and improper and without any notice and/or hearing accorded to the Estate through its then Judicial [Administrator] Feliciano Rubin. x x x x D

The labor case decided by Labor Arbiter Oscar Uy awarded the claimants in the amount of P205,125.00, which decision was appealed by Judicial Administrator Feliciano Rubin and was ordered rema[n]ded and decided by Labor Arbiter Octavio in the consolidated cases with the reduction of the award in the amount of P62,437.50. The judgment amount was further reduced after an audit in the amount of P44,000.00. x x x x E That respondent Judge had threatened the Judicial Administrator and threatened to be cited for contempt if he will not pay the said labor claims, further threatened to sell the properties if he will not pay the said labor claims, and likewise threatened that he would order the x x x properties of the Estate to be sold at public auction if the said claim will not be paid. x x x x The evident purpose of the respondent Judge was to cause harassment and anxiety against the then Judicial Administrator which made his health condition deteriorate so fast that facilitated his death. F That Complainants deceased husband who was the Administrator of the said Estate was forced to pay the amount ordered by the respondent Judge which was deposited in court but which was ordered released by the same respondent Judge [b]ecause the money claim ordered to be paid by respondent Judge had already been paid and satisfied by Administrator Feliciano Rubin, naturally no recipient would claim the amount nor anybody can be found from the records of the case or that no laborer came forward to claim that he had not been paid of his money claim; G The respondent Judge was grossly ignorant of the law when he ordered the change of Administrator after the then Judicial Administrator Feliciano Rubin refused to follow the invalid and unlawful orders of the respondent Judge, as he ordered his Clerk of Court, Atty. Gregorio A. Lanaria to act as Special Administrator of the Estate with orders to sell the properties of the Estate to satisfy the outstanding claim or obligations of the Estate, which was part of the clever scheme of respondent Judge to extort money from the Estate x x x. H That respondent Judge had extended unwarranted benefit, advantage and preference to the newly appointed Judicial Administratrix of the Estate, Aileen Rubin, through his manifest bias and partiality and evident bad faith towards the late Administrators wife, complainant herein, and the surviving heirs, especially in his conduct of the proceedings involving the Estate and the Annulment of Adoption case. Respondent Judge even appointed Aileen Rubin as Administratrix of the Estate whose legal personality is still the subject of the Annulment of Adoption case, and even pronounced that under the eyes of the law Aileen Rubin is the sole and legal heir of the aforesaid Estate thus prejudging the cases before him even if the proceedings are still pending; I That respondent Judge ordered his appointed Administratrix, Aileen Rubin, to enter into the Estate, and having entered therein, she and her cohorts ransacked the premises, took out

records, personal belongings of the deceased Feliciano Rubin, then Administrator of the Estate, and his wife, the complainant herein x x x.3 The complainant submitted documentary evidence to support the above allegations.4 In his Comment, Judge Aguirre claimed that the complaint contained malicious and scurrilous allegations that smacked of harassment. The complaint was filed by the disgruntled complainant who mistakenly believed that she should be appointed as the Judicial Administratrix of the Estate of the late Spouses Dioscoro and Emperatriz Rubin, instead of Aileen Rubin, the adopted child of the deceased spouses. Judge Aguirre asserted that his appointment of Aileen Rubin as Special Administratrix was affirmed by the Court of Appeals5 (CA) and by the Supreme Court.6 He also asserted that the complainant had confused two labor cases.7 Only the amount of P44,000.00 was paid as separation pay in RAB Case No. VI-0104-82. In RAB Case No. A-593-81, Judge Aguirre issued orders to compel Mr. Feliciano Rubin, the former Administrator of the Estate of the late Spouses Dioscoro and Emperatriz Rubin, to pay lawful and valid claims against the estate. Judge Aguirre emphasized that he had already been penalized by the Supreme Court for delaying the enforcement of the final and executory decision of the National Labor Relations Commission (NLRC) against the estate of the late spouses Dioscoro and Emperatriz Rubin. Judge Aguirre submitted his own documentary evidence to corroborate his allegations.8 In its report, the OCA recommended that the case be docketed as a regular administrative case considering the varying positions taken by the parties, and considering, too, the failure of Judge Aguirre to explain in his Comment why he invited Mr. Feliciano Rubin to see him personally in court. In the Resolution dated March 17, 2004,9 the Court referred the case to Justice Josefina GuevarraSalonga (Investigating Justice) for investigation, report and recommendation. The Investigating Justice found that except for the charge of Conduct Unbecoming of a Judge and Violation of Judicial Conduct, the other charges against Judge Aguirre were "bereft of factual and legal basis."10 The Investigating Justice found that Judge Aguirre committed an impropriety when he sent a letter to Mr. Feliciano Rubin "to discuss and to expedite a possible extra-judicial settlement of the estate of the deceased Spouses Rubin."11 The Investigating Justice explained: [H]is act of sending a letter to a party litigant for a personal conference, however motivated, does not validate his action and the damning implications it may generate to the [J]udiciary this is especially so since the content of said letter can constitute as an act of fraternizing with party-litigants. It must be emphasized that in-chambers sessions without the presence of the other party and his counsel must be avoided. The prohibition is to maintain impartiality. Being a judicial front-liner who has a direct contact with the litigating parties, the respondent judge should conduct himself beyond reproach.12 The Investigating Justice ruled that Judge Aguirre violated Canon 2 of the Code of Judicial Conduct which states that a judge should avoid impropriety and the appearance of impropriety in all activities. The Investigating Justice recommended that Judge Aguirre be reprimanded with a stern warning that a repetition of the same or similar act shall be dealt more severely. The Courts Ruling We find the findings of the Investigating Justice to be well-taken.

First, the complainants claims of alleged devious schemes, clever machinations, and connivance employed by Judge Aguirre to extort money from the Estate of the Spouses Dioscoro and Emperatriz Rubin are unsupported by evidence. A perusal of the documents submitted by both parties shows that the orders issued by Judge Aguirre to compel Mr. Feliciano Rubin to settle the money claims filed against the Estate of the Spouses Dioscoro and Emperatriz Rubin in RAB Case No. A-593-81 were lawful. The orders were issued to enforce a final and executory decision of the NLRC in the case; we even previously penalized Judge Aguirre for his failure to promptly act on the motions filed by the laborers in RAB Case No. A-593-81, for the enforcement of the final NLRC decision.13 In addition, the evidence on record also refutes the complainants claim that the money claims in RAB Case No. A-593-81 had been previously settled. The records show that what Mr. Feliciano Rubin actually paid was a claim for separation pay in RAB Case No. VI-0104-82 an illegal dismissal case; the money claims in RAB Case No. A-593-81 pertained to the payment of wage differentials. Second, we find no evidence supporting the allegation of bias and partiality when Judge Aguirre appointed Ms. Aileen Rubin as Judicial Administratrix of the estate of her adopting parents. Notably, the propriety of the order of her appointment by Judge Aguirre was upheld, on appeal, by the CA in its Decision dated July 19, 200214 and its Resolution dated September 26, 2002,15 and by this Court in its Resolution of December 11, 2002.16 Third, in Guerrero v. Villamor,17 we held that a judge cannot be held liable for an erroneous decision in the absence of malice or wrongful conduct in rendering it. We also held that for liability to attach for ignorance of the law, the assailed order, decision or actuation of the judge in the performance of official duties must not only be erroneous but must be established to have been motivated by bad faith, dishonesty, hatred, or some other like motive.18 The complainant failed to prove any of these circumstances in this case. We find no evidence of corruption or unlawful motive on the part of Judge Aguirre when he made the said appointment. Although the appointment by Judge Aguirre of his branch clerk of court as Special Administrator for the Estate of the Spouses Dioscoro and Emperatriz Rubin was erroneous for having violated a standing Court circular and for being contrary to existing jurisprudence,19 we find that the appointment was made in good faith. Good faith connotes an honest intention to abstain from taking unconscientious advantage of another.20 In this regard, Judge Aguirres good faith is strengthened by evidence showing that the appointment of his branch clerk of court was prompted by the continued refusal of Mr. Feliciano Rubin to settle the money claims filed against the estate in RAB Case No. A593-81. The records show that Mr. Feliciano Rubin did not obey the several orders issued by Judge Aguirre to settle the money claims, and that an administrative case was even filed against Judge Aguirre for his failure to rule on the laborers motion in RAB Case No. A-593-81. Despite these findings, we find that Judge Aguirre committed an impropriety when he sent a letter, in his official letterhead, to Mr. Feliciano Rubin to discuss a matter pending before his own court. In Agustin v. Mercado,21 we declared that employees of the court have no business meeting with litigants or their representatives under any circumstance. This prohibition is more compelling when it involves a judge who, because of his position, must strictly adhere to the highest tenets of judicial conduct;22 a judge must be the embodiment of competence, integrity and independence.23 As we explained in Yu-Asensi v. Villanueva:24 ...[W]ithin the hierarchy of courts, trial courts stand as an important and visible symbol of government especially considering that as opposed to appellate courts, trial judges are those directly in contact

with the parties, their counsel and the communities which the Judiciary is bound to serve. Occupying as he does an exalted position in the administration of justice, a judge must pay a high price for the honor bestowed upon him. Thus, a judge must comport himself at all times in such manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice. x x x it is essential that judges, likeCaesar's wife, should be above suspicion. Under the circumstances, Judge Aguirres act was improper considering that he opened himself to suspicions in handling the case. His action also raised doubts about his impartiality and about his integrity in performing his judicial function. We take note that the complained act was committed before the New Code of Judicial Conduct took effect on June 1, 2004. Under the circumstances, Judge Aguirre is liable under the provisions of the Code of Judicial Conduct and the Canons of Judicial Ethics.25 Canon 2 of the Code of Judicial Conduct provides that "[a] judge should avoid impropriety and the appearance of impropriety in all activities." Carrying the same guiding principle is Canon 3 of the Canons of Judicial Ethics which states, "[a] judges official conduct should be free from the appearance of impropriety, and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in his every day life, should be beyond reproach." In Rosauro v. Kallos,26 we ruled that impropriety constitutes a light charge. Section 11(C) of Rule 140 of the Rules of Court27 provides the following sanctions if the respondent is found guilty of a light charge: C. If the respondent is guilty of a light charge, any of the following sanctions shall be imposed: 1. A fine of not less than P1,000.00 but not exceeding P10,000.00 and/or; 2. Censure; 3. Reprimand; 4. Admonition with warning. The Investigating Justice recommended the penalty of reprimand with stern warning. In light of Judge Aguirres death, however, we resolve to impose a fine of P5,000.00 instead. Jurisprudence holds that the death of the respondent in an administrative case, as a rule, does not preclude a finding of administrative liability, save for recognized exceptions.28 None of the exceptions applies to the present case.29
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The P5,000.00 fine shall be taken from the amount of P50,000.00 which we previously retained/withheld from Judge Aguirres retirement benefits due to the administrative cases filed against him.30 WHEREFORE, we find Judge Jose Y. Aguirre, Jr. guilty of impropriety, in violation of Canon 2 of the Code of Judicial Conduct and Canon 3 of the Canons of Judicial Ethics. We hereby impose a fine of P5,000.00 which shall be deducted from the P50,000.00 withheld from his retirement benefits. SO ORDERED.

A.M. No. RTJ-09-2173 January 18, 2011 (Formerly A.M. OCA IPI No. 09-3084-RTJ) OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. JUDGE BENJAMIN P. ESTRADA, REGIONAL TRIAL COURT, Branch 9, MALAYBALAY CITY, BUKIDNON, and JUDGE JOSEFINA GENTILES-BACAL, RTC, Branch 10, MALAYBALAY CITY, BUKIDNON, Respondents. DECISION BRION, J.: We resolve in this Decision the administrative matter involving two judges of the Regional Trial Court (RTC), Malaybalay City, Bukidnon - Judge Benjamin P. Estrada of Branch 9 and Judge Josefina Gentiles-Bacal of Branch 10. The Antecedents The case arose from the Memorandum,1 dated October 16, 2008, of Atty. Nicandro A. Cruz, officerin-charge, Court Management Office, Office of the Court Administrator (OCA), addressed to then Deputy Court Administrator (DCA) Reuben P. De la Cruz, regarding "[a]nomalies in the disposition of cases in the Municipal Trial Court in Cities (MTCC), Malaybalay City, Bukidnon[.]"2 Atty. Cruz reported that in the course of reviewing the Monthly Report of cases from the MTCC Malaybalay City, Bukidnon, the Statistical Division of the Court Management Office, OCA, noted several orders, attached to the report, that were issued by Executive Judge Josefina Gentiles-Bacal, RTC, Malaybalay City, and Judge Benjamin P. Estrada, RTC, Branch 9, same station, dismissing the cases then pending in the MTCC. Atty. Cruz pointed out that the MTCC, Malaybalay City had no regular presiding judge at the time the orders were issued, as Judge Estrada, the former presiding judge, had been appointed to preside over the RTC, Branch 9, Malaybalay City, on June 1, 2008. Atty. Cruz commented that Judge Estrada could no longer take cognizance of cases pending in his former sala after he took his oath on July 17, 2008; neither could Judge Bacal do the same even if she had then been the executive judge of the RTC, Malaybalay City. The subject cases are as follows: CRIMINAL CASE NO. 878-08 848-08 766-08 882-08 CAPTION People v. Bellman E. Durango, et al. for Attempted Homicide People v. Ferdy C. Domotdot [for] Violation of City Ordinance No. 50 People v. Hilario and John Ril Dao-on for Slight Physical Injuries People v. Vicky Sotta y Ranes for Violation of City DATE ISSUED August 15, 2008 August 26, 2008 August 26, 2008 August 26, 2008

Ordinance No. 50 796-08 398-06 522-07 872-08 871-08 People v. Neil Rod Lacasao for Attempted Homicide People v. Olimpio A. Lagubis for Attempted Arson People v. Alejandro Borbon for Reckless Imprudence Resulting to Serious Physical Injuries People v. Ajimar Cacay y Tubeo for Theft People v. Ajimar Cacay y Tubeo for Concealment of Deadly Weapon August 26, 2008 August 28, 2008 August 19, 2008 August 8, 2008 August 8, 2008

In a 1st Indorsement dated October 22, 20083 , DCA De la Cruz referred the matter to Judge Bacal and to Judge Estrada for comment. Judge Estrada submitted his letter-comment on November 19, 2008,4 in relation with his dismissal of Criminal Case No. 878-08, People of the Philippines v. Bellman E. Durango, et al., for Attempted Homicide, filed with the MTCC, Malaybalay City, Bukidnon, on August 14, 2008. He apologized for acting on the case. He thought that "the case has no more cause when the Office of the City Prosecutor of Malaybalay City filed a Motion to Dismiss on August 15, 2008."5 He opined that the right of the accused to liberty must not be prejudiced or compromised in the absence of a sitting judge in the court. He claimed that "he had no intention to traverse the majesty of the law,"6even as he considered the incident as an "administrative matter" which he is allowed to take cognizance of. Judge Estrada promised not to commit the same infraction again. Judge Bacal, on the other hand, filed her comment on December 3, 2008.7 She specified the actions she took on the cases mentioned in the OCA report, thus:
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CRIMINAL CASE NO. 848-08

CAPTION People v. Ferdy C. Domotdot [for] Violation of City Ordinance No. 50

ACTION/S TAKEN Dismissed, upon motion of the Prosecutor considering that the accused has already paid his administrative fine. Dismissed, upon motion of the Prosecutor considering that Private complainant Armando Jaroy has executed an Affidavit of Desistance. Dismissed, upon motion of the Prosecutor considering that the accused has already paid his administrative fine. Dismissed, upon motion of the Prosecutor

766-08

People v. Hilario and John Ril Dao-on for Slight Physical Injuries

882-08

People v. Vicky Sotta y Ranes for Violation of City Ordinance No. 50

796-08

People v. Neil Rod Lacasao for Attempted

Homicide

considering that Private complainant Rolando Espatero, Jr. has already executed an Affidavit of Desistance. Dismissed, upon motion of the Prosecutor considering that Private complainant Oliver P. Salga has executed an Affidavit of Desistance. Dismissed, upon motion of the Prosecutor considering that Private complainant Avanne C. Macas has already executed an Affidavit of Desistance. Remanded to the City Prosecutors Office considering that accused is a minor. Remanded to the City Prosecutors Office Considering that Accused is a minor.

398-06

People v. Olimpio A. Lagubis for Attempted Arson

522-07

People v. Alejandro Borbon for Reckless Imprudence Resulting to Serious Physical Injuries

872-08

People v. Ajimar Cacay y Tubeo for Theft

871-08

People vs. Ajimar Cacay y Tubeo for Concealment of Deadly Weapon

Judge Bacal explained that "It was her honest belief that as Executive Judge, she may exercise such other powers and prerogatives as may be necessary or incidental in the performance of her functions in relation to court administration, there being no Presiding Judge, in the Municipal Trial Court, Malaybalay City. She believes that the constitutional right to liberty of the accused shall prevail after undergoing the legal procedure in accordance with the paramount interest of the accused who are detained prisoners and minors."8 She added that she never intended to defy the law, her purpose in deciding the cases was to uphold the right of the accused to liberty when there was no more basis, in fact and in law, to further prosecute them. Judge Bacal pointed out that it took her two (2) months to designate a judge in the MTCC, Malaybalay City. Upon recommendation of the OCA, the Court resolved to re-docket the case as a regular administrative matter against Judge Estrada and Judge Bacal, and to require them to manifest whether they were willing to have the case resolved on the basis of the pleadings and the records. Judge Estrada and Judge Bacal submitted the matter for resolution, on June 15, 20099 and June 22, 2009,10respectively. The OCA Report

On March 3, 2009, the OCA submitted its report. It found Judge Estrada and Judge Bacal guilty of gross ignorance of the law for taking cognizance of cases pending before another court the MTCC, Malaybalay, Bukidnon. The two judges admitted the acts, although they tried to avoid liability by professing that they did not intend to violate the law and that they acted as they did out of their desire to uphold the right of the accused to liberty in the cases they took cognizance of. The OCA recommended that both judges be fined P40,000.00 for gross ignorance of the law. The Courts Ruling Except for the imposable penalty, we find the OCA recommendation in order. There is no question about the guilt of the two judges. Their shared intention to uphold the right of the accused to liberty cannot justify their action in excess of their authority, in violation of existing regulations. The vacuum in a first level court, such as the MTCC in Malaybalay City, Bukidnon, created by the absence of a presiding judge, is not remedied by a take over of the duties of the still-to-be appointed or designated judge for the court, which exactly was what Judge Estrada and Judge Bacal did. The remedy lies in Chapter V of the Guidelines in the Selection and Appointment of Executive Judges and Defining their Powers, Prerogatives and Duties,11 which provides: "Section 1. Designation of Judges of the First Level Courts to Try Cases. (a) The Executive Judge of the RTC shall have authority to designate a municipal judge within his/her area of administrative supervision to try cases of other courts of the first level within said area of administrative supervision in case of official leave of absence, inhibition, disqualification, or preventive suspension of the municipal judge concerned, or of permanent or temporary vacancy in the position. Such designation shall be effective immediately, unless revoked by the Supreme Court. The Executive Judge shall furnish the Office of the Court Administrator with copies of the orders of designation effected under this Section within five (5) days from the date of such designation." Instead of allowing Judge Estrada and herself to act on cases pending before the MTCC, Judge Bacal, as executive judge of the RTC, Malaybalay City, should have designated a municipal judge within her area of supervision, to act on the pending cases. She took time (two months as she claimed) in making the designation, which delayed action, by itself, is a negative reflection on her performance as an executive judge. Judge Estrada, who was the former presiding judge of the MTCC, Malaybalay City, acted only on one case, but like Judge Bacal, he had no authority to take over the case as he had already taken his oath as RTC judge on July 17, 2008, almost a month before he issued the order in Criminal Case No. 878-08, People v. Bellman E. Durango, et al., for Attempted Homicide. Either Judge Estrada and Judge Bacal forgot the guidelines or chose to ignore them, but whatever it was, they should suffer the consequences of their actions in violation of the guidelines. In Mupas v. Judge Espaol,12 the Court found respondent Judge Espaol guilty of gross ignorance of the law when she overrode the MTCCs action in cases pending with it under the guise of "administrative supervision." The Court stated in that case: Respondent urges that her conduct was nothing more than the zealous fulfillment of her duties as Executive Judge of the RTC, Dasmarias, Cavite. However, it is elementary that an Executive Judge only has administrative supervision over lower courts. Her function relates only to the management of first and second level courts, within her administrative area with a view to attaining prompt and convenient dispatch of its business. Acting as such, she cannot unilaterally override the MTCs actions in cases pending with it under the guise of "administrative supervision," without running afoul

of the orderly administration of justice. Only when her courts jurisdiction is appropriately invoked in an appeal or certiorari and other special civil actions can respondent judge, in her judicial capacity, override the lower courts judgment.13 What Judge Estrada and Judge Bacal did was worse than overriding the action or decision of a lower court. They entirely took over the judicial function of the lower court. While they might have been motivated by noble intentions in taking cognizance of the pending cases with the MTCC because they wanted to uphold the accuseds right to liberty, they still cannot escape liability. However well-intentioned they might have been, they still did not have the authority to act on the cases as these were not pending before their respective salas. Their lack of authority was so patent and so self-evident; to disregard it would itself be ignorance of the law. In Mupas, the Court recognized that "not every judicial error bespeaks ignorance of the law and that, if committed in good faith, does not warrant administrative sanction, but only in cases xxx of tolerable misjudgment. Where, however, the procedure is so simple and the facts so evident as to be beyond permissible margins of error, to still err thereon amounts to ignorance of the law."14
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Clearly, Judge Estrada and Judge Bacal are guilty of gross ignorance of the law. Section 8(9), Rule 140 of the Rules of Court classifies ignorance of the law or procedure as a serious charge for which Section 11 imposes the following sanctions: ( a ) dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations, provided, however, that forfeiture of benefits shall in no case include accrued leave credits; (b) suspension from office without salary and other benefits for more than three (3) months but not exceeding six (6) months; or (c) a fine of more than P20,000.00 but not exceedingP40,000.00. We note that Judge Estrada and Judge Bacal are being made to answer administratively for the first time for action while in office. In this light and as their actions were motivated by noble intentions to administer justice, we find a fine of P21,000.00 in order, with a stern warning that the commission of the same or similar offense shall be dealt with more severely.15 WHEREFORE, premises considered, Executive Judge Josefina Gentiles-Bacal, Regional Trial Court, Branch 10, Malaybalay City, and Presiding Judge Benjamin P. Estrada, Regional Trial Court, Branch 9, Malaybalay City, are hereby found GUILTY OF IGNORANCE OF THE LAW. Accordingly, they are FINED P21,000.00, each, with aSTERN WARNING that the commission of the same or similar offense shall be dealt with more severely. SO ORDERED. A.M. No. P-06-2179 January 12, 2011 (Formerly A.M. No. 06-5-169-MCTC) OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. MERLINDA T. CUACHON, Clerk of Court, and FE P. ALEJANO, Court Stenographer, both of the MCTC, Ilog-Candoni, Negros Occidental, Respondents. DECISION BRION, J.:

For consideration are the findings and recommendations of the Office of the Court Administrator (OCA) in its Memorandum of August 26, 20081 on the financial audit conducted in the Municipal Circuit Trial Court (MCTC), Ilog-Candoni, Negros Occidental. A financial audit was conducted because of respondent Clerk of Court Merlinda T. Cuachons (Cuachon) compulsory retirement on November 25, 2005. The audit covered transactions from September 1, 2000 to September 30, 2005, and included the books of account of respondent Fe P. Alejano (Alejano), Court Stenographer and designated Officer-in-Charge (OIC)Clerk of Court from September 1, 2000 to March 15, 2001. The Initial Report of the OCAs Financial Audit Team showed that Cuachon had incurred a shortage of P15,065.00 in her Fiduciary Fund collections due to the difference between undeposited collections, amounting to P49,065.00, and withdrawals from cash on hand, amounting to P35,000.00, plus an unauthorized withdrawal of P1,000.00 due to an overwithdrawal under Official Receipt (OR) No. 14847505. Cuachon made restitutions by depositing with the Land Bank of the Philippines (LBP), Kabankalan Branch, P4,065.00 and P11,000.00 on January 25, 2006 and February 7, 2006, respectively. On the other hand, Alejano incurred a shortage of P31,800.00 for undeposited collections of P26,800.00 and an unauthorized withdrawal of P5,000.00 on February 28, 2001. She, likewise, failed to account for two hundred (200) pieces of OR, with serial numbers 11653401 to 11653500 and 11654001 to 11654100. Also noted in the Initial Report were the following irregularities committed in the administration of the courts funds: (1) collections were not properly deposited with the LBP within the month they were collected; (2) withdrawals from the Fiduciary Fund were made without supporting documents; (3) cash bond deposits were withdrawn from the undeposited collections; (4) the funds were deposited with the Municipal Treasurers Office (MTO), in violation of Supreme Court (SC) Circular No. 50-95; (5) unwithdrawn bail bonds amounting to P151,986.03 (as of September 2005) were still deposited with the MTO; (6) the courts financial transactions were not recorded in the official cashbooks; and (7) actual cash on hand and the entries reflected in the cashbooks were not reconciled. In a Memorandum dated May 12, 2006,2 the OCA recommended that the Initial Report be docketed as an administrative complaint against respondents Cuachon and Alejano for violation of SC Circular No. 50-95, and that they be fined five thousand pesos (P5,000.00) each for the delay in their deposit of Fiduciary Fund collections. Accordingly, the Court formally docketed the Initial Report as an administrative complaint and required the respondents to manifest their willingness to submit the case for decision based on the records and/or pleadings filed.3 In her Manifestation,4 Cuachon acknowledged: the violations she committed caused by her poor record keeping of court transactions, resulting in her cash shortages; her delay in the deposit or remittance of collections; and her unauthorized withdrawals. She attributed her shortcomings to her unfamiliarity with accounting and bookkeeping principles, and with the Courts circulars on the proper administration of court funds. She claimed that she incurred the shortages with no intention to defraud the Court or the government. She also faulted the Office of the Clerk of Court in the MCTC, Ilog-Candoni, for not having an updated compilation of the Courts issuances that could guide her in her work, and the courts Property Division for turning a deaf ear to her repeated requests for cashbooks. Ultimately, she asked this Court to grant her leniency and to allow her to enjoy her retirement benefits in full since she had restituted her shortages by depositing the amounts of these shortages with the LBP. After considering Cuachons explanation, the OCA maintained its recommendation to impose a fine of P5,000.00, to be deposited with the Judiciary Development Fund, in order to compensate the government for the lost interest income caused by her delay in the deposit or remittance of Fiduciary Fund collections.5 In compliance with our Resolution,6 Cuachon expressed her willingness to submit the case for resolution based on the records and/or pleadings filed. She also asked for the early

resolution of her case7 and for the immediate release of her retirement benefits and the monetary value of her leave credits. She claimed that she needed the money to buy her diabetes and hypertension medications. The Court noted her letters and motions in its subsequent resolutions. Alejano, on the other hand, also explained in her Letter of July 14, 20068 the circumstances behind her shortages and the loss or misplacement of receipts. She faulted the lack of a proper turnover of documents and cash bonds from the outgoing Clerk of Court at the time she was designated as OICClerk of Court. She also alleged that the newly renovated building that housed most of their court records was infested by termites, and many court documents including the receipts already audited by the OCA were lost there. Accompanying Alejanos letter-explanation were additional documents that could be useful in reducing her remaining accountability, and her humble request that the Court guide her on how to resolve her problem. In a Resolution dated July 11, 2007,9 the Court directed Alejano: to pay and deposit her shortage of P12,800.00 in the Fiduciary Fund (which amount resulted from the re-computation of Alejanos accountability based on additional documents presented); to furnish the Fiscal Monitoring Division, Court Management Office, OCA, with the machine-validated deposit slip as proof of compliance thereto; and to explain why she failed to record in the cashbook and report to the Court the amount of one thousand pesos (P1,000.00) she had collected pertaining to the unaccounted and missing OR No. 116544551 dated December 12, 2000. In the same resolution, the Court also directed Judge Victor P. Magahud (Presiding Judge of the MCTC, Ilog-Candoni, Negros Occidental) to submit an inventory of cases with unwithdrawn cash bonds, indicating their OR numbers and the dates when they were issued by the court; to investigate the missing ORs with serial numbers 11653401 to 11653500, 11653452 to 11653500 and 11654001 to 11654100; and to submit a report and recommendation regarding these matters. The Court received Judge Magahuds Report on December 7, 2007.10 In a Letter dated March 28, 2008,11 Alejano asked the Court, for clearance purposes, for a clarification of the status of her accountability. She also stated that she had tried her best to recover the necessary documents to prove that the funds were not used for her personal gain. As of November 14, 2007, Alejanos remaining accountability showed a balance of nine thousand eight hundred pesos (P9,800.00), after the OCA considered the additional documents she had submitted.

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After a careful review of the records, the OCA found both respondents guilty of simple neglect of duty for violating SC Circular No. 50-95. This circular specifies the guidelines on the proper collection and deposit of court fiduciary funds. The records showed that Cuachon and Alejano failed to deposit their collections within twenty-four (24) hours, in violation of the circular. Also, the shortages incurred by the respondents were due to their failure to account for their collections, which could have been avoided had they immediately remitted or deposited these collections with the LBP. Due to the delayed remittance of collections, the cash on hand was used to pay for other withdrawals, i.e., undeposited collections were used to pay for cash bond withdrawals instead of withdrawing their cash bond equivalent from the Fiduciary Fund, thus, circumventing the system of "check and balance." Lastly, the respondents made withdrawals from the Fiduciary Fund without the necessary supporting documents. Under SC Circular No. 50-95, no withdrawals are allowed unless there is a lawful order of the court with jurisdiction over the subject matter involved. THE COURTS RULING We find the OCAs recommended fine to be appropriate and in accord with jurisprudence. We disagree, however, with the OCAs finding that the respondents were only liable for simple neglect of

duty. We find both respondents liable for gross neglect of duty for the irregularities they committed in the administration of court funds. The settled rule is that a clerk of court is grossly negligent for his or her failure to promptly remit or deposit cash collections with the local or nearest LBP Branch, in accordance with Court administrative circulars and issuances.12 No protestation of good faith can override the mandatory observance of court circulars which are designed to promote full accountability of government funds.13 Restitution of the amount of the shortages does not erase administrative liability.14 The irregularities committed by both respondents were direct violations of SC Circular No. 5095.15 This circular mandates that all collections from bail bonds, rental deposits, and other fiduciary collections should be deposited with the LBP upon receipt by the Clerk of Court within twenty-four (24) hours; the circular also requires that only one depository bank be maintained. In localities where there are no branches of the LBP, fiduciary collections should be deposited by the Clerk of Court with the Provincial, City or Municipal Treasurer. Gross negligence in the performance of duty is considered a grave offense for which the penalty of dismissal is imposed, even for the first offense.16 This Court has ordered the dismissal of clerks of court and other court personnel for failure to deposit fiduciary funds in authorized government depository banks.17 We cannot countenance any conduct, act or omission, committed by those involved in administering justice, that violate the norm of public accountability and diminish the faith of the people in the Judiciary.18 However, since both respondents have retired from the service, while Ms. Cuachon though belatedly restituted her shortages, we find the imposition of a fine to be the appropriate penalty in accordance with our previous rulings.19 WHEREFORE, premises considered, the Court finds as follows: 1. MERLINDA T. CUACHON, Clerk of Court, Municipal Circuit Trial Court, Ilog-Candoni, Negros Occidental,GUILTY of gross neglect of duty for which she is FINED five thousand pesos (P5,000.00), to be deducted from her retirement benefits. 2. FE P. ALEJANO, Court Stenographer, Municipal Circuit Trial Court, Ilog-Candoni, Negros Occidental,GUILTY of gross neglect of duty for which she is FINED five thousand pesos (P5,000.00). She is also directed to RESTITUTE the amount of nine thousand eight hundred pesos (P9,800.00) as payment for her remaining accountability. Both amounts are to be deducted from her retirement benefits. 3. The Financial Management Office, Office of the Court Administrator, is directed to RELEASE respondent MERLINDA T. CUACHONs retirement benefits and the monetary value of her accrued leave credits, deducting therefrom five thousand pesos (P5,000.00) as payment for the fine imposed. 4. The Financial Management Office, Office of the Court Administrator, is directed to RELEASE respondent FE P. ALEJANOs retirement benefits and the monetary value of her accrued leave credits, deducting therefrom five thousand pesos (P5,000.00), as payment for the fine imposed, and nine thousand eight hundred pesos (P9,800.00), as payment for her remaining accountability. 5. Presiding Judge VICTOR P. MAGAHUD of the Municipal Circuit Trial Court, Ilog-Candoni, Negros Occidental, is directed to CLOSELY MONITOR the financial transactions of the court; otherwise, he can be held equally liable for the infractions by the employees under his

supervision. He is advised to STUDY and IMPLEMENT procedures that shall strengthen the courts internal control over financial transactions. SO ORDERED. G.R. No. 190521 January 12, 2011

LETICIA TAN, MYRNA MEDINA, MARILOU SPOONER, ROSALINDA TAN, and MARY JANE TAN, MARY LYN TAN, CELEDONIO TAN, JR., MARY JOY TAN, and MARK ALLAN TAN, represented herein by their mother, LETICIA TAN, Petitioners, vs. OMC CARRIERS, INC. and BONIFACIO ARAMBALA, Respondents. RESOLUTION BRION, J.: We resolve the motion for reconsideration1 filed by Leticia Tan, Myrna Medina, Marilou Spooner, Rosalinda Tan, Mary Jane Tan, Mary Lyn Tan, Celedonio Tan, Jr., Mary Joy Tan, and Mark Allan Tan (petitioners), all heirs of the late Celedonio Tan asking us to reverse and set aside our Resolution of February 17, 2010.2 We denied in this Resolution their petition for review on certiorari for failing to show any reversible error in the assailed Court of Appeals (CA) decision of June 22, 20093 sufficient to warrant the exercise of our discretionary appellate jurisdiction. The CA decision, in turn, affirmed with modification the decision of the Regional Trial Court (RTC) of Muntinlupa City in Civil Case No. 96-186, finding the respondents OMC Carriers, Inc. (OMC) and Bonifacio Arambala guilty of gross negligence and awarding damages to the petitioners. THE FACTS On September 27, 1996, the petitioners filed a complaint for damages with the RTC against OMC and Bonifacio Arambala.4 The complaint states that on November 24, 1995, at around 6:15 a.m., Arambala was driving a truck5with a trailer6 owned by OMC, along Meralco Road, Sucat, Muntinlupa City. When Arambala noticed that the truck had suddenly lost its brakes, he told his companion to jump out. Soon thereafter, he also jumped out and abandoned the truck. Driverless, the truck rammed into the house and tailoring shop owned by petitioner Leticia Tan and her husband Celedonio Tan, instantly killing Celedonio who was standing at the doorway of the house at the time.7 The petitioners alleged that the collision occurred due to OMCs gross negligence in not properly maintaining the truck, and to Arambalas recklessness when he abandoned the moving truck. Thus, they claimed that the respondents should be held jointly and severally liable for the actual damages that they suffered, which include the damage to their properties, the funeral expenses they incurred for Celedonio Tans burial, as well as the loss of his earning capacity. The petitioners also asked for moral and exemplary damages, and attorneys fees.8 The respondents denied any liability for the collision, essentially claiming that the damage to the petitioners was caused by a fortuitous event, since the truck skidded due to the slippery condition of the road caused by spilled motor oil.9 THE RTC DECISION

After trial, the RTC found OMC and Arambala jointly and severally liable to the petitioners for damages.10 Relying on the doctrine of res ipsa loquitur, the RTC held that it was unusual for a truck to suddenly lose its brakes; the fact that the truck rammed into the petitioners house raised the presumption of negligence on the part of the respondents. These, the respondents failed to refute.11 The RTC did not agree with the respondents claim of a fortuitous event, pointing out that even with oil on the road, Arambala did not slow down or take any precautionary measure to prevent the truck from skidding off the road. The alleged oil on the road did not also explain why the truck lost its brakes. Had OMC done a more rigid inspection of the truck before its use, the defective brake could have been discovered. The RTC, thus, held OMC jointly and severally liable with Arambala for the damage caused to the petitioners, based on the principle of vicarious liability embodied in Article 218012 of the Civil Code.13 The dispositive portion of the decision stated: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiffs and against the defendants ordering: 1. The defendants to pay the plaintiffs jointly and severally the amount of P50,000.00 for the death of Celedonio Tan; 2. The defendants to pay the plaintiffs jointly and severally the amount of P500,000.00 for the loss of earning capacity of Celedonio Tan, plus interest thereon from the date of death of Celedonio Tan; 3. The defendants to pay the plaintiff Leticia Tan jointly and severally the amount of P355,895.00 as actual damages; 4. The defendants to pay the plaintiffs jointly and severally the amount of P500,000.00 as moral damages; 5. The defendants to pay the plaintiffs jointly and severally the amount of P500,000.00 as exemplary damages; and 6. The defendants to pay the plaintiffs jointly and solidarily the amount of P500,000.00 as attorneys fees. Costs against the defendants. SO ORDERED.14 THE COURT OF APPEALS DECISION On appeal, the CA affirmed the RTCs findings on the issues of the respondents negligence and liability for damages. However, the CA modified the damages awarded to the petitioners by reducing the actual damages award from P355,895.00 to P72,295.00. The CA observed that only the latter amount was duly supported by official receipts.15 The CA also deleted the RTCs award for loss of earning capacity. The CA explained that the petitioners failed to substantiate Celedonio Tans claimed earning capacity with reasonable certainty; no documentary evidence was ever presented on this point. Instead, the RTC merely relied on

Leticia Tans testimony regarding Celedonio Tans income. The CA characterized this testimony as self-serving.16 The CA further reduced the exemplary damages from P500,000.00 to P200,000.00, and deleted the award of attorneys fees because the RTC merely included the award in the dispositive portion of the decision without discussing its legal basis.17 THE PETITION In the petition for review on certiorari before us,18 the petitioners assert that the CA erred when it modified the RTCs awarded damages. The petitioners submit the reasons outlined below. First, the CA erred when it reduced the RTCs award of actual damages from P355,895.00 to P72,295.00. The petitioners claim that they sought compensation for the damage done to petitioner Leticia Tans house, tailoring shop, sewing machines, as well as other household appliances. Since the damages primarily refer to the value of their destroyed property, and not the cost of repairing or replacing them, the value cannot be evidenced by receipts. Accordingly, the RTC correctly relied on petitioner Leticia Tans testimony and the documentary evidence presented, consisting of pictures of the damaged property, to prove their right to recover actual damages for the destroyed property. Second, the petitioners are entitled to actual damages for the loss of Celedonio Tans earning capacity. While they admit that they did not submit any documentary evidence to substantiate this claim, the petitioners point out that Celedonio Tan was undisputably a self-employed tailor who owned a small tailor shop; in his line of work, no documentary evidence is available. Third, the petitioners maintain that they are entitled to exemplary damages in the amount of P500,000.00 because the RTC and the CA consistently found that the collision was caused by the respondents gross negligence. Moreover, the respondents acted with bad faith when they fabricated the "oil slick on the road" story to avoid paying damages to the petitioners. As observed by the CA, the Traffic Accident Investigation Report did not mention any motor oil on the road at the time of the accident. SPO4 Armando Alambro, the Investigation Officer, likewise testified that there was no oil on the road at the time of the accident. For the public good and to serve as an example, the respondents should be made to pay P500,000.00 as exemplary damages. Lastly, the petitioners are entitled to attorneys fees based on Article 2208 of the Civil Code which provides, among others, that attorneys fees can be recovered when exemplary damages are awarded, and when the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim. We initially denied the petition in our Resolution of February 17, 2010, for the petitioners failure to show any reversible error in the CA decision sufficient to warrant the exercise of our discretionary appellate jurisdiction. In our Resolution of August 11, 2010, we reinstated the petition on the basis of the petitioners motion for reconsideration. OUR RULING Finding merit in the petitioners arguments, we partly grant the petition. Procedural Issue

As both the RTC and the CA found that the respondents gross negligence led to the death of Celedonio Tan, as well as to the destruction of the petitioners home and tailoring shop, we see no reason to disturb this factual finding. We, thus, concentrate on the sole issue of what damages the petitioners are entitled to. We are generally precluded from resolving a Rule 45 petition that solely raises the issue of damages, an essentially factual question, because Section 1, Rule 45 of the Rules of Court, expressly states that Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. In light, however of the RTCs and the CAs conflicting findings on the kind and amount of damages suffered which must be compensated, we are compelled to consider the case as one of the recognized exceptions.19 We look into the parties presented evidence to resolve this appeal. Temperate damages in lieu of actual damages We begin by discussing the petitioners claim for actual damages arising from the damage inflicted on petitioner Leticia Tans house and tailoring shop, taking into account the sewing machines and various household appliances affected. Our basic law tells us that to recover damages there must be pleading and proof of actual damages suffered.20 As we explained in Viron Transportation Co., Inc. v. Delos Santos:21 Actual damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages. To justify an award of actual damages, there must be competent proof of the actual amount of loss, credence can be given only to claims which are duly supported by receipts.22 The petitioners do not deny that they did not submit any receipt to support their claim for actual damages to prove the monetary value of the damage caused to the house and tailoring shop when the truck rammed into them. Thus, no actual damages for the destruction to petitioner Leticia Tans house and tailoring shop can be awarded. Nonetheless, absent competent proof on the actual damages suffered, a party still has the option of claiming temperate damages, which may be allowed in cases where, from the nature of the case, definite proof of pecuniary loss cannot be adduced although the court is convinced that the aggrieved party suffered some pecuniary loss.23As defined in Article 2224 of the Civil Code: Article 2224. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty. In Canada v. All Commodities Marketing Corporation,24 we disallowed the award of actual damages arising from breach of contract, where the respondent merely alleged that it was entitled to actual damages and failed to adduce proof to support its plea. In its place, we awarded temperate damages, in recognition of the pecuniary loss suffered.

The photographs the petitioners presented as evidence show the extent of the damage done to the house, the tailoring shop and the petitioners appliances and equipment.25 Irrefutably, this damage was directly attributable to Arambalas gross negligence in handling OMCs truck. Unfortunately, these photographs are not enough to establish the amount of the loss with certainty. From the attendant circumstances and given the property destroyed,26 we find the amount of P200,000.00 as a fair and sufficient award by way of temperate damages. Temperate damages in lieu of loss of earning capacity Similarly, the CA was correct in disallowing the award of actual damages for loss of earning capacity. Damages for loss of earning capacity are awarded pursuant to Article 2206 of the Civil Code, which states that: Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death[.] As a rule, documentary evidence should be presented to substantiate the claim for loss of earning capacity.27 By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence when: (1) the deceased is self-employed and earning less than the minimum wage under current labor laws, in which case, judicial notice may be taken of the fact that in the deceased's line of work, no documentary evidence is available; or (2) the deceased is employed as a daily wage worker earning less than the minimum wage under current labor laws.28 According to the petitioners, prior to his death, Celedonio was a self-employed tailor who earned approximatelyP156,000.00 a year, or P13,000.00 a month. At the time of his death in 1995, the prevailing daily minimum wage was P145.00,29 or P3,770.00 per month, provided the wage earner had only one rest day per week. Even if we take judicial notice of the fact that a small tailoring shop normally does not issue receipts to its customers, and would probably not have any documentary evidence of the income it earns, Celedonios alleged monthly income ofP13,000.00 greatly exceeded the prevailing monthly minimum wage; thus, the exception set forth above does not apply. In the past, we awarded temperate damages in lieu of actual damages for loss of earning capacity where earning capacity is plainly established but no evidence was presented to support the allegation of the injured partys actual income. In Pleno v. Court of Appeals,30 we sustained the award of temperate damages in the amount of P200,000.00 instead of actual damages for loss of earning capacity because the plaintiffs income was not sufficiently proven. We did the same in People v. Singh,31 and People v. Almedilla,32 granting temperate damages in place of actual damages for the failure of the prosecution to present sufficient evidence of the deceaseds income. Similarly, in Victory Liner, Inc. v. Gammad,33 we deleted the award of damages for loss of earning capacity for lack of evidentiary basis of the actual extent of the loss. Nevertheless, because the income-earning capacity lost was clearly established, we awarded the heirs P500,000.00 as temperate damages.

In the present case, the income-earning capacity of the deceased was never disputed. Petitioners Mary Jane Tan, Mary Lyn Tan, Celedonio Tan, Jr., Mary Joy Tan and Mark Allan Tan were all minors at the time the petition was filed on February 4, 2010,34 and they all relied mainly on the income earned by their father from his tailoring activities for their sustenance and support. Under these facts and taking into account the unrebutted annual earnings of the deceased, we hold that the petitioners are entitled to temperate damages in the amount ofP300,000.00 [or roughly, the gross income for two (2) years] to compensate for damages for loss of the earning capacity of the deceased. Reduction of exemplary damages proper Exemplary or corrective damages are imposed by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages.35 In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.36 Celedonio Tans death and the destruction of the petitioners home and tailoring shop were unquestionably caused by the respondents gross negligence. The law allows the grant of exemplary damages in cases such as this to serve as a warning to the pubic and as a deterrent against the repetition of this kind of deleterious actions.37 The grant, however, should be tempered, as it is not intended to enrich one party or to impoverish another. From this perspective, we find the CAs reduction of the exemplary damages awarded to the petitioners from P500,000.00 to P200,000.00 to be proper. Attorneys fees in order In view of the award of exemplary damages, we find it also proper to award the petitioners attorney's fees, in consonance with Article 2208(1) of the Civil Code.38 We find the award of attorneys fees, equivalent to 10% of the total amount adjudged the petitioners, to be just and reasonable under the circumstances. Interests due Finally, we impose legal interest on the amounts awarded, in keeping with our ruling in Eastern Shipping Lines, Inc. v. Court of Appeals,39 which held that: I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasidelicts is breached, the contravenor can be held liable for damages. The provisions under Title XVIII on "Damages" of the Civil Code govern in determining the measure of recoverable damages.
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II. With regard particularly to an award of interest in the concept of actual and compensatory damages, the rate of interest, as well as the accrual thereof, is imposed, as follows: 1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per annum to be computed from default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code. 2. 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. No interest, however, shall be adjudged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged. 3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit. Accordingly, legal interest at the rate of 6% per annum on the amounts awarded starts to run from May 14, 2003, when the trial court rendered judgment. From the time this judgment becomes final and executory, the interest rate shall be 12% per annum on the judgment amount and the interest earned up to that date, until the judgment is wholly satisfied. WHEREFORE, premises considered, we PARTIALLY GRANT the petition. The June 22, 2009 decision of the Court of Appeals in CA-G.R. CV. No. 84733, which modified the decision of the Regional Trial Court of Muntinlupa City, Branch 256, in Civil Case No. 96-186, is AFFIRMED with MODIFICATION. As modified, respondents OMC Carriers, Inc. and Bonifacio Arambala are ordered to jointly and severally pay the petitioners the following: (1) P50,000.00 as indemnity for the death of Celedonio Tan; (2) P72,295.00 as actual damages for funeral expenses; (3) P200,000.00 as temperate damages for the damage done to petitioner Leticias house, tailoring shop, household appliances and shop equipment; (4) P300,000.00 as damages for the loss of Celedonio Tans earning capacity; (5) P500,000.00 as moral damages; (6) P200,000.00 as exemplary damages; and (7) 10% of the total amount as attorneys fees; and costs of suit. In addition, the total amount adjudged shall earn interest at the rate of 6% per annum from May 14, 2003, and at the rate of 12% per annum, from the finality of this Resolution on the balance and interest due, until fully paid. SO ORDERED. A.M. No. RTJ-09-2188 January 10, 2011 (Formerly A.M. OCA-IPI No. 08-2995-RTJ)

PROSECUTOR HILARIO RONSON H. TILAN, Complainant, vs. JUDGE ESTER PISCOSO-FLOR, RTC, BRANCH 34, BANAUE, IFUGAO, Respondent. DECISION BRION, J.: We resolve in this Decision the Administrative Matter against Judge Ester Piscoso-Flor of the Regional Trial Court, Branch 34, Banaue, Ifugao. The Antecedents The case arose from the verified complaint, dated September 1, 2008,1 filed by Public Prosecutor Hilario Ronson H. Tilan, charging Judge Piscoso-Flor with gross inefficiency, gross negligence and dishonesty. The records show that the prosecutor was then handling Criminal Case No. 127, People of the Philippines v. Juanito Baguilat, for Falsification of Public Document, and Criminal Case No. 140, People of the Philippines v. Wihlis Talanay, for Violation of RA 7610, pending promulgation before Judge Piscoso-Flor. He was also handling Criminal Case No. 221, People of the Philippines v. Macario Tenefrancia, for Libel, pending arraignment in the same court. In People v. Baguilat, Judge Piscoso-Flor issued an order dated October 20, 20072 directing the parties to submit their respective memoranda within thirty (30) days from receipt of the order. The complainant alleged that the judge failed to render a decision within the ninety (90)-day reglementary period; instead, she issued an order, dated April 8, 2008,3 reiterating her earlier directive for the parties to submit their respective memoranda. In People v. Talanay, Judge Piscoso-Flor issued an order dated September 25, 20074 giving the accused fifteen (15) days to file his formal offer of evidence, and five (5) days for the prosecution to file its comment/objections. Allegedly, Judge Piscoso-Flor again failed to resolve the case within the 90-day reglementary period; instead, she issued another order dated May 21, 20085 giving the parties fifteen (15) days within which to file their memoranda. Prosecutor Tilan claimed that in both cases, Judge Piscoso-Flor resorted to the issuance of an order requiring the submission of the parties memoranda to circumvent the statutory period for the resolution of cases. Prosecutor Tilan pointed out that the father of the victim (a minor) in People v. Talanay sought the assistance of the Commission on Human Rights (CHR) "regarding the slow process of resolving the case,"6 and the CHR even called his attention on the matter.7 In People v. Tenefrancia, Prosecutor Tilan alleged that the accused filed a Petition for Suspension of Trial, prompting Judge Piscoso-Flor to call a hearing on the petition. Despite the parties submission of the matter for resolution, Judge Piscoso-Flor failed to resolve the petition within the required period. The Office of the Court Administrator (OCA)8 required Judge Piscoso-Flor to submit her comment, and she complied on November 7, 2008.9 She offered the following explanation: in the courts monthly report for January 2008,10 Criminal Case No. 127, People v. Baguilat, was submitted for decision on January 31, 2008, and was due for decision on May 1, 2008; the reason for this was the parties failure to submit their memoranda as required in her order dated October 20, 2007; on April

8, 2008, she issued another order reiterating her directive for the parties to file their memoranda because the case had been heard previously by her two predecessors. Judge Piscoso-Flor further explained that on April 28, 2008, accused Baguilat moved for extension of time to submit his memorandum.11 She herself requested for an extension of time to decide the case up to July 2, 2008.12She promulgated the decision on September 29, 2008,13 after several postponements due to the absence of Prosecutor Tilan, the counsel for the accused, and of the accused himself. In conclusion, she stated that Prosecutor Tilan filed the present complaint after she personally went to Justice Secretary Raul M. Gonzales to complain about the formers actuations towards her,14and after she cited him for direct contempt.15 On November 19, 2008, Prosecutor Tilan filed a reply,16reiterating the allegations in his complaint, and adding that he filed a Motion for Inhibition of Judge Piscoso-Flor in Criminal Case No. 228, People of the Philippines v. Eddie Immongor and Senando Bannog," which was deemed submitted for resolution on July 18, 2008. In a rejoinder dated November 25, 2008,17 Judge Piscoso-Flor explained that in Criminal Case No. 142, People of the Philippines v. Myleen Dimpatan, for Estafa, which Prosecutor Tilan mentioned in his reply, she received the accuseds memorandum on April 20, 2007, and that of the prosecution on April 17, 2007. She added that on July 24, 2007, the court received a joint manifestation by Prosecutor Tilan, Private Prosecutor Rufino Lamase, and the accuseds counsel (Atty. Gerald Tabayan) asking that the promulgation of the decision be deferred pending a possible settlement of the case. It was only on October 8, 2008 that Prosecutor Lamase moved to have the case resolved for failure of the accused to settle the civil aspect of the case. She immediately finalized the decision and scheduled its promulgation on November 14, 2008, but this was reset to November 24, 2008 upon motion of the counsel for the accused. Judge Piscoso-Flor further explained that the motion for inhibition in Criminal Case No. 228 had been the subject of a contempt case which reached the Court of Appeals and gave rise to numerous complaints filed by Prosecutor Tilan against her. One of the cases had been considered closed and terminated by Deputy Court Administrator Reuben P. de la Cruz in a letter dated November 4, 2008.18 Upon recommendation of the OCA, the Court issued a Resolution on July 6, 2009:19 (1) re-docketing the case as a regular administrative matter; (2) directing Judge Piscoso-Flor to conduct an inventory of cases pending in her court and find out whether there were cases submitted for decision that had not been decided within the required period, and to decide these cases within thirty (30) days; and (3) requiring the parties to manifest whether they were willing to submit the case for resolution on the basis of the pleadings and the records. Judge Piscoso-Flor and Prosecutor Tilan submitted the case for resolution on August 27, 2009 and October 8, 2009, respectively. The Courts Ruling In his Memorandum dated March 19, 2009,20 Court Administrator Jose P. Perez (now a member of the Court) found Judge Piscoso-Flor to have been remiss in her duty to decide cases within the period required by law. He recommended that the judge be merely admonished considering that this is her first infraction and that she inherited most of the cases that gave rise to the complaint. At the

same time, he recommended that a stern warning be given against the commission of a similar offense in the future. The OCA evaluation tells us that Judge Piscoso-Flor is guilty of failing to decide cases within the required periods, citing Criminal Case No. 127 (People v. Juanito Baguilat) as the principal basis of its conclusion. In this case, the OCA faulted Judge Piscoso-Flor for using as justification for her inaction the parties failure to submit their respective memoranda. The OCA opined that this is not a valid reason for not deciding the case; if she believed she would not be able to decide the case on time, she could have asked the Court for an extension of the required period. The OCA acknowledged though that Judge Piscoso-Flor requested for an extension to decide the case in her monthly report of cases and certificate of service.21 We find the OCA evaluation in order. Although Judge Piscoso-Flor claimed that she had requested for an extension of time to decide Criminal Case No. 127, there was no showing that the request was ever granted. Over and above this consideration, she allowed the parties to control the period of disposition of the case through their lukewarm response to her call for the submission of memoranda, which she had to do twice. She could have acted more firmly, considering, as she said, that she only inherited the case, which implies that it had been on the docket for quite some time. In any event, Judge Piscoso-Flor should have known that "[t]he Court may grant extension of time to file memoranda, but the ninety (90) day period for deciding the case shall not be interrupted thereby."22 The same is true with Criminal Case No. 140 (People v. Talanay). As early as March 6, 2006,23 the CHR Office in the Cordillera Administrative Region relayed to Judge Piscoso-Flor the concern of the parent of the victim of the child abuse regarding the delay in the resolution of the case. It was only on May 21, 2008 when Judge Piscoso-Flor called for the submission of memoranda. Judge Piscoso-Flor had no comment on Criminal Case No. 221 (People v. Tenefrancia). On the other hand, the Motion for Inhibition in Criminal Case No. 228, filed by Prosecutor Tilan, was deemed submitted for resolution on July 18, 2008,24 but Judge Piscoso-Flor herself admitted that she resolved the motion on November 10, 2008 or beyond the required 90-day period.
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Judge Piscoso-Flor, however, cannot be held liable for delay in the disposition of Criminal Case No. 142 (People v. Dimpatan), which Prosecutor Tilan cited in his reply.25 While he claimed that the case was deemed submitted for decision on March 12, 2007, it appears from the records that he, Private Prosecutor Rufino Lamase, and the accuseds counsel (Atty. Gerald Tabayan) executed a joint manifestation26 praying that the promulgation of the decision be deferred pending negotiations among them on the civil aspect of the case. When the negotiations bogged down and upon motion of Prosecutor Lamase (dated October 8, 2008),27 Judge Piscoso-Flor promulgated the decision on November 24, 2008. On the whole, we find Judge Piscoso-Flor guilty of undue delay in the disposition of cases. Except for People v. Dimpatan, Judge Piscoso-Flor failed to resolve the other cases within the required period, in violation of the law and the rules. No less than the Constitution sets the limits on this allimportant aspect in the administration of justice. It mandates that lower courts have three (3) months or ninety (90) days within which to decide cases or matters submitted to them for resolution.28 Also, the Code of Judicial Conduct requires judges to dispose of the Courts business promptly and decide cases within the prescribed period.29 It cannot be over emphasized that judges need to decide cases promptly and expeditiously. Delay in the disposition of cases, it must again be stated, is a major cause in the erosion of public faith and confidence in the justice system.30 For this fundamental and compelling reason, judges are required

to decide cases and resolve motions with dispatch within the reglementary period. Failure to comply constitutes gross inefficiency, a lapse that warrants the imposition of administrative sanctions against the erring magistrate.31 Section 9, Rule 140 of the Rules of Court defines undue delay in rendering a decision or order as a less serious charge, punishable under Section 11(b) of the same Rule and imposes a penalty of suspension from office, without salary and other benefits, for not less than one (1) nor more than three (3) months, or a fine of more thanP10,000.00 but not exceeding P20,000.00. In light, however, of the fact that this is Judge Piscoso-Flors first infraction and considering that most of the cases involved were inherited cases, we deem a fine in its minimum range an appropriate penalty for Judge Piscoso-Flor. WHEREFORE, premises considered, Judge Ester Piscoso-Flor is declared liable for delay in the disposition of cases. Accordingly, she is FINED P10,000.00, with a stern warning against the commission of a similar offense in the future. SO ORDERED. A.M. No. P-07-2325 February 28, 2011 (Formerly A.M. No. 06-3-208-RTC) OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. Atty. ROSARIO E. GASPAR, Regional Trial Court, Branch 2, Balanga City, Bataan, Respondent. DECISION BRION, J.: We resolve the administrative charge against Atty. Rosario E. Gaspar, Branch Clerk of Court of the Regional Trial Court (RTC), Branch 2, Balanga City, for gross neglect of duty for failing to issue the writs of execution in court judgments rendered against forfeited surety bonds. The charge arose out of the physical inventory of cash, property and surety bonds conducted on February 20 to 25, 2006 by the audit team of the Office of the Court Administrator (OCA) in Branches 1, 2, 3, 4 and 5 of the RTC in Bataan. The audit team found the following lapses in procedure committed by the respective Officers-in-Charge Branch Clerks of Court1 and the Branch Clerks of Courts2 (respondents) of the audited RTC branches: first, the failure of the respondents to comply with A.M. No. 04-7-02-SC regarding the new guidelines on the documentary requirements for surety bail bond applications; and second, the failure of the respondents to issue the corresponding writs of execution on cancelled or forfeited bail bonds. We initially referred the matter to the OCA for investigation, report and recommendation.3 We also directed the respondents to file their comments and ordered them to issue the corresponding writs of execution on the forfeited surety bonds.4 In their respective Comments, the respondents commonly claimed the lack of knowledge of A.M. No. 04-7-02-SC. They asserted that they came to know the existence of this guideline during the audit of February 20 to 25, 2006. The respondents for Branches 1, 2 (Atty. Gaspar) and 3 also asserted that in multiple sala courts, the applications for surety bonds were processed by Atty. Romeo Delemos of

the Office of the Clerk of Court. The respondents offered their respective explanations and apologies on the second charge. In its Report and Recommendation, the OCA made the following recommendations: 1. The (sic) respondents Gilbert A. Argonza, Margarita R. Quicho, Rovelyn B. Baluyot and Joey Astorga we absolved of administrative liability in connection with the non-issuance of the Writs of Execution in the criminal cases mentioned in the audit report. However, for representing that the surety bond for the accused in Criminal Case No. 8780, RTC, Branch 1, Balanga City had expired on September 20, 2003 which is not borne by the surety bond itself attached as Annex C to his Letter Explanation, Mr. Astorga should be admonished to be more careful in the discharge of his duties and in his official communications specially to the Supreme Court. 2. Respondent Rosario E. Gaspar be FINED in the amount of Three Thousand Pesos (P3,000.00) for neglect of duty in issuing the writs of execution in Criminal [Case] Nos. 8333 and 8194, RTC, Branch 2, Balanga City, only on August 4, 2006 when the judgments against the bonds in the cases were rendered almost 2 years earlier. 3. All the respondents be absolved of liability for non-compliance with A.M. No. 04-7-02-SC in connection with the corporate surety bonds posted in the criminal cases enumerated in the audit report, for lack of "working information on the new guidelines" as found by the audit team. 4. Atty. Romeo Delemos, Clerk of Court of the RTC, Balanga City, be furnished a copy of the audit report and required to explain why administrative action should not be taken against him for non-compliance with A.M. No. 04-7-02-SC. Except for Atty. Gaspar, the Court resolved to adopt the above recommendations and absolved the respondents from any administrative liability. Thereafter, we charged Atty. Gaspar with neglect of duty based on the Report and Recommendation of the OCA considering her admission that she overlooked and/or inadvertently failed to issue the writs of execution.5 In the Minute Resolution dated June 13, 2007, we declared: (2) RE-DOCKET the instant case as a regular administrative matter against respondent Rosario Gaspar; (3) to require Rosario Gaspar to MANIFEST within ten (10) days from notice hereof if she is willing to submit the case for decision on the basis of the records and pleadings filed; Atty. Gaspar does not deny her shortcomings but pleads that a lighter penalty be imposed than what the OCA recommended in view of the following circumstances: (a) she was a new employee at the time of the incidents complained of, and was not familiar with the case records; (b) the order for cancellation and forfeiture of the bond in Criminal Case No. 8333 did not specifically mention the issuance of the writ of execution; (c) she did not believe that there was an immediate need to issue the writ of execution in the case since the bondsmen were given three (3) days to produce the accused in court instead of the thirty (30)-day statutory period; and (d) the writ of execution against the surety in Criminal Case No. 8194 was issued just over six (6) months from the date of the order and not two (2) years as reported by the judicial audit team. OUR RULING

Except for the recommended penalty, we agree with the findings and recommendations of the OCA and hold Atty. Gaspar liable for simple neglect of duty. Section 1, Canon IV of the Code of Conduct for Court Personnel commands court personnel to perform their official duties properly and with diligence at all times. As the image of the courts, as the administrators and dispensers of justice, is not only reflected in their decisions, resolutions or orders but also mirrored in the conduct of court personnel, it is incumbent upon every court personnel to observe the highest degree of efficiency and competency in his or her assigned tasks. The failure to meet these standards warrants the imposition of administrative sanctions. In this case, the duty of Atty. Gaspar, as Branch Clerk of Court, to issue the corresponding writs of execution to implement judgments of forfeiture against surety bonds is expressly provided in the 2002 Revised Manual for Clerks of Court. The records of the case and Atty. Gaspars own admission show that she fell short of complying with the above standard. She failed to efficiently perform her duty to immediately issue the writs of execution in Criminal Case No. 8333 and Criminal Case No. 8194. The records show that Atty. Gaspar issued the writs of execution in these criminal cases more than two (2) years after the judgments were issued against the forfeited surety bonds. In Criminal Case No. 8333, the judgment against the surety bond was rendered on April 24, 2003 and the writ of execution to implement the same was issued by Atty. Gaspar only on August 6, 2006. In Criminal Case No. 8194, the RTC rendered judgment against the surety bond as early as June 8, 2004 when the bondsman failed to produce the accused in court. Atty. Gaspar issued the writ of execution only on August 6, 2006.
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We find her liable for simple neglect of duty, bearing in mind our ruling in Ligaya V. Reyes v. Mario Pablico, etc.6where we defined simple neglect of duty as the failure of an employee to give proper attention to a required task or to discharge a duty due to carelessness or indifference. As distinguished from gross neglect of duty which is characterized by want of even the slightest care, or by conscious indifference to the consequences, or by flagrant and palpable breach of duty, there is nothing in the records to show that Atty. Gaspar willfully and intentionally omitted to issue the subject writs of execution.7 On the contrary, she candidly admitted that her omissions were caused by plain oversight. She also undertook immediate rectification in compliance with our directives, thereby demonstrating her sincerity and lack of malice in committing her lapses. Simple neglect of duty under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service is classified as a less grave offense, punishable by suspension without pay for one (1) month and one (1) day to six (6) months for the first offense. However, under Section 19, Rule XIV of the Omnibus Civil Service Rules and Regulations, a fine may be imposed instead of the penalty of suspension.8 The OCA recommended that Atty. Gaspar be fined in the amount of Three Thousand Pesos (P3,000.00). We modify this recommendation and reduce the amount of the fine to P1,500.00, considering Atty. Gaspars candid admission of her lapses and her apologies.9 ACCORDINGLY, premises considered, Atty. Rosario E. Gaspar, Branch Clerk of Court, Regional Trial Court, Branch 2, Balanga City, Bataan, is FINED in the amount of One Thousand Pesos (P1,000.00) for simple neglect of duty in failing to immediately issue the writs of execution of court judgments rendered on forfeited surety bonds. She is hereby WARNED that a repetition of the same or similar offense shall be dealt with more severely. SO ORDERED. G.R. No. 189281 February 23, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ROMEO ANCHES, Appellant. DECISION BRION, J.: We resolve in this Decision the appeal of appellant Romeo Anches from the March 25, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00205-MIN. THE FACTUAL ANTECEDENTS On October 30, 1990, the appellant was accused of murder2 before the Regional Trial Court (RTC), Branch 6, Iligan City, under the following Information: That on or about the 30th day of May, 1990, at Bacolod, Lanao del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another with Pat. Edgardo Gedo Cruz, whose case is now pending before the Office of the Judge Advocate General, Parang, Maguindanao, with intent to kill, did then and there willfully, unlawfully and feloniously, with treachery, evident premeditation, taking advantage of superior strength and nighttime, assault, attack and use personal violence upon one Vicente Pabalay by then and there shooting the latter with firearms thereby inflicting upon him multiple gunshot wounds which were the direct and immediate cause of his death soon thereafter. CONTRARY to and in violation of Article 248 of the Revised Penal Code with the qualifying circumstance of treachery and attendance of the aggravating circumstances of evident premeditation, taking advantage of superior strength & nighttime.3 On April 4, 2002, the appellant was arrested. He pleaded not guilty upon arraignment and was brought to trial. The case for the prosecution is summarized below. At about 11:00 p.m. of May 30, 1990, Manuel Pomicpic was standing at the balcony of his house near the corner of the National Highway and the Municipal Road of Bacolod. It was a moonlit night, and the electric light at the ceiling of a nearby house also illuminated the area. From the balcony, he saw the victim, Vicente Pabalay, standing in front of the waiting shed along the National Highway. He also saw the appellant and Edgardo Gedo Cruz, on board a motorcycle, stop in front of the victim. The appellant said, "Vicente sakay sa motor kay ako ka nga ihatud" (Vicente ride on the motorcycle and I will bring you to where youre going). The victim declined the appellants offer, walked away and crossed the national highway. While Edgardo remained on the motorcycle, the appellant alighted and followed the victim. Upon reaching the other side of the national highway, the victim stopped. As he turned around, the appellant shot him several times. The victim fell on the ground while the appellant simply turned around and fled towards the municipal road. The wounded victim stood up and sought help from the nearby house of Nida Pomicpic.4 Nida, who was awakened by the gunshots, saw the victim through her window and heard him shout "Help, Martin, Andres." Nida told her husband Olimpio to go and get the local Civilian Home Defense Force (CHDF). When Olimpio returned minutes later with the CHDF members, Nida opened their front door. They saw the victim sitting on the floor of their foyer, bleeding from his

shoulder, abdomen and thigh. Roger Paracale, the CHDF team leader, asked the victim "Dong, who shot you?; the latter replied that it was the appellant who shot him. The victim was then brought to the Mercy Community Hospital. When Dr. Daniel Rigor performed an exploratory laparatomy on the victim on May 31, 1990, he found the victims small intestine severed and his liver injured by 9 gunshot wounds. The victim died 10 hours later.5 The appellant, interposing alibi, claimed that he was at PC Camp in Kolambugan together with his fellow policemen on the night of the killing; they were not allowed to leave the camp because the replacement commanding officer was expected that day.6 THE RTC RULING In its April 21, 2003 decision, the RTC found the appellant guilty of murder. The trial court gave credence to Manuel Pomicpics positive identification of the appellant as the perpetrator, as corroborated by the victims antemortem statement less than an hour after the shooting. It noted that the appellants flight from the crime scene and his arrest 12 years later were evidence of his guilt. In rejecting the appellants alibi, the RTC noted that the 20-kilometer distance between Kolambugan and Bacolod can be traveled by motor vehicle in just 20 minutes. The RTC appreciated the qualifying circumstance of treachery because the appellant shot the victim by surprise and without giving him any opportunity to defend himself. However, it disregarded the qualifying circumstances of evident premeditation and abuse of superior strength for lack of proof. It also noted that nighttime was absorbed by treachery. The RTC sentenced the appellant to suffer the penalty of reclusion perpetua, and to pay the heirs of the victim P50,000 as civil indemnity, P50,000 as moral damages, P15,000 as nominal damages and P25,000 as exemplary damages.7 THE CA RULING On intermediate appellate review, the CA affirmed the judgment of the RTC, giving full respect to the RTC's assessment of the testimonies. However, it deleted the award of nominal damages and awarded P25,000 as temperate damages.8 OUR RULING We affirm the appellants conviction. We find no reason to disturb the findings of the RTC, as affirmed by the CA. The records are replete with evidence establishing the appellant's guilt beyond reasonable doubt. The eyewitness account of Manuel Pomicpic, supported by the victims antemortem statement, is more plausible than the appellant's alibi. Both the RTC and the CA correctly appreciated the qualifying circumstance of treachery; although the attack on the victim was frontal, it was deliberate, sudden and unexpected, affording the hapless, unarmed and unsuspecting victim no opportunity to resist or to defend himself.9 The appellant was correctly sentenced to suffer the penalty of reclusion perpetua since there was no aggravating circumstance attending the commission of the crime. To conform to recent jurisprudence, however, we increase the awarded exemplary damages from P25,000.00 to P30,000.00.10
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WHEREFORE, the March 25, 2009 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00205MIN is herebyAFFIRMED with MODIFICATION. Appellant Romeo Anches is found guilty of murder, as defined and penalized in Article 248 of the Revised Penal Code, and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay the heirs of Vicente Pabalay P50,000 as civil indemnity ex delicto, P50,000 as moral damages,P25,000 as temperate damages, and P30,000 as exemplary damages.

SO ORDERED. G.R. No. 178060 February 23, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ROMEO DANSICO y MONAY a.k.a. "Lamyak" and AUGUSTO CUADRA y ENRIQUEZ, Appellants. DECISION BRION, J.: We review in this Rule 45 petition the decision1 of the Court of Appeals2 (CA) in CA-G.R. CR-H.C. No. 00645. The CA decision affirmed the decision3 of the Regional Trial Court (RTC), Branch 30, San Jose, Camarines Sur, in Criminal Case No. T-1910, finding appellants Romeo Dansico y Monay a.k.a. "Lamyak" and Augusto Cuadra y Enriquez guilty beyond reasonable doubt of illegal sale of marijuana under Section 4, Article II of Republic Act (R.A.) No. 6425, as amended. The Information and Plea The appellants were charged under the following Information dated September 8, 1998: That sometime on September 7, 1998 at about 4:30 oclock [sic] in the afternoon, at Brgy. MayAnao, Tigaon, Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping one another to attain a common purpose did then and there willfully, unlawfully and feloniously without authority of law sell, deliver one (1) pc. Marijuana bricks wrapped in newspaper with approximate size of 1 x 8 x 10 inches weighing approximately NINE HUNDRED (900) grams for and in consideration of FIVE THOUSAND PESOS (P5,000.00) to the prejudice of the Government. ACTS CONTRARY TO LAW.4 With the assistance of their counsel, the appellants pleaded not guilty to the charge. In the pre-trial, the appellants admitted their identities and the existence of the booking sheet and the arrest report against them. Trial on the merits thereafter ensued. The Prosecutions Case The prosecution established its case by presenting the testimonies of three (3) witnesses5 and the supporting documentary evidence.6 The prosecutions account showed that the appellants were caught and arrested for selling marijuana during a buy-bust operation. The prosecutions evidence shows that on the basis of reports that the appellants were engaged in peddling marijuana, the members of the Camarines Narcotics Provincial (NARGROUP) Office, Naga City (headed by P/Insp. Dennis Vargas) organized a buy-bust operation against the appellants. The buy-bust team was assisted by an unidentified confidential informant and four (4) civilian volunteers. The confidential informant and Willie Paz, a civilian volunteer, were designated to act as poseurbuyers. P/Insp. Vargas gave Paz P5,000.00 as buy-bust money.7

On September 7, 1998, the buy-bust team went to May-Anao, Tigaon where they briefed the local Tigaon Police at their station of the impending buy-bust operation. The buy-bust team afterwards proceeded to the nipa hut owned by appellant Dansico. Paz and the confidential informant met with the appellants; the confidential informant informed the appellants that Paz wanted to buy P5,000.00 worth of marijuana. Paz handed the buy-bust money to the appellants who left in a motorcycle to get the marijuana.8 After three hours, more or less, the appellants returned with a brick, allegedly marijuana, wrapped in a newspaper. Appellant Dansico took the brick from appellant Cuadra and gave it to Paz. At this point, Paz gave the pre-arranged signal for P/Insp. Vargas and the buy-bust team to approach. The team immediately apprehended appellant Dansico, while appellant Cuadra resisted by throwing stones at and grappling with P/Insp. Vargas. Paz turned the seized marijuana to P/Insp. Vargas and the group proceeded to the Tigaon Police Station.9 The arrest of the appellants, the recovery of the suspected marijuana and the confiscation of the appellants motorcycle were entered in the police blotter of the Tigaon Police Station. Afterwards, the buy-bust team (with the appellants in tow and with the confiscated items) proceeded to the NARGROUP Office where P/Insp. Vargas prepared a booking sheet and the arrest report. The confiscated brick of marijuana was placed inside a plastic bag and marked "07 September 1998 WPD" to indicate the date of the buy-bust. The plastic bag was initialed by P/Insp. Vargas and Paz.10 P/Insp. Vargas also conducted an initial field test which confirmed the confiscated item to be marijuana. Afterwards, P/Insp. Vargas submitted the confiscated marijuana to the Crime Laboratory for further laboratory examination.11 As borne by the mark stamped on the request of P/Insp. Vargas, the submitted marijuana was received by the receiving clerk of the Crime Laboratory and was given control no. 1774-98 D-10498.12 The confiscated marijuana was turned over by the receiving clerk to P/Sr. Insp. Ma. Julieta Razonable13who then conducted the laboratory tests which subsequently confirmed that the submitted specimen was marijuana.14 P/Sr. Insp. Razonable reduced her findings to writing under Chemistry Report No. D-104-98. After the examination, P/Sr. Insp. Razonable placed the marijuana inside a plastic bag and sealed it with tape.15 In court, P/Sr. Insp. Razonable presented the marijuana by unsealing the plastic bag. She identified the marijuana by the markings she previously made.16 The Case for the Defense The defense denied the charges and countered that the appellants were victims of frame-up and police extortion. The defense presented six (6) witnesses17 (including the two appellants) and the documentary evidence. Appellant Dansico admitted that the marijuana presented in court was the same marijuana shown to him at the Tigaon Police Station. According to the defense, appellant Dansico had a farm where appellant Cuadra worked. In the afternoon of September 7, 1998, appellant Cuadra was on his way back to the farm when he was accosted by P/Insp. Vargas who poked a gun at him. Appellant Cuadra attempted to flee and even shouted for help but P/Insp. Vargas struck him on the head with his gun. SPO4 Paterno Boncodin, a local Tigaon policeman, was presented to corroborate the appellants story. SPO4 Boncodin claimed that he saw P/Insp. Vargas and appellant Cuadra grappling with each other. He was then informed by the confidential informant that appellant Cuadra was being arrested for the illegal sale of marijuana. SPO4 Boncodin claimed that after appellant Cuadra was subdued and taken to the police station, P/Insp. Vargas returned to appellant Dansicos farm and arrested appellant Dansico. Thereafter, the appellants were charged with selling marijuana.

In its decision, the RTC found the appellants guilty of illegal sale of marijuana and sentenced them to suffer the penalty of reclusion perpetua with the corresponding accessory penalties. The RTC also ordered them (a) to pay a fine in the amount of Five Hundred Thousand Pesos (P500,000.00); (b) to return or reimburse Five Thousand Pesos (P5,000.00) representing the unrecovered buy-bust money; and (c) to pay the costs.18 The CA, on appeal, affirmed the RTC decision. The CA sustained the convictions of the appellants, finding the prosecutions version more credible in the absence of any improper motive established against the prosecution witnesses. The CA also relied on the presumption of regularity that attended the conduct of the buy-bust operation which led to the arrest of the appellants. The Issue In their Brief,19 the appellants seek their acquittal based on the following arguments. First, the two (2) elements of the crime the sale and delivery of the marijuana, and the knowledge of the sale of marijuana were not established in evidence. Second, the evidence failed to establish the existence of the buy-bust operation; for the first time on appeal, the appellants argue that they were instigated into selling marijuana. The other arguments relate to the disregard by the lower courts of the defenses of denial and frame-up, and the claim of police extortion raised by the appellants. The Office of the Solicitor General20 (OSG) contends that the evidence sufficiently established the sale and delivery of marijuana by the appellants during the buy-bust operation conducted by the team of P/Insp. Vargas. That an actual buy-bust operation took place was even testified to by defense witness SPO1 Roberto Caa and supported by the police blotter. The OSG also contends that the appellants defenses of frame-up and extortion were not properly substantiated. On the instigation claim, the OSG stresses that this claim was only raised for the first on appeal. By this argument, the appellants in fact actually admitted having sold and delivered marijuana to the team of P/Insp. Vargas. The Courts Ruling We find no reversible error committed by the RTC and the CA in appreciating the presented evidence and, therefore, deny the petition for lack of merit. First, to convict an accused of illegal sale of marijuana, the prosecution must establish these essential elements: (1) the identity of the buyer and the seller, the object of the sale, and the consideration; and (2) the delivery of the thing sold and the payment.21 All these elements were duly proven during the trial. The fact that an actual buy-bust operation took place involving the appellants is supported not only by the testimonies of Paz (as the poseur-buyer) and P/Insp. Vargas, but also by the presented documentary evidence consisting of (a) the photocopy of the serial numbers of the marked money used in the buy-bust operation,22 (b) the Tigaon Police Station police blotter showing the arrest of the appellants on September 7, 1998 and the cause of their arrest by the group of P/Insp. Vargas,23 (c) the booking sheet and arrest report against the appellants prepared by P/Insp. Vargas,24 and (d) the Joint Affidavit of Arrest executed by P/Insp. Vargas and Eduardo Buenavente, another civilian volunteer.25 Second, the testimonies of Paz and P/Insp. Vargas on the buy-bust operation and the identities of the appellants as the sellers of the marijuana were positive and straightforward; they were consistent with one another with respect to the events that transpired before, during, and after the buy-bust operation that led to the appellants arrest. We consider, too, the testimonies of Paz and P/Insp. Vargas to be in accord with the physical evidence showing in detail the process undertaken by

P/Insp. Vargas and the police officers immediately after the appellants arrest and the confiscation of the marijuana. We also take into account that no improper motive was ever successfully established showing why the buy-bust team would falsely accuse the appellants. Third, the defenses of denial, frame-up, and police extortion only become weighty when inconsistencies and improbabilities cast doubt on the credibility of the prosecution evidence. We do not see these inconsistencies and improbabilities in the presented evidence. Besides, the failure of the appellants to file appropriate criminal and administrative cases against the concerned police officers in light of their allegations highly indicates that the appellants claims are mere concocted afterthoughts. Fourth, the records show that the defenses of denial, frame-up, and police extortion were even contradicted by the appellants own conduct during the appeal to the CA. By raising instigation as a defense, the appellants effectively admitted that they sold marijuana; they only now question the circumstances of the sale, with the claim that they were led into it by the police. Fifth, the evidence on record belies that the appellants were instigated to sell marijuana. Instigation means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him.26 On the other hand, entrapment is the employment of ways and means in order to trap or capture a lawbreaker.27 Instigation presupposes that the criminal intent to commit an offense originated from the inducer and not the accused who had no intention to commit the crime and would not have committed it were it not for the initiatives by the inducer.28 In entrapment, the criminal intent or design to commit the offense charged originates in the mind of the accused; the law enforcement officials merely facilitate the apprehension of the criminal by employing ruses and schemes.29 In instigation, the law enforcers act as active co-principals. Instigation leads to the acquittal of the accused, while entrapment does not bar prosecution and conviction. 30 To determine whether there is instigation or entrapment, we held in People v. Doria31 that the conduct of the apprehending officers and the predisposition of the accused to commit the crime must be examined: [I]n buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement.32 In the present case, Paz testified to his initial contact with the confidential informant, on one hand, and with the appellants, on the other. Acting as the poseur-buyer, Paz asked the appellants if they had P5,000.00 worth of marijuana which the appellants told him was equivalent to one (1) kilo. Paz and the appellants initially haggled over the price before the appellants left to get the marijuana after receiving payment. The appellants were immediately arrested by the group of P/Insp. Vargas after the marijuana was handed to Paz.

The appellants conversation with Paz best illustrates that they were not at all instigated to sell marijuana, but were, in fact, engaged in the business of selling marijuana. In his testimony, Paz testified: Q: Now, after the brief introduction and your purpose was mentioned to the accused, tell us what happened if any? A: Lamyak [appellant Dansico] asked from me the money and I asked him how much. Q: And what was the response of the accused if any? A: As of now the ranning [sic] price for one (1) kilo is P5,000.00.33 During cross-examination, Paz also related: Q: But you will agree with me that Lamyak said he does not have marijuana in that safehouse, is that correct? A: Yes, sir. xxx Q: All he said is that he has no marijuana? A: He said that he has no marijuana in that place and that he will get.34 In addition to this testimony, appellant Dansico admitted that his brother-in-law sells marijuana in Naga City. All these circumstances, collectively considered, fully support the conclusion that the appellants, by their own volition, sold marijuana to Paz.35 The Penalty The guilt of the appellants for selling marijuana having been proven beyond reasonable doubt, the appellants are liable to suffer the penalty provided under Section 4, Article II, in connection with Section 20 of R.A. No. 6425, as amended, which provides: Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty ofreclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million [pesos]shall be imposed upon any person who, unless authorized by law shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as broker in any of such transactions. xxx Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. - The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities:

xxx 5. 750 grams or more of Indian hemp or marijuana[.] P/Sr. Insp. Razonable testified that the quantity of marijuana taken from the appellants weighed 878.80 grams. Accordingly, we affirm the ruling of the RTC and the CA imposing the penalty of reclusion perpetua and a fine ofP500,000.00, as these are the penalties provided for by law. In lieu of merely ordering the return of the P5,000.00 buy-bust money, the appellants are ordered to pay P5,000.00 as reimbursement for the unrecovered buy-bust money.
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WHEREFORE, premises considered, we hereby DENY the appeal of appellants Romeo Dansico y Monay a.k.a. "Lamyak" and Augusto Cuadra y Enriquez. The decision dated February 27, 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 00645, finding Romeo Dansico y Monay a.k.a. "Lamyak" and Augusto Cuadra y Enriquez guilty beyond reasonable doubt of illegal sale of marijuana under Section 4, Article II of Republic Act No. 6425, as amended, is AFFIRMED with the MODIFICATION that the appellants are ordered to pay P5,000.00 as reimbursement for the unrecovered buy-bust money. SO ORDERED. G.R. No. 184922 February 23, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. PORFERIO MASAGCA, JR. y PADILLA, Appellant. DECISION BRION, J.: On appeal is the Decision1 of the Court of Appeals (CA) affirming with modification the Judgment2 of the Regional Trial Court (RTC) of Virac, Catanduanes finding Porferio Masagca, Jr. (appellant) guilty beyond reasonable doubt of three (3) counts of rape committed against his own daughter, and sentencing him to suffer the penalty ofreclusion perpetua for each count. THE FACTS The appellant (a widower) and four of his children (including the private complainant [AAA]3) lived in BarangaySto. Domingo, Virac, Catanduanes. At around seven oclock on the evening of September 10, 2000, after his other children had left to watch a TV program, the appellant laid down beside his daughter AAA, removed her blanket, and held her right hand. He, thereafter, removed her short pants and underwear, laid on top of her, and inserted his penis into her vagina for about one minute. Throughout the incident, AAA did not say anything as the appellant threatened to hit her on the mouth if she would make any noise.4 On October 6, 2001, the appellant and his children this time resided at his parents home in Barangay J.M. Alberto (Poniton), Virac, Catanduanes. At around ten oclock in the evening, AAA was awakened by her fathers arrival. He removed her shorts and underwear as he lowered his own shorts and underwear to his knees, and managed to insert at least an inch of his penis into her vagina for one minute. AAAs struggle proved fruitless as he tightly held her right hand. Again, he threatened to hit her on the mouth if she reported the incident to anyone.5

AAAs experience with her father was repeated on October 14, 2001, at around ten oclock in the evening in the same house. AAA recalled that her father again inserted his penis into her vagina for one minute and moved his buttocks. She struggled, but her father was far stronger. This time, the appellant did not say anything to her. Seven days later, AAA revealed her ordeals to her aunt (the appellants sister). This disclosure led to charges against the appellant for three (3) counts of rape.6 THE RULING OF THE TRIAL COURT At the trial, the prosecution presented AAA7 and the Virac Rural Health Physician who testified that AAA had healed hymenal lacerations.8 The appellant interposed the defenses of denial and alibi. He claimed that he could not have raped AAA on September 10, 2000 as she was then living in Tabaco City (Albay) and he was living inBarangay Sto. Domingo (Catanduanes). He claimed that he could not have raped her on October 6 and 14, 2001 as AAA slept then with his parents in their room. The appellant claimed that AAA made up the rape charges after he spanked her for having gone to the river with a male stranger. He also claimed that this was the first time he hurt any of his children.9 After the trial, the RTC found AAAs testimony to be "steadfast and unequivocal," and convicted appellant for three (3) counts of rape. It sentenced him to suffer the penalty of reclusion perpetua for each count and to pay the amounts of P75,000 and P50,000 as civil liability and moral damages, respectively, for each of the three (3) cases.10 THE RULING OF THE APPELLATE COURT The CA affirmed the RTC Judgment. It ruled that as AAA was a child victimized by her own father, her testimony should be given full weight and credit, more so since it was categorical, straightforward and corroborated by the findings of a medico-legal officer. It held that the lack of contusions on AAAs body did not negate rape; the fact that the appellant is AAAs father who exercised moral ascendancy over her substituted for actual violence. It observed that lust is no respecter of time and place; hence, rape could be committed even in the bedroom of the appellants parents. Finally, the CA, citing People v. Cresencia Tabugoca,11 agreed with the RTC that it was unbelievable that AAA would make up rape charges against her own father just because he had spanked her. The CA agreed with the RTC that the appellants claim (i.e., that he had never hurt any of his children until the spanking incident) was belied by his own son BBB, a defense witness, who testified that appellant was cruel and would hurt his children arbitrarily, especially when he was drunk. The CA affirmed the RTCs Judgment and additionally required the appellant pay the private complainant P25,000 as exemplary damages for each count of rape.12 THE COURTS RULING We affirm the appellants guilt, but modify the awards of moral and exemplary damages. We find no reason to disturb the findings of the RTC, as affirmed by the CA. As we have repeatedly ruled, the trial courts assessment of the credibility of witnesses must be given great respect in the absence of any attendant grave abuse of discretion; the trial court had the advantage of actually examining both real and testimonial evidence, including the demeanor of the witnesses, and is in the best position to rule on their weight and credibility. The rule finds greater application when the CA sustains the findings of the trial court.13 We find that the prosecution successfully established the elements of rape. AAA positively identified the appellant as her rapist. In rape cases, the accused may be convicted solely on the testimony of the victim, provided it is credible, convincing, and consistent with human nature and the normal course of things.14 Our examination of the records shows no indication that we should view AAAs

testimony in a suspicious light. The doctrine in People v. Efren Maglente y Cervantes15 finds particular application in this case: When the offended party is a young and immature girl testifying against a parent, courts are inclined to lend credence to her version of what transpired. Youth and immaturity are given full weight and credit. Incestuous rape is not an ordinary crime that can be easily invented because of its heavy psychological toll. It is unlikely that a young woman of tender years would be willing to concoct a story which would subject her to a lifetime of gossip and scandal among neighbors and friends and even condemn her father to death. The appellants defenses of denial (for the October 6 and 14, 2001 incidents) and alibi (for the September 10, 2000 incident) cannot prevail over AAAs testimony that she had been raped and her positive identification of the appellant as her rapist. Denial and alibi are the weakest of all defenses because they are easy to concoct and fabricate.16 To be believed, denial must be supported by a strong evidence of innocence; otherwise, it is regarded as purely self-serving. Alibi, on the other hand, is rejected when the prosecution sufficiently establishes the identity of the accused.17 The facts in this case do not present any exceptional circumstance warranting a deviation from these established rules. The Proper Penalty The applicable provisions of the Revised Penal Code, as amended by Republic Act No. 8353 (effective October 22, 1997), covering the crime of Rape are Articles 266-A and 266-B, which provide: Article 266-A. Rape. When and How Committed. - Rape is committed: 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, or intimidation; xxxx Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying 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[.] The prosecution firmly established that AAA was under eighteen (18) years of age when the rape incidents occurred, having been born on September 15, 1987.18 The prosecution likewise proved and the defense admitted19 that the appellant is AAAs father.20 The proper penalty for each of the three (3) counts of such qualified rape would be death were it not for Republic Act No. 934621 which reduced the death penalty to reclusion perpetua.
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The Proper Indemnity The Court affirms the award of civil indemnity made by the trial court for each count of rape.22 Civil indemnity is mandatory when rape is found to have been committed.23 Based on prevailing jurisprudence, we affirm the award of P75,000.00 to the rape victim as civil indemnity for each count.24 We, likewise, affirm the award of moral damages made by the trial court for each count of rape. Moral damages are awarded to rape victims without need of proof other than the fact of rape, on the assumption that the victim suffered moral injuries from the experience she underwent.25 We, however, increase the award of P50,000.00 toP75,000.00 based on the prevailing jurisprudence on the award of moral damages in cases of qualified rape.26 We also affirm the award of exemplary damages made by the CA for each count of rape.27 The award of exemplary damages is justified under Article 2229 of the Civil Code to set a public example and serve as deterrent against elders who abuse and corrupt the youth.28 Following jurisprudence on the award of exemplary damages in qualified rape cases,29 the award of P25,000.00 as exemplary damages should be increased to P30,000.00. WHEREFORE, in view of these considerations, we AFFIRM the April 23, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02607, subject to the following MODIFICATIONS: 1. The award of P50,000.00 as moral damages is increased to P75,000.00; and 2. The award of P25,000.00 as exemplary damages is increased to P30,000.00. G.R. No. 181041 February 23, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. FABIAN G. ROMERO, Appellant. DECISION BRION, J.: We resolve the appeal from the July 3, 2007 decision1 of the Court of Appeals (CA) in CA-G.R. CRH.C. No. 00970. The CA affirmed with modification the decision2 of the Regional Trial Court (RTC), Branch 43, Dagupan City, finding Fabian G. Romero (appellant) guilty beyond reasonable doubt of the special complex crime of rape with homicide, and sentencing him to suffer the death penalty. On the evening of September 5, 2004, Joanna Pasaoa, a Grade 2 student, saw her friend, AAA,3 walking towards the appellants house. Joanna followed AAA to the appellants house, and saw her and the appellant watching television together. Thereafter, the appellant instructed Joanna to buy a bottle of Red Horse beer. Joanna handed the bottle of beer to the appellant when she returned, and then went home. After a while, Joanna decided to go back to the appellants house to pickup AAA. When she was about four (4) meters away from the appellants house, she saw the appellant outside his house repeatedly stabbing AAA. Joanna ran away and reported the incident to her mother.

At around 8:00 p.m. of the same day, BBB, AAAs father, went to his brother-in-law, CCC, and asked the latter to help him search for AAA. When they passed by the appellants place, they saw the appellant pouring liquid into a fire. They approached the appellant, but the latter fled towards his house. BBB and CCC inspected what the appellant was burning, and saw partially burnt grasses and clothes. Thereafter, they saw AAAs lifeless body covered with grass, one (1) meter away from the fire. AAAs body was half-naked and partially burnt; it also bore multiple stab wounds. CCC lifted AAAs body, while BBB stayed and shouted invectives at the appellant. Thereafter, the townspeople and barangay officials arrived and surrounded the appellants house. Soon after, the police came and arrested the appellant. The prosecution charged the appellant before the RTC with the special complex crime of rape with homicide. The appellant denied the charges against him, and claimed that he was drinking with his buddies until 8:30 p.m. on September 5, 2004. The RTC found the appellant guilty beyond reasonable doubt of the crime charged, and imposed the death penalty. It also ordered the appellant to pay the victims heirs the following amounts: P75,000.00 as civil indemnity;P50,000.00 as moral damages; and P40,000.00 as exemplary damages. On appeal, the CA affirmed the RTC decision with the following modifications: (1) the penalty of death was reduced to reclusion perpetua without eligibility for parole; (2) civil indemnity was increased to P100,000.00; (3) moral damages was increased to P75,000.00; (4) exemplary damages was increased to P100,000.00; and (5) the appellant was further ordered to pay the victims heirs P25,000.00 as temperate damages. The CA held that Joanna positively identified the appellant as the person who repeatedly stabbed the victim. It also gave weight to the physicians finding that the victim had been sexually abused before she was killed. It further ruled that the pieces of evidence obtained at the appellants house were admissible. We deny the appeal, but reduce the amount of exemplary damages. In the special complex crime of rape with homicide, both the rape and the homicide must be established beyond reasonable doubt.4 The prosecution for this crime is particularly difficult since the victim can no longer testify against the perpetrator of the crime.5 Thus, resort to circumstantial evidence is usually unavoidable.6 Circumstantial evidence consists of proof of collateral facts and circumstances from which the main fact in issue may be inferred based on reason and common experience. Under Section 4, Rule 133 of the Revised Rules of Court, circumstantial evidence is sufficient for conviction if the following requisites concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been established; and (c) the combination of all the circumstances unavoidably leads to a finding of guilt beyond reasonable doubt.7 These circumstances must be consistent with one another, and the only rational hypothesis that can be drawn therefrom must be the guilt of the accused. In the present case, no one witnessed AAA being raped. Nonetheless, the following circumstances form a solid and unbroken chain of events that leads us to conclude beyond reasonable doubt that the appellant had raped the victim: first, AAA and the appellant were seen watching television

together at the latters house; second, AAAs half-naked, partially burnt and lifeless body was seen outside the appellants house, one (1) meter away from where the appellant had been seen burning clothes; third, AAAs legs were spread apart, and the labia of her private part was gaping when her body was found; fourth, Dr. Jesus Arturo De Vera, the Municipal Health Officer of Calasiao, Pangasinan, testified that AAA had hymenal lacerations at 4, 7 and 10 oclock positions, and anal lacerations at 7 and 10 oclock positions; fifth, Dr. De Vera stated that AAAs anal and hymenal lacerations could have been caused by a hard object like an erect penis; sixth, Nerigo Daciego, the Medico-Legal Officer of the Philippine National Police (PNP) Crime Laboratory, saw positive signs of anal and vaginal penetrations on AAA; and finally, Daciego testified that AAA had been raped when she was still alive due to the presence of amucosal erosion on her anal and vaginal tissues. These circumstances, taken together, lead to no other conclusion than that the appellant, to the exclusion of others, had raped AAA. The prosecution likewise established that the appellant had killed AAA. Joanna positively identified the appellant as the person who repeatedly stabbed AAA. The lower courts found her testimony convincing and credible. We have no reason to doubt Joannas identification of the appellant, as the records show that she was merely four (4) meters away from the incident and that the area was illuminated by a light coming from the appellants house. The defense likewise did not impute any ill motive on her part to falsely testify against the appellant. At any rate, findings of the trial court pertaining to the credibility of witnesses are entitled to great respect; the trial court has the distinct opportunity of viewing the demeanor of the witnesses as they testify, and of judging based on its firsthand observation whether their witnesses are telling the truth.
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Joannas testimony was also corroborated by Dr. De Vera and Daciego who both stated that the victim suffered, among others, 29 stab wounds. In addition, the following pieces of physical evidence found at the appellants house lead to no conclusion other than the appellants guilt: a kitchen knife with bloodstains; a wet towel stained with blood; bloodstains at the door of his house; and a broomstick, T-shirt, pillow case and blanket, all with bloodstains. The PNP Crime Laboratory found that these bloodstains contained "female genes." We do not find the appellants uncorroborated alibi and denial believable as they contradict the testimonial and physical evidence presented by the prosecution. Alibi and denial necessarily fail when there is positive evidence of the physical presence of the accused at the crime scene, as in this case. While correct in all the above respects, the CA committed an overreach in the award of exemplary damages. Pursuant to prevailing jurisprudence, we have to reduce this award from P100,000.00 to P50,000.00.8 WHEREFORE, premises considered, we AFFIRM the July 3, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00970, with the MODIFICATION that the award of exemplary damages is REDUCED to P50,000.00. SO ORDERED. G.R. No. 186271 February 23, 2011

CHATEAU DE BAIE CONDOMINIUM CORPORATION, Petitioner, vs. SPS. RAYMOND and MA. ROSARIO MORENO, Respondents.

DECISION BRION, J.: Before us is the petition for review on certiorari with prayer for a temporary restraining order filed by Chateau de Baie Condominium Corporation (petitioner) challenging the decision1 of the Court of Appeals (CA) that dismissed its petition for certiorari, prohibition and mandamus. The petition, the CA ruled upon, questioned the ruling2 of the Regional Trial Court (RTC), Branch 258, Paraaque City, that denied the petitioners motion to dismiss the complaint filed by respondent spouses Raymond and Ma. Rosario Moreno. This case is the second of two related cases submitted to us involving the condominium unit of Ma. Rosario Moreno. We had decided the first case Oscar S. Salvacion v. Chateau de Baie Condominium Corporation, G.R. No. 1785493 and our ruling has attained finality. The Facts Mrs. Moreno is the registered owner of a penthouse unit and two parking slots in Chateau de Baie Condominium (Chateau Condominium) in Roxas Boulevard, Manila. These properties are covered by Condominium Certificates of Title (CCT) Nos. 4153, 4154, and 4155 (Moreno properties). As a registered owner in Chateau Condominium, Mrs. Moreno is a member/stockholder of the condominium corporation. Mrs. Moreno obtained a loan of P16,600,000.00 from Oscar Salvacion, and she mortgaged the Moreno properties as security; the mortgage was annotated on the CCTs. Under Section 20 of Republic Act (R.A.) No. 4726 (the Condominium Act),4 when a unit owner fails to pay the association dues, the condominium corporation can enforce a lien on the condominium unit by selling the unit in an extrajudicial foreclosure sale. On November 23, 2001, the petitioner caused the annotation of a Notice of Assessment on the CCTs of the Moreno properties for unpaid association dues amounting to P323,870.85. It also sent a demand letter to the Moreno spouses who offered to settle their obligation, but the petitioner declined the offer. Subsequently, to enforce its lien, the president of the petitioner wrote the Clerk of Court/ExOfficio Sheriff of Paraaque City for the extrajudicial public auction sale of the Moreno properties. The extrajudicial sale was scheduled on February 10, 2005.5 The first case - the Salvacion Case (Civil Case No. 05-0061; CA-G.R. SP No. 90339; and G.R. No. 178549) To stop the extrajudicial sale, Salvacion, as mortgagee, filed, on February 3, 2005, a petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction before the RTC, Branch 196, Paraaque City. The case was docketed as Civil Case No. 05-0061.6 The petition sought to prohibit the scheduled extrajudicial sale for lack of a special power to sell from the registered owner as mandated by Act No. 3135,7 and to declare the lien to be excessive. On February 9, 2005, the RTC dismissed Salvacions petition and denied the injunctive relief for lack of merit. The extrajudicial sale proceeded as scheduled, and the Moreno properties were sold to the

petitioner, the lone bidder, for P1,328,967.12. The RTC denied Salvacions motion for reconsideration. Salvacion went to the CA via a petition for certiorari and prohibition (CA-G.R. SP No. 90339) and, among others, submitted the issue of whether the RTC erred in finding Section 5, Article 4 of the ByLaws of the petitioner as blanket authority to institute an extrajudicial foreclosure, contrary to Section 20 of R.A. No. 4726 and Section 1 of Act No. 3135. On February 27, 2007, the CAs Third Division ruled that Act No. 3135 covers only real estate mortgages and is intended merely to regulate the extrajudicial sale of mortgaged properties. It held that R.A. No. 4726 is the applicable law because it is a special law that exclusively applies to condominiums. Thus, the CA upheld the validity of the extrajudicial sale.8 It ruled that R.A. No. 4726 does not require a special authority from the condominium owner before a condominium corporation can initiate a foreclosure proceeding. It additionally observed that Section 5 of the By-Laws of the petitioner provides that it has the authority to avail of the remedies provided by law, whether judicial or extrajudicial, to collect unpaid dues and other charges against a condominium owner. The CAs Third Division also denied Salvacions motion for reconsideration.9 Salvacion appealed to this Court through a petition for review on certiorari.10 The Courts Third Division denied the petition for technical infirmities and for failing to show that the CA committed any reversible error. An entry of judgment was made on January 24, 2008.11 The present case the Moreno Case (Civil Case No. 05-0183 and CA-G.R. SP No. 93217) While the Salvacion case was pending before the CA, the Moreno spouses filed before the RTC, Paraaque City, a complaint for intra-corporate dispute against the petitioner12 to question how it calculated the dues assessed against them, and to ask an accounting of the association dues. They asked for damages and the annulment of the foreclosure proceedings, and prayed for the issuance of a writ of preliminary injunction. The case was raffled to Branch 258 and was docketed as Civil Case No. 05-0183. The petitioner moved to dismiss the complaint on the ground of lack of jurisdiction, alleging that since the complaint was against the owner/developer of a condominium whose condominium project was registered with and licensed by the Housing and Land Use Regulatory Board (HLURB), the HLURB has the exclusive jurisdiction. In an order dated October 15, 2005,13 the RTC denied the motion to dismiss because it was a prohibited pleading under the Interim Rules of Procedure Governing Intra-Corporate Controversies.14 It likewise ordered the motion to dismiss expunged from the records, and declared the petitioner in default for failing to answer within the reglementary period. The RTC denied the petitioners motion for reconsideration in its order of January 20, 2006.15 The petitioner went to the CA via a petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court. It alleged grave abuse of discretion on the part of the RTC for not dismissing the Moreno spouses complaint because (1) the Moreno spouses are guilty of forum shopping, (2) of litis pendencia, and (3) the appeal pending before the CA (CA-G.R. SP No. 90339 [SPL CV No. 050061]). The CAs First Division denied the petition in its decision of August 29, 2008.16 It found no grave abuse of discretion on the part of the RTC because the complaint involved an intra-corporate dispute. It ruled:

Since the instant civil case involves an intra-corporate controversy, it is the RTC which has jurisdiction over the same pursuant to R.A. 8799 otherwise known as the Securities Regulation Code and Section 9 of the Interim Rules. The public respondent indeed correctly applied the provisions of the Interim Rules. And under Section 8(1), Rule 1 thereof, it is expressly stated that a Motion to Dismiss is a prohibited pleading. Thus, the motion to dismiss on the ground of lack of jurisdiction filed by petitioner must necessarily be denied and expunged from the record. Petitioner should have instead averred its defense of lack of jurisdiction and even the issue of forum shopping in its Answer. Section 6, par. (4), Rule 2 of the Interim Rules, explicitly provides that in the Answer, the defendant can state the defenses, including the grounds for a motion to dismiss under the Rules of Court. Considering that the motion to dismiss filed by private respondent is a prohibited pleading, hence, it did not toll the running of the period for filing an Answer, the public respondent properly declared the petitioner in default for its failure to file its Answer within fifteen (15) days from its receipt of summons.17 The CAs First Division also denied the petitioners motion for reconsideration;18 hence, this appeal by way of a Rule 45 petition. The Issue The petitioner submits this sole issue for our consideration: WITH DUE RESPECT, THE COURT OF APPEALS ERRED IN NOT DISMISSING THE COMPLAINT IN VIEW OF THE DECISION RENDERED BY ANOTHER DIVISION OF THE COURT OF APPEALS IN CA-G.R. SP. NO. 90339 ENTITLED OSCAR S. SALVACION VS. ATTY. CLEMENTE E. BOLOY, IN HIS CAPACITY AS EX-OFFICIO SHERIFF, OFFICE OF THE CLERK OF COURT, REGIONAL TRIAL COURT, PARAAQUE CITY, BRANCH 196 AND CHATEAU DE BAIE CONDOMINIUM CORPORATION SUSTAINING THE VALIDITY OF THE [EXTRAJUDICIAL] PUBLIC AUCTION OF THE CONDOMINIUM UNIT AND PARKING SLOTS OWNED BY RESPONDENT MA. ROSARIO MORENO, WHICH DECISION BECAME FINAL AND EXECUTORY ON JANUARY 24, 2008.19 The Courts Ruling We deny the petition for lack of merit. The CA did not err when it did not dismiss the Moreno spouses complaint despite the full completion of the extrajudicial sale. The case before the RTC involved an intra-corporate dispute the Moreno spouses were asking for an accounting of the association dues and were questioning the manner the petitioner calculated the dues assessed against them. These issues are alien to the first case that was initiated by Salvacion a third party to the petitioner-Moreno relationship to stop the extrajudicial sale on the basis of the lack of the requirements for a valid foreclosure sale. Although the extrajudicial sale of the Moreno properties to the petitioner has been fully effected and the Salvacion petition has been dismissed with finality, the completion of the sale does not bar the Moreno spouses from questioning the amount of the unpaid dues that gave rise to the foreclosure and to the subsequent sale of their properties. The propriety and legality of the sale of the condominium unit and the parking spaces questioned by Salvacion are different from the propriety and legality of the unpaid assessment dues that the Moreno spouses are questioning in the present case.
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The facts of this case are similar to the facts in Wack Wack Condominium Corporation, et al. v. Court of Appeals, et al.,20 where we held that the dispute as to the validity of the assessments is purely an intra-corporate matter between Wack Wack Condominium Corporation and its stockholder,

Bayot, and is, thus, within the exclusive original jurisdiction of the Securities and Exchange Commission (SEC).21 We ruled in that case that since the extrajudicial sale was authorized by Wack Wack Condominium Corporations by-laws and was the result of the nonpayment of the assessments, the legality of the foreclosure was necessarily an issue within the exclusive original jurisdiction of the SEC. We added that: Just because the property has already been sold extrajudicially does not mean that the questioned assessments have now become legal and valid or that they have become immaterial. In fact, the validity of the foreclosure depends on the legality of the assessments and the issue must be determined by the SEC if only to insure that the private respondent was not deprived of her property without having been heard. If there were no valid assessments, then there was no lien on the property, and if there was no lien, what was there to foreclose? Thus, SEC Case No. 2675 has not become moot and academic and the SEC retains its jurisdiction to hear and decide the case despite the extrajudicial sale.22 Based on the foregoing, we affirm the decision of the CAs First Division dismissing the petitioners petition. The way is now clear for the RTC to continue its proceedings on the Moreno case. WHEREFORE, premises considered, we DENY the petition for review on certiorari and AFFIRM the Decision, dated August 29, 2008, and the Resolution, dated February 5, 2009, of the Court of Appeals in CA-G.R. SP No. 93217. The Regional Trial Court, Branch 258, Paraaque City is directed to continue its proceedings in Civil Case No. 05-0183. Costs against the petitioner. SO ORDERED. G.R. No. 188323 February 21, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. CHARLIE ABAO y CAARES, Appellant. RESOLUTION BRION, J.: We decide, through this Resolution, the appeal filed by appellant Charlie Abao y Caares from the decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03060. On October 5, 2005, appellant Charlie Abao y Caares was accused of murder1 in the Regional Trial Court (RTC), Branch 62, Naga City, 2 under the following Information: That on or about the 3rd day of October, 2005 at around 10:00 P.M. at Brgy. Del Socorro, Municipality of Minalabac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously, attack, assault and hack one CESAR CABASE y SAN JUAQUIN, with a bolo causing him to sustain fatal wounds on the different parts of his body and head which caused his instantaneous death, to the damage and prejudice of his heirs as shall be proven in court.3 The appellant pleaded not guilty. In the trial that followed, an eyewitness, the victims wife Richelda Madera Cabase, testified on the details of the crime.

At about 10:00 p.m. of October 3, 2005, the victim (Cesar Cabase) was asleep in the room of their hut in Del Socorro, Minalabac, Camarines Sur, together with his youngest daughter (Criselda) and grandson. The room was illuminated by an outside kerosene lamp. While Richelda was about to join her sleeping family, the appellant suddenly barged into the room, focused a flashlight on the victim, and began hacking him with a bolo. Out of fear, Richelda retreated to a corner of the room while embracing her grandson. The appellant thereafter focused his flashlight on Richelda, but Criselda started crying. At that point, the appellant left.4 Medico-legal findings revealed that multiple hack wounds with skull fractures caused the victims death.5 The victims family claimed to have spent P26,535.00 as funeral and burial expenses, but could only support P5,035.00 with receipts.6 The appellant, interposing the defense of alibi, claimed that he was asleep at the night of the killing at the farm of Antonio Almediere at Zone 5, Del Socorro, Minalabac, about 300 meters away from the scene of the crime.7 In its October 9, 2007 decision, the RTC convicted the appellant of the crime of murder mainly based on the eyewitness testimony of the victim's wife, Richelda. The trial court found her credible, consistent, and free of ill motive to testify against the appellant whom she knew well because he had previously lived with them for four years. It noted that the victims house was illuminated by a kerosene lamp that was sufficient for purposes of identification. The RTC appreciated the qualifying circumstance of treachery because the appellant attacked the victim who was asleep and was thus totally incapable of defending himself. But the court disregarded evident premeditation as a qualifying circumstance because it was not duly established at the trial. The RTC sentenced the appellant to reclusion perpetua, and to pay the heirs of the victim P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 in temperate damages.8 On intermediate appellate review, the CA affirmed the judgment of the RTC but deleted the award of temperate damages, finding that only P5,000.00 must be awarded as actual damages since only this amount was proven through receipts.9 From the CA, the case is now with us for final review. We affirm the appellant's guilt. We find no reason to disturb the findings of the RTC, as affirmed by the CA. The eyewitness account of the victim's wife is worthy of belief as it was a straight forward account consistent with the presented physical evidence. The witness had no reason to falsify and she was only interested in having the real killer punished; no motive affecting her credibility was ever imputed against her. On the other hand, the appellant failed to show by convincing evidence that it was physically impossible for him to have been at the scene of the crime during its commission; he was only a short 300 meters away.10 Treachery qualified the killing to murder as the victim was asleep at the time of the assault; the victim could not have possibly defended himself against his assailant.11Since neither aggravating nor mitigating circumstances attended the commission of the felony, the lower courts properly imposed the penalty of reclusion perpetua.
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While we affirm the CAs factual findings and the imprisonment imposed, we find it necessary to modify the civil liability of the appellant. Since the receipted expenses of the victim's family was less than P25,000.00, temperate damages should have been awarded in lieu of actual damages.12 With the finding of the qualifying circumstance of treachery, exemplary damages, too, of P30,000.00 should have been awarded.13 WHEREFORE, the November 20, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 03060 is herebyAFFIRMED with MODIFICATION. Appellant Charlie Abao y Caares is found guilty

of murder, as defined and penalized under Article 248 of the Revised Penal Code, and is sentenced to reclusion perpetua. He is further ordered to pay the heirs of Cesar Cabase P50,000.00 as civil indemnity ex delicto, P50,000.00 as moral damages,P25,000.00 as temperate damages, and P30,000.00 as exemplary damages. SO ORDERED. G.R. No. 189328 PEOPLE OF THE PHILIPPINES, Appellee, vs. ARNOLD PELIS, Appellant. RESOLUTION BRION, J.: We decide, through this Resolution, the appeal filed by appellant Arnold Pelis from the decision of the Court of Appeals (CA) in CA G.R. CR-H.C. No. 02932. On April 27, 2004, appellant Arnold Pelis, together with Mario Lito Entura, were accused of murder1 in the Regional Trial Court (RTC), Branch 81, Quezon City, 2 under the following Information: That on or about [the] 19th day of February [2004], in Quezon City, Philippines, the said accused, conspiring together, and mutually helping each other, with intent to kill qualified by evident premeditation and treachery and abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of ROLANDO JUAN Y SAN DIEGO by then and there stabbing him with the use of [a] bladed weapon, thereby inflicting upon him serious and grave wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of ROLANDO JUAN Y SAN DIEGO.3 The appellant, upon arraignment, pleaded not guilty. His co-accused, Entura, remained at large. An eyewitness, Mario Makahilig, testified on the details of the crime. At about 10:00 p.m. of February 19, 2004, the victim, Rolando Juan, was sitting with some companions inside the Top 40 Videoke Bar located in Zabarte Road, Novaliches, Quezon City, when the appellant and Entura came and, acting together and using knives, stabbed the victim. The appellant stabbed the victim once in the abdomen, while Entura stabbed the victims upper left chest. The appellant and Entura then fled from the crime scene.4 The victims companions rushed him to a nearby hospital where he died the next day.5 The postmortem examination on the victims body confirmed that the victim sustained injuries at the thorax and abdomen, and that the cause of his death was the stab wound at the thorax.6 The duly presented receipts show that the victims family spent P30,000.00 for the victims funeral and burial expenses.7 The appellant, interposing the defense of alibi, claimed that he was asleep at his house on Donji St., Zabarte, Quezon City at the time of the killing.8 In its March 9, 2007 Decision,9 the RTC found the appellant guilty beyond reasonable doubt of murder. It gave credence to the positive testimony of prosecution eyewitness Mario Makahilig who,

the trial court found, had no ill-motive to falsely testify against the appellant. The RTC disbelieved the appellants alibi, noting that the appellants house was within a walking distance from the crime scene. It appreciated conspiracy based on the accuseds synchronized and coordinated acts of stabbing the victim. The RTC appreciated the qualifying circumstance of treachery because the appellant stabbed the victim without any previous warning while the victim was sitting and unarmed. The trial court disregarded the allegations of evident premeditation and abuse of superior strength; the presented evidence did not show any planning and preparation made by the appellant to commit the felony, nor proof that the accused purposely used excessive force to ensure the killing of the victim. Based on these premises, the court imposed the penalty of reclusion perpetua, and ordered the accused to pay the heirs of the victim P50,000.00 as civil indemnity, P30,000.00 as actual damages, and P50,000.00 as moral damages. On intermediate appellate review, the CA fully affirmed the RTC decision.10 The case is now before us for our final review. The appellants conviction for murder stands. We find no reason to disturb the RTCs findings, as affirmed by the CA. The eyewitness account of Mario Makahilig is more plausible than the appellants alibi. Positive identification, where categorical, consistent and not attended by any showing of ill motive on the part of the eyewitnesses, prevails over alibi and denial,11 particularly where the appellant had not shown the physical impossibility of his access to the victim at the time and place of the crime.12 The RTC correctly appreciated conspiracy since the simultaneous acts of the accused during the stabbing disclosed a unity of objective.13 Treachery qualified the killing to murder. Although frontal, the attack was unexpected, and the unarmed victim was in no position to repel the attack.14 Since neither aggravating nor mitigating circumstances attended the commission of the felony, the trial court properly imposed the penalty of reclusion perpetua. We find it necessary to modify the civil liability of the appellant to include exemplary damages. Since the killing of the victim was attended by treachery, his heirs are entitled to exemplary damages in the amount of P30,000.00.15
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WHEREFORE, the July 24, 2009 Decision of the Court of Appeals in CA G.R. CR-H.C. No. 02932 is herebyAFFIRMED with MODIFICATION. Appellant Arnold Pelis is found guilty of murder, as defined and penalized under Article 248 of the Revised Penal Code, and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay the heirs of Rolando Juan y San Diego P50,000.00 as civil indemnity ex delicto, P30,000.00 as actual damages, P50,000.00 as moral damages, and P30,000.00 as exemplary damages. SO ORDERED. G.R. No. 189294 February 21, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. HERMINIANO MARZAN Y OLONAN, Appellant. RESOLUTION BRION, J.:

We decide, through this Resolution, the appeal filed by appellant Herminiano Marzan y Olonan from the decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No 00123. On May 10, 1996, appellant Herminiano Marzan y Olonan1 was accused of murder2 in the Regional Trial Court (RTC), Branch 20, Tacurong, Sultan Kudarat,3 under the following Information: That in the afternoon of February 22, [996] at Sitio Valdez, Barangay Romualdez, Municipality of President Quirino, Province of Sultan Kudarat, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, with evident premeditation and treachery, did then and there, willfully, unlawfully and feloniously, attack, assault and strangle one JOSEPH SARMIENTO, an 8[-]year old boy, which directly caused his instantaneous death. CONTRARY TO LAW, particularly Article 248 of the Revised Penal Code of the Philippines, as amended by Republic Act 7659 with the aggravating circumstances of taking advantage of superior strength.4 Appellant, upon arraignment, pleaded not guilty. The antecedent facts and developments are summarized below: At about 4:45 p.m. of February 22, 1996, while farmer Samuel Basalio was gathering grasses near a creek in SitioValdez, Barangay Romualdez, he saw from about 40 meters away, the appellant and eight-year old Joseph Sarmiento (victim) walking towards the creek. About 20 minutes later, Basalio saw the appellant walking alone from the creek going towards the rice field. When the appellant saw Basalio, he stared at him with a "dagger" look, and returned to the creek.5 At 5:00 a.m. the next day, February 23, 1996, Kagawad Dominador Regino saw the appellant who told him that he was going to General Santos City.6 Later that morning, Elizabeth Sarmiento, the mother of the victim asked for assistance to look for her missing son.7 Eventually, Officer-InCharge Barangay Captain Amado Tomas was informed about the missing child. At 11:30 a.m., Amado went to Makar Port with the victims uncle (Antonio Delfinado) after receiving a report that the missing child could be there with the appellant. At the port, Amado sought the assistance of the maritime police in looking for the appellant. The appellant was indeed at the port but ran upon seeing them. The maritime police gave chase and caught him.8 Meanwhile, the body of the victim was found at the creek.9 A postmortem examination revealed that the victim died from strangulation.10 Antonio testified that he spent P10,000.00 for the victims funeral and burial, but failed to present any receipt.11 The appellant denied the charge against him. While admitting that he was with the victim at 1:00 p.m. of February 22, 1996, he claimed that at 4:00 p.m., the victim asked permission to go to the barangay proper of Romualdez and he allowed him to go.12 In its March 20, 1998 decision, the RTC convicted the appellant of murder based on eight pieces of circumstantial evidence, namely: (1) the admission of the appellant that he was with the victim at about 4:00 p.m. of February 22, 1996; (2) evidence that he was seen at about 4:45 p.m. of February 22, 1996 with the victim going towards the creek; (3) evidence that he was seen leaving alone, at about past 5:00 p.m. of February 22, 1996, coming from the creek going towards the direction of Barangay Katiku; (4) the report made to the barangay officials and to the police station in the morning of February 23, 1996 that the victim was missing; (5) evidence that the appellant was seen leaving at about past 5:00 a.m. of February 23, 1996, on board a passenger jeep going to Tacurong; (6) evidence that he was seen at about 2:00 p.m. of February 23, 1996 at the Makar Port by Amado and Antonio; (7) evidence that he ran away upon seeing Amado and Antonio at the Makar Port but

was caught by the maritime police; and, (8) the discovery of the dead body of the victim at about past noon of February 23, 1996 at the creek where the said victim and the appellant had been seen together in the afternoon of February 22, 1996. The RTC appreciated the qualifying circumstance of treachery because the victims weakness due to his tender age resulted in the absence of any danger to the appellant. The trial court sentenced the appellant to reclusion perpetua, and to pay P50,000.00 as civil indemnity to the heirs of the victim and P10,000.00 as actual damages to Antonio Delfinado for the funeral and burial expenses.13 On intermediate appellate review, the Court of Appeals affirmed the judgment of the RTC but modified the appellants civil liability by awarding P50,000.00 as moral damages and P25,000.00 as temperate damages in lieu of actual damages.14 From the appellate court, the case came to us for final review. We affirm the conviction of the appellant. In convicting the accused, the RTC enumerated no less than eight pieces of circumstantial evidence against the appellant. After due consideration, we are satisfied that the evidence adduced against the appellant constitute an unbroken chain that could only lead to the conclusion that the appellant was the perpetrator of the crime. Significantly, this is not the first case where we convicted the accused on a similar set of facts and based solely on circumstantial evidence. In People v. Raymundo Corfin,15 we upheld the conviction of the accused based on evidence showing that: (1) the accused was the last person seen with the victim; (2) the accused and the victim were seen together near a dry creek; (3) the accused was seen leaving the place alone; and (4) the body of the victim was later found in the dry creek. We duly considered the appellants defense of denial a defense that is inherently weak unless supported by other evidence.16 Denial is negative and self-serving and cannot be given greater evidentiary weight over the testimony of a credible witness who positively testified that the appellant was at the locus criminis and was the last person seen with the victim.17 Significantly, the appellant failed to support his denial by any supporting evidence. The RTC correctly appreciated treachery as a qualifying circumstance since a child, by reason of tender years, could not significantly defend himself against the strangulation that he was subjected to.18 Beyond reasonable doubt, the presented evidence, collectively considered, point to no other conclusion than the appellants guilt of the crime of murder. Since neither aggravating nor mitigating circumstances attended the commission of the crime, the penalty of reclusion perpetua was properly imposed.
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The lower courts error in considering and imposing the penalty was in its failure to appreciate the full civil liability of the appellant. Since the killing of the victim was attended by treachery, his heirs are additionally entitled to exemplary damages in the amount of P30,000.00.19 WHEREFORE, the May 27, 2008 decision of the Court of Appeals in CA-G.R. CR-HC. No. 00123 is herebyAFFIRMED with MODIFICATION. Appellant Herminiano Marzan y Olonan is found guilty of murder as defined and penalized in Article 248 of the Revised Penal Code, and is sentenced to reclusion perpetua. He is further ordered to pay the heirs of Joseph Sarmiento P50,000.00 as civil indemnity ex delicto, P50,000.00 as moral damages,P25,000.00 as temperate damages, and P30,000.00 as exemplary damages. SO ORDERED. G.R. No. 188108 February 21, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. EVILIO MILAGROSA, Appellant. R E S O L U T I ON BRION, J.: We decide in this Resolution the appeal filed by appellant Evilio Milagrosa from the November 27, 2008 decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02777. On March 3, 2004, at around 7:00 in the morning, in the Province of Quezon, 16-year old1 AAA2 was alone in their house and had just finished washing the dishes when a person (later identified as Evilio Milagrosa) came. Evilio grabbed AAA and forcibly carried her to a grassy area outside the house. AAA struggled but Evilio, who was stronger, prevailed. She was also frightened when she noticed a balisong tucked at Evilios waist. Evilio removed AAAs clothes, inserted his penis into her vagina, thereby consummating sexual intercourse with AAA. Evilio thereafter left, cautioning AAA not to tell anyone about the incident.3 Evilio was charged with the crime of rape. He argues that he could not have carried AAA to the grassy area as she insisted; it was 7:00 in the morning and the neighbors would have heard her screams. She could also have easily grabbed his balisong and struck him with it. Finally, he raised alibi as his defense stating that he was in Camp Crame at that time. The prosecution presented AAA as its sole witness. AAA testified that she had known Evilio for a long time as he was a friend of her father. She added that their house is in an isolated place; from there, she cannot even see the house of their nearest neighbor.4 After trial, the Regional Trial Court (RTC), Branch 63, Calauag, Quezon, found AAAs testimony credible, and convicted Evilio of the crime of rape. He was sentenced to suffer the penalty of reclusion perpetua and to pay the victim P50,000.00 as civil indemnity and P50,000.00 as moral damages.5 On appeal, the CA ruled that the prosecution successfully proved beyond reasonable doubt the appellants guilt. It found that the positive and competent testimony of AAA was enough to convict Evilio. The CA also reasoned that it was not altogether impossible for Evilio to forcibly carry AAA to the grassy area. Evilio, although 55 years old, was not old or weak; he was then still working as a carpenter. A carpenters job is physical and Evilio had the required physical strength to overpower a 16-year old girl. Neither could AAA be faulted for not grabbing and using Evilios balisong as she did not have the maturity for this kind of reaction and any physical resistance she could have offered would not have been effective. Her screaming, given the remote location of their house, could not have attracted the attention of their nearest neighbors. The CA, thus, affirmed the findings of the lower court.6 Hence, the recourse to this Court for a final review. We affirm the appellants guilt. We find no reason to disturb the findings of the RTC that the CA wholly affirmed. It is well settled that an accused may be convicted of rape based solely on the testimony of the victim, as long as she is competent and credible. The unique nature of the crime of rape (which is usually committed in a private place where only the perpetrator and the rape victim are present)7 allows this evidentiary approach and the conclusion the lower courts reached.

We note that the conduct of the trial and the findings of the trial court indicate no irregularity or grave abuse of discretion to warrant any suspicion about the validity of its findings and conclusions. Time and again, we have held, on the issue of credibility of the victim or of the prosecution witnesses, that the findings of the trial courts carry great weight and respect; generally, appellate courts do not overturn these findings unless the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that can alter the assailed decision or affect the result of the case.8 In this case, we see no reason to alter the findings of the RTC and the affirmation the CA accorded these findings.
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The defense of alibi, presented with no corroborating evidence, also deserves scant consideration. We note in this regards that no record or any witness attesting to the presence of the accused at Camp Crame at the time of the incident, was ever presented. Between the positive and straightforward testimony of AAA and Evilios defense of alibi, the victims testimony deserves great evidentiary weight. Lastly, to conform with recent jurisprudence,9 we modify the CA decision and award exemplary damages in the amount of P30,000.00 on account of the moral corruption, perversity and wickedness of the accused, who is 55 years old, in sexually assaulting a 16-year old girl. WHEREFORE, the November 27, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02777 is hereby AFFIRMED with MODIFICATION, in that, appellant Evilio Milagrosa is additionally ORDERED to PAY the complainant P30,000.00 as exemplary damages. SO ORDERED. ARTURO D. BRION G.R. No. 170979 February 9, 2011

JUDITH YU, Petitioner, vs. HON. ROSA SAMSON-TATAD, Presiding Judge, Regional Trial Court, Quezon City, Branch 105, and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION BRION, J.: We resolve the petition for prohibition filed by petitioner Judith Yu to enjoin respondent Judge Rosa Samson-Tatad of the Regional Trial Court (RTC), Branch 105, Quezon City, from taking further proceedings in Criminal Case No. Q-01-105698, entitled "People of the Philippines v. Judith Yu, et al."1 The Factual Antecedents The facts of the case, gathered from the parties pleadings, are briefly summarized below. Based on the complaint of Spouses Sergio and Cristina Casaclang, an information for estafa against the petitioner was filed with the RTC. In a May 26, 2005 decision, the RTC convicted the petitioner as charged. It imposed on her a penalty of three (3) months of imprisonment (arresto mayor), a fine of P3,800,000.00 with subsidiary

imprisonment, and the payment of an indemnity to the Spouses Casaclang in the same amount as the fine.2 Fourteen (14) days later, or on June 9, 2005, the petitioner filed a motion for new trial with the RTC, alleging that she discovered new and material evidence that would exculpate her of the crime for which she was convicted.3 In an October 17, 2005 order, respondent Judge denied the petitioners motion for new trial for lack of merit.4 On November 16, 2005, the petitioner filed a notice of appeal with the RTC, alleging that pursuant to our ruling in Neypes v. Court of Appeals,5 she had a "fresh period" of 15 days from November 3, 2005, the receipt of the denial of her motion for new trial, or up to November 18, 2005, within which to file a notice of appeal.6 On November 24, 2005, the respondent Judge ordered the petitioner to submit a copy of Neypes for his guidance.7 On December 8, 2005, the prosecution filed a motion to dismiss the appeal for being filed 10 days late, arguing that Neypes is inapplicable to appeals in criminal cases.8 On January 4, 2006, the prosecution filed a motion for execution of the decision.9 On January 20, 2006, the RTC considered the twin motions submitted for resolution. On January 26, 2006, the petitioner filed the present petition for prohibition with prayer for the issuance of a temporary restraining order and a writ of preliminary injunction to enjoin the RTC from acting on the prosecutions motions to dismiss the appeal and for the execution of the decision.10 The Petition The petitioner argues that the RTC lost jurisdiction to act on the prosecutions motions when she filed her notice of appeal within the 15-day reglementary period provided by the Rules of Court, applying the "fresh period rule" enunciated in Neypes. The Case for the Respondents The respondent People of the Philippines, through the Office of the Solicitor General (OSG), filed a manifestation in lieu of comment, stating that Neypes applies to criminal actions since the evident intention of the "fresh period rule" was to set a uniform appeal period provided in the Rules.11 In view of the OSGs manifestation, we required the Spouses Casaclang to comment on the petition.12 In their comment, the Spouses Casaclang aver that the petitioner cannot seek refuge in Neypes to extend the "fresh period rule" to criminal cases because Neypes involved a civil case, and the pronouncement of "standardization of the appeal periods in the Rules" referred to the interpretation of the appeal periods in civil cases, i.e., Rules 40, 41, 42 and 45, of the 1997 Rules of Civil Procedure among others; nowhere in Neypes was the period to appeal in criminal cases, Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, mentioned.13

Issue The core issue boils down to whether the "fresh period rule" enunciated in Neypes applies to appeals in criminal cases. The Courts Ruling We find merit in the petition. The right to appeal is not a constitutional, natural or inherent right it is a statutory privilege and of statutory origin and, therefore, available only if granted or as provided by statutes. It may be exercised only in the manner prescribed by the provisions of the law.14 The period to appeal is specifically governed by Section 39 of Batas Pambansa Blg. 129 (BP 129),15 as amended, Section 3 of Rule 41 of the 1997 Rules of Civil Procedure, and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure. Section 39 of BP 129, as amended, provides: SEC. 39. Appeals. The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from: Provided, however, That in habeas corpus cases, the period for appeal shall be forty-eight (48) hours from the notice of the judgment appealed from. Section 3, Rule 41 of the 1997 Rules of Civil Procedure states: SEC. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. Section 6, Rule 122 of the Revised Rules of Criminal Procedure reads: SEC. 6. When appeal to be taken. An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run. In Neypes, the Court modified the rule in civil cases on the counting of the 15-day period within which to appeal. The Court categorically set a fresh period of 15 days from a denial of a motion for reconsideration within which to appeal, thus: The Supreme Court may promulgate procedural rules in all courts. It has the sole prerogative to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing appeals to it and to the Court of Appeals, particularly Rules 42, 43 and 45, the Court allows extensions of time, based on justifiable and

compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more. To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.16 The Court also reiterated its ruling that it is the denial of the motion for reconsideration that constituted the final order which finally disposed of the issues involved in the case. The raison dtre for the "fresh period rule" is to standardize the appeal period provided in the Rules and do away with the confusion as to when the 15-day appeal period should be counted. Thus, the 15-day period to appeal is no longer interrupted by the filing of a motion for new trial or motion for reconsideration; litigants today need not concern themselves with counting the balance of the 15-day period to appeal since the 15-day period is now counted from receipt of the order dismissing a motion for new trial or motion for reconsideration or any final order or resolution. While Neypes involved the period to appeal in civil cases, the Courts pronouncement of a "fresh period" to appeal should equally apply to the period for appeal in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, for the following reasons: First, BP 129, as amended, the substantive law on which the Rules of Court is based, makes no distinction between the periods to appeal in a civil case and in a criminal case. Section 39 of BP 129 categorically states that "[t]he period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all casesshall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from." Ubi lex non distinguit nec nos distinguere debemos. When the law makes no distinction, we (this Court) also ought not to recognize any distinction.17 Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, though differently worded, mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned the appeal period stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed. Third, while the Court did not consider in Neypes the ordinary appeal period in criminal cases under Section 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case, it did include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review from the RTCs to the Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Section 3 of Rule 122 of the Revised Rules of Criminal Procedure, thus:

SEC. 3. How appeal taken. x x x x (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. xxxx Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45. Clearly, if the modes of appeal to the CA (in cases where the RTC exercised its appellate jurisdiction) and to this Court in civil and criminal cases are the same, no cogent reason exists why the periods to appeal from the RTC (in the exercise of its original jurisdiction) to the CA in civil and criminal cases under Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure should be treated differently. Were we to strictly interpret the "fresh period rule" in Neypes and make it applicable only to the period to appeal in civil cases, we shall effectively foster and encourage an absurd situation where a litigant in a civil case will have a better right to appeal than an accused in a criminal case a situation that gives undue favor to civil litigants and unjustly discriminates against the accusedappellants. It suggests a double standard of treatment when we favor a situation where property interests are at stake, as against a situation where liberty stands to be prejudiced. We must emphatically reject this double and unequal standard for being contrary to reason. Over time, courts have recognized with almost pedantic adherence that what is contrary to reason is not allowed in law Quod est inconveniens, aut contra rationem non permissum est in lege.18 Thus, we agree with the OSGs view that if a delay in the filing of an appeal may be excused on grounds of substantial justice in civil actions, with more reason should the same treatment be accorded to the accused in seeking the review on appeal of a criminal case where no less than the liberty of the accused is at stake. The concern and the protection we must extend to matters of liberty cannot be overstated.
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In light of these legal realities, we hold that the petitioner seasonably filed her notice of appeal on November 16, 2005, within the fresh period of 15 days, counted from November 3, 2005, the date of receipt of notice denying her motion for new trial. WHEREFORE, the petition for prohibition is hereby GRANTED. Respondent Judge Rosa SamsonTatad isDIRECTED to CEASE and DESIST from further exercising jurisdiction over the prosecutions motions to dismiss appeal and for execution of the decision. The respondent Judge is also DIRECTED to give due course to the petitioners appeal in Criminal Case No. Q-01-105698, and to elevate the records of the case to the Court of Appeals for review of the appealed decision on the merits. No pronouncement as to costs. SO ORDERED.

G.R. No. 191560

March 29, 2011

HON. LUIS MARIO M. GENERAL, Commissioner, National Police Commission, Petitioner, vs. HON. ALEJANDRO S. URRO, in his capacity as the new appointee vice herein petitioner HON. LUIS MARIO M. GENERAL, National Police Commission, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x HON. LUIS MARIO M. GENERAL, Commissioner, National Police Commission, Petitioner, vs. President GLORIA MACAPAGAL-ARROYO, thru Executive Secretary LEANDRO MENDOZA, in Her capacity as the appointing power, HON. RONALDO V. PUNO, in His capacity as Secretary of the Department of Interior and Local Government and as Ex-Officio Chairman of the National Police Commission and HON. EDUARDO U. ESCUETA, ALEJANDRO S. URRO, and HON. CONSTANCIA P. DE GUZMAN as the midnight appointees, Respondents. DECISION BRION, J.: Before the Court are the Consolidated Petitions for Quo Warranto,1 and Certiorari and/or Prohibition2 with urgent prayer for the issuance of a temporary restraining order (TRO) and/or preliminary injunction filed by Atty. Luis Mario General (petitioner). The petitioner seeks to declare unconstitutional the appointments of Alejandro S. Urro, Constancia P. de Guzman and Eduardo U. Escueta (collectively, the respondents) as Commissioners of the National Police Commission (NAPOLCOM), and to prohibit then Executive Secretary Leandro Mendoza and Department of Interior and Local Government (DILG) Secretary Ronaldo V. Puno from enforcing the respondents oath of office. Particularly, the petitioner asks that respondent Urro be ousted as NAPOLCOM Commissioner and he be allowed to continue in office. THE ANTECEDENTS On September 20, 2004, then President Gloria Macapagal-Arroyo (PGMA) appointed Imelda C. Roces (Roces) as acting Commissioner of the NAPOLCOM, representing the civilian sector.3 On January 25, 2006, PGMA reappointed Roces as acting NAPOLCOM Commissioner.4 When Roces died in September 2007, PGMA appointed the petitioner on July 21, 20085 as acting NAPOLCOM Commissioner in place of Roces. On the same date, PGMA appointed Eduardo U. Escueta (Escueta) as acting NAPOLCOM Commissioner and designated him as NAPOLCOM Vice Chairman.6 Later, PGMA appointed Alejandro S. Urro (Urro) in place of the petitioner, Constancia P. de Guzman in place of Celia Leones, and Escueta as permanent NAPOLCOM Commissioners. Urros appointment paper is dated March 5, 2010; while the appointment papers of De Guzman and Escueta are both dated March 8, 2010.7 On March 9, 2010, Escueta took his oath of office before Makati Regional Trial Court Judge Alberico Umali.8 In a letter dated March 19, 2010, DILG Head Executive Assistant/Chief-of-Staff Pascual V. Veron Cruz, Jr. issued separate congratulatory letters to the respondents. The letter uniformly reads.

You have just been appointed COMMISSIONER xxx National Police Commission. xxx Attached is your appointment paper duly signed by Her Excellency, President Macapagal Arroyo.9 After being furnished a copy of the congratulatory letters on March 22, 2010,10 the petitioner filed the present petition questioning the validity of the respondents appointments mainly on the ground that it violates the constitutional prohibition against midnight appointments.11 On March 25, 2010 and April 27, 2010, respondents Urro and de Guzman took their oath of office as NAPOLCOM Commissioners before DILG Secretary Puno and Sandiganbayan Associate Justice Jose R. Hernandez, respectively.12 On July 30, 2010, the newly elected President of the Republic of the Philippines, His Excellency Benigno S. Aquino III, issued Executive Order No. 2 (E.O. No. 2) "Recalling, Withdrawing, and Revoking Appointments Issued by the Previous Administration in Violation of the Constitutional Ban on Midnight Appointments." The salient portions of E.O. No. 2 read: SECTION 1. Midnight Appointments Defined. The following appointments made by the former President and other appointing authorities in departments, agencies, offices, and instrumentalities, including government-owned or controlled corporations, shall be considered as midnight appointments: (a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11, 2010, except temporary appointments in the executive positions when continued vacancies will prejudice public service or endanger public safety as may be determined by the appointing authority. (b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that would be vacant only after March 11, 2010. (c) Appointments and promotions made during the period of 45 days prior to the May 10, 2010 elections in violation of Section 261 of the Omnibus Election Code. SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as defined under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise affected are hereby declared vacant. (Emphasis supplied.) THE PETITION The petitioner claims that Roces was supposed to serve a full term of six years counted from the date of her appointment in October (should be September) 2004.13 Since she failed to finish her sixyear term, then the petitioner is entitled to serve this unexpired portion or until October (should be September) 2010.14 The petitioner invokes Republic Act (R.A.) No. 697515 (otherwise known as the Department of the Interior and Local Government Act of 1990) which requires that vacancies in the NAPOLCOM "shall be filled up for the unexpired term only."16Because of the mandatory word "shall," the petitioner concludes that the appointment issued to him was really a "regular" appointment, notwithstanding what appears in his appointment paper. As a regular appointee, the petitioner argues that he cannot be removed from office except for cause. The petitioner alternatively submits that even if his appointment were temporary, a temporary appointment does not give the President the license to abuse a public official simply because he

lacks security of tenure.17 He asserts that the validity of his termination from office depends on the validity of the appointment of the person intended to replace him. He explains that until a presidential appointment is "officially released," there is no "appointment" to speak of. Since the appointment paper of respondent Urro, while bearing a date prior to the effectivity of the constitutional ban on appointments,18 was officially released (per the congratulatory letter dated March 19, 2010 issued to Urro) when the appointment ban was already in effect, then the petitioners appointment, though temporary in nature, should remain effective as no new and valid appointment was effectively made. The petitioner assails the validity of the appointments of respondents De Guzman and Escueta, claiming that they were also made in violation of the constitutional ban on appointments. THE COMMENTS OF THE RESPONDENTS and THE OFFICE OF THE SOLICITOR GENERAL (OSG) Prefatorily, the respondents characterize Escuetas inclusion in the present petition as an error since his appointment, acceptance and assumption of office all took place before the constitutional ban on appointments started. Thus, there is no "case or controversy" as to Escueta. The respondents posit that the petitioner is not a real party-in-interest to file a petition for quo warranto since he was merely appointed in an acting capacity and could be validly removed from office at anytime. The respondents likewise counter that what the ban on midnight appointments under Section 15, Article VII of the Constitution prohibits is only the making of an appointment by the President sixty (60) days before the next presidential elections and until his term expires; it does not prohibit the acceptance by the appointee of his appointment within the same prohibited period.19 The respondents claim that "appointment" which is a presidential act, must be distinguished from the "acceptance" or "rejection" of the appointment, which is the act of the appointee. Section 15, Article VII of the Constitution is directed only against the President and his act of appointment, and is not concerned with the act/s of the appointee. Since the respondents were appointed (per the date appearing in their appointment papers) before the constitutional ban took effect, then their appointments are valid. The respondents assert that their appointments cannot be considered as midnight appointments under the Dominador R. Aytona v. Andres V. Castillo, et al.20 ruling, as restated in In Re: Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela, et al.21 and Arturo M. de Castro v. Judicial and Bar Council, et al.,22 since the petitioner failed to substantiate his claim that their appointments were made only "for the purpose of influencing the Presidential elections," or for "partisan reasons."23 The respondents pray for the issuance of a TRO to stop the implementation of E.O. No. 2, and for the consolidation of this case with the pending cases of Tamondong v. Executive Secretary24 and De Castro v. Office of the President25 which similarly assail the validity of E.O. No. 2. On the other hand, while the OSG considers the respondents appointments within the scope of "midnight appointments" as defined by E.O. No. 2, the OSG nonetheless submits that the petitioner is not entitled to the remedy of quo warranto in view of the nature of his appointment. The OSG claims that since an appointment in an acting capacity cannot exceed one year, the petitioners appointment ipso facto expired on July 21, 2009.26 PETITIONERS REPLY

The petitioner argues in reply that he is the legally subsisting commissioner until another qualified commissioner is validly appointed by the new President to replace him.27 The petitioner likewise claims that the respondents appeared to have skirted the element of issuance of an appointment in considering whether an appointment is made. The petitioner asserts that to constitute an appointment, the Presidents act of affixing his signature must be coupled with the physical issuance of the appointment to the appointee i.e., the appointment paper is officially issued in favor of the appointee through the Presidents proper Cabinet Secretary. The making of an appointment is different from its issuance since prior to the official issuance of an appointment, the appointing authority enjoys the prerogative to change his mind. In the present case, the respondents appointment papers were officially issued and communicated to them only on March 19, 2010, well within the period of the constitutional ban, as shown by the congratulatory letters individually issued to them. Given this premise, the petitioner claims that he correctly impleaded Escueta in this case since his appointment also violates the Constitution. The petitioner adds that Escueta was appointed on July 21, 2008, although then as acting NAPOLCOM Commissioner. By permanently appointing him as NAPOLCOM Commissioner, he stands to be in office for more than six years, in violation of R.A. No. 6975.28 The petitioner argues that even granting that the President can extend appointments in an acting capacity to NAPOLCOM Commissioners, it may not be done by "successive appointments" in the same capacity without violating R.A. No. 6975, as amended, which provides a fixed and staggered term of office for NAPOLCOM Commissioners.29 THE COURTS RULING We dismiss the petition for lack of merit. When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are present: (1) the existence of an actual and appropriate case; (2) the existence of personal and substantial interest on the part of the party raising the constitutional question; (3) recourse to judicial review is made at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.30 Both parties dwelt lengthily on the issue of constitutionality of the respondents appointments in light of E.O. No. 2 and the subsequent filing before the Court of several petitions questioning this Executive Order. The parties, however, appear to have overlooked the basic principle in constitutional adjudication that enjoins the Court from passing upon a constitutional question, although properly presented, if the case can be disposed of on some other ground.31 In constitutional law terms, this means that we ought to refrain from resolving any constitutional issue "unless the constitutional question is the lis mota of the case." Lis mota literally means "the cause of the suit or action." This last requisite of judicial review is simply an offshoot of the presumption of validity accorded the executive and legislative acts of our co-equal branches of the government. Ultimately, it is rooted in the principle of separation of powers. Given the presumed validity of an executive act, the petitioner who claims otherwise has the burden of showing first that the case cannot be resolved unless the constitutional question he raised is determined by the Court.32 In the present case, the constitutionality of the respondents appointments is not the lis mota of the case. From the submitted pleadings, what is decisive is the determination of whether the petitioner

has a cause of action to institute and maintain this present petition a quo warranto against respondent Urro. If the petitioner fails to establish his cause of action for quo warranto, a discussion of the constitutionality of the appointments of the respondents is rendered completely unnecessary. The inclusion of the grounds for certiorari and/or prohibition does not alter the essential character of the petitioners action since he does not even allege that he has a personal and substantial interest in raising the constitutional issue insofar as the other respondents are concerned. The resolution of whether a cause of action exists, in turn, hinges on the nature of the petitioners appointment. We frame the issues under the following questions: 1. What is the nature of the petitioners appointment as acting NAPOLCOM Commissioner? 2. Does the petitioner have the clear right to be reinstated to his former position and to oust respondent Urro as NAPOLCOM Commissioner? I. Nature of petitioners appointment a. A staggered term of office is not inconsistent with an acting appointment The petitioner asserts that contrary to what appears in his appointment paper, the appointment extended to him was really a regular appointment; thus, he cannot be removed from office except for cause. The petitioner argues that the appointment of an acting NAPOLCOM Commissioner or, at the very least, the "successive appointments" of NAPOLCOM Commissioners in an acting capacity contravenes the safeguards that the law - R.A. No. 697533 - intends through the staggered term of office of NAPOLCOM Commissioners. Notably, the petitioner does not expressly claim that he was issued a permanent appointment; rather, he claims that his appointment is actually a regular appointment since R.A. No. 6975 does not allegedly allow an appointment of a NAPOLCOM Commissioner in an acting capacity. At the outset, the petitioners use of terms needs some clarification. Appointments may be classified into two: first, as to its nature; and second, as to the manner in which it is made.34 Under the first classification, appointments can either be permanent or temporary (acting). A basic distinction is that a permanent appointee can only be removed from office for cause; whereas a temporary appointee can be removed even without hearing or cause.35 Under the second classification, an appointment can either be regular or ad interim. A regular appointment is one made while Congress is in session, while an ad interim appointment is one issued during the recess of Congress. In strict terms, presidential appointments that require no confirmation from the Commission on Appointments36 cannot be properly characterized as either a regular or an ad interim appointment. In this light, what the petitioner may have meant is a permanent (as contrasted to a temporary or acting) appointment to the office of a NAPOLCOM Commissioner, at least for the duration of the unexpired portion of his predecessor (Roces). Generally, the power to appoint vested in the President includes the power to make temporary appointments, unless he is otherwise specifically prohibited by the Constitution or by the law, or where an acting appointment is repugnant to the nature of the office involved.37 The Presidents power to issue an acting appointment is particularly authorized by the Administrative Code of 1987 (Executive Order No. 292).

CHAPTER 5 POWER OF APPOINTMENT Section 16. Power of Appointment. - The President shall exercise the power to appoint such officials as provided for in the Constitution and laws. Section 17. Power to Issue Temporary Designation. (1) The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: (a) the officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) there exists a vacancy; (2) xxx (3) In no case shall a temporary designation exceed one (1) year. The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by authorizing a person to discharge those functions pending the selection of a permanent or another appointee. An acting appointee accepts the position on the condition that he shall surrender the office once he is called to do so by the appointing authority. Therefore, his term of office is not fixed but endures at the pleasure of the appointing authority. His separation from the service does not import removal but merely the expiration of his term a mode of termination of official relations that falls outside the coverage of the constitutional provision on security of tenure38 since no removal from office is involved. The power to appoint is essentially executive in nature39 and the limitations on or qualifications in the exercise of this power are strictly construed.40 In the present case, the petitioner posits that the law itself, R.A. No. 6975, prohibits the appointment of a NAPOLCOM Commissioner in an acting capacity by staggering his term of office. R.A. No. 6975, on the term of office, states: Section 16. Term of Office. The four (4) regular and full-time Commissioners shall be appointed by the President upon the recommendation of the Secretary. Of the first four (4) commissioners to be appointed, two (2) commissioners shall serve for six (6) years and the two (2) other commissioners for four (4) years. All subsequent appointments shall be for a period of six (6) years each, without reappointment or extension. Generally, the purpose for staggering the term of office is to minimize the appointing authoritys opportunity to appoint a majority of the members of a collegial body. It also intended to ensure the continuity of the body and its policies.41 A staggered term of office, however, is not a statutory prohibition, direct or indirect, against the issuance of acting or temporary appointment. It does not negate the authority to issue acting or temporary appointments that the Administrative Code grants. Ramon P. Binamira v. Peter D. Garrucho, Jr.,42 involving the Philippine Tourism Authority (PTA), is an example of how this Court has recognized the validity of temporary appointments in vacancies in offices whose holders are appointed on staggered basis. Under Presidential Decree (P.D.) No. 189,43 (the charter of the PTA, as amended by P.D. No. 56444 and P.D. No. 140045), the members of the PTAs governing body are all presidential appointees whose terms of office are also staggered.46 This, notwithstanding, the Court sustained the temporary character of the appointment extended by the President in favor of the PTA General Manager, even if the law47 also fixes his term of office at six years unless sooner removed for cause.

Interestingly, even a staggered term of office does not ensure that at no instance will the appointing authority appoint all the members of a body whose members are appointed on staggered basis. The post-war predecessor of the NAPOLCOM was the Police Commission created under R.A. No. 4864.48Pursuant to the 1987 constitutional provision mandating the creation of one national civilian police force,49Congress enacted R.A. No. 6975 and created the NAPOLCOM to exercise, inter alia, "administrative control over the Philippine National Police." Later, Congress enacted R.A. No. 8551 which substantially retained the organizational structure, powers and functions of the NAPOLCOM.50 Under these laws, the President has appointed the members of the Commission whose terms of office are staggered. Under Section 16 of R.A. No. 6975, the NAPOLCOM Commissioners are all given a fixed term of six years (except the two of the first appointees who hold office only for four years). By staggering their terms of office however, the four regular commissioners would not vacate their offices at the same time since a vacancy will occur every two years. Under the NAPOLCOM set up, the law does not appear to have been designed to attain the purpose of preventing the same President from appointing all the NAPOLCOM Commissioners by staggering their terms of office. R.A. No. 6975 took effect on January 1, 1991. In the usual course, the term of office of the first two regular commissioners would have expired in 1997, while the term of the other two commissioners would have expired in 1995. Since the term of the President elected in the first national elections under the 1987 Constitution expired on June 30, 1998, then, theoretically, the sitting President for the 1992-1998 term could appoint all the succeeding four regular NAPOLCOM Commissioners. The next President, on the other hand, whose term ended in 2004, would have appointed the next succeeding Commissioners in 2001 and 2003. It is noteworthy, too, that while the Court nullified the attempt of Congress to consider the terms of office of the then NAPOLCOM Commissioners as automatically expired on the ground that there was no bona fide reorganization of the NAPOLCOM,51 a provision on the staggering of terms of office is evidently absent in R.A. No. 8551 - the amendatory law to R.A. No. 6975. Section 7 of R.A. No. 8551 reads: Section 7. Section 16 of Republic Act No. 6975 is hereby amended to read as follows: "SEC. 16. Term of Office. The four (4) regular and full-time Commissioners shall be appointed by the President for a term of six (6) years without re-appointment or extension." Thus, as the law now stands, the petitioners claim that the appointment of an acting NAPOLCOM Commissioner is not allowed based on the staggering of terms of office does not even have any statutory basis. Given the wide latitude of the Presidents appointing authority (and the strict construction against any limitation on or qualification of this power), the prohibition on the President from issuing an acting appointment must either be specific, or there must be a clear repugnancy between the nature of the office and the temporary appointment. No such limitation on the Presidents appointing power appears to be clearly deducible from the text of R.A. No. 6975 in the manner we ruled in Nacionalista Party v. Bautista.52 In that case, we nullified the acting appointment issued by the President to fill the office of a Commissioner of the Commission on Elections (COMELEC) on the ground that it would undermine the independence of the COMELEC. We ruled that given the specific nature of the functions performed by COMELEC Commissioners, only a permanent appointment to the office of a COMELEC Commissioner can be made.

Under the Constitution, the State is mandated to establish and maintain a police force to be administered and controlled by a national police commission. Pursuant to this constitutional mandate, the Congress enacted R.A. No. 6975, creating the NAPOLCOM with the following powers and functions:53 Section 14. Powers and Functions of the Commission. The Commission shall exercise the following powers and functions: (a) Exercise administrative control and operational supervision over the Philippine National Police which shall mean the power to: xxxx b) Advise the President on all matters involving police functions and administration; c) Render to the President and to the Congress an annual report on its activities and accomplishments during the thirty (30) days after the end of the calendar year, which shall include an appraisal of the conditions obtaining in the organization and administration of police agencies in the municipalities, cities and provinces throughout the country, and recommendations for appropriate remedial legislation; d) Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each calendar year, a crime prevention program; and e) Perform such other functions necessary to carry out the provisions of this Act and as the President may direct. [Emphasis added.] We find nothing in this enumeration of functions of the members of the NAPOLCOM that would be subverted or defeated by the Presidents appointment of an acting NAPOLCOM Commissioner pending the selection and qualification of a permanent appointee. Viewed as an institution, a survey of pertinent laws and executive issuances54 will show that the NAPOLCOM has always remained as an office under or within the Executive Department.55 Clearly, there is nothing repugnant between the petitioners acting appointment, on one hand, and the nature of the functions of the NAPOLCOM Commissioners or of the NAPOLCOM as an institution, on the other. b. R.A. No. 6975 does not prohibit the appointment of an acting NAPOLCOM Commissioner in filling up vacancies in the NAPOLCOM The petitioner next cites Section 18 of R.A. No. 6975 to support his claim that the appointment of a NAPOLCOM Commissioner to fill a vacancy due to the permanent incapacity of a regular Commissioner can only be permanent and not temporary: Section 18. Removal from Office. The members of the Commission may be removed from office for cause. All vacancies in the Commission, except through expiration of term, shall be filled up for the unexpired term only: Provided, That any person who shall be appointed in this case shall be eligible for regular appointment for another full term. Nothing in the cited provision supports the petitioners conclusion. By using the word "only" in Section 18 of R.A. No. 6975, the laws obvious intent is only to prevent the new appointee from serving beyond the term of office of the original appointee. It does not prohibit the new appointee from serving less than the unexpired portion of the term as in the case of a temporary appointment.

While the Court previously inquired into the true nature of a supposed acting appointment for the purpose of determining whether the appointing power is abusing the principle of temporary appointment,56 the petitioner has not pointed to any circumstance/s which would warrant a second look into and the invalidation of the temporary nature of his appointment.57 Even the petitioners citation of Justice Punos58 dissenting opinion in Teodoro B. Pangilinan v. Guillermo T. Maglaya, etc.59 is inapt. Like the petitioner, Pangilinan was merely appointed in an acting capacity and unarguably enjoyed no security of tenure. He was relieved from the service after exposing certain anomalies involving his superiors. Upon hearing his plea for reinstatement, the Court unanimously observed that Pangilinans relief was a punitive response from his superiors. The point of disagreement, however, is whether Pangilinans lack of security of tenure deprives him of the right to seek reinstatement. Considering that the law (Administrative Code of 1987) allows temporary appointments only for a period not exceeding twelve (12) months, the majority considered Pangilinan to be without any judicial remedy since at the time of his separation, he no longer had any right to the office. Justice Puno dissented, arguing that Pangilinans superiors abuse of his temporary appointment furnishes the basis for the relief he seeks. In the present case, the petitioner does not even allege that his separation from the office amounted to an abuse of his temporary appointment that would entitle him to the incidental benefit of reinstatement.60 As we did in Pangilinan,61 we point out that the petitioners appointment as Acting Commissioner was time-limited. His appointment ipso facto expired on July 21, 2009 when it was not renewed either in an acting or a permanent capacity. With an expired appointment, he technically now occupies no position on which to anchor his quo warranto petition. c. The petitioner is estopped from claiming that he was permanently appointed The petitioners appointment paper is dated July 21, 2008. From that time until he was apprised on March 22, 2010 of the appointment of respondent Urro, the petitioner faithfully discharged the functions of his office without expressing any misgivings on the character of his appointment. However, when called to relinquish his office in favor of respondent Urro, the petitioner was quick on his feet to refute what appeared in his appointment papers. Under these facts, the additional circumstance of estoppel clearly militates against the petitioner. A person who accepts an appointment in an acting capacity, extended and received without any protest or reservation, and who acts by virtue of that appointment for a considerable time, cannot later on be heard to say that the appointment was really a permanent one so that he could not be removed except for cause.62 II. An acting appointee has no cause of action for quo warranto against the new appointee The Rules of Court requires that an ordinary civil action must be based on a cause of action,63 which is defined as an act or omission of one party in violation of the legal right of the other which causes the latter injury. While a quo warranto is a special civil action, the existence of a cause of action is not any less required since both special and ordinary civil actions are governed by the rules on ordinary civil actions subject only to the rules prescribed specifically for a particular special civil action.64 Quo warranto is a remedy to try disputes with respect to the title to a public office. Generally, quo warranto proceedings are commenced by the Government as the proper party-plaintiff. However,
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under Section 5, Rule 66 of the Rules of Court, an individual may commence such action if he claims to be entitled to the public office allegedly usurped by another. We stress that the person instituting the quo warranto proceedings in his own behalf must show that he is entitled to the office in dispute; otherwise, the action may be dismissed at any stage.65Emphatically, Section 6, Rule 66 of the same Rules requires the petitioner to state in the petition his right to the public office and the respondents unlawful possession of the disputed position. As early as 1905,66 the Court already held that for a petition for quo warranto to be successful, the suing private individual must show a clear right to the contested office.67 His failure to establish this right warrants the dismissal of the suit for lack of cause of action; it is not even necessary to pass upon the right of the defendant who, by virtue of his appointment, continues in the undisturbed possession of his office.68 Since the petitioner merely holds an acting appointment (and an expired one at that), he clearly does not have a cause of action to maintain the present petition.69 The essence of an acting appointment is its temporariness and its consequent revocability at any time by the appointing authority.70 The petitioner in a quo warranto proceeding who seeks reinstatement to an office, on the ground of usurpation or illegal deprivation, must prove his clear right71 to the office for his suit to succeed; otherwise, his petition must fail. From this perspective, the petitioner must first clearly establish his own right to the disputed office as a condition precedent to the consideration of the unconstitutionality of the respondents appointments. The petitioners failure in this regard renders a ruling on the constitutional issues raised completely unnecessary. Neither do we need to pass upon the validity of the respondents appointment. These latter issues can be determined more appropriately in a proper case. WHEREFORE, the petition is DISMISSED. SO ORDERED. G.R. No. 192789 March 23, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. NGANO SUGAN, NGA BEN LATAM, FRANCING, GAGA LATAM, SALIGO KUYAN and KAMISON AKOY,Accused, GAGA LATAM, SALIGO KUYAN and KAMISON AKOY, Appellants. DECISION BRION, J.: We resolve in this Decision the appeal from the April 27, 2010 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00675-MIN. The CA affirmed the decision2 of the Regional Trial Court (RTC), Branch 26, Surallah, South Cotabato, finding appellants Gaga Latam, Saligo Kuyan and Kamison Akoy guilty beyond reasonable doubt of robbery with homicide committed by a band,3 and sentencing them to suffer the penalty of reclusion perpetua. At around 6:45 p.m. of February 8, 1998, Gaga, Saligo, Ngano Sugan, Nga Ben Latam and one alias Francing, all armed with guns, entered Fortunato Delos Reyes residence in Purok Roxas 1,

Lamsugod, Surallah, South Cotabato, and declared a hold up. Kamison and Cosme Latam stayed outside and acted as lookouts. Once inside, the armed men ordered Fortunato, his wife Thelma Delos Reyes, and their son Nestor Delos Reyes, to drop to the floor. The armed men inquired from them where the money and other valuables were hidden; thereafter, they took cash amounting to P10,000.00, personal belongings worth P5,000.00, and an air gun valued at P2,800.00. Ngano then brought Nestor outside the house, and shot him.4 Reggie Delos Reyes, another son of Fortunato and Thelma, ran to his parents house when he heard the gunshot. When he arrived, Kamison and Cosme pointed a knife and a gun at him, respectively, and told him not to enter the house. Reggie then heard Nestor shout that he had been hit. Thereafter, all the seven (7) armed men left. Reggie rushed Nestor to the hospital, but the latter died due to multiple gunshot wounds.5 The prosecution charged the appellants and their companions with the special complex crime of robbery with homicide before the RTC.6 Gaga, Saligo and Kamison all pleaded not guilty to the charge upon arraignment. Ngano, Nga Ben and alias Francing remain at large. Cosme died on July 23, 2000 while under detention. The RTC, in its Decision of September 25, 2008, found the appellants guilty beyond reasonable doubt of robbery with homicide committed by a band, and sentenced them to suffer the penalty of reclusion perpetua. It also ordered them to pay the victims heirs the amounts of P75,000.00 and P24,000.00 as civil indemnity and burial expenses, respectively; and P17,800.00 representing the value of the cash and other stolen items. On appeal, the CA affirmed the RTC decision in toto. The CA held that Fortunato and Thelma positively identified the appellants as among the persons who robbed their house; Fortunato, in fact, saw Ngano shoot Nestor. Reggie corroborated their testimonies on material points. The CA disregarded the appellants defense of denial due to lack of corroboration. It, likewise, did not believe their alibi because they failed to prove that it was physically impossible for them to be at the crime scene. We deny the appeal, but modify the designation of the offense and the amounts of the awarded indemnities. There is robbery with homicide when a homicide is committed either by reason, or on occasion, of the robbery. To sustain a conviction for robbery with homicide, the prosecution must prove the following elements: (1) the taking of personal property belonging to another; (2) with intent to gain; (3) with the use of violence or intimidation against a person; and (4) on the occasion or by reason of the robbery, the crime of homicide, as used in its generic sense, was committed. A conviction requires certitude that the robbery is the main purpose and objective of the malefactor, and the killing is merely incidental to the robbery. The intent to rob must precede the taking of human life but the killing may occur before, during or after the robbery.7 In the present case, no doubt exists, based on the appellants and their companions actions that their overriding intention was to rob Fortunatos house. The following facts are established and undisputed: the armed men entered Fortunatos house and ordered its occupants to drop to the ground; they asked for the location of the money and other valuables; they took cash amounting to P10,000.00, personal belongings worth P5,000.00, and an air gun valued at P2,800.00.

While it was undisputed that only Ngano shot Nestor, the lower courts correctly found the appellants liable for robbery with homicide. Case law establishes that whenever homicide has been committed by reason of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of robbery with homicide although they did not take part in the homicide, unless it appears that they sought to prevent the killing.8
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Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy may be inferred from the acts of the accused before, during and after the commission of the crime which indubitably point to and are indicative of a joint purpose, concert of action and community of interest. For conspiracy to exist, it is not required that there be an agreement for an appreciable period prior to the occurrence of the offense; it is sufficient that at the time of its commission, the malefactors had the same purpose and were united in its execution.9 In the present case, the appellants and their companions clearly acted in conspiracy in committing the special complex crime charged. To recall, Gaga, Saligo, Ngano, Nga Ben and alias Francing entered Fortunatos house, while Kamison and Cosme acted as lookouts. While his companions were robbing the house, Ngano brought Nestor outside and shot him. Reggie rushed to the scene, but Kamison and Cosme prevented him from entering the house by pointing a knife and a gun at him, respectively. Thereafter, all the seven (7) armed men fled together. The foregoing circumstances prove beyond reasonable doubt that the appellants acted in concert to attain a common purpose. The evidence does not show that any of the appellants sought to avert the killing of Nestor. In People of the Philippines v. Nonoy Ebet,10 we ruled that once conspiracy is shown, the act of one is the act of all. The precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals. As the lower courts did, we see no merit in the appellants defenses of denial and alibi. Denial is a negative, self-serving evidence that cannot prevail over the positive and straightforward identification made by Fortunato, Thelma and Reggie. Alibi, too, is generally viewed with suspicion because of its inherent weakness and unreliability. In the present case, the defense failed to demonstrate by clear and convincing evidence that the appellants were so far away from the scene of the crime that it was physically impossible for them to have been at the crime scene at the time of its commission.11 We, however, point out that the lower courts found the appellants guilty of robbery with homicide committed by a band. This is an erroneous denomination of the crime committed, as there is no crime of robbery with homicide committed by a band. If robbery with homicide is committed by a band, the indictable offense would still be denominated as robbery with homicide under Article 294(1) of the Revised Penal Code. The element of band would be appreciated as an ordinary aggravating circumstance.12 Under Article 294(1) of the Revised Penal Code, the crime of robbery with homicide carries the penalty ofreclusion perpetua to death. Considering the presence of the aggravating circumstance of commission by a band, the proper imposable penalty would have been death, conformably with Article 63, paragraph 1 of the Penal Code. In view, however, of the enactment on June 24, 2006 of Republic Act No. 9346 which prohibits the imposition of the death penalty in the Philippines, the lower courts correctly imposed on the appellants the penalty of reclusion perpetua. We award P75,000.00 as moral damages to the victims heirs to conform with recent jurisprudence.13 We further award P25,000.00 as temperate damages, in lieu of the proven burial expenses of a lesser amount.14

The existence of one aggravating circumstance also merits the grant of exemplary damages under Article 2230 of the New Civil Code. Pursuant to prevailing jurisprudence, we award P30,000.00 as exemplary damages to the victims heirs.15 WHEREFORE, in light of all the foregoing, we AFFIRM the April 27, 2010 Decision of the Court of Appeals in CA-G.R. CR-HC No. 00675-MIN, with the following MODIFICATIONS: (1) the appellants are found guilty beyond reasonable doubt of the crime of ROBBERY WITH HOMICIDE; (2) the appellants are ORDERED to PAY, jointly and severally, the heirs of Nestor P75,000.00 andP30,000.00 as moral damages and exemplary damages, respectively; and (3) the appellants are ORDERED to PAY, jointly and severally, the heirs of Nestor P25,000.00 as temperate damages, in lieu of actual damages of a lesser amount. SO ORDERED. G.R. No. 189821 March 23, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ANTONIO OTOS alias ANTONIO OMOS, Appellant. RESOLUTION BRION, J.: We resolve the appeal filed by appellant Antonio Otos1 from the February 25, 2009 Decision of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00393.2 THE FACTUAL ANTECEDENTS On October 10, 2000, the appellant was charged3 in the Regional Trial Court (RTC), Branch 2, Tagum City, Davao del Norte,4 with multiple rape5 committed against his five-year old stepdaughter AAA6 on June 24, 2000. The appellant pleaded not guilty on arraignment. AAA testified on the details of the crime in the trial that followed. The evidence shows that in the evening of June 14, 2000, the appellant brought AAA to the cornfield in their farm. He laid the victim down, took off her panty, and inserted his penis into her vagina.7 AAA felt extreme pain. Thereafter, he went home, threatening AAA not to tell her mother about the incident or he would kill her.8 AAA testified that after June 14, 2000, the appellant raped her "many" times. AAA suffered stomach ache and felt pain whenever she urinated. When the appellant went away to sell bananas, AAA told her mother, BBB, about the incidents.9 BBB got mad at the appellant; she and AAA left the house thereafter. The medical examination revealed that AAA had an "inflamed labia minora with multiple abrasions" and that she suffered from a urinary tract infection.10 The appellant denied the accusations against him,11 claiming that BBB fabricated the charge out of anger because he had struck her and ejected her from the house.12

THE RTC RULING In its November 29, 2005 Decision,13 the RTC found the appellant guilty of qualified rape. It gave credence to the candid testimony of AAA, who was only six years old when she testified, and rejected the appellants argument that there was no medical evidence that his penis entered AAAs vagina. It sentenced the appellant to suffer the penalty of death. It also ordered the appellant to pay AAA P100,000.00 as civil indemnity and to pay the costs. THE CA RULING On intermediate appellate review, the CA affirmed the RTCs appreciation of AAAs clear, straightforward and spontaneous testimony pointing to the appellant as her rapist. In rejecting the appellants argument that AAA was only suffering from urinary tract infection caused by poor hygiene or fingernail scratches, the appellate court noted that the medical findings of "inflamed labia minora with multiple abrasions" were consistent with AAAs allegation of rape.
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The CA found that the appellant cannot be sentenced to death because there was no independent evidence to prove that AAA was below 7 years old. It also noted that the relationship of the appellant to AAA as the latters stepfather was incorrectly alleged in the information; both AAA and the appellant testified that the latter was merely the common-law spouse of BBB. Thus, the CA downgraded the appellants offense to simple rape and sentenced him to suffer the penalty of reclusion perpetua. It ordered the appellant to indemnify AAA P50,000.00 as moral damages, P50,000.00 as civil indemnity, and P25,000.00 as exemplary damages in view of the minority of the victim. From the CA, the case is now with us for our final review. OUR RULING We affirm the appellants conviction. We see no reason to disturb the findings of the RTC, as affirmed by the CA. Where the victim is a child, the absence of medical evidence of penetration does not negate the commission of rape. The presence of hymenal lacerations is not a required element in the crime of rape.14 What is essential is evidence of penetration, however slight, of the labia minora, which circumstance was proven beyond doubt by the testimony of AAA.15 Besides, the prime consideration in the prosecution of rape is the victim's testimony, not necessarily the medical findings; a medical examination of the victim is not indispensable in a prosecution for rape. The victim's testimony alone, if credible, is sufficient to convict.16 AAA was categorical and straightforward in narrating the sordid details of how the appellant ravished her. We find that the CA correctly downgraded the appellants offense to simple rape due to the prosecutions failure to present AAAs birth certificate or other authentic document (such as a baptismal certificate), and to make a positive and unequivocal manifestation that AAA was indeed five years old at the time of the incident.17Accordingly, the appellant can only be sentenced to suffer the penalty of reclusion perpetua. In line with prevailing jurisprudence,18 the award of P25,000.00 as exemplary damages must be increased to P30,000.00. WHEREFORE, the February 25, 2009 decision of the Court of Appeals in CA-G.R. CR-HC No. 00393 is herebyAFFIRMED with MODIFICATION. Appellant Antonio Otos alias Antonio Omos is found guilty beyond reasonable doubt of Simple Rape and sentenced to suffer the penalty

of reclusion perpetua. He is also ordered to pay AAAP50,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages. SO ORDERED. G.R. No. 190001 March 23, 2011

GENUINO ICE COMPANY, INC., HECTOR S. GENUINO and EDGAR A. CARRIAGA, Petitioners, vs. ERIC Y. LAVA and EDDIE BOY SODELA, Respondents. RESOLUTION BRION, J.: Before us is the petition for review on certiorari filed by petitioners Genuino Ice Company, Inc. (GICI), Hector S. Genuino and Edgar A. Carriaga (collectively, petitioners) to challenge the Court of Appeals (CA) Decision1 and Resolution2 in CA-G.R. No. SP 109429. These CA dispositions, in turn, affirmed the decision3 and resolution4 of the National Labor Relations Commission (NLRC ) in NLRC CA No. 049477-06. THE FACTUAL ANTECEDENTS Petitioner GICI hired the respondents Eric Y. Lava and Eddie Boy Sodela (respondents) as ice plant machine operators. Sometime in March 2005,5 due to the continuous decline of demand for ice products, the company was forced to shut down a part of its plant facilities and operations, and to implement a work rotation or reduction of workdays program affecting its seven (7) workers (including the present respondents). On September 30, 2005, GICI, through its personal manager, issued a memorandum ordering the deletion of the respondents names from the work schedule. The memorandum had the effect of banning the respondents from entering the company premises. The respondents reacted to this move by filing a complaint for illegal dismissal with the Labor Arbiter (LA). The petitioners alleged that the respondents were contractual employees who were under the control of VICAR General Contractor & Management Services (VICAR), and L.C. Moreno General Contractor & Management Services (MORENO). They argue that there is no employer-employee relationship between GICI and the respondents so that the latter have no cause of action against the petitioners. Also, the petitioners reason that due to the partial shut-down of the company, GICI was excused from complying with the 30-day notice or clearance requirement under the law. The LA rejected the petitioners argument and declared that the respondents adduced convincing evidence that they were the employees of GICI. The LA went on to say that VICAR was engaged in "management services" and merely supplied or processed workers for GICI, in a manner akin to the services of a labor-only contractor.6 In this sense, the LA believed that GICIs liability in the illegal dismissal is solidary with that of VICAR and MORENO. Notwithstanding the observation that an arrangement akin to labor-only contracting existed, the LA ruled that the respondents were validly retrenched. The LA reasoned out that due to the continuous decline in the sales output of the ice plant, the temporary shut down had become permanent and GICI had no alternative but to trim-down its manpower requirements.7 However, the LA also found

that GICI failed to comply with the procedural requirements for a valid retrenchment. Hence, he awarded the respondents their separation pay equivalent to one-half (1/2) month salary for every year of service in accordance with Art. 283 of the Labor Code. On appeal, the NLRC reversed the LAs decision and found that the respondents were illegally dismissed from service. The petitioners responded to the NLRCs adverse decision through a petition for certiorari8 under Rule 65 before the CA. The CA saw no grave abuse of discretion in the NLRCs decision, observing that the petitioners failed to prove that GICI incurred or was about to incur financial losses leading to the retrenchment it undertook; no documentary evidence was in fact presented to support the retrenchment claim.9 The CA also found no malice or bad faith on the part of Hector S. Genuino, president of Genuino Ice Company, Inc., to hold him solidarily liable with the corporation for illegal dismissal. After the denial of their motion for reconsideration, the petitioners came to this Court through the present petition on the sole issue of whether there had been a valid retrenchment (and hence, a valid termination of the respondents service). THE COURTS RULING We dismiss the petition for lack of merit. Under Article 283 of the Labor Code, there are three (3) basic requisites for a valid retrenchment, namely: (a) proof that the retrenchment is necessary to prevent losses or impending losses; (b) service of written notices to the employees and to the DOLE at least one (1) month prior to the intended date of retrenchment; and (c) payment of separation pay equivalent to one (1) month pay, or at least one-half (1/2) month pay for every year of service, whichever is higher. We see no reason to reverse the NLRC and CA findings that no documentary evidence exists in the records to substantiate the claimed business losses; in fact, the petitioners also failed to show its financial conditions prior to and at the time GICI enforced its retrenchment program. In the absence of any attendant grave abuse of discretion, these findings are entitled not only to respect but to our final recognition in this appellate review. The CA was also correct in affirming the NLRCs award of full backwages and separation pay in lieu of reinstatement. In FF Marine Corporation v. NLRC,10 we ruled that an illegally dismissed employee is entitled to reinstatement without loss of seniority rights and to other established employment privileges, and to his full backwages. In the event, reinstatement is no longer feasible, the employer must pay him his separation pay. In the present case, the respondents were illegally dismissed as the employer failed to prove that their dismissal was for a duly authorized cause. The CA was thus correct in awarding them full backwages and separation pay in lieu of reinstatement since the positions the respondents formerly held no longer exist.
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We must however modify the CA decision to reflect the correct monetary award due to the respondents. The dispositive portion of the CA decision is incomplete as it failed to specify the separation pay to be awarded to the respondents as well as the reckoning point for the computation of the backwages. FF Marine Corporation11 tells us that the separation pay shall be computed at one (1) month pay (for those with one year or less of service), or one-half (1/2) month pay for every year of service (for those with more than a year of service), whichever is higher, a fraction of at least six

(6) months being considered one whole year.12 The backwages shall be computed from the date of termination of service (September 30, 2005) until the finality of this Courts decision. WHEREFORE, we hereby DISMISS the petition for lack of merit. The August 24, 2009 Decision and the October 22, 2009 Resolution of the Court of Appeals in CA-G.R. No. SP 109429 affirming the ruling of the NLRC in NLRC CA No. 049477-06 are hereby AFFIRMED, with MODIFICATION that Eric Lava shall be awarded full backwages from September 30, 2005 until the finality of this Courts Decision. Separation pay in lieu of reinstatement shall be computed at 1 month pay for every year of service, with years of service reckoned from the respondents first day of employment up to the finality of this Decision. Costs against the petitioners. SO ORDERED. G.R. No. 182550 March 23, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. RUEL VELARDE alias DOLOY BELARDE, Appellant. DECISION BRION, J.: On appeal is the Decision1 of the Court of Appeals (CA) affirming in toto the Decision2 of the Regional Trial Court (RTC), Branch 27, Catbalogan, Samar, finding RUEL VELARDE alias DOLOY BELARDE (appellant) guilty beyond reasonable doubt of consummated rape as defined and penalized under paragraph 1(d) of Article 266-A and Article 266-B of the Revised Penal Code, and sentencing him to suffer the penalty of reclusion perpetua. FACTS The facts, as culled from the records, are summarized below. In the evening of November 2, 1999, AAA3 (at the time nine [9] years, nine [9] months and thirteen [13] days old)4was watching television in the house of her neighbors the appellants family in Barangay Maputi, Municipality of Zumarraga, Samar Province. Shortly before 11:00 p.m., she became sleepy and went home. At home (located in the same barangay), she spread her sleeping mat on the floor and went to sleep. She awakened from this sleep when she felt the appellant on top of her. She tried to shout but he covered her mouth. The appellant then took off her shorts and panties, removed his own pants, and inserted his penis into her vagina through pumping motions. AAA felt pain in her vagina and cried. The appellant only stopped his assault when AAAs father appeared and chased him, but the appellant managed to escape by jumping out of a window. The following day, the appellant then on his way to Catbalogan was apprehended by a barangay tanod. On February 4, 2000, he was criminally charged for rape.5 THE RULING OF THE TRIAL AND APPELLATE COURTS At the trial, the prosecution presented AAA, her mother BBB, and the resident physician of the Samar Provincial Hospital in Catbalogan, Dr. Alfonso Flores. BBB testified that AAA was born on January 19, 1990 in BarangayMaputi, Zumarraga Island, Samar,6 and presented AAAs Certificate of

Live Birth7 and Certificate of Baptism8 as proof of this claim. Dr. Flores testified that while AAAs vagina had no hymenal lacerations, the confluent abrasion thereon indicated that it had been "disturbed," possibly by a hard and rough object.9 The appellant, his father Rolando Velarde, his first cousin Wilson Orbello, his uncle-in-law Perlito Orbello, and one Rosalinda Orbello testified for the defense. The defense rests on denial and alibi. According to the defense, on November 1, 1999, the appellant, with his cousin Wilson Orbello, went home to Barangay Maputi to observe All Souls Day; both had come from Tacloban City where the appellant worked as a warehouse watchman. The following day, the appellant visited the cemetery and went home at around 4:00 p.m. to watch television. At 6:00 p.m., his cousin Marvin Orbello invited him to drinktuba, and the appellant consumed half a gallon of tuba at Marvins house. He returned home by 9:00 p.m. to sleep, in preparation for his early return to Tacloban City the next morning. The appellant woke up at 5:00 a.m. the next day and hurried to catch the 6:00 a.m. boat trip to Catbalogan. He was already aboard a motorboat when abarangay tanod came and forced him to disembark because of the complaint AAA had filed against him. The defense posits that AAA charged appellant with rape because AAAs father, CCC, who allegedly misbehaves in their barangay when drunk, held a personal grudge against the appellants father, Rolando Velarde, whom CCC allegedly owed money to and stole chickens from. The RTC disbelieved the defense. It found AAAs testimony to be "highly credible" and accordingly, convicted the appellant, under the following terms: WHEREFORE, and in view of the foregoing, the court hereby pronounces the accused RUEL VELARDE, alias Doloy Belarde, GUILTY, beyond reasonable doubt, as principal by direct participation, of the consummated crime of RAPE, under Article 266-A, Paragraph (1), Subparagraph (d) of the Revised Penal Code, and condemns the said accused to suffer the penalty of reclusion perpetua, with the accessories of the law, to indemnify the offended girl, [AAA] in the amount of P50,000.00, as well as pay her another amount of P50,000.00 by way of moral damages, and to bear the costs of this action. SO ORDERED. The CA affirmed the RTC Decision in toto. THE APPEAL The appellant claims that his guilt was not proven beyond reasonable doubt. He argues that (1) his identity was not sufficiently established due to the dim light in the room where the rape allegedly took place; (2) the confluent abrasion observed by Dr. Flores on AAAs vagina, being caused by a "hard and rough object," was allegedly not caused by a mans penis; and (3) the "failure" of the prosecution to present AAAs father on the witness stand was "perplexing." Finally, the appellant also argues that AAA was "incredible and unbelievable" due to the following "material" inconsistencies in her testimony: (a) AAA initially testified that she was raped twice by the appellant, but later declared that she was raped only once;10 (b) AAA first stated that the rape occurred "inside a room in her house," then changed it to "outside the room;"11 and (c) AAA initially testified that her father came upon them while the appellant was having sexual intercourse with her, but later declared that she went down their house and saw her father after the appellant had abused her.12 Citing People of the Philippines v. Ernesto Flores,13 and People of the Philippines v. Ronie Caboverde y Acas,14 the appellant posits that these "irreconcilable and unexplained contradictions"

in AAAs testimony engender "serious doubts" as to her reliability and veracity, and cast reasonable doubt on his guilt. THE COURTS RULING We AFFIRM with modification the lower courts decisions. The CA did not err on the credibility of AAA. We are satisfied that AAA is a credible witness. We agree with the CA that while AAAs testimony had inconsistencies, these inconsistencies do not at all affect her credibility. Inconsistencies are to be expected when a person is recounting a traumatic experience.15 Rape, a traumatic experience, is usually not remembered in detail.16 This observation is more pronounced in the case of minors such as AAA who was merely ten years old at the time she testified. For this reason, we held in People of the Philippines v. Domingo Sta. Ana y Tupig that it is not proper to judge the actions of children who have undergone traumatic experience by norms of behavior expected from adults.17 Further, we have repeatedly ruled that this Court accords great respect to a trial courts assessment of witnesses as it had the advantage of actually examining their demeanor, hearing their responses and testing their credibility on the stand. We note the following declaration of the RTC: The court finds the testimony of the offended girl highly credible. The court has carefully observed the manner the girl testified and studied the contents of her testimony. It sees no reason to doubt the essential veracity of the offended girls declarations in court, especially as they referred to the allimportant issue of the accuseds carnal knowledge of her.18 We agree with the CA that the RTC did not err in believing the testimony of AAA; we are satisfied that the RTC had undertaken precautions to ensure that AAA, a child-witness, would not perjure herself.19 While mindful of our pronouncement in People of the Philippines v. Avelino Gazmen, et al.,20 we, nonetheless take note that the judge who conducted the trial of the case, the Hon. Sinforiano A. Monsanto, also penned the decision of the court. That said, the testimonies of rape victims who are young and immature deserve full credence, considering that no woman, especially a young one, would concoct a story of defloration, allow an examination of her private parts, and, thereafter, subject herself to a public trial, if she had not been motivated by the desire to obtain justice for the wrong committed against her.21 In these lights, we see no reason to disturb the ruling of the CA on AAAs credibility. The CA did not err on AAAs positive identification of the appellant as her rapist. We are likewise satisfied with the CAs disposition of the appellants contention that AAA could not have positively identified him as her rapist given the dim lighting of the room where the rape took place. The CA correctly observed that the appellant was already on top of AAA when she awakened; this proximity, coupled with the fact that AAA knew the appellant well as he was her neighbor, enabled AAA to positively identify him as her attacker. In addition, we note that AAA reiterated her positive identification of the appellant as her attacker on two occasions in open court: FISCAL VILLARIN

Q. You said that you noticed that he was already on top of you, whom are you referring to? A. Him (witness pointing to a person who answers to the name of Roel [sic] Belarde).22 Q. Are you sure that it was the accused who allegedly molested you or had sexual intercourse with you that evening? A. Yes, sir.23 Ruptured hymen not an element of rape. In People of the Philippines v. Geronimo Borromeo y Marco24 we reiterated our oft-repeated doctrine that an intact hymen does not negate a finding that the victim had been raped. The CA correctly labelled as unmeritorious the appellants contention that his RTC conviction was erroneous because the examining doctor (Dr. Flores) found AAAs hymen to be intact. Our ruling in People of the Philippines v. Gorgonio Villarama25 finds particular application in this case: In most cases of rape committed against young girls where total penetration of the victim's organ is improbable due to the small vaginal opening, it has been held that actual penetration of the victim's organ nor rupture of the hymen is not required. The settled rule is that the mere introduction of the male organ into the labia majora of the female pudendum is sufficient to consummate rape. This rule renders inconsequential the appellants contention that AAA was not raped since the confluent abrasion observed by Dr. Flores on her vagina was caused by a "hard and rough object" not by something hard and "smooth" like the male penis as the appellant argued. What is significant in this case is that a credible witness the victim herself testified that the appellant succeeded in introducing his penis into her vagina: FISCAL VILLARIN: Q. How did the accused get on having sexual intercourse with you, how did he do it? COURT Q. What did he do which caused you pain? A. He tried to insert his penis unto me. Q. On what part of your body did he try to insert his penis? A. Into my vagina. Q. You said that you felt pain, where did you feel your pain? A. At my lavia [sic].26 Q. You said that the accused tried to insert his penis inside your vagina? A. Yes, sir.

Q. Did he succeed in putting his penis inside your vagina? A. Yes, sir. Q. Are [you] sure of that? A. Yes, sir. Q. How many times did the penis of the accused enter your vagina, if you can remember? A. Only once.27 Failure of AAAs father to testify is of no moment. The appellant insinuates that the rape charge against him is false simply because AAAs father failed to testify in support of his daughters claim. We do not find this argument meritorious. As the CA correctly ruled, the matter of deciding whom to present as witness for the prosecution is not for the accused or for the trial court to decide, but is a prerogative given to the prosecutor.28 What is significant is the existence of a credible testimony the testimony of AAA sufficient to convict the appellant. Courts are not precluded from rendering judgment based on the testimony of even a single witness. We, likewise, agree with the CA and the RTC that the defense failed to impute a credible motive for AAA to falsely accuse the appellant of rape. As the RTC observed, had AAAs father actually wanted to get even with the appellants father, there were ways of attaining that goal other than through the filing of a case that entailed subjecting AAA to shame and humiliation. It is unnatural for a parent to use his daughter as a tool of malice, especially if the consequence is to subject the child to embarrassment and lifelong stigma.29 It is highly improbable, too, that a girl of tender years, one not yet exposed to the ways of the world, would impute a crime as serious as rape if the crime had not really been committed.30 In sum, we find that the prosecution successfully established the commission of rape under Article 266-A(1)(d) of the Revised Penal Code; rape is committed when a man has carnal knowledge of a woman who is under twelve (12) years of age. We are satisfied that the prosecution proved beyond reasonable doubt that in the evening of November 2, 1999, the appellant had carnal knowledge of AAA, who having been born on January 19, 199031 was only nine (9) years old at that time. Furthermore, the appellants defenses of denial and alibi cannot prevail over AAAs positive testimony that the appellant raped her that night. Denial and alibi are the weakest of all defenses because they are easy to concoct and fabricate.32 To be believed, denial must be supported by a strong evidence of innocence; otherwise, it is regarded as a purely self-serving tale. Alibi, on the other hand, is rejected when the prosecution sufficiently establishes the identity of the accused.33 The facts in this case do not present any exceptional circumstance warranting a deviation from these rules.
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We, therefore, affirm the finding of guilt beyond reasonable doubt made by the RTC and the CA. The Proper Penalty The RTC and the CA correctly imposed the penalty of reclusion perpetua on the appellant. Articles 266-A and 266-B of the Revised Penal Code, which define and penalize rape, provide:

Article 266-A. Rape; When and How Committed. - Rape is committed: 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: xxxx d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. xxxx Article 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. The Proper Indemnity We affirm the awards made by the lower courts of civil indemnity in the amount of P50,000.00 and moral damages in the amount of P50,000.00, which are amounts in accordance with the latest jurisprudence on rape. Civil indemnity is mandatory when rape is found to have been committed.34 Moral damages are awarded to rape victims without need of proof other than the fact of rape, on the assumption that the victim suffered moral injuries from the experience she underwent.35 However, we modify the awards made by the lower courts by ordering the appellant to pay AAA exemplary damages in the amount of P30,000.00. The award of exemplary damages is justified under Article 2229 of the Civil Code to set a public example and serve as a deterrent against elders who abuse and corrupt the youth.36 WHEREFORE, premises considered, the March 31, 2006 Decision of the Court of Appeals in CAG.R. CR.-H.C. No. 00117, being in accordance with the law and the evidence, is hereby AFFIRMED with the MODIFICATION that appellant RUEL VELARDE alias DOLOY BELARDE is further ORDERED to pay AAA exemplary damages in the amount of P30,000.00. SO ORDERED. G.R. No. 190529 March 22, 2011

PHILIPPINE GUARDIANS BROTHERHOOD, INC., represented by its Secretary-General GEORGE "FGBF GEORGE" DULDULAO, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent. RESOLUTION BRION, J.: We resolve in this Resolution all the pending incidents in this case, specifically: (a) the contempt charge1 against the respondent Commission on Elections (Comelec) for its alleged disobedience to this Courts Status Quo Order2 dated February 2, 2010; and

(b) the issue of whether the petitioner, Philippine Guardians Brotherhood, Inc. (PGBI), should be declared to have participated in the party-list elections of May 10, 2010, in light of the Comelecs failure to obey our Status Quo Order and our subsequent Resolution3 granting PGBIs petition to annul its delisting from the roster of accredited party-list groups or organizations.4 FACTUAL ANTECEDENTS These incidents arose from our Status Quo Order directing the Comelec to restore and maintain the PGBI to its situation prior to the issuance of Comelec Resolution No. 8679, pending the resolution of the petition for certiorari that PGBI filed to challenge this Comelec Resolution. Our Status Quo Order, in short, directly ordered the Comelec to include PGBI in the list of candidates under the party-list system in the May 10, 2010 elections pending the final determination of PGBIs qualification to be voted upon as a party-list organization. We issued the Status Quo Order on February 2, 2010. It was served on the Comelec on the same date,5 i.e., within the period that the Comelec itself gave for the correction of any error or omission in its published official list of party-list participants in the May 10, 2010 elections. The Comelec itself declared: On January 30, 2010 at 3:00 oclock (sic) in the afternoon, pursuant to Comelec Minute Resolution No. 10-0042 dated January 19, 2010, the Information Technology Department of Comelec published a list of candidates with the instruction that "(s)hould there be any misspelling, omission or other errors, the concerned candidate must call the Law Departments attention within five (5) days from this publication for the purpose of correction. Thereafter, Comelec shall be relieved from liability"6 and the final list shall then be prepared for printing.7 The Comelec responded the next day (February 3, 2010) to our Status Quo Order by asking for its reconsideration and/or recall, based on the following grounds/arguments: 1) There will be insurmountable and tremendous operational constraints and costs implications in complying with the status quo order. 2) To add the petitioners party/acronym in the database of the List of Candidates for sectoral party/organization or coalition participating in the party-list system of representation will have a critical impact on the already tight and overstretched election timelines of the Commission. Copy of the Revised Automation Implementation Calendar is hereto attached as Annex "1". 3) Printing of the ballots is an intricate and complicated process. It is not a simple process of encoding data in a computer and printing the ballots using a printer attached to the computer. 4) Prior to the printing of the ballots, several technical and mechanical preparatory activities have to be done which include among other things: a. Generation and back-up of database containing the candidates[] information; b. Configuration of Precinct Count Optical Scan (PCOS) machines and Consolidation and Canvassing System (CCS);

c. Creation and design of one thousand six hundred seventy-four (1,674) ballot templates; d. Production of the ballot templates; e. Verification of each and every ballot template to ensure that it contains the accurate names of candidates for the national positions and acronyms of sectoral party/organization or coalition participating in the party-list system of representation and their corresponding assignments to the correct districts, provinces, municipalities/cities, and clustered precincts. Since the ballots are precinct-specific to ensure the security of the voting and counting, this means verification of seventy six thousand three hundred forty (76,340) variations of the one thousand six hundred seventy-four (1,674) ballot templates; and f. Placing several security markings in the ballots. 5) In fact, the installation of the Election Management System, which is used to generate the PCOS machines configuration and ballot templates production have already been in place as of January 25, 2010. 6) To comply with the status quo order will not only affect the printing of the ballots but also have serious implications on other activities of the Commission, such as: a. The setting of configuration of the PCOS and CCS machines; b. Testing of PCOS machines in their actual configuration with the ballots; c. Deployment of PCOS and CCS machines and transmission equipments; d. Checking/testing, demos, and sealing of the PCOS and CCS machines; and e. Shipment of the ballots to all parts of the country. 7) Due to several re-scheduling of the timelines of the Commission, Smartmatic-TIM cautioned that it is extremely risky to change the database containing the candidates information at this point in time. Any change in the database and other preparatory activities would mean: a. Twelve thousand (12,000) PCOS might not be configured and dispatched to the field on time; and b. Four million eight hundred thousand (4,800,000) ballots might not be printed before the deadline and shipped out on time. Even if the Commission will resort to contingency measures to configure and ship out the twelve thousand (12,000) PCOS machines on time, the printing of the ballots cannot be completed before May 10, 2010. This means that four million eight hundred thousand (4,800,000) voters might not be able to vote due to lack of ballots, thus disenfranchising them. xxx xxx xxx

10) Hence, the Commission fervently requests the understanding and forbearance of the Honorable Court which is the bastion of our justice system, protector of the democratic processes and our last resort in ensuring a clean, peaceful, orderly and credible May 10, 2010 elections, to take a second look on the status quo order issued on February 2, 2010.8 In its Comment to Comelecs Motion for Reconsideration with Manifestation,9 PGBI essentially alleged that the Comelec posited seemingly misleading and innocuous reasons in seeking reconsideration. Among other arguments, it claimed that the Comelec had been less than candid in its submissions: first, compliance with the Status Quo Order at that point would not disrupt the timetable or entail additional and costly expenditures given that the Comelec had yet to terminate all related activities and preparations for the May 10, 2010 elections;10second, the Comelec had yet to promulgate, on February 11, 2010, its decisions on several pending disqualification cases and recently accredited six other party-list organizations to add to the more than 154 previously accredited sectoral parties and/or organizations. PGBI also manifested that the ballot template that the Comelec published in its website on February 8, 2010 did not include the name or acronym of PGBI, in contravention of the Status Quo Order; and third, the Comelecs blatant disregard of the Status Quo Order reeked of official arrogance, given this Courts determination that it should be included in the ballot pending resolution of PGBIs petition for certiorari.11 In our Resolution of April 29, 2010,12 we granted PGBIs petition and, accordingly, annulled the assailed Comelec Resolutions in SPP No. 09-004 (MP)13 which delisted PGBI from the roster of duly registered national, regional and sectoral parties, organizations or coalitions. We declared at the same time that PGBI is qualified to be voted upon as a party-list group or organization in the May 10, 2010 elections. Despite the Status Quo Order and the Resolution, however, PGBI was never included in the ballot as one of the accredited party-list groups or organizations eligible for election under the party-list system. Hence, PGBI was never voted upon as a party-list candidate in the May 10, 2010 elections. Before the elections or on April 28, 2010, PGBI filed a Manifestation (of Continuing Objection to Comelecs Defiance of the Order of the Honorable Supreme Court).14 It claimed that Comelec Resolution No. 8815, dated April 5, 2007, excluded the nominees of PGBI in the official list of partylist/coalitions/sectoral organizations participating in the May 10, 2010 Automated National and Local Elections. Acting on this Manifestation, we required the Comelec, via our Resolution of May 7, 2010, to explain and show cause, within a non-extendible period of ten (10) days from receipt of the Resolution, why it should not be held in CONTEMPT of COURT for its alleged defiance of our Status Quo Order.15 In its Compliance16 to the Show Cause Order (submitted on May 21, 2010), the Comelec reiterated the arguments it raised in its Extreme Urgent Motion for Reconsideration and To Lift Status Quo Order. Specifically, it reiterated that there were "insurmountable and tremendous operational constraints and cost implications in complying with the status quo order," which order (referring to the Status Quo Order) is tantamount to technical, legal, and physical impossibility for respondents to comply.17 The Comelec asked the Court to note the explanation and accept it as sufficient compliance with the Show Cause Order. Required to comment on the Comelecs Compliance, PGBI filed a Manifestation Cum Comment,18 asserting that a careful reading of the Compliance reveals that the Comelec simply deftly skirted and, ultimately, never obeyed the Status Quo Order, and thus wantonly and contumaciously disregarded the same. The PGBI additionally manifested that via a letter to the Comelec on May 4, 2010, it raised the following concerns:

The preceding pronouncement [referring to the Courts Resolution granting PGBIs petition] may appear to be inconsequential and a pyrrhic victory in view of the error and omission to include the name of the petitioner in the ballots for the scheduled elections. How this Honorable Commission will find the means and/or alternative to comply with and/or implement the directive in said decision is a matter left to its judgment and discretion. Be that as it may, it is the petitioners considered view that a definitive ruling, including the grant of its Motion for Reconsideration in SPP No. 09-004 (MP), be expressly made in order that the limitation prescribed in Section 6(8) of R.A. No. 7941, replicated in COMELEC Resolution No. 2847, promulgated on June 25, 1996, will not apply to herein petitioner for purposes of the May 2013 elections. While the implementation of the dispositions in the said Resolution has become a physical impossibility, it is petitioners respectful submittal that it should not be penalized for not being able to participate in the coming May 10, 2010 party-list election. [parenthetical note at 1st paragraph supplied; underscoring in the original]. Based on its apprehension that it might end up twice in jeopardy of not being able to participate in the party-list elections of 2013 in view of Section 6(8) of Republic Act (R.A.) No. 7941, PGBI requested that the matter of its participation in the May 2013 party-list elections be given a categorical ruling.19 In its Reply,20 the Comelec asserted that a discussion on PGBIs eligibility for the 2013 elections i.e., whether its declared eligibility for the 2010 elections and its eventual inability to participate thereto should be considered as a failure to participate in the last two (2) elections, as defined in R.A. No. 7941 is purely academic, and is purely an advisory opinion that this Court has no jurisdiction to grant. Judicial power, the Comelec claimed, is limited to the determination and resolution of actual cases and controversies involving existing conflicts that are appropriate or ripe for judicial determination; it does not extend to hypothetical, conjectural or anticipatory questions. It claimed additionally that as the specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall, PGBIs question is a matter within its competence and primary jurisdiction to decide once it becomes ripe for adjudication. OUR RULING After due consideration of the attendant facts and the law, we find the Comelec guilty of indirect contempt of this Court. The Comelec Chair and Members are guilty of indirect contempt of Court We explained in Ang Bagong Bayani-OFW Labor Party v. COMELEC21 the Courts contempt power as follows: The power to punish contempt is inherent in all courts, because it is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of the courts; and, consequently, to the due administration of justice. Under our Rules of Court, contempt is classified into direct and indirect. Direct contempt, which may be summary, is committed "in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward

others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so." Indirect contempt, on the other hand, is not committed in the presence of the court and can be punished only after notice and hearing. Disobedience or resistance to a lawful writ, process, order or judgment of a court or injunction granted by a court or judge constitutes indirect contempt. We quote Section 3, Rule 71 of the Rules of Court, enumerating the acts punishable as indirect contempt, as follows: "SEC. 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings." Based on the recited antecedent facts, it cannot be disputed that the Comelec did not comply with our Status Quo Order; it simply pleaded insurmountable and tremendous operational constraints and costs implications as reasons for its avoidance of our Order. It essentially posited that compliance with our Status Quo Order was rendered impossible by the automation of the May 10, 2010 elections. However, we find this explanation unacceptable, given the Comelecs own self-imposed deadline of February 4, 2010 for the correction of errors and omissions, prior to printing, of the published list of participating party-list groups and organizations in the May 10, 2010 elections.

The Comelec deadline could only mean that the Comelec had determined that changes in the official ballot could still be made at any time prior to the deadline. In the context of the cases then pending involving the registration of party-list organizations, the deadline was a clear signal from the Comelec that the cases would have to be resolved before the deadline; otherwise, the Comelec could not be held liable for their non-inclusion. We fully read and respected the Comelecs signal, fully aware that we have to balance the interests the Comelec has to protect, with PGBIs intent to be voted as a party-list organization. Thus, on February 2, 2010, we issued our Status Quo Order after a preliminary but judicious evaluation of the merits of PGBIs motion for reconsideration, only to receive the Comelecs response on February 3, 2010 manifesting that it could no longer change the ballots because of the nature of an automated election. In an exercise as important as an election, the Comelec cannot make a declaration and impose a deadline, and, thereafter, expect everyone to accept its excuses when it backtracks on its announced declaration. The Comelec knew very well that there were still cases pending for judicial determination that could have been decided before the deadline was set. Although the recent case of Liberal Party v. Commission on Elections,22 involved the registration of political parties, we found that the Comelec gravely abused its discretion in allowing the out of time registration of the NP-NPC coalition despite the mandatory deadline the Comelec itself had set. In this case, we underscored the significance of the Comelecs compliance with its self-imposed deadlines, particularly in the implementation of the first-ever automated elections of May 10, 2010. To be excused, the Comelec needed more than its generalized descriptions of the process of ballot printing and the alleged problems it faced. We needed reasons on how and why the deadline was set, as well as detailed and specific reasons why PGBI could no longer be listed while other errors and omissions could still be remedied. Unfortunately for the Comelec, we did not see that kind of justification in its Compliance before us. Like the Comelec, we expect obedience to and respect for our Orders and Resolutions, and we cannot be sidetracked based solely on supposed operational constraints caused by the automated polls. Its treatment of our Status Quo Order simply meant that even before the Comelec deadline, a definitive ruling that a party-list organization should be included in the list to be voted upon would have been for naught as the Comelec would have anyway pleaded automation constraints. Even if its excuse had been meritorious, the Comelec effectively would have been guilty of misrepresentation on an election matter and in dealing with this Court. Although we have recognized the validity of the automation of the May 10, 2010 elections in Roque, Jr. v. Comelec,23 we stress that automation is not the end-all and be-all of an electoral process. An equally important aspect of a democratic electoral exercise is the right of free choice of the electorates on who shall govern them; the party-list system, in the words of Ang Bagong Bayani OFW Labor Party v. Comelec,24 affords them this choice, as it gives the marginalized and underrepresented sectors the opportunity to participate in governance. Wittingly or unwittingly, the Comelec took this freedom of choice away and effectively disenfranchised the members of the sector that PGBI sought to represent when it did not include PGBI in the list of qualified parties vying for a seat under the party-list system of representation. This is a consideration no less weighty than the automation of the election and cannot be simply disregarded on mere generalized allegations of automation difficulties. The Appropriate Penalty

Section 7, Rule 71 of the Rules of Court provides the penalty for indirect contempt. Section 7 of Rule 71 reads: SEC. 7. Punishment for indirect contempt. - If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. x x x In the past, we have found the Chairman and members of the Comelec guilty of indirect contempt in Ang Bagong Bayani-OFW Labor Party v. COMELEC.25 In that case, we held that the Chairman and members of the COMELEC guilty of contempt and required them to pay a fine in the amount of P20, 000.00 for "degrading the dignity of th[e] Court;26 for brazen disobedience to its lawful directives, in particular its Temporary Restraining Order dated May 9, 2001; and for delaying the ultimate resolution of the many incidents of the case, to the prejudice of the litigants and of the country." We also warned the Comelec that a repetition of the same or similar acts shall be dealt with more severely in the future.27 Evidently, the Rule cited above does not provide that reprimand may be imposed on one found guilty of indirect contempt. However, we have in recent cases imposed a penalty less than what is provided under the Rules if the circumstances merit such.28 In Alcantara v. Ponce,29 the Court, instead of citing the respondent Atty. Escareal-Sandejas for contempt, chose to reprimand her (and warned her that her commission of the same act would be more drastically dealt with) noting her apparent inexperience in practice of the profession, especially in appellate proceedings before the Court. Similarly, in Racines v. Judge Morallos,30 the Court, after finding Jaime Racines guilty of indirect contempt, merely reprimanded him because "he is not learned in the intricacies of the law." In the present case, special circumstances exist which call for our leniency and compel us to impose the penalty of severe reprimand instead of of imprisonment and/or fine under Section 7, of Rule 71 of the Rules of Court as we have ruled in Ang Bagong Bayani-OFW Labor Party. We emphasize that although automation is a special circumstance that should be considered in the present incidental matter, however, its effect on the Comelecs non-compliance is merely to mitigate, not to totally exculpate, the Comelec from liability for its failure to comply with our Status Quo Order. In other words, even if we grant that automation might have posed some difficulty in including a new party in the party-list listing, the Comelec still failed to prove to our satisfaction that the PGBIs inclusion was technically impossible and could not have been done even if the Comelec had wanted to. Thus, at the most, we can give the Comelec the benefit of the doubt to the extent of recognizing its excuse as a mitigating factor. Therefore, instead of imposing the penalty of imprisonment and/or fine provided under Section 7, Rule 71 of the Revised Rules of Court, we deem it proper to impose upon the Comelec, particularly on its Chair and Members the penalty of severe reprimand, with a stern warning that a repetition of the same offense shall be dealt with more severely. At this juncture, we take judicial notice of Comelec Chairperson Jose A.R. Melos resignation effective January 15, 201131 and Commissioners Nicodemo T. Ferrer and Gregorio Y. Larrazabals retirement on February 2, 2011.32We hasten to clarify that their departure from government service, however, do not render moot and academic their liability for indirect contempt, since "contempt of court applies to all persons, whether in or out of government." Thus, in Curata v. Philippine Ports Authority,33 we held:

Contempt of court applies to all persons, whether in or out of government. Thus, it covers government officials or employees who retired during the pendency of the petition for contempt. Otherwise, a civil servant may strategize to avail himself of an early retirement to escape the sanctions from a contempt citation, if he perceives that he would be made responsible for a contumacious act. The higher interest of effective and efficient administration of justice dictates that a petition for contempt must proceed to its final conclusion despite the retirement of the government official or employee, more so if it involves a former member of the bench. PGBIs Participation in the May 10, 2010 Party-List Elections We partly agree with the Comelec that we cannot recognize PGBI to be a party-list organization fully qualified to run under the party-list system in the coming 2013 party-list elections. The question of full and total qualification is not ripe for judicial determination as this is not before us for resolution. Participation in a previous election and the level of votes in favor of a participating organization are not the only qualification issues that can arise in a party-list election, and we cannot assume that PGBI shall meet all other legal standards to qualify as a party-list organization in the 2013 elections.34 But separate from the question of PGBIs overall qualification is the narrower question of its participation in the May 10, 2010 elections an issue that is subsumed by the issues in the main certiorari case. As shown above, PGBI intended to participate in the May 10, 2010 elections but it was not able to do so because the Comelec did not contrary to our express directive include it in the list of party-list organizations to be voted upon in the May 10, 2010 elections. As it was the Comelec itself which prevented PGBI from participating in the May 10, 2010 party-list elections when it deleted PGBI, with grave abuse of discretion, from the list of accredited party-list groups or organizations and, thereafter, refused to return it to the list despite our directive, PGBI should, at the very least, be deemed to have participated in the May 10, 2010 elections, and cannot be disqualified for non-participation or for failure to garner the votes required under Section 6(8) of R.A. No. 7941. To conclude otherwise is to effectively recognize the ineffectiveness of our Status Quo Order, of our April 29, 2010 Decision, and of this Court. As a final note, the subject of the Courts action is the COMELECs disobedience to our Status Quo Order of February 2, 2010 in the case in caption. The composition of the COMELEC has since then changed. We therefore clarify that this Resolution affects and reflects on the COMELEC and its membership as then constituted as they were the ones directly responsible for the disobedience. WHEREFORE, premises considered, the Comelec Chair35 and Members36 are hereby found GUILTY of CONTEMPT of the Supreme Court for their disobedience to our lawful directive, specifically the Status Quo Order dated February 2, 2010. They are accordingly SEVERELY REPRIMANDED for this disobedience. They are further WARNED that a repetition of the same or similar acts shall be dealt with more severely in the future. The Philippine Guardians Brotherhood, Inc. shall be deemed not to have transgressed the participation and level of votes requirements under Section 6(8) of Republic Act No. 7941 with respect to the May 10, 2010 elections. SO ORDERED. A.M. No. P-07-2297 March 21, 2011 (Formerly A.M. No. 07-1-04-MTC - Re: Report on the Financial Audit Conducted in the MTC, Argao, Cebu)

OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. MS. MIRA THELMA V. ALMIRANTE, Interpreter and former Officer-in-Charge, Municipal Trial Court, Argao, Cebu, Respondent. DECISION BRION, J.: We resolve the administrative matter involving Ms. Mira Thelma V. Almirante, Interpreter and former Officer-in-Charge (OIC), Office of the Clerk of Court, Municipal Trial Court (MTC), Argao, Cebu. The Factual Background On July 17, 2006, an audit team from the Office of the Court Administrator (OCA) conducted an audit on the books of accounts of the MTC, Argao, Cebu. The audit was in response to the request of Presiding Judge Leonardo P. Carreon, of the same court, for an investigation into the alleged failure of Almirante to turn over to Clerk of Court Ryan S. Plaza the Fiduciary Account passbook, deposit slips, and official receipts for the Judiciary Development Fund (JDF), Special Allowance for the Judiciary Fund (SAJF) and the Fiduciary Fund (FF).1 The audit covered the financial transactions of Almirante from January 1, 2005 to November 30, 2005; and of Plaza from December 1, 2005 to June 30, 2006. Almirante served as OIC Clerk of Court from January 24, 2005 to November 2005, while Plaza assumed the position of Clerk of Court on December 1, 2005. The Audit Report, dated November 3, 2006,2 disclosed the following findings in relation with Almirantes accountability:3 1) Shortages in the SAJF collections in the total amount of P7,655.60 incurred between January 2005 and November 2005 due to the erroneous remittance of the collections to the FF account; 2) Shortages in the JDF collections in the total amount of P6,682.90 incurred between January 2005 and November 2005 due to the erroneous remittance of the collections to the FF account; and 3) Reported misappropriation of the exhibit money in Criminal Case No. 6553 (People of the Philippines v. Florecita Bucacao) in the amount of P41,000.00. On July 28, 2006, Almirante deposited, by way of restitution, the amounts corresponding to her shortages P7,655.60 for the SAJF account4 and P6,682.90 for the JDF account5 with the MTCs Land Bank account. Further, the reportedly misappropriated exhibit money had been returned to the court even before the OCA audit. In a letter to the OCA dated May 18, 2006,6 Plaza reported that on May 16, 2006, a certain Erlinda Tecson tendered to him cash amounting to P162,000.00, claiming that the money was a payment for Almirantes accountabilities. On May 22, 2006, Plaza deposited P121,000.00, out of the P162,000.00 he received from Tecson, to the courts Land Bank FF account, and set aside the balance of P41,000.00 as replacement for the exhibit money in Criminal Case No. 6553. On the recommendation of the OCA, the Court (First Division) issued a Resolution7 directing Almirante to explain in writing, within ten (10) days from notice, why no disciplinary action should be taken against her for: (1) misappropriating the exhibit money in Criminal Case No. 6553; (2) her

failure to regularly submit her Monthly Report of Collections and Deposits in violation of OCA Circular Nos. 32-93 and 113-2004; and (3) her failure to submit her collections for the SAJF and the JDF on time. Almirantes Explanation Almirante submitted her explanation on April 17, 2007.8 She denied misappropriating the exhibit money in Criminal Case No. 6553. She explained that due to her intermittent absences because of her health condition at the time, she sent the exhibit money to Plaza, the newly-appointed clerk of court, together with the court collections. She claimed that due to inadvertence, she placed all the money in one envelope without segregating the exhibit money from the collections. Plaza deposited the money in the courts FF account, believing that the entire amount constituted the courts cash collections. Almirante admitted her failure to deposit her cash collections on time. She claimed, however, that when she was designated as Acting Clerk of Court in early 2005, she was not aware that court collections should be deposited within twenty-four (24) hours from the time of collection, until the auditor called her attention to this requirement sometime in April 2006. Moreover, the court is located sixty-six (66) kilometers away from the depository bank. She said, the travel to the bank to deposit the collections would be very costly. With respect to the non-submission of monthly reports, Almirante claimed that when she went to the Prosecutors Office at one time to deliver the records of remanded cases, she inadvertently left the reports, together with other personal items she was carrying, in the taxicab she took that day. The OCA Report On October 7, 2008, the OCA submitted its report/recommendation9 whose pertinent portion provides: Ms. Almirante retained in her possession for a period from fifteen (15) days to eleven (11) months the courts cash collections. She admitted that she was not aware of the directive to promptly remit cash collections. Since she adduced no valid justification, this omission amounts to neglect of duty. Being the Officer-in-Charge, she is considered the custodian of court funds and revenues. For this reason, she should have been aware of her duty to immediately deposit the various funds she received to the authorized government depositories. Failure to fulfill this responsibility deserves administrative sanction. Not even the full payment of the shortages or the claim of ignorance of the applicable rule can exempt the accountable officer from liability. The respondents failure to regularly submit the corresponding reports on the collections and deposits of court funds/fees indicates her negligence. The regular submission of the monthly report on the collections of the court funds/fees is mandatory. Ms. Almirantes claim that she inadvertently lost the monthly reports in a taxi cannot justify her omission, the said assertion being clearly selfserving. In the matter of the alleged misappropriation of the exhibit money in Criminal Case No. 6553, the evidence on record does not show adequately that there was unauthorized use of the exhibit money by the respondent, whether in whole or in part thereof. The entire amount was intact during the conduct of the cash count examination, and the same was already placed in the custody of the incumbent Clerk of Court.

Nonetheless, as indicated by the results of the judicial audit, Ms. Almirante has been remiss in the performance of her administrative responsibilities as then Officer-in-Charge of the MTC, Argao, Cebu. Her omissions partake of violations of specific rules and regulations governing the duties and responsibilities of Clerks of Court (or their authorized substitutes) in the collection and custody of legal funds/fees. Well-defined is the role of the Clerks of Court as judicial officers entrusted with the delicate function in the collection of legal fees, and they are expected to correctly and effectively implement regulations (Gutierrez v. Quitalig, 448 Phil 465, [2003], cited in Dela Pena v. Sia, A.M. No. P-06-2167, June 27, 2006). The same exacting standard should also be observed by those who, like the herein respondent, have been temporarily designated to discharge the functions of the Clerk of Court. Failure of Ms. Almirante to properly remit the court collections and regularly submit corresponding monthly reports transgressed the trust reposed in her as officer of the court.
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In A.M. No. 01-4-119-MTC (Re: Financial Audit conducted on the books of accounts of Clerk of Court Pacita L. Sendin, MTC, Solano, Nueva Viscaya, January 16, 2002) the Clerk of Court concerned was directed by the Court to pay a fine of P5,000.00 for violating the circular issued by the court relative to the immediate remittance of court collections. Moreover, in Re: Gener C. Endoma (241 SCRA 237), the Court found the respondent Clerk of Court remiss in the performance of his duties when he deposited the collections for the month of June 1994 on 01 August 1994; and for the months of July and August 1994, on 16 September 1994. The delays were deemed unreasonable and violative of Administrative Circular No. 5-93. The Clerk of Court was ordered to pay a fine ofP2,000.00. Under the Uniform Rules on Administrative Cases in the Civil Service, the omissions of the respondent, as established, amount to simple neglect of duty warranting a penalty of suspension of one (1) month and one (1) day to six (6) months for the first offenders. However, in the 07 March 2007 Resolution in A.M. No. 07-2-26-MTC, the Second Division of the Court ordered the dropping of Ms. Almirante from the rolls effective 01 December 2005, and her position had been declared vacant. With this supervening circumstance, it would be impractical to impose upon her the penalty of suspension. A penalty in the form of a fine would be in order. IN VIEW OF THE FOREGOING, it is respectfully submitted for the consideration of the Honorable Court the recommendation that Ms. Mira Thelma V. Almirante, Interpreter, Municipal Trial Court, Argao, Cebu be FOUND LIABLE for simple neglect of duty; and be FINED in the amount of Eight Thousand Pesos (P8,000.00). The said amount shall be deducted from any monetary benefits she may receive from the court as a result of her early separation from the service per A.M. No. 07-2-26MTC. We find the OCAs report/recommendation to be well-founded except for the penalty. Indeed, Almirante should be penalized for she had been remiss in the performance of her duties as OIC Clerk of Court at the MTC, Argao, Cebu. The OCAs recommended fine, however, is not proportionate with the penalty that could have been imposed had Almirante not been given the chance for an early separation. Since the penalty for simple neglect is one (1) month and one (1) day up to six (6) months suspension, the fine imposable on Almirante should at least be the equivalent of one (1) month suspension, or P9,612.00 based on Almirantes personnel records. In this manner, there is proportion between the suspension that should have been imposed and the fine, as the substitute penalty under the circumstances.
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WHEREFORE, premises considered, Ms. Mira Thelma V. Almirante, Interpreter, Municipal Trial Court, Argao, Cebu, is found LIABLE for simple neglect of duty and is FINED an amount equivalent

to her one (1) month salary. The amount shall be deducted from any monetary benefits she is entitled to as a result of her early separation from the service, pursuant to the Resolution dated March 7, 2007 in A.M. No. 07-2-26-MTC. SO ORDERED. G.R. No. 182458 March 21, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. REX NIMUAN y CACHO, Appellant.

DECISION

BRION, J.: We decide the appeal filed by appellant Rex Nimuan y Cacho from the August 16, 2007 decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00844.1 THE FACTUAL ANTECEDENTS On August 23, 2004, the appellant was accused2 of murder3 in the Regional Trial Court (RTC), Branch 31, Agoo, La Union.4 The appellant pleaded not guilty on arraignment.5 In the trial that followed, an eyewitness Alfredo Ruiz, the brother of the victim (Jun Ruiz) and the appellants first cousin testified on the details of the crime. In the afternoon of July 22, 2004, while Alfredo was talking with friends, he saw the victim, the appellant and a certain Boy Nieva drinking in a neighborhood store in Barangay San Eugenio, Aringay, La Union.6 Later that afternoon, as Alfredo was walking home along a path inside a mango plantation in the barangay, he spotted the appellant and the victim about 30 meters ahead of him, walking in the same trail leading to their respective houses.7 Unaware of his presence, the appellant who was walking a meter behind the victim suddenly hacked the latter with a bolo.8 Alfredo ran away to seek help when he saw the victim fall to the ground after the attack.9 The postmortem report revealed that the victim died from massive loss of blood due to multiple hack wounds on his right forearm, face and head.10 The appellant, interposing alibi, claimed that between 3:00 and 5:00 p.m. of July 22, 2004, he was watching television at the house of his uncle, Manuel Dulay, at San Benito Sur when a certain Barangay Captain Cario, along with a barangay kagawad, arrived and informed him that he was a suspect in the death of the victim. The appellant and his mother went with the barangay officials to the police station of Aringay, La Union, where he was detained.11 THE RTC RULING In its December 29, 2004 Decision, the RTC found the appellant guilty of murder. It gave credence to Alfredos positive identification of the appellant as the perpetrator of the killing, as supported by the postmortem examination of the victim. The RTC appreciated the qualifying circumstance of

treachery because the appellant hacked the victim by surprise, leaving the latter no opportunity to defend himself. However, it appreciated in the appellants favor the mitigating circumstance of voluntary surrender. Applying the indeterminate sentence law, the RTC sentenced the appellant to suffer the penalty of 20 years of reclusion temporal maximum to 40 years of reclusion perpetua imprisonment, and to pay the heirs of the victim the lump sum of P100,000 as civil indemnity and damages.12 THE CA RULING On intermediate appellate review, the CA affirmed the RTCs judgment, giving full respect to the RTC's assessment of the testimony and the credibility of the eyewitnesses. It rejected the appellants alibi because the distance between San Benito Sur and the mango plantation where the victim was hacked, was merely 2 kilometers; this distance was not too far away to preclude the possibility of the appellants presence at the locus criminis. The appellate court appreciated treachery as a qualifying circumstance because the victim was unarmed and defenseless when the appellant, without warning, attacked him from behind with a bolo. The CA also noted the number, location and severity of the hack wounds inflicted on the victim, one of which even cut through his brain and almost severed his head. The appellate court found that the RTC erred in appreciating the mitigating circumstance of voluntary surrender because the appellant went with the barangay officials not to admit the alleged crime or to voluntarily surrender to the authorities, but only for verification purposes. Thus, the CA sentenced the appellant to reclusion perpetua. It clarified that the lump sum of P100,000 represented P50,000 as civil indemnity and P50,000 as moral damages. It also awarded P25,000 as temperate damages, in lieu of actual damages, and P25,000 as exemplary damages due to the attendance of the qualifying circumstance of treachery.13 We now rule on the final review of the case. OUR RULING We affirm the appellants conviction. We find no reason to disturb the findings of the RTC, as affirmed by the CA. The records are replete with evidence establishing the appellant's guilt beyond reasonable doubt. Alfredos eyewitness account was corroborated by the postmortem report on the location and severity of the wounds sustained by the victim. Both the RTC and the CA correctly appreciated the qualifying circumstance of treachery because the attack was deliberate, sudden and unexpected, affording the hapless, unarmed and unsuspecting victim no opportunity to resist or to defend himself.14 The appellant was correctly sentenced to suffer the penalty of reclusion perpetua since the mitigating circumstance of voluntary surrender cannot be appreciated in his favor; the records indicate that the appellant did not intend to assume responsibility for the death of the victim when he and his mother went with the barangay officials to the police station.15
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While we affirm the CAs factual findings and the imprisonment imposed, we find it necessary to increase toP30,000 the amount of exemplary damages, to conform with prevailing jurisprudence.16 WHEREFORE, the August 16, 2007 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00844 is herebyAFFIRMED with MODIFICATION. Appellant Rex Nimuan y Cacho is found guilty of murder as defined and penalized under Article 248 of the Revised Penal Code, and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay the heirs of Jun Ruiz P50,000

as civil indemnity ex delicto, P50,000 as moral damages, P25,000 as temperate damages, and P30,000 as exemplary damages. SO ORDERED. G.R. No. 192821 March 21, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. SIXTO PADUA y FELOMINA, Appellant. DECISION BRION, J.: We decide the appeal filed by appellant Sixto Padua y Felomina from the September 10, 2009 Decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 03023. The Factual Antecedents On June 20, 2001, the appellant was charged with rape before the Regional Trial Court (RTC), Branch 89, Quezon City,2 committed against his 6-year old niece AAA3 sometime in April 1991.4 The appellant pleaded not guilty on arraignment. In the trial that followed, AAA testified on the details of the crime. Sometime in April 1991, between 1:00 and 2:00 p.m., AAA, then six years old, was playing at the balcony of their house in Barangay Payatas, Quezon City. BBB (AAAs mother) was downstairs cleaning the house, while AAAs sisters were outside the house.5 The appellant (BBBs brother) was watching TV. The appellant called AAA and told her to lie beside him.6 He then asked her to remove her shorts and underwear. He also removed his shorts, laid her down, and inserted his penis inside her vagina.7 AAA felt pain but she did not cry out. Thereafter, the appellant told her not to report the incident to her mother or to anyone else.8 AAA did not tell anyone about the incident since she did not know that what had been done to her was wrong. AAA only realized that her sexual experience with her uncle was wrong when she was already 12 or 13 years old, or at about the time she was in Grade VI. She did not disclose the incident to anyone then as she was afraid.9 It was not until after her graduation from elementary school that she finally disclosed the incident to CCC (AAAs older sister). CCC, in turn, also revealed that a similar incident had happened to her when she was at about the same age as AAA when the latters experience happened.10 AAA and CCC never before told their father about their experience because they feared for his health, but subsequently, the incident came to their fathers knowledge after CCC had a bitter confrontation with him. Thereafter, AAA and her father went to the police station where she executed her sworn statement and underwent a medical examination that confirmed that she was no longer a virgin. 11 The appellant, interposing denial and alibi, claimed that he was in San Vicente, Bicol, sometime in April 1991.12 The RTC Ruling

In its March 26, 2007 decision, the RTC found the appellant guilty of rape. It relied on AAAs clear, direct and positive testimony, and rejected the appellants alibi for his failure to show that it was physically impossible for him to have committed the rape. It noted that AAAs delay in reporting the rape was not indicative of a fabricated charge, considering her young age and her family ties with the appellant; AAA only came to know that the sexual incident was wrong when she was in Grade VI, and she feared for her fathers health should the latter learn of the incident. The RTC appreciated AAAs minority, noting that the appellant failed to rebut AAAs testimony that she was 6 years old when she was raped. With the abolition of the death penalty under Republic Act No. 9346,13 the RTC sentenced the appellant to reclusion perpetua. It also ordered the appellant to pay AAA P75,000.00 as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary damages.14 The CA Ruling On intermediate appellate review, the CA noted that AAAs minority cannot be appreciated as the prosecution failed to present the certificate of live birth or any other authentic document to prove the age of AAA at the time of the commission of the offense. It noted further that the appellant did not expressly admit AAAs age. Instead, the appellate court appreciated force and intimidation, noting that the appellants relationship to AAA had been proven by his own admission. It stressed that in incestuous rape, the moral ascendancy of the accused over the victim takes the place of force and intimidation. Thus, it convicted the appellant of simple rape under Article 266-A(1) of the Revised Penal Code and sentenced him to reclusion perpetua, but reduced to P50,000.00 the civil indemnity to AAA.15 From the CA, the case was elevated to us for final review. Our Ruling We affirm the appellants conviction. We find no reason to deviate from the findings of the RTC and the CA. Jurisprudence is replete with rulings that an appellant can justifiably be convicted of rape based solely on the credible testimony of the victim. We consider, too, that nothing in the records indicates to us that the RTC and the CA overlooked or failed to appreciate facts that, if considered, would change the outcome of the case. We agree with the CA that the appellant cannot be held liable for qualified, much less statutory, rape; the prosecution failed to prove by independent evidence the age of AAA, much less the allegation that she was under the age of 12 when she was raped. The appellate court properly appreciated force and intimidation. In rape committed by a close kin, such as the victim's father, stepfather, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation be employed; moral influence or ascendancy takes the place of violence or intimidation.16 Thus, the CA properly convicted the appellant for simple rape whose penalty is reclusion perpetua. We, however, clarify the applicable law. The CA held that the appellant was guilty of simple rape under Article 266-A(1) of the Revised Penal Code. However, the crime was committed in 1991, i.e., prior to the passage of the law imposing the death penalty for rape cases17 and prior to the new rape law.18 The law then in place Article 335 of the Revised Penal Code19 should apply. Under this law, simple rape is punishable by reclusion perpetua.
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To conform with existing jurisprudence,20 we reduce the amount of exemplary damages from P50,000.00 toP30,000.00.

WHEREFORE, the September 10, 2009 decision of the Court of Appeals in CA-G.R. CR HC No. 03023 is herebyAFFIRMED with MODIFICATION. Appellant Sixto Padua y Felomina is found guilty beyond reasonable doubt of the crime of Simple Rape under Article 335 of the Revised Penal Code, and sentenced to suffer the penalty ofreclusion perpetua. He is also ordered to pay AAA P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages. SO ORDERED. G.R. No. 193482 March 2, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. NILO ROCABO, Appellant. DECISION We decide the appeal filed by the accused Nilo Rocabo (appellant) from the May 31, 2010 decision of the Court Appeals (CA) in CA-G.R. CEB-CR-H.C. No. 00730.1 THE FACTUAL ANTECEDENTS On August 18, 1999, the appellant was charged2 in the Regional Trial Court (RTC), Branch 10, Abuyog, Leyte, with 3 counts of incestuous rape3 committed against his 11-year old daughter AAA4 on April 275 and 29,6 1999 and May 1, 1999.7 The appellant pleaded not guilty to all the charges against him. In the joint trial that followed, AAA testified on the details of the crimes. On April 27, 1999, while AAA was sleeping in the living room of her grandmothers house, her father (the appellant) woke her up and told her to go to their house at the back of her grandmothers house.8 On reaching their house, the appellant told her to go to the room.9 While inside the room, the appellant removed her shorts and underwear, and told her to lie down.10 The appellant then undressed himself, kissed her, and inserted his private organ into her vagina.11 Two days later, on April 29, 1999, while AAA was watching television at her grandmothers house, the appellant told her to go home.12 The appellant once again told AAA to go inside the room.13 The appellant then kissed her on the neck.14 Two days later, on May 1, 1999, while AAA was playing in the street, the appellant called her home and told her again to go to the room.15 The appellant then undressed her, made her lie down, kissed her, and inserted his private organ into her vagina.16 When BBB, AAAs mother, discovered what happened, she brought AAA on May 27, 1999 to the Burauen District Hospital for a medical examination.17 The medical examination revealed an old healed hymenal laceration.18 The appellant denied the charges against him, claiming that he was roasting pig for the fiesta on April 27, 1999 with Ernie Dagami, and that he was at home with BBB and their children on April 29 and May 1, 1999. 19 He alleged that BBB instigated the case against him because she was afraid that he would file an adultery case against her.20 THE RTC RULING In its January 12, 2007 Decision, the RTC acquitted the appellant for the alleged rape committed on April 29, 1999, but found him guilty of 2 counts of incestuous rape committed on April 27 and May 1, 1999.21 It gave full credence to AAAs testimony and rejected the appellants denial. It noted that AAA cried while narrating in court her fathers monstrous acts, and that no child would fabricate a rape charge against her own father. The RTC sentenced the appellant to reclusion perpetua for two

counts of rape and ordered him to pay AAA P75,000 as moral damages and P25,000 as exemplary damages for each count.22 THE CA RULING On intermediate appellate review, the CA affirmed the appellants conviction. It rejected the appellants attack on AAAs credibility, noting that it was improbable for a child of tender years to concoct a tale of sexual molestation committed by her own father just because she was persuaded to do so by her mother; that inconsistencies on minor details proved that AAAs testimony was not rehearsed; that the delay in reporting the rape incidents did not affect AAAs credibility because there was no uniform reaction for rape victims. The CA noted that the absence of fresh hymenal lacerations does not negate that rape was committed since hymenal lacerations are not an element of rape.23 From the CA, the case is now with us for final review. OUR RULING We affirm the appellants conviction. We have examined the records and we entertain no doubt that the appellant raped AAA. We find AAA's testimony convincing and straightforward. We, therefore, have no reason to reverse or modify the findings of the RTC on the credibility of AAA's testimony, more so in the present case where the said findings were affirmed by the CA. As the RTC and the CA did, we reject the appellants denial. Not only is denial an inherently weak defense, it cannot also prevail over the positive testimony of the offended party.24 While we affirm the factual findings of the RTC and the CA, we note that neither court fully appreciated nor discussed the penalty properly imposable on the appellant. Since the rape incidents happened on April 27 and May 1, 1999, the applicable laws are Article 266A and Article 266-B of the Revised Penal Code, as amended,25 which provide: ART. 266-A. Rape: When and How Committed. Rape is committed: xxxx d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. xxxx ART. 266-B. Penalty. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying 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[.] In the present case, the Informations charging the appellant with the crimes of rape clearly alleged that the appellant had carnal knowledge of his daughter, AAA, who was only 11 years old when the rapes were committed on April 27 and May 1, 1999.26 The prosecution's evidence clearly shows AAA's age and filiation by the appellant; AAAs duly presented Certificate of Live Birth showed that she was born on June 7, 1987 to spouses Nilo Rocabo and BBB.27 With the basic elements of the crime charged, AAAs minority and her relationship to the appellant having been alleged in the Informations and duly proven, we find the appellant guilty of two counts of qualified rape, as the lower courts did. In view of the enactment of Republic Act No. 9346,28 the penalty of death that should have been meted out to the appellant under Articles 266-A and 266-B of the Revised Penal Code, shall now be reclusion perpetua for each count of qualified rape, without eligibility for parole.29
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Lastly, we modify the appellants civil liability to include civil indemnity and to increase the exemplary damages awarded. Civil indemnity is automatically awarded upon proof of the commission of the crime by the offender.30Under prevailing jurisprudence, the offended party is entitled to P75,000 as civil indemnity, P75,000 as moral damages, and P30,000 as exemplary damages to deter other persons with perverse or aberrant sexual behavior from sexually abusing their children.31 WHEREFORE, the May 31, 2010 Decision of the Court of Appeals in CA-G.R. CEB-CR-H.C. No. 00730 is herebyAFFIRMED with MODIFICATION. Appellant Nilo Rocabo is found guilty beyond reasonable doubt of two (2) counts of Qualified Rape and sentenced to suffer the penalty of reclusion perpetua for each count, without eligibility for parole. He is also ordered to pay AAA P75,000 as civil indemnity, P75,000 as moral damages, andP30,000 as exemplary damages for each count of rape. SO ORDERED.

G.R. No. 171542

April 6, 2011

ANGELITO P. MAGNO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, MICHAEL MONSOD, ESTHER LUZ MAE GREGORIO, GIAN CARLO CAJOLES, NENETTE CASTILLON, DONATO ENABE and ALFIE FERNANDEZ, Respondents. DECISION BRION, J.: Through a petition for review on certiorari,1 petitioner Angelito P. Magno seeks the reversal of the Amended Decision of the Court of Appeals (CA), dated September 26, 20052 in "People of the Philippines, et al. v. Hon. Augustine A. Vestil, Presiding Judge, RTC Mandaue City, Br. 56, et al." (docketed as CA-G.R. SP No. 79809), and its Resolution dated February 6, 20063 denying respondents motion for reconsideration.4 The assailed rulings denied the petition for certiorari filed

under Rule 65 of the Rules of Court and upheld the ruling5 of the Regional Trial Court (RTC) of Mandaue City, which precluded Atty. Adelino B. Sitoy from acting as private prosecutor in Criminal Case No. DU-10123.6 THE FACTUAL ANTECEDENTS On May 14, 2003, the Office of the Ombudsman filed an information for multiple frustrated murder and double attempted murder against several accused, including Magno, who were public officers working under the National Bureau of Investigation.7 During the scheduled arraignment, Magno, in open court, objected to the formal appearance and authority of Atty. Sitoy, who was there as private prosecutor to prosecute the case for and on behalf of the Office of the Ombudsman.8 The oral objection was reduced to writing on July 21, 2003 when Magno filed an opposition9 before Branch 56 of the RTC of Mandaue City, citing the provisions of Section 31 of Republic Act (RA) No. 6770.10 The Office of the Ombudsman submitted its comment,11 while the accused submitted their joint opposition.12 The respondents likewise submitted their comments to the opposition of the other coaccused.13 On September 25, 2003, the RTC issued an Order, ruling that "the Ombudsman is proper, legal and authorized entity to prosecute this case to the exclusion of any other entity/person other than those authorized under R.A. 6770."14 In open court, the Office of the Ombudsman moved for the reconsideration of the Order, which the RTC later denied in its October 1, 2003 Order.15 Proceedings before the CA On October 13, 2003, the respondents, through the Ombudsman for the Visayas and Atty. Sitoy, filed a petition for certiorari before the CA.16 They contended that the RTC committed a grave abuse of discretion in prohibiting the appearance of Atty. Sitoy as counsel for the private offended parties, as the Rules of Court expressly provides that a private offended party may intervene, by counsel, in the prosecution of offenses.17 Magno, in his comment18 filed on December 15, 2003, insisted that what he questioned before the RTC was the appearance and authority of the private prosecutor to prosecute the case in behalf of the Ombudsman.19 He stressed that while the Office of the Ombudsman can designate prosecutors to assist in the prosecution of criminal cases, its authority in appointing, deputizing or authorizing prosecutors to prosecute cases is confined only to fiscals, state prosecutors and government lawyers. It does not extend to private practitioners/private prosecutors.20 He further stressed that while the Order of the RTC states that the Office of the Ombudsman is the proper legal and authorized entity to prosecute the case, it did not affect the right to intervene personally, as the Office of the Ombudsman can take the cudgels for the private respondents in prosecuting the civil aspect of the case.21 On February 16, 2005, the CA, in its original Decision, declared that the private prosecutor may appear for the petitioner in the case, but only insofar as the prosecution of the civil aspect of the case is concerned.22

The respondents moved for the reconsideration23 of the CA decision. On September 26, 2005, the CA amended its decision,24 ruling that the private prosecutor may appear for the petitioner in Criminal Case No. DU-10123 to intervene in the prosecution of the offense charged in collaboration with any lawyer deputized by the Ombudsman to prosecute the case.25 Failing to obtain a reconsideration26 of the amended CA decision, Magno elevated the dispute to this Court through the present petition for review on certiorari27 filed under Rule 45 of the Rules of Procedure. PETITIONERS ARGUMENTS Magno submits that the CA did not have jurisdiction to entertain the petition for certiorari; the power to hear and decide that question is with the Sandiganbayan.28 To support this contention, Magno invokes Engr. Teodoto B. Abbot v. Hon. Judge Hilario I. Mapayo, etc., et al.29 where the Court held that the Sandiganbayan has the exclusive power to issue petitions for certiorari in aid of its appellate jurisdiction.30 Even if the Court were to set aside this procedural lapse, Magno adds, the private prosecutor cannot be allowed to intervene for the respondents as it would violate Section 31 of RA No. 6770.31 Section 31 limits the Ombudsmans prerogative to designate prosecutors to fiscals, state prosecutors and government lawyers. It does not, Magno maintains, allow the Ombudsman to deputize private practitioners to prosecute cases for and on behalf of the Office of the Ombudsman.32 RESPONDENTS ARGUMENTS The Office of the Ombudsman, through the Office of the Special Prosecutor, submitted its memorandum on February 8, 2008. Substantively, the Ombudsman maintains that Atty. Sitoy may intervene in the case pursuant to Section 16, Rule 110 of the Rules of Court, which reads: Sec. 16. Intervention of the offended party in criminal action. Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. The Ombudsman maintains that Section 31 of RA No. 6770 did not amend Section 16, Rule 110 of the Rules of Court.33 Section 31 merely allows the Ombudsman to designate and deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution in certain cases.34 The Ombudsman opines that the two provisions of law "are not diametrically opposed nor in conflict,"35 as "a private prosecutor may appear for the private offended complainants in the prosecution of an offense independent of the exclusive right of the Ombudsman to deputize."36 The Ombudsman, however, did not address the contention that the Sandiganbayan, not the CA, has appellate jurisdiction over the RTC in this case. THE COURTS RULING We resolve to grant the petition. The Sandiganbayan, not the CA, has appellate jurisdiction over the RTCs decision not to allow Atty. Sitoy to prosecute the case on behalf of the Ombudsman Presidential Decree (PD) No. 1606 created the Sandiganbayan. Section 4 thereof establishes the Sandiganbayans jurisdiction:

Section 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corruption Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: xxxx B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection of this section in relation to their office. C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to Salary Grade "27" or higher, as prescribed in the said Republic Act No. 6758, or military or PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or to appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of civil action, and no right to reserve the filing of such civil action separately from the criminal action

shall be recognized: Provided, however, That where the civil action had theretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned." [emphasis and underscoring supplied] This is clear: the Sandiganbayan has exclusive appellate jurisdiction over resolutions issued by RTCs in the exercise of their own original jurisdiction or of their appellate jurisdiction. We reaffirmed this rule in Abbot.37 In that case, petitioner Engr. Abbot filed a petition for certiorari before the CA, claiming that the RTC gravely abused its discretion for not dismissing the information for Malversation thru Falsification of Public Document. The CA refused to take cognizance of the case, holding that the Sandiganbayan has jurisdiction over the petition. Recognizing the amendments made to PD No. 1606 by RA No. 7975,38 we sustained the CAs position since Section 4 of PD No. 1606 has expanded the Sandiganbayans jurisdiction to include petitions for "mandamus, prohibition, certiorari, habeas corpus, injunction, and other ancillary writs and processes in aid of its appellate jurisdiction."39 In the present case, the CA erred when it took cognizance of the petition for certiorari filed by Magno. While it is true that the interlocutory order issued by the RTC is reviewable by certiorari, the same was incorrectly filed with the CA. Magno should have filed the petition for certiorari with the Sandiganbayan, which has exclusive appellate jurisdiction over the RTC since the accused are public officials charged of committing crimes in their capacity as Investigators of the National Bureau of Investigation.40 The CA should have dismissed the petition outright. Since it acted without authority, we overrule the September 26, 2005 Amended Decision of the CA and the subsequent denial of Magnos motions for reconsideration. Jurisdiction is conferred by law, and the CAs judgment, issued without jurisdiction, is void. There is no rule in procedural law as basic as the precept that jurisdiction is conferred by law,41 and any judgment, order or resolution issued without it is void42 and cannot be given any effect.43 This rule applies even if the issue on jurisdiction was raised for the first time on appeal or even after final judgment.44 We reiterated and clarified the rule further in Felicitas M. Machado, et al. v. Ricardo L. Gatdula, et al.,45 as follows: Jurisdiction over a subject matter is conferred by law and not by the parties action or conduct. Estoppel generally does not confer jurisdiction over a cause of action to a tribunal where none, by law, exists. In Lozon v. NLRC, we declared that: Lack of jurisdiction over the subject matter of the suit is yet another matter. Whenever it appears that the court has no jurisdiction over the subject matter, the action shall be dismissed. This defense may be interposed at any time, during appeal or even after final judgment. Such is understandable, as this kind of jurisdiction is conferred by law and not within the courts, let alone the parties, to themselves determine or conveniently set aside.
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We note that Magno had already raised in his supplemental motion for reconsideration before the CA46 the ground of lack of jurisdiction before the CAs Decision became final. The CA did not even consider this submission, choosing instead to brush it aside for its alleged failure to raise new or substantial grounds for reconsideration.47 Clearly, however, its lack of jurisdiction is a new and substantial argument that the CA should have passed upon. The Office of the Ombudsman cannot rely on the principle of estoppel to cure the jurisdictional defect of its petition before the CA The Ombudsman cannot rely on the principle of estoppel in this case since Magno raised the issue of jurisdiction before the CAs decision became final. Further, even if the issue had been raised only on appeal to this Court, the CAs lack of jurisdiction could still not be cured. In Machado,48 citing People of the Philippines v. Rosalina Casiano,49 we held: In People v. Casiano, this Court, on the issue of estoppel, held: The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same "must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel." However if the lower court had jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position that the lower court had jurisdiction. WHEREFORE, we DENY the petitioners petition for review on certiorari, and DECLARE the Amended Decision of the Court of Appeals in CA-G.R. SP No. 79809, promulgated on September 26, 2005, as well as its Resolution of February 6, 2006, NULL AND VOID for having been issued without jurisdiction. The respondents are hereby given fifteen (15) days from the finality of this Decision within which to seek recourse from the Sandiganbayan. No costs. SO ORDERED. G.R. No. 171542 April 6, 2011

ANGELITO P. MAGNO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, MICHAEL MONSOD, ESTHER LUZ MAE GREGORIO, GIAN CARLO CAJOLES, NENETTE CASTILLON, DONATO ENABE and ALFIE FERNANDEZ, Respondents. DECISION BRION, J.: Through a petition for review on certiorari,1 petitioner Angelito P. Magno seeks the reversal of the Amended Decision of the Court of Appeals (CA), dated September 26, 20052 in "People of the Philippines, et al. v. Hon. Augustine A. Vestil, Presiding Judge, RTC Mandaue City, Br. 56, et al." (docketed as CA-G.R. SP No. 79809), and its Resolution dated February 6, 20063 denying respondents motion for reconsideration.4 The assailed rulings denied the petition for certiorari filed under Rule 65 of the Rules of Court and upheld the ruling5 of the Regional Trial Court (RTC) of

Mandaue City, which precluded Atty. Adelino B. Sitoy from acting as private prosecutor in Criminal Case No. DU-10123.6 THE FACTUAL ANTECEDENTS On May 14, 2003, the Office of the Ombudsman filed an information for multiple frustrated murder and double attempted murder against several accused, including Magno, who were public officers working under the National Bureau of Investigation.7 During the scheduled arraignment, Magno, in open court, objected to the formal appearance and authority of Atty. Sitoy, who was there as private prosecutor to prosecute the case for and on behalf of the Office of the Ombudsman.8 The oral objection was reduced to writing on July 21, 2003 when Magno filed an opposition9 before Branch 56 of the RTC of Mandaue City, citing the provisions of Section 31 of Republic Act (RA) No. 6770.10 The Office of the Ombudsman submitted its comment,11 while the accused submitted their joint opposition.12 The respondents likewise submitted their comments to the opposition of the other coaccused.13 On September 25, 2003, the RTC issued an Order, ruling that "the Ombudsman is proper, legal and authorized entity to prosecute this case to the exclusion of any other entity/person other than those authorized under R.A. 6770."14 In open court, the Office of the Ombudsman moved for the reconsideration of the Order, which the RTC later denied in its October 1, 2003 Order.15 Proceedings before the CA On October 13, 2003, the respondents, through the Ombudsman for the Visayas and Atty. Sitoy, filed a petition for certiorari before the CA.16 They contended that the RTC committed a grave abuse of discretion in prohibiting the appearance of Atty. Sitoy as counsel for the private offended parties, as the Rules of Court expressly provides that a private offended party may intervene, by counsel, in the prosecution of offenses.17 Magno, in his comment18 filed on December 15, 2003, insisted that what he questioned before the RTC was the appearance and authority of the private prosecutor to prosecute the case in behalf of the Ombudsman.19 He stressed that while the Office of the Ombudsman can designate prosecutors to assist in the prosecution of criminal cases, its authority in appointing, deputizing or authorizing prosecutors to prosecute cases is confined only to fiscals, state prosecutors and government lawyers. It does not extend to private practitioners/private prosecutors.20 He further stressed that while the Order of the RTC states that the Office of the Ombudsman is the proper legal and authorized entity to prosecute the case, it did not affect the right to intervene personally, as the Office of the Ombudsman can take the cudgels for the private respondents in prosecuting the civil aspect of the case.21 On February 16, 2005, the CA, in its original Decision, declared that the private prosecutor may appear for the petitioner in the case, but only insofar as the prosecution of the civil aspect of the case is concerned.22 The respondents moved for the reconsideration23 of the CA decision. On September 26, 2005, the CA amended its decision,24 ruling that the private prosecutor may appear for the petitioner in

Criminal Case No. DU-10123 to intervene in the prosecution of the offense charged in collaboration with any lawyer deputized by the Ombudsman to prosecute the case.25 Failing to obtain a reconsideration26 of the amended CA decision, Magno elevated the dispute to this Court through the present petition for review on certiorari27 filed under Rule 45 of the Rules of Procedure. PETITIONERS ARGUMENTS Magno submits that the CA did not have jurisdiction to entertain the petition for certiorari; the power to hear and decide that question is with the Sandiganbayan.28 To support this contention, Magno invokes Engr. Teodoto B. Abbot v. Hon. Judge Hilario I. Mapayo, etc., et al.29 where the Court held that the Sandiganbayan has the exclusive power to issue petitions for certiorari in aid of its appellate jurisdiction.30 Even if the Court were to set aside this procedural lapse, Magno adds, the private prosecutor cannot be allowed to intervene for the respondents as it would violate Section 31 of RA No. 6770.31 Section 31 limits the Ombudsmans prerogative to designate prosecutors to fiscals, state prosecutors and government lawyers. It does not, Magno maintains, allow the Ombudsman to deputize private practitioners to prosecute cases for and on behalf of the Office of the Ombudsman.32 RESPONDENTS ARGUMENTS The Office of the Ombudsman, through the Office of the Special Prosecutor, submitted its memorandum on February 8, 2008. Substantively, the Ombudsman maintains that Atty. Sitoy may intervene in the case pursuant to Section 16, Rule 110 of the Rules of Court, which reads: Sec. 16. Intervention of the offended party in criminal action. Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. The Ombudsman maintains that Section 31 of RA No. 6770 did not amend Section 16, Rule 110 of the Rules of Court.33 Section 31 merely allows the Ombudsman to designate and deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution in certain cases.34 The Ombudsman opines that the two provisions of law "are not diametrically opposed nor in conflict,"35 as "a private prosecutor may appear for the private offended complainants in the prosecution of an offense independent of the exclusive right of the Ombudsman to deputize."36 The Ombudsman, however, did not address the contention that the Sandiganbayan, not the CA, has appellate jurisdiction over the RTC in this case. THE COURTS RULING We resolve to grant the petition. The Sandiganbayan, not the CA, has appellate jurisdiction over the RTCs decision not to allow Atty. Sitoy to prosecute the case on behalf of the Ombudsman Presidential Decree (PD) No. 1606 created the Sandiganbayan. Section 4 thereof establishes the Sandiganbayans jurisdiction:

Section 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corruption Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: xxxx B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection of this section in relation to their office. C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to Salary Grade "27" or higher, as prescribed in the said Republic Act No. 6758, or military or PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or to appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of civil action, and no right to reserve the filing of such civil action separately from the criminal action

shall be recognized: Provided, however, That where the civil action had theretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned." [emphasis and underscoring supplied] This is clear: the Sandiganbayan has exclusive appellate jurisdiction over resolutions issued by RTCs in the exercise of their own original jurisdiction or of their appellate jurisdiction. We reaffirmed this rule in Abbot.37 In that case, petitioner Engr. Abbot filed a petition for certiorari before the CA, claiming that the RTC gravely abused its discretion for not dismissing the information for Malversation thru Falsification of Public Document. The CA refused to take cognizance of the case, holding that the Sandiganbayan has jurisdiction over the petition. Recognizing the amendments made to PD No. 1606 by RA No. 7975,38 we sustained the CAs position since Section 4 of PD No. 1606 has expanded the Sandiganbayans jurisdiction to include petitions for "mandamus, prohibition, certiorari, habeas corpus, injunction, and other ancillary writs and processes in aid of its appellate jurisdiction."39 In the present case, the CA erred when it took cognizance of the petition for certiorari filed by Magno. While it is true that the interlocutory order issued by the RTC is reviewable by certiorari, the same was incorrectly filed with the CA. Magno should have filed the petition for certiorari with the Sandiganbayan, which has exclusive appellate jurisdiction over the RTC since the accused are public officials charged of committing crimes in their capacity as Investigators of the National Bureau of Investigation.40 The CA should have dismissed the petition outright. Since it acted without authority, we overrule the September 26, 2005 Amended Decision of the CA and the subsequent denial of Magnos motions for reconsideration. Jurisdiction is conferred by law, and the CAs judgment, issued without jurisdiction, is void. There is no rule in procedural law as basic as the precept that jurisdiction is conferred by law,41 and any judgment, order or resolution issued without it is void42 and cannot be given any effect.43 This rule applies even if the issue on jurisdiction was raised for the first time on appeal or even after final judgment.44 We reiterated and clarified the rule further in Felicitas M. Machado, et al. v. Ricardo L. Gatdula, et al.,45 as follows: Jurisdiction over a subject matter is conferred by law and not by the parties action or conduct. Estoppel generally does not confer jurisdiction over a cause of action to a tribunal where none, by law, exists. In Lozon v. NLRC, we declared that: Lack of jurisdiction over the subject matter of the suit is yet another matter. Whenever it appears that the court has no jurisdiction over the subject matter, the action shall be dismissed. This defense may be interposed at any time, during appeal or even after final judgment. Such is understandable, as this kind of jurisdiction is conferred by law and not within the courts, let alone the parties, to themselves determine or conveniently set aside.
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We note that Magno had already raised in his supplemental motion for reconsideration before the CA46 the ground of lack of jurisdiction before the CAs Decision became final. The CA did not even consider this submission, choosing instead to brush it aside for its alleged failure to raise new or substantial grounds for reconsideration.47 Clearly, however, its lack of jurisdiction is a new and substantial argument that the CA should have passed upon. The Office of the Ombudsman cannot rely on the principle of estoppel to cure the jurisdictional defect of its petition before the CA The Ombudsman cannot rely on the principle of estoppel in this case since Magno raised the issue of jurisdiction before the CAs decision became final. Further, even if the issue had been raised only on appeal to this Court, the CAs lack of jurisdiction could still not be cured. In Machado,48 citing People of the Philippines v. Rosalina Casiano,49 we held: In People v. Casiano, this Court, on the issue of estoppel, held: The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same "must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel." However if the lower court had jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position that the lower court had jurisdiction. WHEREFORE, we DENY the petitioners petition for review on certiorari, and DECLARE the Amended Decision of the Court of Appeals in CA-G.R. SP No. 79809, promulgated on September 26, 2005, as well as its Resolution of February 6, 2006, NULL AND VOID for having been issued without jurisdiction. The respondents are hereby given fifteen (15) days from the finality of this Decision within which to seek recourse from the Sandiganbayan. No costs. SO ORDERED. A.M. No. P-10-2791 April 6, 2011 (formerly A.M. No. 10-3-91-RTC) JUDGE RENATO A. FUENTES, REGIONAL TRIAL COURT, BRANCH 17, DAVAO CITY, Complainant, vs. ATTY. ROGELIO F. FABRO, BRANCH CLERK OF COURT, SAME COURT, Respondent. D E CI S I O N BRION, J.: For the Courts resolution is the letter-complaint1 dated July 17, 2009 of Judge Renato A. Fuentes (Judge Fuentes), Regional Trial Court, 11th Judicial Region, Branch 17, Davao City, addressed to the Office of the Court Administrator (OCA). Judge Fuentes charged Branch Clerk of Court Atty. Rogelio F. Fabro (Atty. Fabro) and Civil Records In-Charge Ofelia Salazar (Salazar) with gross negligence of duty. This was the second letter of Judge Fuentes to the OCA on Atty. Fabro and Salazar.

Background Facts On May 19, 2009, Judge Fuentes wrote the OCA to report the negligence committed by Atty. Fabro and Salazar in not elevating to the Court of Appeals, Cagayan de Oro City (CA) for more than six (6) years the records of Civil Case No. 29,537-2003, entitled Teodoro Polinar, et al. v. Hon. Antonio D. Laolao. In his second letter to the OCA, Judge Fuentes again reported the negligence of Atty. Fabro and Salazar for failing to elevate to the CA the records of Civil Case No. 29,019-2002, entitled Medardo E. Escarda v. Celso E. Escarda and the Register of Deeds of Davao City. Judge Fuentes claimed that he approved Medardo Escardas Notice of Appeal in his April 10, 2007 Order and directed the Branch Clerk of Court to elevate the entire records to the CA. Apparently, the records were not elevated because Medardo Escardas counsel, Atty. Santos E. Torrea, Jr., wrote Judge Fuentes on July 14, 20092 to inquire if their appeal and records have been forwarded to the CA. Atty. Torrea enclosed a CA letter3 stating that "[t]here is no showing that the case was elevated on appeal to this Court as per verification from the records and list of cases from 2007 until the present time." In his second letter to the OCA, Judge Fuentes related that: What is alarming in this second discovery, however, is the record consisting of the Notice of Appeal and the Order, elevating the case to the Honorable Court of Appeals, along with the other documents, such as Decision of the Court, Motion for Reconsideration and Order of denial, were not attached in the main record, consisting of pleadings and transcript of stenographic notes but after exerting pressure on the Civil Records In-Charge, to look for the remaining portion of the records, she turned-over the remaining records, after one week, but was observed by the undersigned, purposely separated, so that the compliance of the Order to elevate the entire records to the Appellate Court, can be justified by her and the Branch Clerk of Court. The OCA required Atty. Fabro to comment on Judge Fuentes letter. Atty. Fabro filed his comment on August 8, 20094. He averred that the records of Civil Case No. 29,537-2003 have been elevated to the CA and that Salazar admitted that it was her own fault and that she found that the record, "already bounded for transmittal to the Court of Appeals, was indeed mixed up with the files of old cases transferred to the other store room" at a time when the staff of the RTC Branch 17 was decongesting the office store room to give way to newly filed cases. He also mentioned that his office was a very busy one, that he had his own duties, and that he could not "at all times" spend his time supervising subordinate employees to ensure their performance of their normal duties without prejudice to his own duties and responsibilities. On March 2, 2010, the OCA submitted a report and recommendation5 that: (1) the case be redocketed as a regular administrative matter; and (2) Atty. Fabro be fined P5,000.00 for the delay in transmitting the records of two cases to the CA, with a warning that a repetition of the same or similar act in the future shall be dealt with more severely. The OCA Report stated that although the records of the cases have already been transmitted to the CA, the OCA cannot tolerate the long delay in transmission nor give credence to Atty. Fabros reasons for the delay. The OCA stressed that the administrative functions of the Branch Clerk of Court are vital to the prompt and proper administration of justice and that the timely transmittal to the appellate court of the records of appealed cases ensures the speedy disposition of cases; any delay in the transmission of the case records would hamper the proper administration of justice. The OCA added that it has been held that the failure of the clerk of court to transmit the records of the case constitutes negligence and warrants disciplinary action.

The Court's Ruling We agree with the OCA finding that Atty. Fabro was guilty of gross negligence of duty for being remiss in his duty to transmit to the CA the records of Civil Case Nos. 29,537-2003 and 29,019-2002 within the required period. The Rules of Court in Section 10 of Rule 416 provides that within thirty (30) days after the perfection of appeal, the clerk of court of the lower court has the duty to transmit the records to the appellate court. Judge Fuentes gave due course to the appeals but the records were not transmitted to the CA within the 30-day period provided in the Rules. The records of Civil Case No. 29,019-2002 (Medardo E. Escarda v. Celso E. Escarda) were mailed on August 15, 20097 or two (2) years after the issuance of the Order directing their transmittal to the CA (April 10, 2007). The records of Civil Case No. 29,537-2003 (Teodoro Polinar, et al. vs. Hon. Antonio D. Laolao) were transmitted onlyafter more than six (6) years as claimed by Judge Fuentes. Clearly, Atty. Fabro as the clerk of court of the lower court, was grossly remiss in his duty. We agree with the OCA recommendation of imposing a fine with warning on Atty. Fabro. We hold, however, that the fine should be increased to Twenty Thousand Pesos (P20,000.00) considering the number of incidents of delay and the considerable time involved.
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WHEREFORE, we find Atty. Rogelio F. Fabro, Branch Clerk of Court, RTC Branch 17, Davao City, GUILTY of gross negligence of duty for the delay in transmitting to the Court of Appeals, Cagayan de Oro City, the records of Civil Case No. 29,019-2002, entitled Medardo E. Escarda v. Celso E. Escarda, and Civil Case No. 29,537-2003, entitled Teodoro Polinar, et al. v. Hon. Antonio D. Laolao. We hereby impose on him a FINE of Twenty Thousand Pesos (P20,000.00) with a WARNING that a repetition of the same or similar act shall be dealt with more severely. The Office of the Court Administrator is directed to inform the Court of the action taken against Civil Records In-Charge Ofelia Salazar. SO ORDERED. G.R. No. 164195 April 5, 2011

APO FRUITS CORPORATION and HIJO PLANTATION, INC., Petitioners, vs. LAND BANK OF THE PHILIPPINES, Respondent. RESOLUTION BRION, J.: We resolve Land Bank of the Philippines (LBPs) 2nd Motion for Reconsideration of December 14, 2010 that addresses our Resolutions of October 12, 2010 and November 23, 2010. This motion prays as well for the holding of oral arguments. We likewise resolve the Office of the Solicitor Generals (OSG) Motion for Leave to Intervene and to Admit Motion for Reconsideration-inIntervention dated February 15, 2011 in behalf of the Republic of the Philippines (Republic). The Motion for Reconsideration The LBP submits the following arguments in support of its 2nd motion for reconsideration: a) the test of "transcendental importance" does not apply to the present case;

b) the standard of "transcendental importance" cannot justify the negation of the doctrine of immutability of a final judgment and the abrogation of a vested right in favor of the Government that respondent LBP represents; c) the Honorable Court ignored the deliberations of the 1986 Constitutional Commission showing that just compensation for expropriated agricultural property must be viewed in the context of social justice; and d) granting arguendo that the interest payment has factual and legal bases, only six (6%) percent interest per annum may be validly imposed. We have more than amply addressed argument (d) above in our October 12, 2010 Resolution, and we see no point in further discussing it. Without in any way detracting from the overriding effect of our main and primary ruling that the present 2nd motion for reconsideration is a prohibited motion that the Court can no longer entertain, and if only to emphatically signal an unequivocal finis to this case, we examine for the last and final time the LBPs other arguments. In the course of the Courts deliberations, Mr. Justice Roberto A. Abad questioned the application of Section 3, Rule 15 of the Internal Rules of the Supreme Court to the present 2nd motion for reconsideration. He posited that instead of voting immediately on the present 2nd motion for reconsideration, the Court should instead first consider the validity of our October 12, 2010 Resolution; he claimed that this Resolution is null and void because the Court violated the abovecited provision of the Internal Rules when it did not first vote on whether the Resolutions underlying motion (itself a 3rd motion for reconsideration) should be entertained before voting on the motions merits. We shall lay to rest Mr. Justice Abads observation before dwelling on the merits of the present 2nd motion for reconsideration. Our Ruling We find no merit in the LBPs second motion for reconsideration, and reject as well the Mr. Justice Abads observation on how to approach the consideration of the present motion. Mr. Justice Abads Observations/Objections; The Rules on 2nd Motions for Reconsideration. Mr. Justice Abads observation apparently stemmed from the peculiar history of the present case. a. A recap of the history of the case. This case was originally handled by the Third Division of this Court. In its original Decision of February 6, 2007, the Division affirmed the RTCs decision setting the just compensation to be paid and fixing the interest due on the balance of the compensation due at 12% per annum. In its Resolution of December 19, 2007, the Third Division resolved the parties motions for reconsideration by deleting the 12% interest due on the balance of the awarded just compensation. The parties subsequent motions to reconsider this Resolution were denied on April 30, 2008; on May 16, 2008, entry of judgment followed. Despite the entry of judgment, the present petitioners filed a second motion for reconsideration that prayed as well that the case be referred to the Court en banc. Finding merit in these motions, the Third Division referred the case to the En Banc for its disposition. On December 4, 2009, the Court en banc denied the petitioners second motion for reconsideration. Maintaining their belief in their demand to be granted 12% interest, the petitioners

persisted in filing another motion for reconsideration. In the interim, the Court promulgated its Internal Rules that regulated, among others, 2nd motions for reconsideration. On October 12, 2010, the Court en banc granted by a vote of 8 for and 4 against the petitioners motion and awarded the 12% interests the petitioners prayed for, thus affirming the interests the RTC originally awarded. The Court subsequently denied the respondents motion for reconsideration, giving rise to the present 2nd motion for reconsideration. It was at this point that the OSG moved for leave to intervene. b. The governing rules on 2nd motions for reconsideration The basic rule governing 2nd motions for reconsideration is Section 2, Rule 52 (which applies to original actions in the Supreme Court pursuant to Section 2, Rule 56) of the Rules of Court. This Rule expressly provides: Sec. 2. Second Motion for Reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. The absolute terms of this Rule is tempered by Section 3, Rule 15 of the Internal Rules of the Supreme Court that provides: Sec. 3. Second Motion for Reconsideration. The Court shall not entertain a second motion for reconsideration and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Courts declaration. [Emphases supplied.] Separately from these rules is Article VIII, Section 4 (2) of the 1987 Constitution which governs the decision-making by the Court en banc of any matter before it, including a motion for the reconsideration of a previous decision. This provision states: Section 4. xxxx (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. Thus, while the Constitution grants the Supreme Court the power to promulgate rules concerning the practice and procedure in all courts1 (and allows the Court to regulate the consideration of 2nd motions for reconsideration, including the vote that the Court shall require), these procedural rules must be consistent with the standards set by the Constitution itself. Among these constitutional standards is the above quoted Section 4 which applies to "all other cases which under the Rules of Court are required to be heard en banc," and does not make any distinction as to the type of cases or rulings it applies to, i.e, whether these cases are originally filed with the Supreme Court, or cases

on appeal, or rulings on the merits of motions before the Court. Thus, rulings on the merits by the Court en banc on 2nd motions for reconsideration, if allowed by the Court to be entertained under its Internal Rules, must be decided with the concurrence of a majority of the Members who actually took part in the deliberations. When the Court ruled on October 12, 2010 on the petitioners motion for reconsideration by a vote of 12 Members (8 for the grant of the motion and 4 against), the Court ruled on the merits of the petitioners motion. This ruling complied in all respects with the Constitution requirement for the votes that should support a ruling of the Court. Admittedly, the Court did not make any express prior ruling accepting or disallowing the petitioners motion as required by Section 3, Rule 15 of the Internal Rules. The Court, however, did not thereby contravene its own rule on 2nd motions for reconsideration; since 12 Members of the Court opted to entertain the motion by voting for and against it, the Court simply did not register an express vote, but instead demonstrated its compliance with the rule through the participation by no less than 12 of its 15 Members. Viewed in this light, the Court cannot even be claimed to have suspended the effectiveness of its rule on 2nd motions for reconsideration; it simply complied with this rule in a form other than by express and separate voting.
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Based on these considerations, arrived at after a lengthy deliberation, the Court thus rejected Mr. Justice Abads observations, and proceeded to vote on the question of whether to entertain the respondents present 2nd motion for reconsideration. The vote was 9 to 2, with 9 Members voting not to entertain the LBPs 2nd motion for reconsideration. By this vote, the ruling sought to be reconsidered for the second time was unequivocally upheld; its finality already declared by the Court in its Resolution of November 23, 2010 was reiterated. To quote the dispositive portion of the reiterated November 23, 2010 Resolution: On these considerations, we hereby DENY the Motion for Reconsideration with FINALITY. No further pleadings shall be entertained. Let entry of judgment be made in due course. Thus, this Court mandated a clear, unequivocal, final and emphatic finis to the present case. Landowners right to just compensation: a matter of public interest In assailing our October 12, 2010 resolution, the LBP emphasizes the need to respect the doctrine of immutability of final judgments. The LBP maintains that we should not have granted the petitioners motion for reconsideration in our October 12, 2010 Resolution because the ruling deleting the 12% interest had already attained finality when an Entry of Judgment was issued. The LBP argues, too, that the present case does not involve a matter of transcendental importance, as it does not involve life or liberty. The LBP further contends that the Court mistakenly used the concept of transcendental importance to recall a final ruling; this standard should only apply to questions on the legal standing of parties. In his dissenting opinion, Mr. Justice Roberto Abad agrees with the LBPs assertion, positing that this case does not fall under any of the exceptions to the immutability doctrine since it only involves money and does not involve a matter of overriding public interest. We reject the basic premise of the LBP's and Mr. Justice Abads arguments for being flawed. The present case goes beyond the private interests involved; it involves a matter of public interest the proper application of a basic constitutionally-guaranteed right, namely, the right of a landowner to

receive just compensation when the government exercises the power of eminent domain in its agrarian reform program. Section 9, Article III of the 1987 Constitution expresses the constitutional rule on eminent domain "Private property shall not be taken for public use without just compensation." While confirming the States inherent power and right to take private property for public use, this provision at the same time lays down the limitation in the exercise of this power. When it takes property pursuant to its inherent right and power, the State has the corresponding obligation to pay the owner just compensation for the property taken. For compensation to be considered "just," it must not only be the full and fair equivalent of the property taken;2 it must also be paid to the landowner without delay.3 To fully and properly appreciate the significance of this case, we have to consider it in its proper context. Contrary to the LBPs and Mr. Justice Abads assertions, the outcome of this case is not confined to the fate of the two petitioners alone. This case involves the governments agrarian reform program whose success largely depends on the willingness of the participants, both the farmersbeneficiaries and the landowners, to cooperate with the government. Inevitably, if the government falters or is seen to be faltering through lack of good faith in implementing the needed reforms, including any hesitation in paying the landowners just compensation, this reform program and its objectives would suffer major setbacks. That the governments agrarian reform program and its success are matters of public interest, to our mind, cannot be disputed as the program seeks to remedy long existing and widespread social justice and economic problems. In a last ditch attempt to muddle the issues, the LBP focuses on our use of the phrase "transcendental importance," and asserts that we erred in applying this doctrine, applicable only to legal standing questions, to negate the doctrine of immutability of judgment. This is a very myopic reading of our ruling as the context clearly shows that the phrase "transcendental importance" was used only to emphasize the overriding public interestinvolved in this case. Thus, we said: That the issues posed by this case are of transcendental importance is not hard to discern from these discussions. A constitutional limitation, guaranteed under no less than the all-important Bill of Rights, is at stake in this case: how can compensation in an eminent domain case be "just" when the payment for the compensation for property already taken has been unreasonably delayed? To claim, as the assailed Resolution does, that only private interest is involved in this case is to forget that an expropriation involves the government as a necessary actor. It forgets, too, that under eminent domain, the constitutional limits or standards apply to government who carries the burden of showing that these standards have been met. Thus, to simply dismiss the case as a private interest matter is an extremely shortsighted view that this Court should not leave uncorrected. xxxx More than the stability of our jurisprudence, the matter before us is of transcendental importance to the nation because of the subject matter involved agrarian reform, a societal objective of that the government has unceasingly sought to achieve in the past half century.4 From this perspective, our Resolution of October 12, 2010 only had to demonstrate, as it did, that the higher interests of justice are duly served. All these, amply discussed in the Resolution of October 12, 2010, are briefly summarized and reiterated below. LBP at fault for twelveyear delay in payment

In his dissenting opinion, Mr. Justice Abad insists that the LBPs initial valuation of the petitioners properties was fully in accord with Section 17 of the CARL. He posits that when the RTC gave a significantly higher value to these lands, the LBP acted well within its rights when it appealed the valuation. Thus, to him, it was wrong for this Court to characterize the LBPs appeal as malicious or in bad faith. A simple look at the attendant facts disproves the accuracy of this claim. First, Mr. Justice Abads allegation that the LBP correctly valued the petitioners properties is not at all accurate. Significantly, Mr. Justice Abad does not cite any evidence on record to support his claim that "the Land Bank valued the lands using the compensation formula that Section 17 of Republic Act 6657 and the DARs implementing rules provide."5 More to the point, this Court has already determined, in a final and executed judgment, that the RTCs valuation of the petitioners properties is the correct one. To recall, the LBP initially fixed the value of Apo Fruits Corporations (AFC) properties at P165,484.47 per hectare or P16.00 per square meter (sqm), while it valued Hijo Plantation Inc.s (HPI) properties at P201,929.97 per hectare, or approximately P20.00/sqm. In contrast, the Regional Trial Court fixed the valuation of the petitioners properties at P103.33/sqm., or more than five times the initial valuation fixed by the LBP. After reviewing the records, this Court affirmed the RTCs valuation in its February 6, 2007 decision, noting that it was based on the following evidence: (a) the Commissioners reports, (b) the Cuervo appraisers report, (c) the schedule of market values of the City of Tagum per its 1993 and 1994 Revision of Assessment and Property Classification, (d) the value of the permanent improvements found on the expropriated properties, and (e) the comparative sales of adjacent lands from early 1995 to early 1997. The Court observed that the RTC valuation also took into consideration the lands nature as irrigated land, its location along the highway, market value, assessors value, and the volume and value of its produce. This valuation is fully in accordance with Section 17 of RA 6657, which states: Section 17. Determination of Just Compensation. - In determining just compensation, the cost of acquisition of the land, the current value of like properties, its nature, actual use and income, the sworn valuation by the owner, the tax declarations, and the assessment made by government assessors, shall be considered. The social and economic benefits contributed by the farmers and the farm workers and by government to the property as well as the non-payment of taxes or loans secured from any government financing institution on the said land shall be considered as additional factors to determine its valuation. On its face, the staggering difference between the LBPs initial valuation of the petitioners properties (totalingP251,379,104.02) and the RTCs valuation (totaling P1,383,179,000.00) a difference of P1,131,799,895.98 amounting to 81% of the total price betrays the lack of good faith on the part of the government in dealing with the landowners. The sheer enormity of the difference between the two amounts cannot but lead us to conclude that the LBPs error was grievous and amounted to nothing less than gross negligence in the exercise of its duty in this case, to properly ascertain the just compensation due to the petitioners. Mr. Justice Abad further argues that interest on just compensation is due only where there is delay in payment. In the present case, the petitioners allegedly did not suffer any delay in payment since the LBP made partial payments prior to the taking of their lands.

This argument completely overlooks the definition of just compensation already established in jurisprudence. Apart from the requirement that compensation for expropriated land must be fair and reasonable, compensation, to be "just," must also be made without delay.6 In simpler terms, for the governments payment to be considered just compensation, the landowner must receive it in full without delay. In the present case, it is undisputed that the government took the petitioners lands on December 9, 1996; the petitioners only received full payment of the just compensation due on May 9, 2008. This circumstance, by itself, already confirms the unconscionable delay in the payment of just compensation. Admittedly, a grain of truth exists in Justice Abads observation that the petitioners received partial payments from the LBP before the titles to their landholdings were transferred to the government. The full and exact truth, however, is that the partial payments at the time of the taking only amounted to a trifling five percent (5%) of the actual value of the expropriated properties, as determined with finality by this Court. Even taking into consideration the subsequent partial payments made totaling P411,769,168.32 (inclusive of the amounts deposited prior to the taking), these payments only constituted a mere one-third (1/3) of the actual value of the petitioners properties. It should be considered as highlighted in our October 12, 2010 Resolution that the properties the government took were fully operating and earning plantations at the time of the taking. Thus, the landowners lost not only their properties, but the fruits of these properties. These were all lost in 1996, leaving the landowners without any replacement income from their properties, except for the possible interest for the trifling payment made at the time of the taking that, together with the subsequent payment, only amounted to a third of the total amount due. Thus, for twelve long years, the amount of P971,409,831.68 was withheld from the landowners. An added dimension to this delayed payment is the impact of the delay. One impact as pointed out above is the loss of income the landowners suffered. Another impact that the LBP now glosses over is the income that the LBP earned from the sizeable sum it withheld for twelve long years. From this perspective, the unaccounted-for LBP income is unjust enrichment in its favor and an inequitable loss to the landowners. This situation was what the Court essentially addressed when it awarded the petitioners 12% interest. Mr. Justice Abad goes on to argue that the delay should not be attributed to the LBP as it could not have foreseen that it would take twelve years for the case to be resolved. Justice Abads stance could have been correct were it not for the fact that the delay in this case is ultimately attributable to the government. Two significant factors justify the attribution of the delay to the government. The first is the DARs gross undervaluation of the petitioners properties the government move that started the cycle of court actions. The second factor to consider is government inaction. Records show that after the petitioners received the LBPs initial valuation of their lands, they filed petitions with the DARAB, th e responsible agency of the DAR, for the proper determination of just compensation. Instead of dismissing these petitions outright for lack of jurisdiction, the DARAB sat on these cases for three years. It was only after the petitioners resorted to judicial intervention, filing their petitions for the determination of just compensation with the RTC, that the petitioners case advanced. The RTC interpreted the DARABs inaction as reluctance of the government to pay the petitioners just compensation, a view this Court affirmed in its October 12, 2010 Resolution.

Expropriation for agrarian reform requires the payment of just compensation The LBP claims that the just compensation in this case should be determined within the context of the article on social justice found in the 1987 Constitution. In the LBPs opinion, when we awarded the petitioners 12% interest by way of potential income, we removed from the taking of agricultural properties for agrarian reform its main public purpose of righting the wrong inflicted on landless farmers. By this argument, the LBP effectively attempts to make a distinction between the just compensation given to landowners whose properties are taken for the governments agrarian reform program and properties taken for other public purposes. This perceived distinction, however, is misplaced and is more apparent than real. The constitutional basis for our agrarian reform program is Section 4, Article XIII of the 1987 Constitution, which mandates: Section 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. This provision expressly provides that the taking of land for use in the governments agrarian reform program isconditioned on the payment of just compensation. Nothing in the wording of this provision even remotely suggests that the just compensation required from the taking of land for the agrarian reform program should be treated any differently from the just compensation required in any other case of expropriation. As explained by Commissioner Roberto R. Concepcion during the deliberations of the 1986 Constitutional Commission: [T]he term "just compensation" is used in several parts of the Constitution, and, therefore, it must have a uniform meaning. It cannot have in one part a meaning different from that which appears in the other portion. If, after all, the party whose property is taken will receive the real value of the property on just compensation, that is good enough.7 In fact, while a proposal was made during the deliberations of the 1986 Constitutional Commission to give a lower market price per square meter for larger tracts of land, the Commission never intended to give agricultural landowners less than just compensation in the expropriation of property for agrarian reform purposes.8 To our mind, nothing is inherently contradictory in the public purpose of land reform and the right of landowners to receive just compensation for the expropriation by the State of their properties. That the petitioners are corporations that used to own large tracts of land should not be taken against them. As Mr. Justice Isagani Cruz eloquently put it: [S]ocial justice - or any justice for that matter - is for the deserving, whether he be a millionaire in his mansion or a pauper in his hovel. It is true that, in case of reasonable doubt, we are called upon to tilt the balance in favor of the poor, to whom the Constitution fittingly extends its sympathy and compassion. But never is it justified to prefer the poor simply because they are poor, or to reject the

rich simply because they are rich, for justice must always be served, for poor and rich alike, according to the mandate of the law.9 Interest payments borne by government, not by farmers-beneficiaries Nor do we find any merit in the LBPs assertion that the large amount of just compensation that we awarded the petitioners, together with the amount of interest due, would necessarily result in making the farmers- beneficiaries endure another form of bondage the payment of an exorbitant amount for the rest of their lives. As the petitioners correctly pointed out, the governments liability for the payment of interest to the landowner for any delay attributable to it in paying just compensation for the expropriated property is entirely separate and distinct from the farmers-beneficiaries obligations to pay regular amortizations for the properties transferred to them. Republic Act No. 6657 (The Comprehensive Agrarian Reform Law, or CARL) provides for the specific source of funding to be used by the government in implementing the agrarian reform program; this funding does not come directly from the payments made by the farmersbeneficiaries.10
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More to the point, under the CARL, the amount the farmers-beneficiaries must pay the LBP for their land is, for the most part, subsidized by the State and is not equivalent to the actual cost of the land that the Department of Agrarian Reform paid to the original landowners. Section 26, Chapter VII of the CARL provides: SEC. 26. Payment by Beneficiaries. - Lands awarded pursuant to this Act shall be paid for by the beneficiaries to the LBP in thirty (30) annual amortizations at six percent (6%) interest per annum. The payments for the first three (3) years after the award may be at reduced amounts as established by the PARC: Provided, That the first five (5) annual payments may not be more than five percent (5%) of the value of the annual gross productions paid as established by the DAR. Should the scheduled annual payments after the fifth year exceed ten percent (10) of the annual gross production and the failure to produce accordingly is not due to the beneficiary's fault, the LBP may reduce the interest rate or reduce the principal obligation to make the payment affordable. Interpreting this provision of the law, DAR Administrative Order No. 6, Series of 1993 provides: A. As a general rule, land awarded pursuant to E.O. 229 and R.A. 6657 shall be repaid by the Agrarian Reform Beneficiary (ARB) to LANDBANK in thirty (30) annual amortizations at six (6%) percent interest per annum. The annual amortization shall start one year from date of Certificate of Landownership Award (CLOA) registration. B. The payments by the ARBs for the first three (3) years shall be two and a half percent (2.5%) of AGP [Annual Gross Production] and five percent (5.0%) of AGP for the fourth and fifth years. To further make the payments affordable, the ARBs shall pay ten percent (10%) of AGP or the regular amortization, whichever is lower, from the sixth (6th) to the thirtieth (30th) year. Clearly, the payments made by the farmers-beneficiaries to the LBP are primarily based on a fixed percentage of their annual gross production, or the value of the annual yield/produce of the land awarded to them.11 The cost of the land will only be considered as the basis for the payments made by the farmers-beneficiaries when this amount is lower than the amount based on

the annual gross production. Thus, there is no basis for the LBP to claim that our ruling has violated the letter and spirit of the social justice provision of the 1987 Constitution. On the contrary, our ruling is made in accordance with the intent of the 1987 Constitution. Motion for Oral Arguments We deny as well the LBPs motion to set the case for oral arguments. The submissions of the parties, as well as the records of the case, have already provided this Court with enough arguments and particulars to rule on the issues involved. Oral arguments at this point would be superfluous and would serve no useful purpose. The OSGs Intervention The interest of the Republic, for whom the OSG speaks, has been amply protected through the direct action of petitioner LBP the government instrumentality created by law to provide timely and adequate financial support in all phases involved in the execution of needed agrarian reform. The OSG had every opportunity to intervene through the long years that this case had been pending but it chose to show its hand only at this very late stage when its presence can only serve to delay the final disposition of this case. The arguments the OSG presents, furthermore, are issues that this Court has considered in the course of resolving this case. Thus, every reason exists to deny the intervention prayed for. WHEREFORE, premises considered, the respondents second motion for reconsideration and the motion to set the case for oral arguments are hereby DENIED WITH ABSOLUTE FINALITY. The motion for intervention filed by the Office of the Solicitor General is, likewise, denied. We reiterate, under pain of contempt if our directive is disregarded or disobeyed, that no further pleadings shall be entertained. Let judgment be entered in due course. SO ORDERED. G.R. No. 167022 April 4, 2011

LICOMCEN INCORPORATED, Petitioner, vs. FOUNDATION SPECIALISTS, INC., Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 169678 FOUNDATION SPECIALISTS, INC., Petitioner, vs. LICOMCEN INCORPORATED, Respondent. DECISION BRION, J.: THE FACTS

The petitioner, LICOMCEN Incorporated (LICOMCEN), is a domestic corporation engaged in the business of operating shopping malls in the country. In March 1997, the City Government of Legaspi awarded to LICOMCEN, after a public bidding, a lease contract over a lot located in the central business district of the city. Under the contract, LICOMCEN was obliged to finance the construction of a commercial complex/mall to be known as the LCC Citimall (Citimall). It was also granted the right to operate and manage Citimall for 50 years, and was, thereafter, required to turn over the ownership and operation to the City Government.1 For the Citimall project, LICOMCEN hired E.S. de Castro and Associates (ESCA) to act as its engineering consultant. Since the Citimall was envisioned to be a high-rise structure, LICOMCEN contracted respondent Foundation Specialists, Inc. (FSI) to do initial construction works, specifically, the construction and installation of bored piles foundation.2 LICOMCEN and FSI signed the Construction Agreement,3 and the accompanying Bid Documents4 and General Conditions of Contract5 (GCC) on September 1, 1997. Immediately thereafter, FSI purchased the materials needed for the Citimall6 project and began working in order to meet the 90-day deadline set by LICOMCEN. On December 16, 1997, LICOMCEN sent word to FSI that it was considering major design revisions and the suspension of work on the Citimall project. FSI replied on December 18, 1997, expressing concern over the revisions and the suspension, as it had fully mobilized its manpower and equipment, and had ordered the delivery of steel bars. FSI also asked for the payment of accomplished work amounting to P3,627,818.00.7 A series of correspondence between LICOMCEN and FSI then followed. ESCA wrote FSI on January 6, 1998, stating that the revised design necessitated a change in the bored piles requirement and a substantial reduction in the number of piles. Thus, ESCA proposed to FSI that only 50% of the steel bars be delivered to the jobsite and the rest be shipped back to Manila.8 Notwithstanding this instruction, all the ordered steel bars arrived in Legaspi City on January 14, 1998.9 On January 15, 1998, LICOMCEN instructed FSI to "hold all construction activities on the project,"10 in view of a pending administrative case against the officials of the City Government of Legaspi and LICOMCEN filed before the Ombudsman (OMB-ADM-1-97-0622).11 On January 19, 1998, ESCA formalized the suspension of construction activities and ordered the constructions demobilization until the case was resolved.12 In response, FSI sent ESCA a letter, dated February 3, 1998, requesting payment of costs incurred on account of the suspension which totaledP22,667,026.97.13 FSI repeated its demand for payment on March 3, 1998.14 ESCA replied to FSIs demands for payment on March 24, 1998, objecting to some of the claims.15 It denied the claim for the cost of the steel bars that were delivered, since the delivery was done in complete disregard of its instructions. It further disclaimed liability for the other FSI claims based on the suspension, as its cause was not due to LICOMCENs fault. FSI rejected ESCAs evaluation of its claims in its April 15, 1998 letter.16 On March 14, 2001, FSI sent a final demand letter to LICOMCEN for payment of P29,232,672.83.17 Since LICOMCEN took no positive action on FSIs demand for payment,18 FSI filed a petition for arbitration with the Construction Industry Arbitration Commission (CIAC) on October 2, 2002, docketed as CIAC Case No. 37-2002.19In the arbitration petition, FSI demanded payment of the following amounts:

a. Unpaid accomplished work billings. b. Material costs at site..

P 1,264,404.12 15,143,638.51

c. Equipment and labor standby costs.. 3,058,984.34 d. Unrealized gross profit.. e. Attorneys fees.. f. Interest expenses ... 9,023,575.29 300,000.00 equivalent to 15% of the total claim

LICOMCEN again denied liability for the amounts claimed by FSI. It justified its decision to indefinitely suspend the Citimall project due to the cases filed against it involving its Lease Contract with the City Government of Legaspi. LICOMCEN also assailed the CIACs jurisdiction, contending that FSIs claims were matters not subject to arbitration under GC-61 of the GCC, but one that should have been filed before the regular courts of Legaspi City pursuant to GC-05.20 During the preliminary conference of January 28, 2003, LICOMCEN reiterated its objections to the CIACs jurisdiction, which the arbitrators simply noted. Both FSI and LICOMCEN then proceeded to draft the Terms of Reference.21 On February 4, 2003, LICOMCEN, through a collaborating counsel, filed its Ex Abundati Ad Cautela Omnibus Motion, insisting that FSIs petition before the CIAC should be dismissed for lack of jurisdiction; thus, it prayed for the suspension of the arbitration proceedings until the issue of jurisdiction was finally settled. The CIAC denied LICOMCENs motion in its February 20, 2003 order,22 finding that the question of jurisdiction depends on certain factual conditions that have yet to be established by ample evidence. As the CIACs February 20, 2003 order stood uncontested, the arbitration proceedings continued, with both parties actively participating. The CIAC issued its decision on July 7, 2003,23 ruling in favor of FSI and awarding the following amounts: a. Unpaid accomplished work billings. P 1,264,404.12 b. Material costs at site 14,643,638.51

c. Equipment and labor standby costs 2,957,989.94 d. Unrealized gross profit 5,120,000.00

LICOMCEN was also required to bear the costs of arbitration in the total amount of P474,407.95.

LICOMCEN appealed the CIACs decision before the Court of Appeals (CA). On November 23, 2004, the CA upheld the CIACs decision, modifying only the amounts awarded by (a) reducing LICOMCENs liability for material costs at site to P5,694,939.87, and (b) deleting its liability for equipment and labor standby costs and unrealized gross profit; all the other awards were affirmed.24 Both parties moved for the reconsideration of the CAs Decision; LICOMCENs motion was denied in the CAs February 4, 2005 Resolution, while FSIs motion was denied in the CAs September 13, 2005 Resolution. Hence, the parties filed their own petition for review on certiorari before the Court.25 LICOMCENs Arguments LICOMCEM principally raises the question of the CIACs jurisdiction, insisting that FSIs claims are non-arbitrable. In support of its position, LICOMCEN cites GC-61 of the GCC: GC-61. DISPUTES AND ARBITRATION Should any dispute of any kind arise between the LICOMCEN INCORPORATED and the Contractor [referring to FSI] or the Engineer [referring to ESCA] and the Contractor in connection with, or arising out of the execution of the Works, such dispute shall first be referred to and settled by the LICOMCEN, INCORPORATED who shall within a period of thirty (30) days after being formally requested by either party to resolve the dispute, issue a written decision to the Engineer and Contractor. Such decision shall be final and binding upon the parties and the Contractor shall proceed with the execution of the Works with due diligence notwithstanding any Contractor's objection to the decision of the Engineer. If within a period of thirty (30) days from receipt of the LICOMCEN, INCORPORATED's decision on the dispute, either party does not officially give notice to contest such decision through arbitration, the said decision shall remain final and binding. However, should any party, within thirty (30) days from receipt of the LICOMCEN, INCORPORATED's decision, contest said decision, the dispute shall be submitted for arbitration under the Construction Industry Arbitration Law, Executive Order 1008. The arbitrators appointed under said rules and regulations shall have full power to open up, revise and review any decision, opinion, direction, certificate or valuation of the LICOMCEN, INCORPORATED. Neither party shall be limited to the evidence or arguments put before the LICOMCEN, INCORPORATED for the purpose of obtaining his said decision. No decision given by the LICOMCEN, INCORPORATED shall disqualify him from being called as a witness and giving evidence in the arbitration. It is understood that the obligations of the LICOMCEN, INCORPORATED, the Engineer and the Contractor shall not be altered by reason of the arbitration being conducted during the progress of the Works.26 LICOMCEN posits that only disputes "in connection with or arising out of the execution of the Works" are subject to arbitration. LICOMCEN construes the phrase "execution of the Works" as referring to the physical construction activities, since "Works" under the GCC specifically refer to the "structures and facilities" required to be constructed and completed for the Citimall project.27 It considers FSIs claims as mere contractual monetary claims that should be litigated before the courts of Legaspi City, as provided in GC-05 of the GCC: GC-05. JURISDICTION Any question between the contracting parties that may arise out of or in connection with the Contract, or breach thereof, shall be litigated in the courts of Legaspi City except where otherwise specifically stated or except when such question is submitted for settlement thru arbitration as provided herein.28

LICOMCEN also contends that FSI failed to comply with the condition precedent for arbitration laid down in GC-61 of the GCC. An arbitrable dispute under GC-61 must first be referred to and settled by LICOMCEN, which has 30 days to resolve it. If within a period of 30 days from receipt of LICOMCENs decision on the dispute, either party does not officially give notice to contest such decision through arbitration, the said decision shall remain final and binding. However, should any party, within 30 days from receipt of LICOMCENs decision, contest said decision, the dispute shall be submitted for arbitration under the Construction Industry Arbitration Law. LICOMCEN considers its March 24, 1998 letter as its final decision on FSIs claims, but declares that FSIs reply letter of April 15, 1998 is not the "notice to contest" required by GC-61 that authorizes resort to arbitration before the CIAC. It posits that nothing in FSIs April 15, 1998 letter states that FSI will avail of arbitration as a mode to settle its dispute with LICOMCEN. While FSIs final demand letter of March 14, 2001 mentioned its intention to refer the matter to arbitration, LICOMCEN declares that the letter was made three years after its March 24, 1998 letter, hence, long after the 30-day period provided in GC-61. Indeed, FSI filed the petition for arbitration with the CIAC only on October 2, 2002.29 Considering FSIs delays in asserting its claims, LICOMCEN also contends that FSIs action is barred by laches. With respect to the monetary claims of FSI, LICOMCEM alleges that the CA erred in upholding its liability for material costs at site for the reinforcing steel bars in the amount of P5,694,939.87, computed as follows30: 2nd initial rebar requirements purchased from Pag-Asa Steel Works, Inc.. Reinforcing steel bars purchased from ARCA Industrial Sales (total net weight of 744,197.66 kilograms) 50% of net amount due.

P 799,506.83

5,395,433.04

Subtotal. Less Purchase cost of steel bars by Ramon Quinquileria.. TOTAL LIABILITY OF LICOMCEN TO FSI FOR MATERIAL COSTS AT SITE...

6,194,939.87

(500,000.00)

5,694,939.87

Citing GC-42(2) of the GCC, LICOMCEN says it shall be liable to pay FSI "[t]he cost of materials or goods reasonably ordered for the Permanent or Temporary Works which have been delivered to the Contractor but not yet used, and which delivery has been certified by the Engineer."31 None of these requisites were allegedly complied with. It contends that FSI failed to establish that the steel bars delivered in Legaspi City, on January 14, 1998, were for the Citimall project. In fact, the steel bars were delivered not at the site of the Citimall project, but at FSIs batching plant called Tuanzon compound, a few hundred meters from the site. Even if delivery to Tuanzon was allowed, the delivery was done in violation of ESCAs instruction to ship only 50% of the materials. Advised as early as December 1997 to suspend the works, FSI proceeded with the delivery of the steel bars in

January 1998. LICOMCEN declared that it should not be made to pay for costs that FSI willingly incurred for itself.32 Assuming that LICOMCEN is liable for the costs of the steel bars, it argues that its liability should be minimized by the fact that FSI incurred no actual damage from the purchase and delivery of the steel bars. During the suspension of the works, FSI sold 125,000 kg of steel bars for P500,000.00 to a third person (a certain Ramon Quinquileria). LICOMCEN alleges that FSI sold the steel bars for a ridiculously low price of P 4.00/kilo, when the prevailing rate was P20.00/kilo. The sale could have garnered a higher price that would offset LICOMCENs liability. LICOMCEN also wants FSI to account for and deliver to it the remaining 744 metric tons of steel bars not sold. Otherwise, FSI would be unjustly enriched at LICOMCENs expense, receiving payment for materials not delivered to LICOMCEN.33 LICOMCEN also disagrees with the CA ruling that declared it solely liable to pay the costs of arbitration. The ruling was apparently based on the finding that LICOMCENs "failure or refusal to meet its obligations, legal, financial, and moral, caused FSI to bring the dispute to arbitration."34 LICOMCEN asserts that it was FSIs decision to proceed with the delivery of the steel bars that actually caused the dispute; it insists that it is not the party at fault which should bear the arbitration costs.35 FSIs Arguments FSI takes exception to the CA ruling that modified the amount for material costs at site, and deleted the awards for equipment and labor standby costs and unrealized profits. Proof of damage to FSI is not required for LICOMCEN to be liable for the material costs of the steel bars. Under GC-42, it is enough that the materials were delivered to the contractor, although not used. FSI said that the 744 metric tons of steel bars were ordered and paid for by it for the Citimall project as early as November 1997. If LICOMCEN contends that these were procured for other projects FSI also had in Legaspi City, it should have presented proof of this claim, but it failed to do so.36 ESCAs January 6, 1998 letter simply suggested that only 50% of the steel bars be shipped to Legaspi City; it was not a clear and specific directive. Even if it was, the steel bars were ordered and paid for long before the notice to suspend was given; by then, it was too late to stop the delivery. FSI also claims that since it believed in good faith that the Citimall project was simply suspended, it expected work to resume soon after and decided to proceed with the shipment.37 Contrary to LICOMCENs arguments, GC-42 of the GCC does not require delivery of the materials at the site of the Citimall project; it only requires delivery to the contractor, which is FSI. Moreover, the Tuanzon compound, where the steel bars were actually delivered, is very close to the Citimall project site. FSI contends that it is a normal construction practice for contractors to set up a "staging site," to prepare the materials and equipment to be used, rather than stock them in the crowded job/project site. FSI also asserts that it was useless to have the delivery certified by ESCA because by then the Citimall project had been suspended. It would be unfair to demand FSI to perform an act that ESCA and LICOMCEN themselves had prevented from happening.38 The CA deleted the awards for equipment and labor standby costs on the ground that FSIs documentary evidence was inadequate. FSI finds the ruling erroneous, since LICOMCEN never questioned the list of employees and equipments employed and rented by FSI for the duration of the suspension.39

FSI also alleges that LICOMCEN maliciously and unlawfully suspended the Citimall project. While LICOMCEN cited several other cases in its petition for review on certiorari as grounds for suspending the works, its letters/notices of suspension only referred to one case, OMB-ADM-1-970622, an administrative case before the Ombudsman that was dismissed as early as October 12, 1998. LICOMCEN never notified FSI of the dismissal of this case. More importantly, no restraining order or injunction was issued in any of these cases to justify the suspension of the Citimall project.40 FSI posits that LICOMCENs true intent was to terminate its contract with it, but, to avoid paying damages for breach of contract, simply declared it as "indefinitely suspended." That LICOMCEN conducted another public bidding for the "new designs" is a telling indication of LICOMCENs intent to ease out FSI.41 Thus, FSI states that LICOMCENs bad faith in indefinitely suspending the Citimall project entitles it to claim unrealized profit. The restriction under GC-41 that "[t]he contractor shall have no claim for anticipated profits on the work thus terminated,"42 will not apply because the stipulation refers to a contract lawfully and properly terminated. FSI seeks to recover unrealized profits under Articles 1170 and 2201 of the Civil Code. THE COURTS RULING The jurisdiction of the CIAC The CIAC was created through Executive Order No. 1008 (E.O. 1008), in recognition of the need to establish an arbitral machinery that would expeditiously settle construction industry disputes. The prompt resolution of problems arising from or connected with the construction industry was considered of necessary and vital for the fulfillment of national development goals, as the construction industry provides employment to a large segment of the national labor force and is a leading contributor to the gross national product.43 Section 4 of E.O. 1008 states: Sec. 4. Jurisdiction. The CIAC shall have original and exclusive jurisdiction over disputes arising from, or connected with, contracts entered into by parties involved in construction in the Philippines, whether the dispute arises before or after the completion of the contract, or after the abandonment or breach thereof. These disputes may involve government or private contracts. For the Board to acquire jurisdiction, the parties to a dispute must agree to submit the same to voluntary arbitration. The jurisdiction of the CIAC may include but is not limited to violation of specifications for materials and workmanship; violation of the terms of agreement; interpretation and/or application of contractual time and delays; maintenance and defects; payment, default of employer or contractor and changes in contract cost. Excluded from the coverage of this law are disputes arising from employer-employee relationships which shall continue to be covered by the Labor Code of the Philippines. The jurisdiction of courts and quasi-judicial bodies is determined by the Constitution and the law.44 It cannot be fixed by the will of the parties to a dispute;45 the parties can neither expand nor diminish a tribunals jurisdiction by stipulation or agreement. The text of Section 4 of E.O. 1008 is broad enough to cover any dispute arising from, or connected with construction contracts, whether these involve mere contractual money claims or execution of the works.46 Considering the intent behind the law and the broad language adopted, LICOMCEN erred in insisting on its restrictive interpretation of GC61. The CIACs jurisdiction cannot be limited by the parties stipulation that only disputes in connection with or arising out of the physical construction activities (execution of the works) are arbitrable before it.

In fact, all that is required for the CIAC to acquire jurisdiction is for the parties to a construction contract to agree to submit their dispute to arbitration. Section 1, Article III of the 1988 CIAC Rules of Procedure (as amended by CIAC Resolution Nos. 2-91 and 3-93) states: Section 1. Submission to CIAC Jurisdiction. An arbitration clause in a construction contract or a submission to arbitration of a construction dispute shall be deemed an agreement to submit an existing or future controversy to CIAC jurisdiction, notwithstanding the reference to a different arbitration institution or arbitral body in such contract or submission. When a contract contains a clause for the submission of a future controversy to arbitration, it is not necessary for the parties to enter into a submission agreement before the claimant may invoke the jurisdiction of CIAC. An arbitration agreement or a submission to arbitration shall be in writing, but it need not be signed by the parties, as long as the intent is clear that the parties agree to submit a present or future controversy arising from a construction contract to arbitration. In HUTAMA-RSEA Joint Operations, Inc. v. Citra Metro Manila Tollways Corporation,47 the Court declared that "the bare fact that the parties x x x incorporated an arbitration clause in [their contract] is sufficient to vest the CIAC with jurisdiction over any construction controversy or claim between the parties. The arbitration clause in the construction contract ipso facto vested the CIAC with jurisdiction." Under GC-61 and GC-05 of the GCC, read singly and in relation with one another, the Court sees no intent to limit resort to arbitration only to disputes relating to the physical construction activities. First, consistent with the intent of the law, an arbitration clause pursuant to E.O. 1008 should be interpreted at its widest signification. Under GC-61, the voluntary arbitration clause covers any dispute of any kind, not only arising of out the execution of the works but also in connection therewith. The payments, demand and disputed issues in this case namely, work billings, material costs, equipment and labor standby costs, unrealized profits all arose because of the construction activities and/or are connected or related to these activities. In other words, they are there because of the construction activities. Attorneys fees and interests payment, on the other hand, are costs directly incidental to the dispute. Hence, the scope of the arbitration clause, as worded, covers all the disputed items. Second and more importantly, in insisting that contractual money claims can be resolved only through court action, LICOMCEN deliberately ignores one of the exceptions to the general rule stated in GC-05: GC-05. JURISDICTION Any question between the contracting parties that may arise out of or in connection with the Contract, or breach thereof, shall be litigated in the courts of Legaspi City except where otherwise specifically stated or except when such question is submitted for settlement thru arbitration as provided herein. The second exception clause authorizes the submission to arbitration of any dispute between LICOMCEM and FSI, even if the dispute does not directly involve the execution of physical construction works. This was precisely the avenue taken by FSI when it filed its petition for arbitration with the CIAC. If the CIACs jurisdiction can neither be enlarged nor diminished by the parties, it also cannot be subjected to a condition precedent. GC-61 requires a party disagreeing with LICOMCENs decision

to "officially give notice to contest such decision through arbitration" within 30 days from receipt of the decision. However, FSIs April 15, 1998 letter is not the notice contemplated by GC-61; it never mentioned FSIs plan to submit the dispute to arbitration and instead requested LICOMCEN to reevaluate its claims. Notwithstanding FSIs failure to make a proper and timely notice, LICOMCENs decision (embodied in its March 24, 1998 letter) cannot become "final and binding" so as to preclude resort to the CIAC arbitration. To reiterate, all that is required for the CIAC to acquire jurisdiction is for the parties to agree to submit their dispute to voluntary arbitration: [T]he mere existence of an arbitration clause in the construction contract is considered by law as an agreement by the parties to submit existing or future controversies between them to CIAC jurisdiction, without any qualification or condition precedent. To affirm a condition precedent in the construction contract, which would effectively suspend the jurisdiction of the CIAC until compliance therewith, would be in conflict with the recognized intention of the law and rules to automatically vest CIAC with jurisdiction over a dispute should the construction contract contain an arbitration clause.48 The CIAC is given the original and exclusive jurisdiction over disputes arising from, or connected with, contracts entered into by parties involved in construction in the Philippines.49 This jurisdiction cannot be altered by stipulations restricting the nature of construction disputes, appointing another arbitral body, or making that bodys decision final and binding. The jurisdiction of the CIAC to resolve the dispute between LICOMCEN and FSI is, therefore, affirmed. The validity of the indefinite suspension of the works on the Citimall project Before the Court rules on each of FSIs contractual monetary claims, we deem it important to discuss the validity of LICOMCENs indefinite suspension of the works on the Citimall project. We quote below two contractual stipulations relevant to this issue: GC-38. SUSPENSION OF WORKS The Engineer [ESCA] through the LICOMCEN, INCORPORATED shall have the authority to suspend the Works wholly or partly by written order for such period as may be deemed necessary, due to unfavorable weather or other conditions considered unfavorable for the prosecution of the Works, or for failure on the part of the Contractor to correct work conditions which are unsafe for workers or the general public, or failure or refusal to carry out valid orders, or due to change of plans to suit field conditions as found necessary during construction, or to other factors or causes which, in the opinion of the Engineer, is necessary in the interest of the Works and to the LICOMCEN, INCORPORATED. The Contractor [FSI] shall immediately comply with such order to suspend the work wholly or partly directed. In case of total suspension or suspension of activities along the critical path of the approved PERT/CPM network and the cause of which is not due to any fault of the Contractor, the elapsed time between the effective order for suspending work and the order to resume work shall be allowed the Contractor by adjusting the time allowed for his execution of the Contract Works. The Engineer through LICOMCEN, INCORPORATED shall issue the order lifting the suspension of work when conditions to resume work shall have become favorable or the reasons for the suspension have been duly corrected.50

GC-41 LICOMCEN, INCORPORATED's RIGHT TO SUSPEND WORK OR TERMINATE THE CONTRACT xxxx 2. For Convenience of LICOMCEN, INCORPORATED If any time before completion of work under the Contract it shall be found by the LICOMCEN, INCORPORATED that reasons beyond the control of the parties render it impossible or against the interest of the LICOMCEN, INCORPORATED to complete the work, the LICOMCEN, INCORPORATED at any time, by written notice to the Contractor, may discontinue the work and terminate the Contract in whole or in part. Upon the issuance of such notice of termination, the Contractor shall discontinue to work in such manner, sequence and at such time as the LICOMCEN, INCORPORATED/Engineer may direct, continuing and doing after said notice only such work and only until such time or times as the LICOMCEN, INCORPORATED/Engineer may direct.51 Under these stipulations, we consider LICOMCENs initial suspension of the works valid. GC-38 authorizes the suspension of the works for factors or causes which ESCA deems necessary in the interests of the works and LICOMCEN. The factors or causes of suspension may pertain to a change or revision of works, as cited in the December 16, 1997 and January 6, 1998 letters of ESCA, or to the pendency of a case before the Ombudsman (OMB-ADM-1-97-0622), as cited in LICOMCENs January 15, 1998 letter and ESCAs January 19, 1998 and February 17, 1998 letters. It was not necessary for ESCA/LICOMCEN to wait for a restraining or injunctive order to be issued in any of the cases filed against LICOMCEN before it can suspend the works. The language of GC-38 gives ESCA/LICOMCEN sufficient discretion to determine whether the existence of a particular situation or condition necessitates the suspension of the works and serves the interests of LICOMCEN.
1avvphi 1

Although we consider the initial suspension of the works as valid, we find that LICOMCEN wrongfully prolonged the suspension of the works (or "indefinite suspension" as LICOMCEN calls it). GC-38 requires ESCA/LICOMCEN to "issue an order lifting the suspension of work when conditions to resume work shall have become favorable or the reasons for the suspension have been duly corrected." The Ombudsman case (OMB-ADM-1-97-0622), which ESCA and LICOMCEN cited in their letters to FSI as a ground for the suspension, was dismissed as early as October 12, 1998, but neither ESCA nor LICOMCEN informed FSI of this development. The pendency of the other cases52 may justify the continued suspension of the works, but LICOMCEN never bothered to inform FSI of the existence of these cases until the arbitration proceedings commenced. By May 28, 2002, the City Government of Legaspi sent LICOMCEN a notice instructing it to proceed with the Citimall project;53 again, LICOMCEN failed to relay this information to FSI. Instead, LICOMCEN conducted a rebidding of the Citimall project based on the new design.54 LICOMCENs claim that the rebidding was conducted merely to get cost estimates for the new design goes against the established practice in the construction industry. We find the CIACs discussion on this matter relevant: But what is more appalling and disgusting is the allegation x x x that the x x x invitation to bid was issued x x x solely to gather cost estimates on the redesigned [Citimall project] x x x. This Arbitral Tribunal finds said act of asking for bids, without any intention of awarding the project to the lowest and qualified bidder, if true, to be extremely irresponsible and highly unprofessional. It might even be branded as fraudulent x x x [since] the invited bidders [were required] to pay P2,000.00 each for a set of the new plans, which amount was non-refundable. The presence of x x x deceit makes the whole story repugnant and unacceptable.55

LICOMCENs omissions and the imprudent rebidding of the Citimall project are telling indications of LICOMCENs intent to ease out FSI and terminate their contract. As with GC-31, GC-42(2) grants LICOMCEN ample discretion to determine what reasons render it against its interest to complete the work in this case, the pendency of the other cases and the revised designs for the Citimall project. Given this authority, the Court fails to the see the logic why LICOMCEN had to resort to an "indefinite suspension" of the works, instead of outrightly terminating the contract in exercise of its rights under GC-42(2). We now proceed to discuss the effects of these findings with regard to FSIs monetary claims against LICOMCEN. The claim for material costs at site GC-42 of the GCC states: GC-42 PAYMENT FOR TERMINATED CONTRACT If the Contract is terminated as aforesaid, the Contractor will be paid for all items of work executed, satisfactorily completed and accepted by the LICOMCEN, INCORPORATED up to the date of termination, at the rates and prices provided for in the Contract and in addition: 1. The cost of partially accomplished items of additional or extra work agreed upon by the LICOMCEN, INCORPORATED and the Contractor. 2. The cost of materials or goods reasonably ordered for the Permanent or Temporary Works which have been delivered to the Contractor but not yet used and which delivery has been certified by the Engineer. 3. The reasonable cost of demobilization For any payment due the Contractor under the above conditions, the LICOMCEN, INCORPORATED, however, shall deduct any outstanding balance due from the Contractor for advances in respect to mobilization and materials, and any other sum the LICOMCEN, INCORPORATED is entitled to be credited.56 For LICOMCEN to be liable for the cost of materials or goods, item two of GC-42 requires that a. the materials or goods were reasonably ordered for the Permanent or Temporary Works; b. the materials or goods were delivered to the Contractor but not yet used; and c. the delivery was certified by the Engineer. Both the CIAC and the CA agreed that these requisites were met by FSI to make LICOMCEN liable for the cost of the steel bars ordered for the Citimall project; the two tribunals differed only to the extent of LICOMCENs liability because the CA opined that it should be limited only to 50% of the cost of the steel bars. A review of the records compels us to uphold the CAs finding. Prior to the delivery of the steel bars, ESCA informed FSI of the suspension of the works; ESCAs January 6, 1998 letter reads:

As per our information to you on December 16, 1997, a major revision in the design of the Legaspi Citimall necessitated a change in the bored piles requirement of the project. The change involved a substantial reduction in the number and length of piles. We expected that you would have suspended the deliveries of the steel bars until the new design has been approved. According to you[,] the steel bars had already been paid and loaded and out of Manila on said date. In order to avoid double handling, storage, security problems, we suggest that only 50% of the total requirement of steel bars be delivered at jobsite. The balance should be returned to Manila where storage and security is better. In order for us to consider additional cost due to the shipping of the excess steel bars, we need to know the actual dates of purchase, payments and loading of the steel bars. Obviously, we cannot consider the additional cost if you have had the chance to delay the shipping of the steel bars.57 From the above, it appears that FSI was informed of the necessity of suspending the works as early as December 16, 1997. Pursuant to GC-38 of the GCC, FSI was expected to immediately comply with the order to suspend the work.58 Though ESCAs December 16, 1997 notice may not have been categorical in ordering the suspension of the works, FSIs reply letter of December 18, 1997 indicated that it actually complied with the notice to suspend, as it said, "We hope for the early resolution of the new foundation plan and the resumption of work."59 Despite the suspension, FSI claimed that it could not stop the delivery of the steel bars (nor found the need to do so) because (a) the steel bars were ordered as early as November 1997 and were already loaded in Manila and expected to arrive in Legaspi City by December 23, 1997, and (b) it expected immediate resumption of work to meet the 90-day deadline.60 Records, however, disclose that these claims are not entirely accurate. The memorandum of agreement and sale covering the steel bars specifically stated that these would be withdrawn from the Cagayan de Oro depot, not Manila61; indeed, the bill of lading stated that the steel bars were loaded in Cagayan de Oro on January 11, 1998, and arrived in Legaspi City within three days, on January 14, 1998.62 The loading and delivery of the steel bar thus happened after FSI received ESCAs December 16, 1997 and January 6, 1998 letters days after the instruction to suspend the works. Also, the same stipulation that authorizes LICOMCEN to suspend the works allows the extension of the period to complete the works. The relevant portion of GC-38 states: In case of total suspension x x x and the cause of which is not due to any fault of the Contractor [FSI], the elapsed time between the effective order for suspending work and the order to resume work shall be allowed the Contractor by adjusting the time allowed for his execution of the Contract Works.63 The above stipulation, coupled with the short period it took to ship the steel bars from Cagayan de Oro to Legaspi City, thus negates both FSIs argument and the CIACs ruling64 that there was no necessity to stop the shipment so as to meet the 90-day deadline. These circumstances prove that FSI acted imprudently in proceeding with the delivery, contrary to LICOMCENs instructions. The CA was correct in holding LICOMCEN liable for only 50% of the costs of the steel bars delivered.

The claim for equipment and labor standby costs The Court upholds the CAs ruling deleting the award for equipment and labor standby costs. We quote in agreement pertinent portions of the CA decision: The CIAC relied solely on the list of 37 pieces of equipment respondent allegedly rented and maintained at the construction site during the suspension of the project with the prorated rentals incurred x x x. To the mind of this Court, these lists are not sufficient to establish the fact that indeed [FSI] incurred the said expenses. Reliance on said lists is purely speculative x x x the list of equipments is a mere index or catalog of the equipments, which may be utilized at the construction site. It is not the best evidence to prove that said equipment were in fact rented and maintained at the construction site during the suspension of the work. x x x [FSI] should have presented the lease contracts or any similar documents such as receipts of payments x x x. Likewise, the list of employees does not in anyway prove that those employees in the list were indeed at the construction site or were required to be on call should their services be needed and were being paid their salaries during the suspension of the project. Thus, in the absence of sufficient evidence, We deny the claim for equipment and labor standby costs.65 The claim for unrealized profit FSI contends that it is not barred from recovering unrealized profit under GC-41(2), which states: GC-41. LICOMCEN, INCORPORATEDs RIGHT TO SUSPEND WORK OR TERMINATE THE CONTRACT xxxx 2. For Convenience of the LICOMCEN, INCORPORATED x x x. The Contractor [FSI] shall not claim damages for such discontinuance or termination of the Contract, but the Contractor shall receive compensation for reasonable expenses incurred in good faith for the performance of the Contract and for reasonable expenses associated with termination of the Contract. The LICOMCEN, INCORPORATED will determine the reasonableness of such expenses. The Contractor [FSI] shall have no claim for anticipated profits on the work thus terminated, nor any other claim, except for the work actually performed at the time of complete discontinuance, including any variations authorized by the LICOMCEN, INCORPORATED/Engineer to be done. The prohibition, FSI posits, applies only where the contract was properly and lawfully terminated, which was not the case at bar. FSI also took pains in differentiating its claim for "unrealized profit" from the prohibited claim for "anticipated profits"; supposedly, unrealized profit is "one that is built-in in the contract price, while anticipated profit is not." We fail to see the distinction, considering that the contract itself neither defined nor differentiated the two terms. [A] contract must be interpreted from the language of the contract itself, according to its plain and ordinary meaning."66 If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of the stipulations shall control.67 Nonetheless, on account of our earlier discussion of LICOMCENs failure to observe the proper procedure in terminating the contract by declaring that it was merely indefinitely suspended, we deem that FSI is entitled to the payment of nominal damages. Nominal damages may be awarded to a plaintiff whose right has been violated or invaded by the defendant, for the purpose of vindicating

or recognizing that right, and not for indemnifying the plaintiff for any loss suffered by him.68 Its award is, thus, not for the purpose of indemnification for a loss but for the recognition and vindication of a right. A violation of the plaintiffs right, even if only technical, is sufficient to support an award of nominal damages.69 FSI is entitled to recover the amount of P100,000.00 as nominal damages. The liability for costs of arbitration Under the parties Terms of Reference, executed before the CIAC, the costs of arbitration shall be equally divided between them, subject to the CIACs determination of which of the parties shall eventually shoulder the amount.70The CIAC eventually ruled that since LICOMCEN was the party at fault, it should bear the costs. As the CA did, we agree with this finding. Ultimately, it was LICOMCENs imprudent declaration of indefinitely suspending the works that caused the dispute between it and FSI. LICOMCEN should bear the costs of arbitration. WHEREFORE, premises considered, the petition for review on certiorari of LICOMCEN INCORPORATED, docketed as G.R. No. 167022, and the petition for review on certiorari of FOUNDATION SPECIALISTS, INC., docketed as G.R. No. 169678, are DENIED. The November 23, 2004 Decision of the Court of Appeals in CA-G.R. SP No. 78218 is MODIFIED to include the award of nominal damages in favor of FOUNDATION SPECIALISTS, INC. Thus, LICOMCEN INCORPORATED is ordered to pay FOUNDATION SPECIALISTS, INC. the following amounts: a. P1,264,404.12 for unpaid balance on FOUNDATION SPECIALISTS, INC. billings; b. P5,694,939.87 for material costs at site; and c. P100,000.00 for nominal damages. LICOMCEN INCORPORATED is also ordered to pay the costs of arbitration. No costs. SO ORDERED. A.M. No. P-11-2922 April 4, 2011 (formerly A.M. OCA IPI No. 03-1778-P) MARY JANE ABANAG, Complainant, vs. NICOLAS B. MABUTE, Court Stenographer I, Municipal Circuit Trial Court (MCTC), Paranas, Samar,Respondent. D E CI S I O N BRION, J.: We resolve the administrative case against Nicolas B. Mabute (respondent), Court Stenographer I in the Municipal Circuit Trial Court (MCTC) of Paranas, Samar, filed by Mary Jane Abanag (complainant) for Disgraceful and Immoral Conduct. In her verified letter-complaint dated September 19, 2003, the complainant, a 23-year old unmarried woman, alleged that respondent courted her and professed his undying love for her. Relying on respondents promise that he would marry her, she agreed to live with him. She became pregnant, but after several months into her pregnancy, respondent brought her to a "manghihilot" and tried to

force her to take drugs to abort her baby. When she did not agree, the respondent turned cold and eventually abandoned her. She became depressed resulting in the loss of her baby. She also stopped schooling because of the humiliation that she suffered. In his comment on the complaint submitted to the Office of the Court Administrator, the respondent vehemently denied the complainants allegations and claimed that the charges against him were baseless, false and fabricated, and were intended to harass him and destroy his reputation. He further averred that Norma Tordesillas, the complainants co-employee, was using the complaint to harass him. Tordesillas resented him because he had chastised her for her arrogant behavior and undesirable work attitude. He believes that the complainants letter-complaint, which was written in the vernacular, was prepared by Tordesillas who is from Manila and fluent in Tagalog; the respondent would have used the "waray" or English language if she had written the letter-complaint. The complainant filed a Reply, insisting that she herself wrote the letter-complaint. She belied the respondents claim that she was being used by Tordesillas who wanted to get even with him. In a Resolution dated July 29, 2005, the Court referred the letter-complaint to then Acting Executive Judge Carmelita T. Cuares of the Regional Trial Court (RTC) of Catbalogan City, Samar for investigation, report and recommendation. The respondent sought Judge Cuares inhibition from the case, alleging that the Judge was partial and had bias in favor of the complainant; the complainant herself had bragged that she personally knew Judge Cuares. The Court designated Judge Esteban V. dela Pea, who succeeded Judge Cuares as Acting Executive Judge, to continue with the investigation of the case.1 Eventually, Judge Agerico A. Avila took over the investigation when he was designated the Executive Judge of the RTC of Catbalogan City, Samar. In his Report/Recommendation dated June 7, 2010,2 Executive Judge Avila reported on the developments in the hearing of the case. The complainant testified that she met the respondent while she was a member of the Singles for Christ. They became acquainted and they started dating. The relationship blossomed until they lived together in a rented room near the respondents office. The respondent, for his part, confirmed that he met the complainant when he joined the Singles for Christ. He described their liaison as a dating relationship. He admitted that the complainant would join him at his rented room three to four times a week; when the complainant became pregnant, he asked her to stay and live with him. He vehemently denied having brought the complainant to a local "manghihilot" and that he had tried to force her to abort her baby. He surmised that the complainants miscarriage could be related to her epileptic attacks during her pregnancy. The respondent further testified that the complainants mother did not approve of him, but the complainant defied her mother and lived with him. He proposed marriage to the complainant, but her mother did not like him as a son-in-law and ordered the complainant to return home. The complainant obeyed her mother. They have separated ways since then, but he pledged his undying love for the complainant. The Investigating Judge recommends the dismissal of the complaint against the respondent, reporting that: Normally the personal affair of a court employee who is a bachelor and has maintained an amorous relation with a woman equally unmarried has nothing to do with his public employment. The sexual liaison is between two consenting adults and the consequent pregnancy is but a natural effect of the physical intimacy. Mary Jane was not forced to live with Nicolas nor was she impelled by some devious means or machination. The fact was, she freely acceded to cohabit with him. The situation

may-not-be-so-ideal but it does not give cause for administrative sanction. There appears no law which penalizes or prescribes the sexual activity of two unmarried persons. So, the accusation of Mary Jane that Nicolas initiated the abortion was calculated to bring the act within the ambit of an immoral, disgraceful and gross misconduct. Except however as to the self-serving assertion that Mary Jane was brought to a local midwife and forced to take the abortifacient, there was no other evidence to support that it was in fact so. All pointed to a harmonious relation that turned sour. In no small way Mary Jane was also responsible of what befell upon her.3 The Court defined immoral conduct as conduct that is willful, flagrant or shameless, and that shows a moral indifference to the opinion of the good and respectable members of the community.4 To justify suspension or disbarment, the act complained of must not only be immoral, but grossly immoral.5 A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or an act so unprincipled or disgraceful as to be reprehensible to a high degree.6 Based on the allegations of the complaint, the respondents comment, and the findings of the Investigating Judge, we find that the acts complained of cannot be considered as disgraceful or grossly immoral conduct. We find it evident that the sexual relations between the complainant and the respondent were consensual. They met at the Singles for Christ, started dating and subsequently became sweethearts. The respondent frequently visited the complainant at her boarding house and also at her parents residence. The complainant voluntarily yielded to the respondent and they eventually lived together as husband and wife in a rented room near the respondents office. They continued their relationship even after the complainant had suffered a miscarriage.
lawphi1

Mere sexual relations between two unmmaried and consenting adults are not enough to warrant administrative sanction for illicit behavior.7 The Court has repeatedly held that voluntary intimacy between a man and a woman who are not married, where both are not under any impediment to marry and where no deceit exists, is neither a criminal nor an unprincipled act that would warrant disbarment or disciplinary action.8
1avvphi1

While the Court has the power to regulate official conduct and, to a certain extent, private conduct, it is not within our authority to decide on matters touching on employees personal lives, especially those that will affect their and their familys future. We cannot intrude into the question of whether they should or should not marry.9 However, we take this occasion to remind judiciary employees to be more circumspect in their adherence to their obligations under the Code of Professional Responsibility. The conduct of court personnel must be free from any taint of impropriety or scandal, not only with respect to their official duties but also in their behavior outside the Court as private individuals. This is the best way to preserve and protect the integrity and the good name of our courts.10 WHEREFORE, the Court resolves to DISMISS the present administrative complaint against Nicolas B. Mabute, Stenographer 1 of the Municipal Circuit Trial Court, Paranas, Samar, for lack of merit. No costs. SO ORDERED. G.R. No. 188818 May 31, 2011

TOMAS R. OSMEA, in his personal capacity and in his capacity as City Mayor of Cebu City, Petitioner,

vs. THE COMMISSION ON AUDIT, Respondent. ECISION BRION, J.: Before the Court is the Petition for Certiorari1 filed by Tomas R. Osmea, former mayor of the City of Cebu, under Rule 64 of the Rules of Court. The petition seeks the reversal of the May 6, 2008 Decision2 and the June 8, 2009 Resolution3 of the respondent Commission on Audit (COA), which disallowed the damages, attorneys fees and litigation expenses awarded in favor of two construction companies in the collection cases filed against the City of Cebu, and made these charges the personal liability of Osmea for his failure to comply with the legal requirements for the disbursement of public funds. BACKGROUND FACTS The City of Cebu was to play host to the 1994 Palarong Pambansa (Palaro). In preparation for the games, the City engaged the services of WT Construction, Inc. (WTCI) and Dakay Construction and Development Company (DCDC) to construct and renovate the Cebu City Sports Complex. Osmea, then city mayor, was authorized by the Sangguniang Panlungsod (Sanggunian) of Cebu to represent the City and to execute the construction contracts. While the construction was being undertaken, Osmea issued a total of 20 Change/Extra Work Orders to WTCI, amounting to P35,418,142.42 (about 83% of the original contract price), and to DCDC, amounting toP15,744,525.24 (about 31% of the original contract price). These Change/Extra Work Orders were not covered by any Supplemental Agreement, nor was there a prior authorization from the Sanggunian. Nevertheless, the work proceeded on account of the "extreme urgency and need to have a suitable venue for the Palaro."4 The Palaro was successfully held at the Cebu City Sports Complex during the first six months of 1994. Thereafter, WTCI and DCDC demanded payment for the extra work they performed in the construction and renovation of the sports complex. A Sanggunian member, Councilor Augustus Young, sponsored a resolution authorizing Osmea to execute the supplemental agreements with WTCI and DCDC to cover the extra work performed, but the other Sanggunian members refused to pass the resolution. Thus, the extra work completed by WTCI and DCDC was not covered by the necessary appropriation to effect payment, prompting them to file two separate collection cases before the Regional Trial Court (RTC) of Cebu City (Civil Case Nos. CEB-170045 and CEB-171556 ). The RTC found the claims meritorious, and ordered the City to pay for the extra work performed.The RTC likewise awarded damages, litigation expenses and attorneys fees in the amount ofP2,514,255.40 to WTCI7 and P102,015.00 to DCDC.8 The decisions in favor of WTCI and DCDC were affirmed on appeal, subject to certain modifications as to the amounts due, and have become final. To satisfy the judgment debts, the Sanggunian finally passed the required appropriation ordinances. During post-audit, the City Auditor issued two notices disallowing the payment of litigation expenses, damages, and attorneys fees to WTCI and DCDC.9 The City Auditor held Osmea, the members of the Sanggunian, and the City Administrator liable for the P2,514,255.40 and P102,015.00 awarded to WTCI and DCDC, respectively, as damages, attorneys fees, and interest charges. These amounts, the City Auditor concluded, were unnecessary expenses for which the public officers should be held liable in their personal capacities pursuant to the law.

Osmea and the members of the Sanggunian sought reconsideration of the disallowance with the COA Regional Office, which, through a 2nd Indorsement dated April 30, 2003,10 modified the City Auditors Decision by absolving the members of the sanggunian from any liability. It declared that the payment of the amounts awarded as damages and attorneys fees should solely be Osmeas liability, as it was him who ordered the change or extra work orders without the supplemental agreement required by law, or the prior authorization from the Sanggunian. The Sanggunian members cannot be held liable for refusing to enact the necessary ordinance appropriating funds for the judgment award because they are supposed to exercise their own judgment and discretion in the performance of their functions; they cannot be mere "rubber stamps" of the city mayor. The COA Regional Offices Decision was sustained by the COAs National Director for Legal and Adjudication (Local Sector) in a Decision dated January 16, 2004.11 Osmea filed an appeal against this Decision. On May 6, 2008, the COA issued the assailed Decision which affirmed the notices of disallowance.12 Osmea received a copy of the Decision on May 23, 2008. Eighteen days after or on June 10, 2008, Osmea filed a motion for reconsideration of the May 6, 2008 COA Decision. The COA denied Osmeas motion via a Resolution dated June 8, 2009.13 The Office of the Mayor of Cebu City received the June 8, 2009 Resolution of the COA on June 29, 2009. A day before, however, Osmea left for the United States of America for his check-up after his cancer surgery in April 2009 and returned to his office only on July 15, 2009. Thus, it was only on July 27, 2009 that Osmea filed the present petition for certiorari under Rule 64 to assail the COAs Decision of May 6, 2008 and Resolution of June 8, 2009. THE PETITION Rule 64 of the Rules of Court governs the procedure for the review of judgments and final orders or resolutions of the Commission on Elections and the COA. Section 3 of the same Rule provides for a 30-day period, counted from the notice of the judgment or final order or resolution sought to be reviewed, to file the petition for certiorari. The Rule further states that the filing of a motion for reconsideration of the said judgment or final order or resolution interrupts the 30-day period. Osmea filed his motion for reconsideration, of the COAs May 6, 2008 Decision, 18 days from his receipt thereof, leaving him with 12 days to file a Rule 64 petition against the COA ruling. He argues that the remaining period should be counted not from the receipt of the COAs June 8, 2009 Resolution by the Office of the Mayor of Cebu City on June 29, 2009, but from the time he officially reported back to his office on July 15, 2009, after his trip abroad. Since he is being made liable in his personal capacity, he reasons that the remaining period should be counted from his actual knowledge of the denial of his motion for reconsideration. Corollary, he needed time to hire a private counsel who would review his case and prepare the petition. Osmea pleads that his petition be given due course for the resolution of the important issues he raised. The damages and interest charges were awarded on account of the delay in the payment of the extra work done by WTCI and DCDC, which delay Osmea attributes to the refusal of the Sanggunian to appropriate the necessary amounts. Although Osmea acknowledges the legal necessity for a supplemental agreement for any extra work exceeding 25% of the original contract price, he justifies the immediate execution of the extra work he ordered (notwithstanding the lack of the supplemental agreement) on the basis of the extreme urgency to have the construction and repairs on the sports complex completed in time for the holding of the Palaro. He claims that the

contractors themselves did not want to embarrass the City and, thus, proceeded to perform the extra work even without the supplemental agreement. Osmea also points out that the City was already adjudged liable for the principal sum due for the extra work orders and had already benefitted from the extra work orders by accepting and using the sports complex for the Palaro. For these reasons, he claims that all consequences of the liability imposed, including the payment of damages and interest charges, should also be shouldered by the City and not by him. THE COURTS RULING Relaxation of procedural rules to give effect to a partys right to appeal Section 3, Rule 64 of the Rules of Court states: SEC. 3. Time to file petition.The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial. [Emphasis ours.] Several times in the past, we emphasized that procedural rules should be treated with utmost respect and due regard, since they are designed to facilitate the adjudication of cases to remedy the worsening problem of delay in the resolution of rival claims and in the administration of justice. From time to time, however, we have recognized exceptions to the Rules but only for the most compelling reasons where stubborn obedience to the Rules would defeat rather than serve the ends of justice. Every plea for a liberal construction of the Rules must at least be accompanied by an explanation of why the party-litigant failed to comply with the Rules and by a justification for the requested liberal construction.14 Where strong considerations of substantive justice are manifest in the petition, this Court may relax the strict application of the rules of procedure in the exercise of its legal jurisdiction.15 Osmea cites the mandatory medical check-ups he had to undergo in Houston, Texas after his cancer surgery in April 2009 as reason for the delay in filing his petition for certiorari. Due to his weakened state of health, he claims that he could not very well be expected to be bothered by the affairs of his office and had to focus only on his medical treatment. He could not require his office to attend to the case as he was being charged in his personal capacity. We find Osmeas reasons sufficient to justify a relaxation of the Rules. Although the service of the June 8, 2009 Resolution of the COA was validly made on June 29, 2009 through the notice sent to the Office of the Mayor of Cebu City,16 we consider July 15, 2009 the date he reported back to office as the effective date when he was actually notified of the resolution, and the reckoning date of the period to appeal. If we were to rule otherwise, we would be denying Osmea of his right to appeal the Decision of the COA, despite the merits of his case. Moreover, a certiorari petition filed under Rule 64 of the Rules of Court must be verified, and a verification requires the petitioner to state under oath before an authorized officer that he has read the petition and that the allegations therein are true and correct of his personal knowledge. Given that Osmea was out of the country to attend to his medical needs, he could not comply with the requirements to perfect his appeal of the Decision of the COA.

While the Court has accepted verifications executed by a petitioners counsel who personally knows the truth of the facts alleged in the pleading, this was an alternative not available to Osmea, as he had yet to secure his own counsel. Osmea could not avail of the services of the City Attorney, as the latter is authorized to represent city officials only in their official capacity.17 The COA pins liability for the amount of damages paid to WTCI and DCDC on Osmea in his personal capacity, pursuant to Section 103 of Presidential Decree No. 1445 (PD 1445).18 Thus, the reckoning date to count the remaining 12 days to file his Rule 64 petition should be counted from July 15, 2009, the date Osmea had actual knowledge of the denial of his motion for reconsideration of the Decision of the COA and given the opportunity to competently file an appeal thereto before the Court. The present petition, filed on July 27, 2009, was filed within the reglementary period. Personal liability for expenditures of government fund when made in violation of law The Courts decision to adopt a liberal application of the rules stems not only from humanitarian considerations discussed earlier, but also on our finding of merit in the petition. Section 103 of PD 1445 declares that "[e]xpenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor." Notably, the public officials personal liability arises only if the expenditure of government funds was made in violation of law. In this case, the damages were paid to WTCI and DCDC pursuant to final judgments rendered against the City for its unreasonable delay in paying its obligations. The COA, however, declared that the judgments, in the first place, would not be rendered against the City had it not been for the change and extra work orders that Osmea made which (a) it considered as unnecessary, (b) were without the Sanggunians approval, and (c) were not covered by a supplemental agreement. The term "unnecessary," when used in reference to expenditure of funds or uses of property, is relative. In Dr. Teresita L. Salva, etc. v. Guillermo N. Carague, etc., et al.,19 we ruled that "[c]ircumstances of time and place, behavioural and ecological factors, as well as political, social and economic conditions, would influence any such determination. x x x [T]ransactions under audit are to be judged on the basis of not only the standards of legality but also those of regularity, necessity, reasonableness and moderation." The 10-page letter of City Administrator Juan Saul F. Montecillo to the Sanggunian explained in detail the reasons for each change and extra work order; most of which were made to address security and safety concerns that may arise not only during the holding of the Palaro, but also in other events and activities that may later be held in the sports complex. Comparing this with the COAs general and unsubstantiated declarations that the expenses were "not essential"20 and not "dictated by the demands of good government,"21 we find that the expenses incurred for change and extra work orders were necessary and justified. The COA considers the change and extra work orders illegal, as these failed to comply with Section III, C1 of the Implementing Rules and Regulations of Presidential Decree No. 1594,22 which states that: 5. Change Orders or Extra Work Orders may be issued on a contract upon the approval of competent authorities provided that the cumulative amount of such Change Orders or Extra Work Orders does not exceed the limits of the former's authority to approve original contracts. 6. A separate Supplemental Agreement may be entered into for all Change Orders and Extra Work Orders if the aggregate amount exceeds 25% of the escalated original contract price. All change orders/extra work orders beyond 100% of the escalated original contract cost shall be

subject to public bidding except where the works involved are inseparable from the original scope of the project in which case negotiation with the incumbent contractor may be allowed, subject to approval by the appropriate authorities. [Emphases ours.] Reviewing the facts of the case, we find that the prevailing circumstances at the time the change and extra work orders were executed and completed indicate that the City of Cebu tacitly approved these orders, rendering a supplemental agreement or authorization from the Sanggunian unnecessary. The Pre-Qualification, Bids and Awards Committee (PBAC), upon the recommendation of the Technical Committee and after a careful deliberation, approved the change and extra work orders. It bears pointing out that two members of the PBAC were members of the Sanggunian as well Rodolfo Cabrera (Chairman, Committee on Finance) and Ronald Cuenco (Minority Floor Leader). A COA representative was also present during the deliberations of the PBAC. None of these officials voiced any objection to the lack of a prior authorization from the Sanggunian or a supplemental agreement. The RTC Decision in fact mentioned that the Project Post Completion Report and Acceptance was approved by an authorized representative of the City of Cebu on September 21, 1994.23 "[a]s the projects had been completed, accepted and used by the [City of Cebu]," the RTC ruled that there is "no necessity of [executing] a supplemental agreement."24 Indeed, as we declared in Mario R. Melchor v. COA,25 a supplemental agreement to cover change or extra work orders is not always mandatory, since the law adopts the permissive word "may." Despite its initial refusal, the Sanggunian was eventually compelled to enact the appropriation ordinance in order to satisfy the RTC judgments. Belated as it may be, the enactment of the appropriation ordinance, nonetheless, constitutes as sufficient compliance with the requirements of the law. It serves as a confirmatory act signifying the Sanggunians ratification of all the change and extra work orders issued by Osmea. In National Power Corporation (NPC) v. Hon. Rose Marie Alonzo-Legasto, etc., et al.,26 the Court considered the compromise agreement between the NPC and the construction company as a ratification of the extra work performed, without prior approval from the NPCs Board of Directors. As in Melchor,27 we find it "unjust to order the petitioner to shoulder the expenditure when the government had already received and accepted benefits from the utilization of the [sports complex]," especially considering that the City incurred no substantial loss in paying for the additional work and the damages awarded. Apparently, the City placed in a time deposit the entire funds allotted for the construction and renovation of the sports complex. The interest that the deposits earned amounted to P12,835,683.15, more than enough to cover the damages awarded to WTCI (P2,514,255.40) and the DCDC (P102,015.00). There was "no showing that [the] petitioner was ill-motivated, or that [the petitioner] had personally profited or sought to profit from the transactions, or that the disbursements have been made for personal or selfish ends."28 All in all, the circumstances showed that Osmea issued the change and extra work orders for the Citys successful hosting of the Palaro, and not for any other "nefarious endeavour."29 WHEREFORE, in light of the foregoing, we hereby GRANT the petitioners Petition for Certiorari filed under Rule 64 of the Rules of Court. The respondents Decision of May 6, 2008 and Resolution of June 8, 2009 are SET ASIDE. SO ORDERED. G.R. No. 177771 May 30, 2011

THE PEOPLE OF THE PHILIPPINES, Appellee, vs. ARIELITO ALIVIO y OLIVEROS and ERNESTO DELA VEGA y CABBAROBIAS, Appellant.

DECISION BRION, J.: On appeal to this Court is the Decision,1 dated November 30, 2006, of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01138, which affirmed the Decision2 of the Regional Trial Court (RTC), Branch 70, Pasig City, in Criminal Case Nos. 12450-52-D. The RTC convicted Arielito Alivio y Oliveros and Ernesto dela Vega (collectively referred to as appellants) of violating Sections 5, 11 and 12, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. The Arraignment and Plea In Criminal Case No. 12450-D, the Information charged the appellants of selling shabu, as follows: the accused, conspiring and confederating together, and both of them mutually helping and aiding one another, not being lawfully authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO2 Lemuel Laro, a police poseur-buyer, one (1) heatsealed transparent plastic sachet containing six (6) centigrams (0.06 gram) of white crystalline substance, which was found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law.3 In Criminal Case No. 12451-D, Dela Vega was charged of possessing shabu under the following Information: the accused, not being lawfully authorized to possess any dangerous drug; did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) heat-sealed transparent plastic sachet containing ten (10) decigrams (0.10 gram), of white crystalline substance, which was found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law.4 Finally, in Criminal Case No. 12452-D, Alivio was charged of possessing drug paraphernalia consisting of two disposable lighters, an improvised tooter and an improvised burner. The pertinent portion of the Information states: the accused, not being lawfully authorized to possess paraphernalia or otherwise use any dangerous drug, did then and there willfully, unlawfully and feloniously have in his possession two (2) pcs. of disposable lighters, one (1) improvised tooter and one (1) improvised burner, which are all instruments, equipment, apparatus or paraphernalia, fit or intended for smoking, sniffing, consuming or introducing methamphetamine hydrochloride, commonly known as shabu, a dangerous drug, in violation of the said law.5 The appellants pleaded not guilty to all the charges and trial on the merits followed. The Version of the Prosecution The prosecutions case relied on the theory that the police apprehended the appellants during a buybust operation conducted at Alivios residence. During the buy-bust operation, the police found drug paraphernalia at Alivios residence while a search on Dela Vegas person yielded one plastic sachet of shabu which the police seized.

The prosecutions evidence showed that at around 9:30 p.m. of May 20, 2003, the Pasig City Police received a tip from an asset that one "Ariel" was rampantly selling illegal drugs in Bagong Ilog, Pasig City. A buy-bust team was immediately formed in coordination with the Philippine Drug Enforcement Agency. The buy-bust money, which consisted of two (2) 100 peso bills, was prepared and marked with the symbol, "3L." PO2 Lemuel Lagunay Laro was designated to act as the poseur-buyer. Together with SPO3 Lemuel Matias and PO1 Allan Mapula, PO2 Laro and the asset went to the house of Ariel. While the rest of the buy-bust team strategically positioned themselves at the target area, PO2 Laro and the asset met Ariel. The asset introduced PO2 Laro to Ariel who was later on identified as Alivio. The asset told Alivio that they wanted to buy shabu. Alivio asked how much they wanted to buy, to which the asset replied: "dalawang daan lang pre at saka puwede kaming gumamit dyan?" The two were ushered into the second floor of the house where they saw dela Vega seated in front of a table with drug paraphernalia. PO2 Laro then gave the buy-bust money to Alivio who handed it to Dela Vega. The latter then took out from his pocket one plastic sachet of shabu which he gave to Alivio who handed it to PO2 Laro. After the exchange, PO2 Laro introduced himself as a police officer and arrested Alivio and Dela Vega. The asset made a signal for the buybust team to come inside the house. SPO3 Matias searched Dela Vega and found him in possession of one plastic sachet of shabu. The buy-bust team also retrieved the drug paraphernalia on top of the table, which paraphernalia they correspondingly marked. The buy-bust team took Alivio, Dela Vega and the confiscated items to the police station for investigation. Afterwards, the confiscated items were taken by PO1 Mapula to the PNP Crime Laboratory for examination. The two (2) plastic sachets tested positive for shabu. By agreement of the prosecution and the defense, the testimony of forensic chemist P/Insp. Joseph Perdido was dispensed with and they entered stipulations on: 1) The due execution and genuineness of the Request for Laboratory Examination dated May 20, 2003 which was marked in evidence as Exhibit "A" and the stamp showing receipt thereof by the PNP Crime Laboratory as Exhibit "A-1"; 2) The due execution and genuineness, as well as the truth of the contents, of Chemistry Report No. D-940-03E dated May 12, 2003 issued by Forensic Chemist P/Insp. Joseph M. Perdido of the PNP Crime Laboratory, Eastern Police District, Saint Francis St., Mandaluyong City, which was marked in evidence as Exhibit "B", the finding and conclusion as appearing on the report as Exhibit "B-1" and the signature of the forensic Chemist over his typewritten name likewise as appearing on the report as Exhibit "B-2"; 3) The existence of the two (2) plastic sachets and other paraphernalia, but not their source or origin, contained in an envelope, the contents of which were the subject of the Request for Laboratory Examination, which where marked in evidence as follows: as Exhibit "C" (the envelope), as Exhibit "C-1" (the 1st plastic sachet), as Exhibit "D" (the improvised tooter with markings EXH-E AAO dated 05-20-03), as Exhibit "E" (the improvised burner) and as Exhibits "F-1" & "F-2" (the two disposable lighters).6 The Version of the Defense The appellants anchored their defense on denial and frame-up. They denied selling shabu and claimed that they were together that night drinking at the second floor of Alivios residence. They also claimed that five (5) men (who turned out to be policemen) suddenly barged in on them looking for a person named "Bon-bon." When they replied that neither of them was Bon-bon, the policemen frisked and arrested them. The policemen took from the appellants their earnings for that day and

the P5,000.00 cash they found in the house. The appellants tried to resist arrest and suffered injuries as a result. 7 Alivio additionally asserted that he could not have sold shabu to PO2 Laro since he knew him to be a policeman. Alivio claimed that he was a former driver of Atty. Nelson Fajardo whom he used to accompany to the police station where PO2 Laro was assigned. The Ruling of the RTC On February 28, 2005, the RTC convicted the appellants of all charges laid. The RTC relied on the presumption of regularity in the buy-bust operation and the lack of improper motive on the part of the police officers. The RTC rejected the proferred denial and frame-up as defenses as they are inherently easy to concoct, and found that the prosecution sufficiently established all the elements of the crimes charged and the identity of the appellants as perpetrators. The RTC thus concluded: WHEREFORE, premises considered, judgment is hereby rendered, as follows: In Criminal Case No. 12450-D both accused Arielito Alivio and Ernesto Dela Vega are hereby found GUILTY beyond reasonable doubt of the offense of Violation of Section 5, Article II, Republic Act 9165 (illegal sale of shabu) and are hereby sentenced to LIFE IMPRISONMENT and to solidarily pay a FINE of Five Hundred Thousand Pesos (PHP500,000.00).
1avvphi1

In Criminal Case No. 12451-D accused Ernesto dela Vega is hereby found GUILTY beyond reasonable doubt of the offense of Violation of Section 11, Article II, Republic Act 9165 (illegal possession of shabu) and is hereby sentenced to Twelve (12) Years and One (1) Day to Twenty (20) Years and to pay a Fine of Three Hundred Thousand Pesos (PHP 300,000.00). In Criminal Case No. 12452-D accused Arielito Alivio is hereby found GUILTY beyond reasonable doubt of the offense of Violation of Section 12, Article II, of Republic Act 9165 (illegal possession of drug paraphernalia) and is hereby sentenced to Six (6) Years and One (1) Day to Four (4) Years and a FINE of Ten Thousand Pesos (PHP 10,000.00).8 The appellants appealed to the CA. The Ruling of the CA On November 30, 2006, the CA affirmed the RTC decision. The CA took into account the consistent testimonies of the prosecution witnesses to support the presumption that the police officers regularly performed the buy-bust operation. The CA likewise ruled that the appellants failed to substantiate their defenses. The Issue The appellants raised the following lone assignment of error: THE [CA] ERRED IN FINDING THE [APPELLANTS] GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF THE PROVISIONS OF REPUBLIC ACT NO. 9165.9 The appellants argue that the lower courts erred in evaluating the testimonial evidence when they placed undue reliance on the presumption of regularity and the absence of improper motive on the

part of the police officers to perpetuate the claimed irregularities. The appellants assert that the presumption of regularity cannot take precedence over the presumption of innocence in their favor. The appellants also fault the lower courts for disregarding the defenses evidence that showed Alivios familiarity with PO2 Laro as a policeman. They emphasize that this evidence was corroborated by the testimony of defense witness Atty. Fajardo. Finally, the appellants contend that the identities of the subject shabu were not sufficiently proven since the seized items were not marked at the time the appellants were apprehended. The Courts Ruling We find no reversible error committed by the RTC and the CA in convicting the appellants of the crimes charged. While the presumption of innocence is the highest in the hierarchy of presumptions, it remains a rebuttable presumption. In a criminal case, the presumption of innocence can be overcome by the presumption of regularity when the latter is accompanied by strong evidence supporting the guilt of the accused.10 Even without the presumption of regularity, a drug conviction can be sustained through competent evidence establishing the existence of all the elements of the crimes charged. In this case, although the presumption of regularity did not arise considering the evident lapses the police committed in the prescribed procedures, we rule that the prosecutions evidence sufficiently established all the elements of the three (3) crimes charged and the identity of the appellants as the perpetrators. The existence of the buy-bust operation Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust operation. Thus, we generally defer to the assessment on this point by the trial court as it had the opportunity to directly observe the witnesses, their demeanor, and their credibility on the witness stand.11 Our independent examination of the records shows no compelling reason to depart from this rule. First, the lower courts found the testimonies of PO2 Laro and SPO3 Matias consistent, positive and straightforward. These testimonies were corroborated by PO1 Mapula who testified that the appellants were apprehended through a buy-bust operation. Second, the records reveal the lack of improper motive on the part of the buy-bust team. Appellant Alivio even admitted that he had no idea why the police officers filed the present case against him.12 Alivio also denied police extortion.13 Third, the appellants failure to file cases against the buy-bust team for planting evidence undoubtedly supports the prosecutions theory that the appellants were arrested because they were caught in flagrante delicto selling shabu. Fourth, the following documentary evidence presented by the prosecution corroborates the existence of an actual buy-bust operation:

(a) The Pre-Opns Reports, made part of the records, showed that anti-narcotics operations were conducted on May 20, 2003 against one "@Ariel" who was "allegedly involved in selling/trading of dangerous drugs."14 (b) The existence of the buy-bust money,15 bearing the marking "3L," was presented during the trial as part of PO2 Laros testimony.16 According to PO2 Laro, the marking stood for his initials which he placed on the buy-bust money for easy identification. (c) The Affidavits of Arrest17 by PO2 Laro and SPO3 Matias executed immediately after the arrest of the appellants showed that the arrests were made pursuant to a buy-bust operation.18 Familiarity The defense failed to sufficiently prove the alleged familiarity of appellant Alivio with PO2 Laro. The testimony of defense witness Atty. Fajardo failed to give out specific details on the dates and occasions when he supposedly talked to PO2 Laro in the presence of Alivio.19 Moreover, the evidence also shows a time gap between Alivios employment with Atty. Fajardo (from 2000 to 2001) and the occurrence of the buy-bust operation (in 2003). As against these sketchy claims, PO2 Laro testified that Alivio failed to recognize him during the buy-bust operation.20 In any event, in Gwyn Quinicot v. People,21 we held that it is not the existing familiarity between the seller and the buyer, but the agreement and acts constituting the sale and delivery of the illegal drugs, that is crucial in drug-related cases: What matters in drug related cases is not the existing familiarity between the seller and the buyer, but their agreement and the acts constituting the sale and delivery of the dangerous drug. Besides, drug pushers, especially small quantity or retail pushers, sell their prohibited wares to anyone who can pay for the same, be they strangers or not. It is of common knowledge that pushers, especially small-time dealers, peddle prohibited drugs in the open like any article of commerce. Drug pushers do no confine their nefarious trade to known customers and complete strangers are accommodated provided they have the money to pay.22 [Citations omitted] In this case, the prosecutions evidence sufficiently established the exchange of the shabu and the buy-bust money between the appellants and PO2 Laro. The identity of the confiscated shabu and/or drug paraphernalia In ascertaining the identity of the illegal drugs and/or drug paraphernalia presented in court as the ones actually seized from the accused, the prosecution must show that: (a) the prescribed procedure under Section 21(1), Article II of R.A. No. 9165 has been complied with or falls within the saving clause provided in Section 21(a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No. 9165; and (b) there was an unbroken link (not perfect link) in the chain of custody with respect to the confiscated items. Section 21(1), Article II of R.A. No. 9165 that prescribes the procedure to be observed by the authorities in handling the illegal drug and/or drug paraphernalia confiscated provides: Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,

Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; This provision is elaborated on under Section 21(a) of the IRR which provides a saving clause in case the prescribed procedure is not complied with. Under this saving clause, non-compliance with these requirements under justifiable grounds as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. The chain of custody rule requires the identification of the persons who handled the confiscated items for the purpose of duly monitoring the authorized movements of the illegal drugs and/or drug paraphernalia from the time they were seized from the accused until the time they are presented in court. Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 defines the chain of custody rule in the following manner: b. Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody [was] of the seized item, the date and time when such transfer of custody made in the course of safekeeping and use in court as evidence, and the final disposition[.] In this case, although the prescribed procedure under Section 21(1), Article II of R.A. No. 9165 was not strictly complied with, we find that the integrity and the evidentiary value of the seized items were properly preserved by the buy-bust team under the chain of custody rule. (a) The first link The records show that the shabu and the drug paraphernalia were immediately marked at the scene by PO2 Laro and SPO3 Matias before they proceeded to the police station.23 PO2 Laro marked the plastic sachet containing shabu subject of the buybust sale, with "AAO 05-20-03" that stood for the initials of Alivio and the date of the buy-bust sale.24 In turn, SPO3 Matias marked the retrieved shabu and the drug paraphernalia with his signature.25 (b) The second link - The records also disclose that after the respective markings were made, PO2 Laro and SPO3 Matias turned over the confiscated items in their custody at the police station for investigation. As may be gathered from the Request for Laboratory Examination dated May 20, 2003 and prepared by SPO4 Danilo M. Tuao, the following specimens were recovered from the appellants and submitted for laboratory examination: One (1) pc heat sealed transparent plastic sachet containing undetermined amount of white crystalline substance suspected to be shabu bought from suspect marked as "EXH A AAO 05-20-03";

One (1) pc heat sealed transparent plastic sachet containing undetermined amount of white crystalline substance marked as "EXH B ECDV 05-20-03"; Two (2) pcs (sic) disposable lighter marked as "EXH C1 to C2 AAA 05-20-03"; One (1) pc improvised burner marked as "EXH D AAO 05-20-03"; One (1) pc improvised waterpipe/tooter marked as "EXH E AAO 05-20-03."26 (c) The third link - PO1 Mapula testified that he was the one who delivered the request for laboratory examination and the specimens to the PNP Crime Laboratory.27 He also testified that he turned over the specimens to one PO1 Chuidan who received them at 1:00 a.m. of May 21, 2003.28 Upon receipt of the specimens, PO1 Chuidan stamped the request with a "Control No. 1700-03" and wrote "D-940-03."29 In this regard, a facial examination of Chemistry Report No. D-940-03E shows that the very same specimens bearing the same markings stated in the police request were subjected to laboratory examination, completed at 3:15 a.m. of May 21, 2003.30 (d) The fourth link - The prosecution and the defense stipulated that the specimens examined by the forensic chemist, contained in the request for laboratory examination, were the ones presented in court. PO2 Laro and SPO3 Matias identified and testified that the shabu and the drug paraphernalia examined were the items retrieved from the appellants in the buy-bust operation conducted on May 20, 2003.31 Under the circumstances, the prosecutions evidence clearly established an unbroken link in the chain of custody, thus removing any doubt or suspicion that the shabu and drug paraphernalia had been altered, substituted or otherwise tampered with. The unbroken link in the chain of custody also precluded the possibility that a person, not in the chain, ever gained possession of the seized evidence.32 The defenses of Denial and Frame-up The appellants merely denied the buy-bust sale and their possession of the shabu and the drug paraphernalia. They claimed that they were framed by the police who took their earnings and forcibly took them to the police station. In light of the positive and credible testimony and the concrete evidence showing the existence of the buy-bust operation, these defenses are unworthy of belief. Dela Vegas injuries alone cannot rebut the consistent evidence that the appellants were arrested pursuant to a buy-bust operation. We particularly note in this regard that the participating policemen denied that they previously knew the appellants and that they entertained ulterior or illicit motives to frame them. The Proper Penalties On the illegal sale of shabu (Criminal Case No. 12450-D), the appellants were caught and arrested for selling .06 gram of shabu. The RTC and the CA correctly imposed the penalty of life imprisonment and a fine of P500,000.00 against the appellants, in accordance with Section 5, Article II of R.A. No. 9165 which punishes illegal sale of shabu with the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00).

On the illegal possession of shabu (Criminal Case No. 12451-D), dela Vega was caught in possession of .10 gram of shabu and was meted the penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and to pay a fine of P300,000.00. Section 11, paragraph 2(3), Article II of R.A. No. 9165 provides: (3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of xxx methamphetamine hydrochloride or "shabu." Thus, we sustain the penalties the RTC and the CA imposed as these are within the range provided by law. Lastly, illegal possession of drug paraphernalia (Criminal Case No. 12452-D) is punished under Section 12, Article II of R.A. No. 9165 that provides a penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years, and a fine ranging from Ten thousand pesos (PP10,000.00) to Fifty thousand pesos (P50,000.00). We thus uphold the penalty of imprisonment of six (6) months and one (1) day to four (4) years and a fine of P10,000.00 that the RTC and the CA imposed on Alivio. WHEREFORE, premises considered, we AFFIRM the decision, dated November 30, 2006, of the Court of Appeals in CA-G.R. CR-H.C. No. 01138 which, in turn, affirmed the decision, dated February 28, 2005, of the Regional Trial Court, Branch 70, Pasig City, in Criminal Case Nos. 1245052-D. SO ORDERED. ARTURO D. BRION Associate Justice G.R. No. 166355 May 30, 2011

PEOPLE OF THE PHILIPPINES, Petitioner, vs. LUIS J. MORALES, Respondent. DECISION BRION, J.: We review the petition for review on certiorari, filed by the People of the Philippines (the People), to assail the Resolution1 of the First Division of the Sandiganbayan in Criminal Case No. 27431, entitled "People of the Philippines versus Luis J. Morales." Background Facts On June 13, 1991, then President Corazon Aquino issued Administrative Order No. 223 to commemorate the 100th anniversary of the declaration of Philippine Independence and thereby created the Committee for the National Centennial Celebrations in 1998 (Committee).

In 1993, then President Fidel V. Ramos issued Executive Order No. 128 (EO 128), entitled "Reconstituting the Committee for the Preparation of the National Centennial Celebrations in 1998." EO 128 renamed the Committee as the "National Centennial Commission" (NCC). The mandate of the NCC was to "take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress."2 The late Vice-President Salvador Laurel was appointed as NCC Chairman. On March 10, 1996, the NCC and the Bases Conversion Development Authority (BCDA)3 organized the Philippine Centennial Expo 98 Corporation or Expocorp whose primary purpose was to operate, administer, manage and develop the Philippine Centennial International Exposition 1998 (Expo 98).4 The Philippine Centennial project was marred by numerous allegations of anomalies, among them, the lack of public biddings. In 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate denouncing these anomalies. Because of this speech, the Senate Blue Ribbon Committee conducted an investigation on the Philippine Centennial project. In 1999, then President Joseph Estrada created the Ad Hoc and Independent Citizens Committee (AHICC), also for the purpose of investigating these alleged anomalies. Both the Senate Blue Ribbon Committee and the AHICC recommended to the Office of the Ombudsman that a more exhaustive investigation of the Philippine Centennial project be conducted. The investigation that followed resulted in the filing in 2001 of an Information5 by the Ombudsmans Fact-Finding and Investigation Bureau against respondent Luis J. Morales (Morales), the acting president of Expocorp at the time relevant to the case. This Information served as basis for Criminal Case No. 27431 that we now consider. The Information against Morales for violation of Section 3(e) of Republic Act (R.A.) No. 30196 reads: That on or about September 6, 1997 or sometime prior or subsequent thereto in Pasig City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Pres. of Expo Corporation, Pasig City, a government corporation, and as such was issued one (1) Mercede[s] Benz, Model 1997-C230, bearing Serial No. WDB202023-1F602122, and Engine No. 111974-12-027093 for his official use, and while in the performance of his official functions, acting thru evident bad faith and manifest partiality, did then and there willfully, unlawfully, and criminally give unwarranted benefits to one Rodolfo M. Lejano by selling to him said Mercede[s] Benz through Newton Motors, Inc. represented by its President Exequiel V. Mariano in the amount of Two Million Two Hundred Fifty Thousand Pesos (P2,250,000.00), without the requisite public bidding nor approval of the Board of Directors of Expo Corporation and thereafter failed to deposit the proceeds of the sale of the aforementioned vehicle to the account of Expo Corporation, to the damage and prejudice of the Corporation and the public interest as well.7 In the proceedings before the Sandiganbayan, Morales moved for the dismissal of the case for lack of jurisdiction over his person and over the offense charged. He alleged that Expocorp is a private corporation and that he is not a public employee or official. He also alleged that the Sandiganbayan has no jurisdiction over his person or the offense charged as he is a private individual who has not been charged jointly with other public officials or employees. He added that Expocorp is not a government-owned or controlled corporation because it was not created by a special law, it did not have an original charter, and a majority of Expocorps capital stock is owned by private individuals. He claimed that he did not receive any compensation from the government as defined in Section 2(a) of R.A. No. 3019, and the compensation he received as Expocorps acting president was paid from Expocorps funds.8

In its comment to Expocorps motion, the Office of the Special Prosecutor, representing the People, insisted that Expocorp is a government-owned corporation since its articles of incorporation showed that of its ten listed subscribers, BCDA held stocks valued at P99,999,100.00, while the stocks held by the rest of the subscribers had a total value of P900.00. The People further argued, based on the Courts ruling in Salvador H. Laurel v. Aniano A. Desierto,9 that NCC Chairman Laurel was a public officer; thus, Morales was likewise a public officer since his appointment flowed from the formers exercise of his authority as chairman of both NCC and Expocorp. In his reply, Morales averred that upon Expocorps incorporation, BCDA owned essentially all of Expocorps stocks. Two months after its incorporation, however, the Board of Directors of Expocorp issued a resolution declaring all its unissued and unsubscribed shares open for subscription. Global Clark Assets Corporation (Global) subscribed to essentially all of these unissued and unsubscribed shares; thus, Global became the majority owner with 55.16% of Expocorps stocks, while BCDA was left as minority stockholder with 44.84% of Expocorps stocks. Morales also asserted that the ruling in Laurel10 applied exclusively to Chairman Laurel. Morales concluded that since Expocorp is a private corporation and an entity distinct from NCC, he, as its president, is not a public officer. The Sandiganbayan Resolution The Sandiganbayan, after considering the arguments of the parties, ruled that the position of a president of a government-owned or controlled corporation clearly falls within its jurisdiction. However, before Morales could be held accountable as Expocorps president, it must first be established that Expocorp is a government-owned or controlled corporation. The Sandiganbayan explained in Laurel,11 that the Court only held that Laurel is a public officer without ruling on whether Expocorp is a private or a government-owned corporation. The Court also held that NCC performed executive functions, hence, it was a public office; consequently, its chairman, Laurel, was a public officer. Morales, in the case at bar, is being charged as president of Expocorp only and not as an NCC official. In ruling that Expocorp is a private corporation, the Sandiganbayan stated that it was not created by a special law nor did it have an original charter. It was organized under the Corporation Code and was registered with the Securities and Exchange Commission. According to the Sandiganbayan, Expocorp could not derive its public character from the fact that it was organized by the NCC. The Sandiganbayan ruled that applying the provisions of the Revised Administrative Code of 1987, Expocorp is a private corporation because Global owns 55.16% of its stocks; hence, its officers and employees are private individuals who are outside the jurisdiction of the Sandiganbayan. On this basis, the Sandiganbayan dismissed the information against Morales. The Sandiganbayan denied the motion the People subsequently filed;12 hence, the present petition. The Issues The People submits the following grounds: (1) Expocorp was organized and created for the sole purpose of performing the executive functions of the National Centennial Commission and the sovereign functions of the government, and should be considered as a public office. (2) Petitioner, as president of Expocorp, should rightfully be considered as a "public officer", falling under the jurisdiction of the Sandigangayan.13

The Courts Ruling We deny the petition for lack of merit. The nature of Expocorp The People submits that Expocorp was an extension of the NCC as provided in Expocorps Articles of Incorporation, specifically Section 214 which states Expocorps primary purpose. It provides that Expocorps primary purpose was to establish and operate Expo 98 - an NCC project. The People stated in its petition, thus The position occupied by respondent as President of Expocorp stemmed from his appointment as such by NCC Chair and Expocorp Chief Executive Officer Salvador H. Laurel. On the basis of such appointment, respondent served as the governments representative and Laurels alter ego in running the affairs of Expocorp. As held in the Laurel vs. Desierto case, "even assuming that Expocorp is a private corporation, petitioners position as Chief Executive officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC Chair." Having established that Expocorp, by extension, performed part of the sovereign functions delegated to the NCC, it follows that respondent, as President of Expocorp, performed tasks that likewise fall within the contemplation of the governments sovereign functions.15 We do not agree with the People. Expocorp is a private corporation as found by the Sandiganbayan. It was not created by a special law but was incorporated under the Corporation Code and was registered with the Securities and Exchange Commission.16 It is also not a government-owned or controlled corporation. Although BCDA, which owned 999,991 shares17 of its shares, was one of Expocorps original incorporators, the Board of Directors of Expocorp allowed Global to buy 1,229,998 of its unused and unsubscribed shares two months after its incorporation. With the BCDA as a minority stockholder, Expocorp cannot be characterized as a government-owned or controlled corporation. In Dante V. Liban, et al. v. Richard J. Gordon,18 we pointedly said: A government-owned or controlled corporation must be owned by the government, and in the case of a stock corporation, at least a majority of its capital stock must be owned by the government. The Sandiganbayans Jurisdiction Section 5, Article XIII of the 1973 Constitution defines the jurisdiction of the Sandiganbayan:19 Sec. 5. The [Batasang Pambansa] shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in governmentowned or controlled corporations, in relation to their office as may be determined by law. R.A. No. 8249,20 which amended Presidential Decree No. 1606,21 delineated the jurisdiction of the Sandiganbayan as follows: Section 4. Section 4 of the same decree is hereby further amended to read as follows:

Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the Sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang Panlungsod, city treasurers, assessors, engineers and other city department heads; (c ) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress and officials thereof classified as Grade '27' and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade '27' and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.
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c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. (Underlining supplied.)

Since Expocorp is a private corporation, not a government-owned or controlled corporation, Morales, as Expocorps president who now stands charged for violating Section 3(e) of R.A. No. 3019 in this capacity, is beyond the Sandiganbayans jurisdiction. WHEREFORE, premises considered, the petition for review on certiorari is DISMISSED for lack of merit. The Sandiganbayans June 15, 2004 Resolution in Criminal Case No. 27431, entitled "People of the Philippines versus Luis J. Morales," is AFFIRMED. No costs. SO ORDERED. G.R. No. 183092 May 30, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ANTONIO SABELLA y BRAGAIS, Appellant. DECISION BRION, J.: We decide the appeal, filed by accused Antonio Sabella y Bragais (appellant), from the March 4, 2008 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01958.1 The appealed Decision affirmed with modification the Decision of the Regional Trial Court (RTC) of San Jose, Camarines Sur, Branch 30, in Criminal Case No. T-1934, finding the appellant guilty with the murder, qualified by treachery, of Prudencio Labides, and sentencing him to suffer the penalty of reclusion perpetua. The Factual Antecedents On November 19, 1998, the prosecution charged the appellant with murder2 before the RTC, under the following information: That on or about the 28th day of September 1998 in the evening thereof, at Barangay Nato, Municipality of Sagay, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court the above-named accused with intent to kill by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously stab from behind with the use of a bolo commonly known as "palas" one Prudencio Labides, thus inflicting upon the victim mortal stab wounds as shown in the necropsy report issued by Roger E. Atanacio, Municipal Health Officer, Sagay, Camarines Sur, which was the direct and immediate cause of his instantaneous death, to the damage and prejudice of the heirs of the late Prudencio Labides.3 The appellant pleaded not guilty on arraignment and interposed self-defense at the pretrial.4 Pursuant to Section 11(e), Rule 119 of the Rules of Court, a reverse trial ensued. The Appellants Version The evidence for the appellant consisted of his testimony, the testimonies of four (4) witnesses, namely, Virgilio Bolima, Raymundo Melchor, Marilyn Palma and Leonardo Credo, the formal presentation of the excerpts of the police blotter signed by Police Inspector Efren Moreno, the bolo with its scabbard which the appellant surrendered to the police authorities of Sagay, Camarines Sur, and a sketch.

The appellants evidence and version of events are summarized below. At about 9:00 p.m. of September 28, 1998, the appellant was sleeping when he was awakened by the noise of someone trying to break into his house. Once inside, the unidentified man attacked him with a piece of rounded wood, but he parried the blow and took hold, from his bedside, of an object that he initially thought was a nightstick. He hit the man once, and only then realized that his weapon was a bolo. Wounded, the unidentified man went to the lighted portion of his residence. The appellant immediately recognized the man as Prudencio Labides. After Labides left, the appellant immediately surrendered to the police at its station in Sagay, Camarines Sur and turned over his bolo.5 The appellants story was corroborated by the testimonies of Leonardo Credo and Virgilio Bolima who claimed to be in the vicinity of the appellants house on the night of the incident. According to the two witnesses, they saw Labides, who appeared to be wounded, coming out of the appellants house into the illuminated portion of the road from where he shouted for help. Caught by surprise, the two witnesses did not help Labides. Subsequently, they saw two (2) men arrive in a tricycle. They assisted Labides in boarding the tricycle, which then drove away in the direction of the poblacion of Sagay, Camarines Sur.6 The Prosecutions Version The evidence for the prosecution consisted of the testimonies of the victims wife, Alicia Labides, and four (4) witnesses, namely, Willy Duro, Romulo Competente, Paterno Laurenio and Dr. Roger Atanacio; the formal presentation of the Necropsy Report signed by Dr. Roger Atanacio; the appellants bolo; the list of funeral and other expenses incurred by the victims wife, and the latters sworn statement. From these pieces of evidence, we reconstruct the prosecutions version of events summarized below. In the evening of September 28, 1998, at approximately 9:00 p.m., Romulo Competente was walking home after talking to the victim at Marcos Verdeflors home. Along the way, Competente encountered the appellant who suddenly hit him in the back with a bolo and threatened to cut off his head if he did not go home. Feeling pain in his back due to the blow, Competente decided to rest beside a nearby banana plant. Moments later, he saw the appellant stab Prudencio Labides (who had just left Marcos Verdeflors house) in the abdomen with a bolo about two (2) feet long. When Labides turned away from the appellant, the latter stabbed Labides a second time in the back. Fearful because of what he had just witnessed, Competente hurried home.7 Meanwhile, Marcos Verdeflor appeared at Willy Duros house to ask for help for Labides. Duro and Verdeflor boarded Duros tricycle and proceeded to Kikoy Verdeflors yard where Labides laid wounded and bleeding. According to Duro, while they were helping Labides into his tricycle, he saw the appellant, ten meters away, still holding the bolo. Duro at that point heard the appellant say, "[y]ou must not bring him (Prudencio) anymore to the hospital because he will not survive; that is the way to kill a man."8 Duro and Verdeflor then brought Labides to Paterno Laurenios house to ask for the latters assistance in getting an ambulance.9 When Laurenio asked Labides who stabbed him, Labides replied "Antonio Sabella."10 Laurenio further testified that at the time they loaded the victim into the ambulance, Labides was already "lupaypay" or very weak.11 Labides was declared dead on arrival, when they arrived at the Bicol Medical Center in Naga City.12

Dr. Roger Atanacios postmortem examination revealed that Labides died due to massive blood loss from two stab wounds sustained in the abdomen and at the back.13 He described the two wounds as follows: 1. Stabbed (sic) wound, 3 inches long, vertical, 1 inch above umbilicus, along median line with intestinal evisceration. 2. Stabbed (sic) wound, 2 inches long, 3 inches depth, vertical, left, lumbar area. CAUSE OF DEATH: HEMORRHAGE.14 Alicia Labides, the victims widow, testified that she spent P30,718.00 for the victims wake and burial, evidenced by a list of expenses.15 The RTC Ruling In its July 16, 2001 Decision, the RTC found the appellant guilty of murder. In brushing aside the appellants claim of self-defense, the RTC noted that the appellant failed to establish unlawful aggression on the part of Labides. The RTC observed that the appellant failed to produce any evidence to support his claim that Labides broke into his house, such as evidence of a damaged door or any damage done to the house. The appellant also failed to introduce into evidence the piece of wood that Labides allegedly tried to attack him with. In contrast, Dr. Atanacios testimony on the number, location and severity of Labides wounds disproved the appellants claim of selfdefense.
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The RTC also gave credence to the positive testimony of the prosecution witnesses, particularly Laurenios testimony that Labides identified the appellant as his assailant before he died, classifying the statement as a dying declaration. The RTC appreciated the qualifying circumstance of treachery because the attack was sudden and unexpected, rendering the victim unable and unprepared to defend himself. But the court disregarded the aggravating circumstance of evident premeditation because it was not duly established at the trial. Appreciating in the appellants favor the mitigating circumstance of voluntary surrender, the RTC sentenced the appellant to suffer the penalty of reclusion perpetua. The RTC ordered the appellant to pay the heirs of the victim P50,000.00 as civil indemnity and P30,718.00 as actual damages for the wake and burial expenses.16 The CA Ruling On intermediate appellate review, the CA affirmed the findings of the RTC, but modified the award of damages. It deleted the award of P30,718.00 as actual damages for lack of receipts. In lieu thereof, the CA awardedP25,000.00 as temperate damages. The appellate court also awarded P50,000.00 as moral damages.17 From the CA, the case is now with us for final review. Our Ruling We affirm the appellant's guilt.

When an accused admits killing the victim but invokes self-defense to escape criminal liability, the accused assumes the burden to establish his plea by credible, clear and convincing evidence; otherwise, conviction would follow from his admission that he killed the victim.18 To escape liability, one who admits killing another in the name of self-defense bears the burden of proving: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person claiming self-defense.19 The most important element in self-defense is unlawful aggression there can be no self-defense unless the victim first committed unlawful aggression against the person who resorted to selfdefense.20 Unlawful aggression presupposes an actual, sudden and unexpected attack or imminent danger thereof, not just a threatening or intimidating attitude.21 In this case, the appellant miserably failed to prove unlawful aggression on the part of Labides. As both the RTC and the CA observed, there was no evidence to support the appellants claim that Labides broke into his home by destroying the door. Nor was there any evidence that Labides tried to attack him with a piece of wood. The appellant himself admitted that he did not sustain any injury due to the incident. In contrast, the physical evidence belies the appellants claim of self-defense. The number, location and severity of the hack wounds the appellant inflicted on Labides all indicate an intention to kill, and not merely wound or defend. Furthermore, Dr. Atanacios postmortem findings are consistent with Competentes eyewitness account, and are further corroborated by Labides ante-mortem statement to Paterno Laurenio less than an hour after the stabbing. The totality of this evidence proves beyond reasonable doubt that the aggressor was in fact the appellant and not Labides. Both the RTC and the CA correctly appreciated the qualifying circumstance of treachery. From the established set of facts, the appellants attack on Labides was deliberate, sudden and unexpected; the victim was unarmed and completely unaware of any impending danger to his life.22 The treachery employed is all the more emphasized when we recall that the appellant stabbed the victim a second time in the back, despite the lack of any resistance from Labides, and even after Labides had already been stabbed in the stomach. Under the circumstances, the RTC and the CA correctly sentenced the appellant to suffer the penalty of reclusion perpetua, regardless of the presence of the mitigating circumstance of voluntary surrender.23 While we affirm the CAs factual findings and the imprisonment imposed, we find it necessary to award the heirs of Prudencio Labides with exemplary damages, in keeping with Article 2230 of the Civil Code, which provides, "[i]n criminal offenses, exemplary damages as part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances." The award of exemplary damages is fixed at P30,000.00 to conform with recent jurisprudence.24 WHEREFORE, the March 4, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01958 is herebyAFFIRMED with MODIFICATION. Appellant Antonio Sabella y Bragais is found guilty of murder as defined and penalized in Article 248 of the Revised Penal Code, and is sentenced to suffer the penalty of reclusion perpetua.He is further ordered to pay the heirs of Prudencio Labides P50,000.00 as civil indemnity ex delicto, P50,000.00 as moral damages, P25,000.00 as temperate damages, and P30,000.00 as exemplary damages. SO ORDERED. G.R. No. 189847 May 30, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ERNESTO MERCADO, Appellant. RESOLUTION BRION, J.: We resolve in this Resolution the appeal from the July 14, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 03120. The CA affirmed with modification the decision2 of the Regional Trial Court (RTC), Branch 32, Agoo, La Union, finding Ernesto Mercado (appellant) guilty beyond reasonable doubt of two (2) counts of rape, and sentencing him to suffer the penalty of reclusion perpetua for each count. AAA3 is the fifth child of the appellant and BBB. Sometime in 2000, BBB (AAAs mother) and CCC (AAAs sister), went to Ambalite, Pugo, La Union. AAA, her two other siblings, and the appellant, were left in their house at Rosario, La Union. At around 8:00 a.m., and while AAA was doing her school assignment, the appellant entered her room and sat in a corner. Afterwards, the appellant sat beside AAA, kissed her on the right cheek, and removed her shorts and panty. The appellant threatened to kill AAA if she shouted. The appellant then removed his shorts and briefs, went on top of AAA, and inserted his penis into her vagina.4 AAA also recalled that at around 2:00 p.m. of July 26, 2000, while BBB was at the market and AAAs siblings were at their aunts house, the appellant again sexually abused her.5 Sometime in 2003, AAA and the appellant were cleaning a banana grove when the latter told her to take a rest. AAA did as instructed, and while she was resting, the appellant embraced her and kissed her on the cheek and lips. The appellant removed AAAs clothes and panty, and laid her on the grass. The appellant took off his own shorts and briefs, went on top of AAA, and inserted his penis into her vagina.6 According to AAA, the appellant sexually abused her five (5) times from 2000 to 2003.7 Dr. Sheila Fe (Dr. Fe), a physician at the Rosario District Hospital, conducted a medical examination of AAA on August 3, 2003, and found healed lacerations at 3 and 9 oclock positions in her private part.8 The prosecution charged the appellant with three (3) counts of rape before the RTC.9 The appellant denied the charges against him, and claimed that his brother was the one who raped AAA.10 The RTC found the appellant guilty beyond reasonable doubt of two (2) counts of rape, and sentenced him to suffer the penalty of reclusion perpetua for each count. It also ordered him to pay AAA P75,000.00 andP50,000.00 as moral damages and civil indemnity, respectively, for each count.11 The CA, in its decision of July 14, 2009, affirmed the RTC decision with the following modifications: (1) the civil indemnity was increased to P75,000.00; and (2) the appellant was further ordered to pay the victim P25,000.00 as exemplary damages.12 The CA held that AAA positively identified the appellant as the person who had sexually abused her on different occasions. AAA was firm in her narration, and did not waver despite the rigid cross

examination by the defense. In addition, the defense failed to impute any ill motive on her part to falsely testify against her father. The CA also held that AAAs failure to specify the exact dates of the rapes do not detract from her credibility. The CA explained that it is too much to require from a young girl, who had been raped several times, to mechanically recall the exact dates of each rape.13 The CA further added that AAAs delay in reporting the rape was due to the appellants threats on her life. We resolve to deny the appeal for lack of merit, but we modify the amount of the awarded indemnities. AAA positively identified the appellant as the person who had raped her on two occasions in 2000 and 2003, respectively. Her testimonies were clear and straightforward; she was consistent in her recollection of the details of her defloration. If the sexual abuses did not happen, we see no plausible reason showing why AAA should testify against her own father, imputing on him the grave crime of rape. AAAs testimony was also corroborated by Dr. Fe, who found hymenal lacerations on AAAs private part. We have held that when the testimony of a rape victim is consistent with the medical findings, there is sufficient basis to conclude that there has been carnal knowledge.14 We find AAAs testimony regarding the rape that happened on July 26, 2000, to be deficient; it lacked specific details on how the rape was committed. AAAs statement that she had been "fucked" [sic] for the second time by the appellant "in the same house," without nothing more, is insufficient to establish carnal knowledge with moral certainty. Every charge of rape is a separate and distinct crime and each must be proved beyond reasonable doubt.15 The lower courts were thus correct in convicting the appellant of only two (2) counts of rape. We find unmeritorious the appellants argument that AAAs testimony is unreliable due to the inconsistencies in the dates when the rapes were committed. It is settled that the findings of facts and assessment of credibility of witnesses are matters best left to the trial court which had the unique opportunity to observe the demeanor of the witnesses and was in the best position to discern whether they were telling the truth. At any rate, the date of the commission of the rape is not an essential element of the crime of rape, for the gravamen of the offense is carnal knowledge of a woman. The discrepancies in the actual dates the rapes took place are not serious errors warranting a reversal of the appellants conviction.16 What is decisive in a rape charge is the victims positive identification of the accused as the malefactor.17 The appellants denial must also crumble in light of AAAs positive testimony. We have consistently held that positive identification of the accused, when categorical and consistent and without any showing of ill motive of the part of the eyewitness testifying, should prevail over the mere denial of the appellant whose testimony is not substantiated by clear and convincing evidence.18 We also do not find merit in the appellants contention that his brother (now deceased) was the one who had raped AAA. The appellant did not present any evidence to substantiate this claim. The Proper Indemnities

The award of civil indemnity to the rape victim is mandatory upon a finding that rape took place. Moral damages, on the other hand, are awarded to rape victims without need of proof other than the fact of rape under the assumption that the victim suffered moral injuries from the experience she underwent.19 Considering that the death penalty was not imposed due to the prosecutions failure to prove the minority of the victim, we reduce the amounts of civil indemnity and moral damages from P75,000.00 to P50,000.00, respectively, for each count.20 We also increase the amount of exemplary damages from P25,000.00 to P30,000.00 in accordance with current jurisprudence.21
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WHEREFORE, premises considered, we hereby AFFIRM the July 14, 2009 decision of the Court of Appeals in CA-G.R. CR-HC No. 03120 with the following MODIFICATIONS: (a) the awards of civil indemnity and moral damages is REDUCED from P75,000.00 to P50,000.00, respectively, for each count; and (b) exemplary damages is INCREASED from P25,000.00 to P30,000.00 for each count. Costs against appellant Ernesto Mercado. SO ORDERED. A.M. No. P-11-2932 May 30, 2011 (formerly A.M. OCA I.P.I. No. 10-3412-P) ANGELITA D. MAYLAS, Complainant, vs. JUANCHO M. ESMERIA, Sheriff IV, Regional Trial Court, Branch 46, Masbate City, Respondent. RESOLUTION BRION, J.: Before the Court is the administrative complaint dated May 30, 2010,1 filed by Angelita D. Maylas (complainant), charging Juancho M. Esmeria (respondent), Sheriff IV of the Regional Trial Court (RTC), Branch 46, Masbate City, with grave misconduct, gross ignorance of the law and incompetence. The Facts The complainant and her husband, Ignacio Maylas, were the plaintiffs in a civil action (Civil Case No. 5165) for quieting of title and recovery of possession and ownership against the defendants-spouses Oscar and Marilyn Dolendo. On November 25, 2005, the RTC, Branch 46, Masbate City, where the case was filed, rendered a Decision,2 as follows: 1) Ordering the defendants to pay the plaintiffs the amount of Php23,000.00 representing the value of the house owned by the plaintiffs which was destroyed and demolished by the defendants;

2) Declaring the defendants the possessor and owner of the lot where his (sic) house is presently being constructed; [and] 3) Ordering the defendants to pay the amount of Php10,000.00 as attorneys fees[.] On August 2, 2007, the court issued a writ of possession that, according to the complainant, is defective as it failed to conform to the second paragraph of the decisions dispositive portion. On the same day, the respondent filed a motion to secure the assistance of a geodetic engineer, without furnishing a copy of the motion to the parties, especially the plaintiffs. The complainant regards this omission by the respondent to be gross ignorance of the law and procedure, for it deprived the plaintiffs the opportunity to oppose the motion. On August 3, 2007, the court granted the respondents motion. The following day, the respondent filed an officers return3 which allegedly provided an inaccurate and misleading information that half of the house of Sps. Oscar and Marilyn Dolendo was demolished by Sps. Ignacio and Angelita Maylas and in the area where the demolition occurred, the Maylas couple constructed an apartment and put up barriers of G.I. roofings and barbed wires on the back portion of the apartment facing of the Dolendo couple. The complainant points out that the property the respondent referred to is not the property under litigation as it is covered by tax declaration no. 19436 (dated January 2003) in the complainants name. She claims that on the contrary, the property subject of the civil case is covered by tax declaration no. 10751 (dated October 20, 1980)4in the name of Ignacio Maylas, which property was destroyed by the Sps. Dolendo and is being claimed by Oscar Dolendo under tax declaration no. 12995 (declared by the court as a mere duplication of Ignacio Maylas tax declaration). The complainant charges the respondent of distorting the facts to unduly favor his friends, the Sps. Dolendo. By way of a comment dated August 18, 2010,5 the respondent asks for the dismissal of the complaint for lack of merit, contending that it is pure harassment intended to stop him from enforcing the writ. He argues that the Sps. Maylas took the law into their hands and, acting as sheriff, demolished a portion of the Sps. Dolendos house when the Court denied the Sps. Maylas motion for reconsideration before the implementation of the writ of possession. The respondent adds that the demolition of a portion of the Sps. Dolendos house prompted them to sue the Maylas couple for damages (Civil Case No. 6158) before the RTC, Branch 47, Masbate City, and a complaint for malicious mischief (I.S. No. 01-3730) before the Provincial Prosecution Office. With respect to the alleged defective writ of possession, the respondent argues that the issue is judicial in nature; it was his ministerial duty, as sheriff, to implement the writ. The respondent accuses the complainant of citing only portions of the decision favorable to her and her husband, without taking into consideration that the defendants (Dolendos) were declared the possessors and owners of the lot where their house is presently being constructed. The Courts Ruling In its memorandum submitted to the Court on February 1, 2011, the Office of the Court Administrator (OCA) recommends that the complaint be dismissed for lack of merit, based on the following evaluation:

EVALUATION: A thorough perusal of the instant administrative matter ultimately reveals that the crux of complainants accusation centers only on the alleged distortion of facts by respondent sheriff in his Officers Return where he alleged that it was the spouses Maylas which caused the demolition of the half of the house of spouses Dolendo, contrary to the pronouncement in the Decision that it was actually the house owned by the plaintiffs which was destroyed by the defendants. Respondent sheriff, however, rebuts the accusation by explaining that spouses Maylas likewise caused the demolition of half of the house of spouses Dolendo after the Decision was rendered and before the implementation of the Writ of Possession. At any rate, considering that the conflict arose from an alleged irregularity in the implementation of a writ issued by a trial court, this Office deems it proper to let the trial court which issued the Writ of Possession settle the matter. It is already a settled jurisprudence that the tribunal which rendered the decision or award has a general supervisory control over the process of its execution, and this includes the power to determine every question of fact and law which may be involved in the execution.6 This is because any court which issued a writ of execution has the inherent power, for the advancement of justice, to correct error of its ministerial officers and to control its own processes.7 Hence, any irregularities which attended the execution of the decision must be litigated in the court which issued it. Herein complainant, therefore, should first bring the alleged erroneous allegation and conclusion of fact by respondent sheriff before the trial court. Regarding the alleged defective Writ of Possession, respondent sheriff was right when he pointed out that the alleged defect is judicial in nature as the same was issued as per Order of the judge. Clearly, respondent sheriffs duty to implement the same is purely ministerial on his part.
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Lastly, vis--vis the lack of hearing of the Motion for the Assistance of a Geodetic Engineer, the same was eventually granted by the trial court. Evidently, if complainant really believes that they were deprived of the required procedural due process, she should have impleaded as respondent either the presiding judge or the branch clerk of court, for these are the court officers primarily responsible in the setting and granting/denying of a motion. In grumbling against respondent sheriff about the alleged erroneous issuance of the motion, complainant had ended up barking on the wrong tree. RECOMMENDATION: Respectfully submitted, for the consideration of the Honorable Court, is the recommendation that the instant administrative complaint against Juancho M. Esmeria, Sheriff IV of the Regional Trial Court, Branch 46, Masbate City, be DISMISSED for lack of merit.8 We approve and adopt the OCAs well-founded recommendation. Indeed, as the OCA noted, the present controversy is the offshoot of an alleged irregularity in the implementation of the writ of possession issued by the RTC, Branch 46, Masbate City. The matter, therefore, remains with the supervisory control of the court and the alleged errors committed by the courts ministerial officers, like the respondent sheriff, should be correctible by the court, as we emphasized in Olimpia K. Vda. de Dimayuga v. Gaspara Raymundo, et al.9 We, thus, support the OCAs view that the alleged irregularities should have been brought first to the RTC for its resolution. The same is true with the writ of possession itself. The respondent had nothing to do with it. It was the judges responsibility as the writ was issued by the court. The respondent sheriffs duty, it must be stressed, is only to implement the writ and this duty is ministerial.

WHEREFORE, premises considered, the complaint is DISMISSED for lack of merit. SO ORDERED. A.M. No. P-05-1970 May 30, 2011 (Formerly A.M.OCA I.P.I. No. 04-1962-P) AN ANONYMOUS COMPLAINT AGAINST ATTY. PORTIA DIESTA, BRANCH CLERK OF COURT, REGIONAL TRIAL COURT, BRANCH 263, PASIG CITY and LUZ SANTOS-TACLA, CLERK III, SAME COURT.

RESOLUTION

BRION, J.:

We resolve in this Resolution the complaint against Atty. Portia Flores-Diesta, Branch Clerk of Court, and Luz Santos-Tacla, Clerk III, of the Regional Trial Court, Branch 263 (Branch 263), Pasig City. Background Facts On April 20, 2004, the Office of the Court Administrator (OCA) received an undated anonymous letter complaint1 against Atty. Diesta and Tacla alleging dishonesty, conduct prejudicial to the best interest of the service, and violation of Republic Act No. 3019 (the Anti-Graft and Corrupt Practices Act). In the letter, the anonymous writer charged Atty. Diesta of not reporting for work on time, of collecting commissioners fees for ex parte hearings, of not subjecting to raffle the publication of cases and judicial notices, and of illegally practicing law by appearing in court for his practitionerfather. Tacla, on the other hand, was charged of being tardy and being frequently absent, of falsifying her entry in the attendance logbook and on her daily time record, and of acting as "runner" for Atty. Diesta. The supporting documents were attached to the letter-complaint. The OCA required Atty. Diesta and Tacla to comment on this letter.2 Atty. Diesta filed her comment on August 9, 2004,3 while Tacla filed her comment on August 10, 2004.4 Both Atty. Diesta and Tacla denied the allegations. The OCA, after a review of the respondents comments and the result of its discreet investigation, recommended that the case be redocketed as a regular administrative matter and referred the case to the Executive Judge of the Pasig City RTC for investigation, report and recommendation. On January 31, 2005, the Court issued a Resolution adopting the OCA recommendation.5

Pasig City RTC Executive Judge Edwin A. Villasor conducted several hearings. He summoned the two respondents, the staff of Branch 263, and Atty. Jaime del Rosario who was alleged to have been asked by Atty. Diesta for a commissioners fee. The two respondents (represented by their lawyers) and the court staff testified before Judge Villasor and were duly cross-examined. Atty. Del Rosario failed to appear. In his October 19, 2005 exhaustive report to the OCA,6 Judge Villasor summarized the allegations against Atty. Diesta, as follows: (1) always late in reporting for work, left the office early, and could not complete the whole week without being absent; (2) tolerated the infractions of the Clerk In-Charge of Criminal Cases who was allegedly the "runner" when there were transactions concerning bonds and publications; (3) publication of cases or judicial notices were not raffled, but, instead, were assigned to "the Courier"; (4) appeared in cases, particularly in Quezon City and in San Mateo, Rizal, for her practitionerfather; and (5) asked for a commissioners fee according to a Private Practitioner, Atty. del Rosario. Judge Villasor reported that Atty. Diesta lost the attendance logbook of Branch 263 covering the dates relevant to the charges against her and Tacla, that she asked for a commissioners fee from Atty. Del Rosario, and that she was amenable to receiving "token" amounts from lawyers. He summarized the allegations against Tacla as follows: (1) that she was the "runner" of the Branch Clerk of Court when there were transactions concerning bonds and publications entered into by the former; (2) that her name did not appear in the attendance logbook, which meant that she did not report for work, but her DTR showed that she reported for work on the days concerned; and (3) that in the entry of September 2, 2003, she cheated on her time. He found that Tacla falsified her entries in the attendance logbook. Since the complaint was the first one for both Atty. Diesta and Tacla, Judge Villasor recommended that Atty. Diesta be reprimanded and admonished to exercise care in securing the attendance logbook and in performing her other official duties, and that Tacla be warned to be more careful in making entries in the official attendance logbook. The OCA Report/Recommendation The OCA submitted its Report, dated February 10, 2006,7 with the following findings: Atty. Diesta denied that she was late or absent and alleged that she did not record her time of arrival to or departure from the office because she was not required to do so. She admitted that the attendance logbook of Branch 263 for the period of September 2003 to September 2004 is missing.

She admitted that she had custody of the logbook and that she kept it in the filing cabinet behind her desk; it remained missing despite efforts to find it. The OCA found that the loss of the attendance logbook while in Atty. Diestas custody was an indication that she was careless in her duty to keep it safe. The OCA noted the statement of Lourdes Puzon, Clerk III in charge of civil cases. Ms. Puzon claimed that when there was a need for publication, she prepared an order for signature by the pairing judge of Branch 263 and after the order was signed, she submitted it to Atty. Diesta. Ms. Puzon claimed that after her submission of the signed order, she had no more knowledge on how the publication was done. Atty. Diesta contradicted this claim and maintained that after she received the signed order with the record of cases for publication, she gave it to the clerk-in-charge. She then presumed that the clerk would forward it to the Office of the Clerk of Court. According to the OCA, Atty. Diesta had the responsibility and duty as branch clerk of court to furnish the Office of the Clerk of Court with a copy of the signed order, citing Sections 10 and 11 of A.M. No. 01-1-07-SC.8 The OCA also verified the records of the Office of the Clerk of Court and found that Branch 263 had not submitted for raffle any judicial notice or announcement for publication.9 The OCA found that Atty. Diesta violated A.M. No. 01-1-07-SC. The OCA also stated that Ms. Puzon confirmed Atty. Del Rosarios manifestation before Judge Isagani Geronimo of Branch 263 that Atty. Del Rosario asked that the case be heard before the court, although it was set for ex parte hearing, because Atty. Diesta was charging him an amount that he could not justify to his client. This incident was corroborated by Julie Ann Berosil, former court interpreter of Branch 263.10 An OCA investigator who interviewed Atty. Del Rosario also confirmed that the latter offered to pay Atty. Diesta P1,500.00 instead of theP3,500.00 that she was asking for.11 Atty. Diesta, on the other hand, asserted that the matter involving Atty. Del Rosario was an isolated one and had already been resolved. On the alleged "token" voluntarily given by lawyers, Atty. Diesta admitted in her July 18, 2005 comment that "In fact, when lawyers ask about the commissioners fee," they are simply told that [its] collection x x x is prohibited. Even the stenographers concerned have repeatedly stressed this information to the lawyers. It cannot be denied though that there are lawyers who insist that it is but a token and that they have set aside a budget for the same. In these instances, the matter is left to the discretion of the lawyer concerned. But, whatever amount is handed out, it is strictly VOLUNTARILY given and in no way was anyone ever forced, coerced or intimidated to make payments in exchange for the reception of their evidence."12 The OCA, finding these statements disturbing, said: "As frontliners in the administration and dispensation of justice, respondent Diesta is duty bound to uphold the integrity of the court. She should avoid the practice of accepting or tolerating such tokens, as it will deteriorate (sic) the entire judiciarys integrity."13 On the matter of Taclas alleged cheating on her time record, the OCA reported Taclas claim that she did not intend to cheat on her entries in the attendance logbook and that her watch stopped causing her to indicate the wrong time of her arrival on September 2, 2003.14 She also maintained that she was not gallivanting during the times she was out of the office but was actually doing official work. She also denied that she was Atty. Diestas "runner." The OCA found that Taclas explanation that she was out on official business when her name did not appear in the attendance logbook was a disregard of the directive to faithfully accomplish the attendance logbook. According to the OCA, public servants must at all times exhibit the highest sense of honesty and integrity, and their conduct must be above suspicion and characterized by propriety and decorum. The OCA recommended that Atty. Diesta and Tacla be reprimanded, with a stern warning that a commission of similar acts in the future shall be dealt with more severely.

The Courts Ruling Ample evidence is on record to support the OCAs finding of Atty. Diesta and Taclas culpability. On the charges against Atty. Diesta, we note the affidavit of Lourdes Puzon:15 5. With respect to the allegations of a certain Atty. Jaime Del Rosario, I, together with the interpreter Julie Ann Berosil and two (2) Stenographers, Ms. Erlinda Verga and Fannie Magtibay were present. During the hearing wherein Atty. Del Rosario appeared as counsel for a certain civil case, he manifested before Hon. Judge Isagani A. Geronimo that his case is set for ex-parte presentation before the Branch Clerk of Court but he wanted his case to be heard before the Court because according to him, Atty. Diesta was charging him for a substantial amount. Atty. Diesta also admitted that the attendance logbook was missing and that she had the duty as Branch Clerk of Court to keep it in her custody.16 The Joint Manifestation17 of seven (7) members of the court staff reads: We, Loralei R. Victoria, Erlinda M. Verga, Fannie A. Magtibay, Lourdes Soriano, Sherwin Sansano, Alfonso Pe Benito, Jr., and Sotero Matias, all of legal ages and staffmembers of Branch 263, Regional Trial Court, Pasig City, jointly manifest to the Honorable Court that: 1) All logbooks containing entries of our arrival in and departure from the office are being kept in the filing cabinet of our office; 2) When the "anonymous complaint" was received by our Branch Clerk of Court sometime in July 2004, she asked for the logbook containing the entries pertinent to the complaint. However, the said logbook was not in the filing cabinet anymore; 3) Despite efforts to locate the logbook, the same could no longer be found. We are executing this joint manifestation for the information of the Honorable Court. There is also sufficient evidence to support the charges that Atty. Diesta asked for commissioners fee from Atty. Del Rosario and that the publications of judicial notices in Branch 263 were not submitted for raffle. Taclas logbook entries for September 1, 8, 16, 22 and 29, 2003,18 and the entries on her daily time record for the month of September 200319 were markedly different. The deviations were noted by an OCA investigator who checked the records of the OCA Leave Division.20 The Revised Manual for Clerks of Court provides: 1.2 Attendance Records (Memo, Circular No. 4, June 15, 1973) 1.2.1. Registry Book Each Court shall provide itself with a registry book with which to indicate the time in coming to and leaving the office of its personnel. 1.2.2 Daily Time Record (CS Form 48) In addition, each personnel must be required to accomplish CS Form 48. The time appearing in Form 48 should tally with the time recorded in the registry book.

Clerks of Court are not required to keep daily time records of their attendance, in lieu thereof, the said officials are required to submit a certification of service within the period under pain of having their salaries withheld (Ruling of the Commissioner of Civil Service, 1st Indorsement, November 7, 1970, re: proper interpretation of Civil Service Rule XV, Sec. 4.) 1.2.3. The Clerks of Court are held responsible for the custody and reliability of the time recorded in the registry book. These daily time records (Form 48) must be duly certified by the Judge or the Clerk of Court before they are sent to the proper authorities. (Underlining supplied) Section 23, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 29221 provides that administrative offenses are classified into grave, less grave and light, depending on the gravity of the nature of the act complained of. The less grave offenses of simple neglect of duty and of simple misconduct carry the penalty of suspension for one (1) month and one (1) day to six (6) months for the first offense. We agree with the OCA finding that both Atty. Diesta and Tacla are guilty of the charges against them. However, we do not agree with the OCA recommendation that Atty. Diesta and Tacla be only reprimanded with stern warning that commission of similar acts in the future shall be dealt with more severely. Both are guilty of less grave offenses and must be meted the corresponding penalties. Atty. Diesta is guilty of simple neglect of duty for losing the attendance logbook, and she is also guilty of simple misconduct for asking for a commissioners fee and for failing to have the publication of official notices raffled. She should be suspended for three (3) months. Tacla, who is guilty of simple misconduct for not faithfully accomplishing her daily time record, should be suspended for one (1) month and one (1) day. WHEREFORE, premises considered, Atty. Portia Diesta, Branch Clerk of Court, Regional Trial Court, Pasig City, Branch 263, is hereby SUSPENDED from the service for THREE (3) months without pay, with a STERN WARNING that a commission of the same or similar acts in the future shall be dealt with more severely. Luz Santos-Tacla, Clerk III, Regional Trial Court, Pasig City, Branch 263, is SUSPENDED from the service for ONE (1)month and ONE (1) day without pay, with a STERN WARNING that a commission of the same or similar acts in the future shall be dealt with more severely. SO ORDERED. G.R. No. 183564 June 29, 2011

PEOPLE OF THE PHILIPPINES, vs. LUCRESIO ESPINA, Appellant. DECISION BRION, J.: We resolve in this Decision the appeal from the April 22, 2008 decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 00345. The CA affirmed with modification the judgment2 of the Regional Trial Court (RTC), Branch 35, Ormoc City, finding appellant Lucresio Espina guilty beyond reasonable doubt of qualified rape, and sentencing him to suffer the death penalty.

On December 7, 1997, AAA,3 together with her stepmother BBB and stepsister CCC, went to the dance hall in Barangay Bantigue, Isabel, Leyte, to watch the "benefit dance."4 At around 11:00 p.m., AAA went outside the dance hall to look for her friends. Suddenly, her father, herein appellant, called from a nearby mango tree and told her that he has an errand for her. AAA went with the appellant, as bidden. When they arrived at a "distant dark place,"5 the appellant removed his short pants and brief. The appellant then removed AAAs panty, ordered her to lie down, went on top of her, and inserted his penis in her vagina. AAA shouted for help, but the appellant covered her mouth with his hands. Thereafter, the appellant ordered AAA to put her panty back on. When the appellant asked why there was so much blood in her anus, AAA replied that it came from her vagina. The appellant then threatened to kill her if she reported the incident to anyone. The appellant brought AAA to their house and ordered her to change her clothes. The appellant took AAAs clothes and hid them. Afterwards, they returned to the dance hall.6 At the dance hall, BBB told AAA that she had been looking for her. AAA, BBB and CCC returned to their house at around 1:00 a.m. When AAA was already asleep, DDD, the appellants sister, told BBB to examine AAA because she noticed that the latter had difficulty climbing the stairs. BBB examined AAAs body and saw blood in her vagina. When BBB confronted AAA, the latter stated that she had been molested by the appellant.7 In the early morning of December 8, 1997, BBB accompanied AAA to the Municipal Health Center of Isabel, Leyte, where the latter was examined by Dr. Refelina Cerillo.8 The prosecution charged the appellant before the RTC with the crime of rape.9 The appellant denied the charge against him and claimed that he had a drinking session with his friends at the house of Melanio Velasco on the day of the incident. According to him, he fell asleep on a grassy area and woke up at 8:00 a.m. of the next day.10 The RTC found the appellant guilty beyond reasonable doubt of qualified rape, and sentenced him to suffer the death penalty. It also ordered the appellant to pay the victim P50,000.00 as civil indemnity and P50,000.00 as moral damages.11 On appeal, the CA affirmed the RTC judgment, with the following modifications: (1) the penalty of death is reduced to reclusion perpetua; (2) the amount of civil indemnity is increased to P75,000.00; (3) the amount of moral damages is increased to P75,000.00; and (4) the appellant is further ordered to pay the victim P25,000.00 as exemplary damages.12 We DENY the appeal but modify the designation of the crime committed, the penalty imposed, and the amount of the awarded exemplary damages. For a charge of rape to prosper under Article 266-A of the Revised Penal Code, as amended, the prosecution must prove that (1) the offender had carnal knowledge of a woman; and (2) he accomplished such act through force, threat or intimidation, when she was deprived of reason or otherwise unconscious, or when she was under 12 years of age or was demented.13 Sexual intercourse with a girl below 12 years old is statutory rape. In this type of rape, force and intimidation are immaterial; the only subject of inquiry is the age of the woman and whether carnal knowledge took place.14 In her testimony dated May 19, 1999, AAA positively identified the appellant as the one who raped her. Her testimony was clear and straightforward; she was consistent in her recollection of the details of her sexual abuse. In addition, her testimony was corroborated by the medical findings of Dr. Cerillo.

We, likewise, find unmeritorious the appellants twin defenses of denial and alibi. Denial could not prevail over the victims direct, positive and categorical assertion. Significantly, the appellant admitted that he was in Barangay Bantigue when the incident happened. It is settled that alibi necessarily fails when there is positive evidence of the physical presence of the accused at the crime scene or its immediate vicinity.15 The prosecution, therefore, positively established the elements of statutory rape under Article 266A(d) of the Revised Penal Code. First, the appellant succeeded in having carnal knowledge with the victim. Not only did AAA identify her father as her rapist, she also recounted the sexual abuse in detail, particularly how her father inserted his penis into her vagina. Second, the prosecution established that AAA was below 12 years of age at the time of the rape. During the pre-trial, the parties admitted that AAA was "only 11 years old at the time of the commission of the crime."16 AAA herself testified that she was born on October 26, 1986, and was 11 years old when she was raped. This testimony was corroborated by her stepmother, BBB. Under Article 266-B of the Revised Penal Code, the death penalty shall be imposed when the victim is below 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. As earlier stated, the parties stipulated during the pre-trial that AAA was 11 years old at the time of the commission of the crime. The parties likewise stipulated that AAA is the appellants legitimate daughter.17 During trial, AAA, BBB and the appellant testified to this fact. We, however, cannot impose the death penalty in view of R.A. No. 9346, signed into law on June 24, 2006. Pursuant to this law, we affirm the CAs reduction of the penalty from death to reclusion perpetua, with the modification, however, that the appellant shall not be eligible for parole. We affirm the awards of P75,000.00 as civil indemnity and P75,000.00 as moral damages, as they are in accord with prevailing jurisprudence.18 Civil indemnity is awarded on the finding that rape was committed.19 In like manner, moral damages are awarded to rape victims without need of proof other than the fact of rape, on the assumption that the victim suffered moral injuries from the experience she underwent.20
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However, we increase the amount of the awarded exemplary damages from P25,000.00 to P30,000.00, pursuant to established jurisprudence.21 WHEREFORE, premises considered, we AFFIRM the April 22, 2008 decision of the Court of Appeals in CA-G.R. CR HC No. 00345, with the following MODIFICATIONS: (a) appellant Lucresio Espina is hereby found GUILTY beyond reasonable doubt of STATUTORY RAPE, as defined and penalized in Article 266-A(1)(d) of the Revised Penal Code; (b) he is sentenced to suffer the penalty of RECLUSION PERPETUA, without eligibility for parole; and (c) the amount of the awarded exemplary damages is INCREASED from P25,000.00 to P30,000.00. SO ORDERED. G.R. No. 193023 June 22, 2011

NATIONAL POWER CORPORATION, Petitioner, vs. YUNITA TUAZON, ROSAURO TUAZON and MARIA TERESA TUAZON, Respondents. DECISION BRION, J.: This is a petition for review filed under Rule 45 of the Rules of Court, seeking the reversal of the decision1 (dated March 15, 2010) of the Court of Appeals (CA)2 in CA-G.R. CV No. 82480, which set aside the order3 of the Regional Trial Court (RTC) of Tarangnan, Samar, Branch 40, and remanded the case back to the RTC for determination of just compensation. The RTC had dismissed the complaint of respondents Yunita Tuazon, Rosauro Tuazon and Maria Teresa Tuazon against the National Power Corporation (NAPOCOR) for payment of just compensation and damages. ANTECEDENTS The antecedent facts are not in dispute. The respondents are co-owners of a 136,736-square-meter coconut land4 in Barangay Sta. Cruz, Tarangnan, Samar. The land has been declared for tax purposes in the name of the respondents predecessor-in-interest, the late Mr. Pascual Tuazon. Sometime in 1996, NAPOCOR5 installed transmission lines on a portion of the land for its 350 KV Leyte-Luzon HVDC Power TL Project. In the process, several improvements on the land were destroyed. Instead of initiating expropriation proceedings, however, NAPOCOR entered into a mere right-of-way agreement6with Mr. Tuazon for the total amount of TWENTY SIX THOUSAND NINE HUNDRED SEVENTY EIGHT and 21/100 PESOS (P26,978.21). The amount represents payments for "damaged improvements" (P23,970.00), "easement and tower occupancy fees" (P1,808.21), and "additional damaged improvements" (P1,200.00). In 2002, the respondents filed a complaint against NAPOCOR for just compensation and damages, claiming that no expropriation proceedings were made and that they only allowed NAPOCOR entry into the land after being told that the fair market value would be paid. They also stated that lots similarly located in Catbalogan, Samar, likewise utilized by NAPOCOR for the similar projects, were paid just compensation in sums ranging from P2,000.00 toP2,200.00 per square meter, pursuant to the determination made by different branches of the RTC in Samar. Instead of filing an answer, NAPOCOR filed a motion to dismiss based on the full satisfaction of the respondents claims. The RTC granted the motion in this wise: ORDER Acting on the Motion to Dismiss and the Opposition thereto and after a very careful study of the arguments raised by the Parties, the court resolves in favor of the Defendant. Accordingly, the Court hereby orders the DISMISSAL of this case without costs. IT IS SO ORDERED. Tarangnan, Samar, Philippines, February 3, 2004.

(Sgd.) ROBERTO A. NAVIDAD Acting Presiding Judge7 The assailed decision of the Court of Appeals The respondents filed an ordinary appeal with the CA. In its Appellees Brief, NAPOCOR denied that expropriation had occurred. Instead, it claimed to have lawfully established a right-of-way easement on the land per its agreement with Mr. Tuazon, which agreement is in accord with its charter, Republic Act No. (R.A.) 6395. NAPOCOR maintained that Section 3-A(b) of R.A. 6395 gave it the right to acquire a right-of-way easement upon payment of "just compensation" equivalent to not more than 10% of the market value of a private lot traversed by transmission lines.8 The CA disagreed with the RTC. Citing National Power Corporation v. Hon. Sylvia G. AguirrePaderanga, etc., et al.9 and National Power Corporation v. Manubay Agro-Industrial Development Corporation,10 the CA pointed out that the demolition of the improvements on the land, as well as the installation of transmission lines thereon, constituted "taking" under the power of eminent domain, considering that transmission lines are hazardous and restrictive of the lands use for an indefinite period of time. Hence, the CA held that the respondents were entitled, not just to an easement fee, but to just compensation based on the full market value of the respondents land. Citing Export Processing Zone Authority v. Hon. Ceferino E. Dulay, etc., et al.,11 the CA maintained that NAPOCOR "cannot hide behind the mantle of Section 3-A(b) of R.A. 6395 as an excuse of dismissing the claim of appellants" since the determination of just compensation is a judicial function. "No statute, decree, or executive order can mandate that its own determination shall prevail over the courts findings,"12 the CA added. The dispositive of the assailed decision reads: In sum, after establishing that NAPOCORs acquisition of the right-of-way easement over the portion of the appellants land was a definite taking under the power of eminent domain, NAPOCOR is liable to pay appellants [referring to the respondents herein] just compensation and not only easement fee. IN LIGHT OF ALL THE FOREGOING, the Order dated February 3, 2004 of the RTC, Br. 40, Tarangnan, Samar is hereby REVERSED and SET ASIDE. The instant case is hereby REMANDED to the RTC, Br. 40 of Tarangnan, Samar for the proper determination of just compensation.13 The Petition The present petition reiterates that by installing transmission lines, NAPOCOR did not expropriate the respondents land, but merely established a right-of-way easement over it. The petition relies heavily on the lack of transfer of the lands title or ownership. NAPOCOR maintains that since the respondents claim involved an easement, its charter a special law should govern in accordance with Article 635 of the Civil Code.14NAPOCOR insists that its agreement with the respondents predecessor-in-interest and the easement fee that was paid pursuant thereto were authorized by its charter and are, thus, valid and binding. Finally, the petitioner alleges that establishing right-of-way easements over lands traversed by its transmission lines was the "only mode" by which it could "acquire" the properties needed in its power generation and distribution function. It claims that R.A. 8974,15 specifically its implementing rules, supports this position. THE COURT RULING We find the petition devoid of merit and AFFIRM the remand of the case to the RTC for the determination of just compensation.

The petitioner pleads nothing new. It essentially posits that its liability is limited to the payment of an easement fee for the land traversed by its transmission lines. It relies heavily on Section 3-A(b) of R.A. 6395 to support this position. This position has been evaluated and found wanting by this Court in a plethora of cases, including Manubay16which was correctly cited by the CA in the assailed decision. In Manubay,17 NAPOCOR sought the reversal of a CA decision that affirmed the payment, as ordered by the RTC in Naga City, of the full value of a property traversed by NAPOCORs transmission lines for its 350 KV Leyte-Luzon HVDC Power Transmission Project. Through then Associate Justice Artemio V. Panganiban, the Court echoing the 1991 case of National Power Corporation v. Misericordia Gutierrez, et al.18 formulated the doctrinal issue inManubay,19 as follows: How much just compensation should be paid for an easement of a right of way over a parcel of land that will be traversed by high-powered transmission lines? Should such compensation be a simple easement fee or the full value of the property? This is the question to be answered in this case.20 In holding that just compensation should be equivalent to the full value of the land traversed by the transmission lines, we said: Granting arguendo that what petitioner acquired over respondents property was purely an easement of a right of way, still, we cannot sustain its view that it should pay only an easement fee, and not the full value of the property. The acquisition of such an easement falls within the purview of the power of eminent domain. This conclusion finds support in similar cases in which the Supreme Court sustained the award of just compensation for private property condemned for public use. Republic v. PLDT held thus: "x x x. Normally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why the said power may not be availed of to impose only a burden upon the owner of condemned property, without loss of title and possession. It is unquestionable that real property may, through expropriation, be subjected to an easement of right of way." True, an easement of a right of way transmits no rights except the easement itself, and respondent retains full ownership of the property. The acquisition of such easement is, nevertheless, not gratis. As correctly observed by the CA, considering the nature and the effect of the installation power lines, the limitations on the use of the land for an indefinite period would deprive respondent of normal use of the property. For this reason, the latter is entitled to payment of a just compensation, which must be neither more nor less than the monetary equivalent of the land. Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the takers gain, but the owners loss. The word "just" is used to intensify the meaning of the word "compensation" and to convey thereby the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. In eminent domain or expropriation proceedings, the just compensation to which the owner of a condemned property is entitled is generally the market value. Market value is "that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefore."21 (Emphasis ours; citations omitted.)

We find it significant that NAPOCOR does not assail the applicability of Manubay22 in the present case. Instead, NAPOCOR criticizes the application of Gutierrez23 which the CA had cited as authority for the doctrine that eminent domain may also "be availed of to impose only a burden upon the owner of condemned property, without loss of title and possession."24 NAPOCOR assails Gutierrez25 as irrelevant on the ground that the expropriation proceedings were instituted in January 1965, when the NAPOCOR Charter had not been amended with the insertion of Section 3A(b) in 1976.26 To NAPOCOR, Section 3-A(b) provides for a "fixed formula in the computation of just compensation in cases of acquisition of easements of right-of-way." Heavily relying on Section 3A(b), therefore, NAPOCOR argues: Absent any pronouncement regarding the effect of Section 3-A (b) of R.A. 6395, as amended, on the computation of just compensation to be paid to landowners affected by the erection of transmission lines, NPC v. Gutierrez, supra, should not be deemed controlling in the case at bar.27 We do not find NAPOCORs position persuasive. The application of Gutierrez28 to the present case is well taken. The facts and issue of both cases are comparable.29 The right-of-way easement in the case similarly involved transmission lines traversing privately owned land. It likewise held that the transmission lines not only endangered life and limb, but restricted as well the owners use of the land traversed. Our pronouncement in Gutierrez30 that the exercise of the power of eminent domain necessarily includes the imposition of right-of-way easements upon condemned property without loss of title or possession31 therefore remains doctrinal and should be applied.32 NAPOCORs protest against the relevancy of Gutierrez, heavily relying as it does on the supposed conclusiveness of Section 3-A(b) of R.A. 6395 on just compensation due for properties traversed by transmission lines, has no merit. We have held in numerous cases that Section 3-A(b) is not conclusive upon the courts.33 In National Power Corporation v. Maria Bagui, et al.,34 we categorically held: Moreover, Section 3A-(b) of R.A. No. 6395, as amended, is not binding on the Court. It has been repeatedly emphasized that the determination of just compensation in eminent domain cases is a judicial function and that any valuation for just compensation laid down in the statutes may serve only as a guiding principle or one of the factors in determining just compensation but it may not substitute the court's own judgment as to what amount should be awarded and how to arrive at such amount. (Citations omitted.) The determination of just compensation in expropriation cases is a function addressed to the discretion of the courts, and may not be usurped by any other branch or official of the government.35 This judicial function has constitutional raison dtre; Article III of the 1987 Constitution mandates that no private property shall be taken for public use without payment of just compensation. In National Power Corporation v. Santa Loro Vda. de Capin, et al.,36 we noted with approval the disquisition of the CA in this matter: The [herein petitioner] vehemently insists that its Charter [Section 3A (b) of R.A. 6395] obliges it to pay only a maximum of 10% of the market value declared by the owner or administrator or anyone having legal interest in the property, or such market value as determined by the assessor, whichever is lower. To uphold such a contention would not only interfere with a judicial function but would also render as useless the protection guaranteed by our Constitution in Section 9, Article III of our Constitution that no private property shall be taken for public use without payment of just compensation.

The same principle further resolves NAPOCORs contention that R.A. 8974, specifically its implementing rules, supports NAPOCORs claim that it is liable to the respondents for an easement fee, not for the full market value of their land. We amply addressed this same contention in Purefoods37 where we held that: While Section 3(a) of R.A. No. 6395, as amended, and the implementing rule of R.A. No. 8974 indeed state that only 10% of the market value of the property is due to the owner of the property subject to an easement of right-of-way, said rule is not binding on the Court. Well-settled is the rule that the determination of "just compensation" in eminent domain cases is a judicial function. In Export Processing Zone Authority v. Dulay, the Court held that any valuation for just compensation laid down in the statutes may serve only as guiding principle or one of the factors in determining just compensation but it may not substitute the court's own judgment as to what amount should be awarded and how to arrive at such amount. The executive department or the legislature may make the initial determinations but when a party claims a violation of the guarantee in the Bill of Rights that private property may not be taken for public use without just compensation, no statute, decree, or executive order can mandate that its own determination shall prevail over the court's findings. Much less can the courts be precluded from looking into the "justness" of the decreed compensation. (Citations omitted.) That the respondents predecessor-in-interest did not oppose the installation of transmission lines on their land is irrelevant. In the present petition, NAPOCOR insinuates that Mr. Tuazons failure to oppose the instillation now estops the respondents from their present claim.38 This insinuation has no legal basis. Mr. Tuazons failure to oppose cannot have the effect of thwarting the respondents right to just compensation. In Rafael C. de Ynchausti v. Manila Electric Railroad & Light Co., et al.,39 we ruled: "The owner of land, who stands by, without objection, and sees a public railroad constructed over it, can not, after the road is completed, or large expenditures have been made thereon upon the faith of his apparent acquiescence, reclaim the land, or enjoin its use by the railroad company. In such case there can only remain to the owner a right of compensation." (Goodin v. Cin. And Whitewater Canal Co., 18 Ohio St., 169.) "One who permits a railroad company to occupy and use his land and construct its road thereon without remonstrance or complaint, cannot afterwards reclaim it free from the servitude he has permitted to be imposed upon it. His acquiescence in the company's taking possession and constructing its works under circumstances which made imperative his resistance, if he ever intended to set up illegality, will be considered a waiver. But while this presumed waiver is a bar to his action to dispossess the company, he is not deprived of his action for damages for the value of the land, or for injuries done him by the construction or operation of the road." (St. Julien v. Morgan etc., Railroad Co., 35 La. Ann., 924.) In sum, we categorically hold that private land taken for the installation of transmission lines is to be paid the full market value of the land as just compensation. We so ruled in National Power Corporation v. Benjamin Ong Co,40and we reiterate this ruling today: As earlier mentioned, Section 3A of R.A. No. 6395, as amended, substantially provides that properties which will be traversed by transmission lines will only be considered as easements and just compensation for such right of way easement shall not exceed 10 percent of the market value. However, this Court has repeatedly ruled that when petitioner takes private property to construct transmission lines, it is liable to pay the full market value upon proper determination by the courts. (Citations omitted.)

WHEREFORE, premises considered, we DENY the present petition for review and AFFIRM the assailed decision of the Court of Appeals, promulgated on March 15, 2010, in CA-G.R. CV No. 82480. SO ORDERED. G.R. No. 169985 June 15, 2011

MODESTO LEOVERAS, Petitioner, vs. CASIMERO VALDEZ, Respondent. DECISION BRION, J.: Before the Court is a petition for review on certiorari1 assailing the March 31, 2005 decision2 and the October 6, 2005 resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 68549. The CA decision reversed the June 23, 2000 decision4 of the Regional Trial Court (RTC), Branch 46, Urdaneta City, Pangasinan, dismissing respondent Casimero Valdezs complaint for annulment of title, reconveyance and damages against petitioner Modesto Leoveras. FACTUAL ANTECEDENTS Maria Sta. Maria and Dominga Manangan were the registered owners - three-fourths () and onefourth () pro-indiviso, respectively - of a parcel of land located in Poblacion, Manaoag, Pangasinan, covered by Original Certificate of Title (OCT) No. 24695, with an area of 28,171 square meters.5 In September 1932, Sta. Maria sold her three-fourths () share to Benigna Llamas.6 The sale was duly annotated at the back of OCT No. 24695. When Benigna died in 1944,7 she willed her threefourths () share equally to her sisters Alejandra Llamas and Josefa Llamas.8 Thus, Alejandra and Josefa each owned one-half () of Benignas three-fourths () share. On June 14, 1969, Alejandras heirs sold their predecessors one-half () share (roughly equivalent to 10,564 square meters) to the respondent, as evidenced by a Deed of Absolute Sale.9 Also on June 14, 1969, Josefa sold her own one-half () share (subject property) to the respondent and the petitioner, as evidenced by another Deed of Absolute Sale.10 On even date, the respondent and the petitioner executed an Agreement,11 allotting their portions of the subject property. WITNESSETH That we [petitioner and respondent] are the absolute owners of [the subject property] which is particularly described as follows: xxx That our ownership over the said portion mentioned above is evidenced by a Deed of Absolute Sale xxx

That in said deed of sale mentioned in the immediate preceding paragraph, our respective share consist of 5, 282.13 [one-half of 10,564 square meters] square meter each. That we hereby agreed and covenanted that our respective share shall be as follows: Modesto Leoveras 3,020 square meters residential portion on the northern part near the Municipal road of Poblacion Pugaro, Manaoag, Pangasinan; Casimero Valdez 7,544.2712 square meters of the parcel of land described above.13 On June 8, 1977, the petitioner and the respondent executed an Affidavit of Adverse Claim over the subject property.14 The parties took possession of their respective portions of the subject property and declared it in their name for taxation purposes.15 In 1996, the respondent asked the Register of Deeds of Lingayen, Pangasinan on the requirements for the transfer of title over the portion allotted to him on the subject property. To his surprise, the respondent learned that the petitioner had already obtained in his name two transfer certificates of title (TCTs): one, TCT No. 195812 - covering an area of 3,020 square meters; and two, TCT No. 195813 - covering an area of 1,004 square meters (or a total of 4,024 square meters). The Register of Deeds informed the respondent that they could not find the record of OCT No. 24695; instead, the Register of Deeds furnished the respondent with the following16 (collectively, petitioners documents): 1. Two (2) deeds of absolute sale dated June 14, 1969, both executed by Sta. Maria, purportedly conveying an unspecified portion of OCT No. 24695 as follows: a. 11, 568 square meters to the respondent and petitioner17 b. 8, 689 square meters to one Virgilia Li Meneses18 2. Deed of Absolute Sale (Benigna Deed) also dated June 14, 1969 executed by Benigna19 which reads: I, Benigna Llamas, Fernandez xxx do sell xxx by way of ABSOLUTE SALE unto the said Casimero Valdez, Modesto Leoveras and Virgilia Meneses their heirs and assigns, 7,544 sq.m.; 4,024 sq. m. and 8,689 sq. m. more or less respectively of a parcel of land which is particularly described as follows: "A parcel of land xxx covered by [OCT No.] 24695." (Emphases added) 3. Subdivision Plan of PSU 21864 of OCT No. 2469520 4. Affidavit of Confirmation of Subdivision21 dated May 3, 1994 (Affidavit), which reads: That we, Virgilia Li Meneses, xxx Dominga Manangan; Modesto Leoveras; and Casimero Valdez xxx xxx are co-owners of a certain parcel of land with an area of 28, 171 sq. m. more or less in subdivision plan Psu 21864 xxx covered by [OCT No.] 24695 situated at Poblacion (now Pugaro), Manaoag, Pangasinan;

xxx we agree xxx to subdivide and hereby confirmed the subdivision in the following manner xxx: Lot 2 with an area of 3, 020 sq. m. xxx to Modesto Leoveras xxx; Lot 3 with an area of 1,004 sq. m. xxx to Modesto Leoveras xxx; Lot 4 with an area of 7,544 sq. m. xxx to Casimero Valdez xxx; Lot 5 with an area of 8, 689 sq. m. xxx to Virgilia Meneses; Lot 6 with an area of 7,043 sq. m. xxx to Dominga Manangan (Emphasis supplied.) On June 21, 1996, the respondent filed a complaint for Annulment of Title, Reconveyance and Damages against the petitioner, seeking the reconveyance of the 1,004-square meter portion (disputed property) covered by TCT No. 195813, on the ground that the petitioner is entitled only to the 3,020 square meters identified in the parties Agreement. The respondent sought the nullification of the petitioners titles by contesting the authenticity of the petitioners documents. Particularly, the respondent assailed the Benigna Deed by presenting Benignas death certificate. The respondent argued that Benigna could not have executed a deed, which purports to convey 4,024 square meters to the petitioner, in 1969 because Benigna already died in 1944. The respondent added that neither could Sta. Maria have sold to the parties her threefourths () share in 1969 because she had already sold her share to Benigna in 1932.22 The respondent denied his purported signature appearing in the Affidavit,23 and prayed for: a) xxx the cancellation of the [petitioners documents]; b) the cancellation of TCT No. 195813 in the name of Modesto Leoveras and that it be reconveyed to the [respondent]; c) the cancellation and nullification of [TCT No. 195812] covering an area of 3,020 square meters xxx; d) [the issuance of] title xxx in the name of [respondent] over an area of 17, 104 square meters of OCT 24695; 24 (Underscoring supplied) In his defense, the petitioner claimed that the parties already had (i) delineated their respective portions of the subject property even before they acquired it in 1969 and (ii) agreed that upon acquisition, each would own the portion as delineated; that the area he actually possessed and subsequently acquired has a total area of 4,024 square meters, which he subdivided into two portions and caused to be covered by the two TCTs in question. The petitioner claimed that in signing the Agreement, he was led to believe, based on the parties rough estimation, that the area he actually possessed is only 3,020 square meters contrary to the parties real intention - i.e., the extent of their ownership would be based on their actual possession.25 The petitioner further claimed that the respondent voluntarily participated in executing the Affidavit, which corrected the mistake in the previously executed Agreement26 and confirmed the petitioners ownership over the disputed property. The petitioner asked for the dismissal of the complaint and for a declaration that he is the lawful owner of the parcels of land covered by his titles. RTC RULING

The RTC dismissed the complaint. The court ruled that the respondent failed to preponderantly prove that the Benigna Deed and the Affidavit are fabricated and, consequently, no ground exists to nullify the petitioners titles. The court observed that the respondent did not even compare his genuine signature with the signatures appearing in these documents. CA RULING On appeal, the CA reversed the RTC by ruling against the authenticity of the Benigna Deed and the Affidavit. The CA gave weight to Benignas death certificate which shows the impossibility of Benignas execution of the deed in 1969. The CA also noted the discrepancy between the respondents signatures as appearing in the Affidavit, on one hand, and the documents on record, on the other.27 The CA added that the respondents failure to compare his genuine signature from his purported signatures appearing in the petitioners documents is not fatal, since Section 22, Rule 132 of the Rules of Court allows the court to make its own comparison. In light of its observations, the CA ruled: As the totality of the evidence presented sufficiently sustains [the respondents] claim that the titles issued to [the petitioner] were based on forged and spurious documents, it behooves this Court to annul these certificates of title. WHEREFORE, the assailed Decision dated June 23, 2000 is SET ASIDE. Declaring TCT No. 195812 and TCT No. 195813 as NULL and VOID, [the petitioner] is hereby directed to reconvey the subject parcels of land to [the respondent].28 (Emphasis added.) Unwilling to accept the CAs reversal of the RTC ruling, the petitioner filed the present appeal by certiorari, claiming that the CA committed "gross misappreciation of the facts"29 by going beyond what the respondent sought in his complaint. THE PETITION The petitioner claims that the CA should not have ordered the reconveyance of both parcels of land covered by the TCTs in question since the respondent only seeks the reconveyance of the disputed property i.e., the parcel of land covered by TCT No. 195813. The petitioner asserts that after the subject sale, the parties physically partitioned the subject property and possessed their respective portions, thereby setting the limits of their ownership. The petitioner admits that the Benigna Deed is "fabricated" but hastens to add that it was only designed (i) to affirm the "true intent and agreement" of the parties on the extent of their ownership, as shown by their actual physical possession, and (ii) as a "convenient tool" to facilitate the transfer of title to his name. THE RESPONDENTS COMMENT The respondent claims that since the petitioner himself admitted using a spurious document in obtaining his titles (as alleged in the complaint and as found by the CA), then the CA correctly cancelled the latters titles.30 The petitioner forged the respondents signature in the Affidavit to make it appear that he agreed to the division indicated in the document. The respondent defended the CAs reconveyance of both parcels of land, covered by the petitioners titles, to the respondent by arguing that if the distribution

in the Affidavit is followed, the "original intendment" of the parties on their shares of the subject property would be "grievously impaired"31 THE ISSUES The two basic issues32 for our resolution are: 1. Whether the CA erred in nullifying the petitioners titles. 2. Whether the CA erred in ordering the reconveyance of the parcel of land covered by the petitioners titles. THE RULING We partially grant the petition. An action for reconveyance is a legal and equitable remedy granted to the rightful landowner, whose land was wrongfully or erroneously registered in the name of another, to compel the registered owner to transfer or reconvey the land to him.33 The plaintiff in this action must allege and prove his ownership of the land in dispute and the defendants erroneous, fraudulent or wrongful registration of the property. We rule that the respondent adequately proved his ownership of the disputed property by virtue of the (i) Deed of Absolute Sale executed by Josefa in favor of the parties; (ii) the parties Affidavit of Adverse Claim; and (iii) the parties Agreement, which cover the subject property. The petitioner does not dispute the due execution and the authenticity of these documents,34 particularly the Agreement. However, he claims that since the Agreement does not reflect the true intention of the parties, the Affidavit was subsequently executed in order to reflect the parties true intention.
1avv phi1

The petitioners argument calls to fore the application of the parol evidence rule,35 i.e., when the terms of an agreement are reduced to writing, the written agreement is deemed to contain all the terms agreed upon and no evidence of these terms can be admitted other than what is contained in the written agreement.36 Whatever is not found in the writing is understood to have been waived and abandoned.37 To avoid the operation of the parol evidence rule, the Rules of Court allows a party to present evidence modifying, explaining or adding to the terms of the written agreement if he puts in issue in his pleading, as in this case, the failure of the written agreement to express the true intent and agreement of the parties. The failure of the written agreement to express the true intention of the parties is either by reason of mistake, fraud, inequitable conduct or accident, which nevertheless did not prevent a meeting of the minds of the parties.38 At the trial, the petitioner attempted to prove, by parol evidence, the alleged true intention of the parties by presenting the Affidavit, which allegedly corrected the mistake in the previously executed Agreement and confirmed his ownership of the parcels of land covered by his titles. It was the petitioners staunch assertion that the respondent co-executed this Affidavit supposedly to reflect the parties true intention.

In the present petition, however, the petitioner made a damaging admission that the Benigna Deed is fabricated, thereby completely bolstering the respondents cause of action for reconveyance of the disputed property on the ground of fraudulent registration of title. Since the Affidavit merely reflects what is embodied in the Benigna Deed, the petitioners admission, coupled with the respondents denial of his purported signature in the Affidavit, placed in serious doubt the reliability of this document, supposedly the bedrock of the petitioners defense. Curiously, if the parties truly intended to include in the petitioners share the disputed property, the petitioner obviously need not go at length of fabricating a deed of sale to support his application for the transfer of title of his rightful portion of the subject property. Notably, there is nothing in the Affidavit (that supposedly corrected the mistake in the earlier Agreement) that supports the petitioners claim that the partition of the subject property is based on the parties actual possession. Note that the RTC dismissed the complaint based on the respondents alleged failure to prove the spuriousness of the documents submitted by the petitioner to the Register of Deeds. However, by admitting the presentation of a false deed in securing his title, the petitioner rendered moot the issue of authenticity of the Benigna Deed and relieved the respondent of the burden of proving its falsity as a ground to nullify the petitioners titles. By fraudulently causing the transfer of the registration of title over the disputed property in his name, the petitioner holds the title to this disputed property in trust for the benefit of the respondent as the true owner;39 registration does not vest title but merely confirms or records title already existing and vested. The Torrens system of registration cannot be used to protect a usurper from the true owner, nor can it be used as a shield for the commission of fraud, or to permit one to enrich oneself at the expense of others.40 Hence, the CA correctly ordered the reconveyance of the disputed property, covered by TCT No. 195813, to the respondent. The parties Agreement effectively partitioned the subject property The petitioner also relies on his alleged actual possession of the disputed property to support his claim of ownership. Notably, both parties make conflicting assertions of possession of the disputed property.41 The petitioner testified on his possession as follows: Q: How many square meters did you get from the land and how many square meters was the share of [respondent]? A: 4[0]20 square meters and my brother-in-law 6,000 plus square meters. xxx Q: Was there a boundary between the 4,020 square meters and the rest of the property which (sic) designated by your brother-in-law? A: There is sir, and the boundary is the fence. Q: When did you put up that fence which is the boundary? A: After the deed of sale was made. Q: And that boundary fence which you put according to you since the execution of the Deed of Absolute Sale in 1969 up to the present does it still exist?

A: Yes, sir. Q: Since the time you purchased the property according to you you already divided the property, is that correct? A: Yes, sir. Q: And that as of today who is in possession of that 4,020 square meters? A: I, sir.42 The petitioner and the respondent were originally co-owners of the subject property when they jointly bought it from the same vendor in 1969. However, the parties immediately terminated this state of indivision by executing an Agreement, which is in the nature of a partition agreement. The Civil Code of the Philippines defines partition as the separation, division and assignment of a thing held in common among those to whom it may belong.43 Partition is the division between two or more persons of real or personal property, owned in common, by setting apart their respective interests so that they may enjoy and possess these in severalty,44 resulting in the partial or total extinguishment of co-ownership.45 In the present case, the parties agreed to divide the subject property by giving the petitioner the 3,020 square meters "residential portion on the northern part near the Municipal road."46 There is no dispute that this 3,020- square meter portion is the same parcel of land identified as Lot No. 2 (which is not the subject of the respondents action for reconveyance) in the Affidavit and the Subdivision Plan presented by the petitioner before the Register of Deeds. The fact that the Agreement lacks technical description of the parties respective portions or that the subject property was then still embraced by a single certificate of title could not legally prevent a partition, where the different portions allotted to each were determined and became separately identifiable, as in this case.47 What is strikingly significant is that even the petitioners own testimony merely attempted to confirm his actual possession of the disputed property, without, however, supporting his claim contrary to the written Agreement that the parties ownership of the subject property would be co-extensive with their possession. This is the core of the petitioners defense. At any rate, just as non-possession does not negate ownership, neither does possession automatically prove ownership,48 especially in the face of an unambiguous document executed by the parties themselves.
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Contrary to the petitioners claim that his actual possession determines the extent of his ownership, it is the parties Agreement that defines the extent of their ownership in the subject property. One of the legal effects of partition, whether by agreement among the co-owners or by judicial proceeding, is to terminate the co-ownership and, consequently, to make the previous co-owners the absolute and exclusive owner of the share allotted to him.49 Parenthetically, the respondent declared for taxation purposes the portion he claims in December 1987.50 The total area (7,544 square meters) of the properties declared is equivalent to the area allotted to the respondent under the Agreement. On the other hand, the petitioner declared the 1,004-square meter portion only in September 1994, under Tax Declaration No. 9393,51 despite his claim of exclusive and adverse possession since 1969. Nullification of the petitioners title over the 3,020 square meter portion

While the petitioner admitted using a spurious document in securing his titles, nonetheless, he questions the CAs nullification of TCT No. 195812 on the ground that, per the respondents own admission and the parties Agreement, he is the rightful owner of the land covered by this title. We disagree. The petitioners argument confuses registration of title with ownership.52 While the petitioners ownership over the land covered by TCT No. 195812 is undisputed, his ownership only gave him the right to apply for the proper transfer of title to the property in his name. Obviously, the petitioner, even as a rightful owner, must comply with the statutory provisions on the transfer of registered title to lands.53 Section 53 of Presidential Decree No. 1529 provides that the subsequent registration of title procured by the presentation of a forged deed or other instrument is null and void. Thus, the subsequent issuance of TCT No. 195812 gave the petitioner no better right than the tainted registration which was the basis for the issuance of the same title. The Court simply cannot allow the petitioners attempt to get around the proper procedure for registering the transfer of title in his name by using spurious documents. Reconveyance is the remedy of the rightful owner only While the CA correctly nullified the petitioners certificates of title, the CA erred in ordering the reconveyance of the entire subject property in the respondents favor. The respondent himself admitted that the 3,020- square meter portion covered by TCT No. 195812 is the petitioners just share in the subject property.54 Thus, although the petitioner obtained TCT No. 195812 using the same spurious documents, the land covered by this title should not be reconveyed in favor of the respondent since he is not the rightful owner of the property covered by this title.55 WHEREFORE, the petition is partially GRANTED. The assailed decision and resolution of the Court of Appeals are MODIFIED. Accordingly, the petitioner is directed to RECONVEY to the respondent the parcel of land covered by TCT No. 195813. Costs against petitioner. SO ORDERED. A.M. No. P-06-2130 June 13, 2011 (formerly A.M. OCA I.P.I. NO. 04-1946-P) SUSANA E. FLORES, Complainant, vs. ARIEL D. PASCASIO, Sheriff III, MTCC, Branch 5, Olongapo City, Respondent. RESOLUTION BRION, J.: This is an administrative complaint filed by Susana E. Flores (complainant) against Ariel R. Pascasio (respondent), Sheriff III in the Municipal Trial Court in Cities (MTCC), Branch 5, Olongapo City, for Grave Misconduct and Grave Abuse of Authority. In her complaint-affidavit dated June 2, 2004, the complainant narrated that on March 5, 2004, an auction sale of a JVC DVD player and a Sony TV set was conducted by the respondent at the Office of the Clerk of Court, Olongapo City. She submitted a bid of Ten Thousand Two Hundred Pesos (P10,200.00) for the two (2) items. During the public auction, the two items were sold separately, the

JVC DVD player for P2,520.00 and the Sony TV set for P2,500.00. The complainant claimed that the respondent manipulated the bidding process to make it appear that she submitted a bid of only One Thousand Two Hundred Pesos (P1,200.00) instead of her bid of Ten Thousand Two Hundred Pesos (P10,200.00). She further alleged that the respondent even scolded her for questioning the conduct of the auction sale. According to her, when she asked the respondent why she lost the bidding, he replied, "Wala kang magagawa dahil ako ang masusunod dito. Ako ang sheriff dito, kung kanino ko gustong mapunta and items, yun ang masusunod."1 In his comment2 dated August 24, 2004, the respondent denied having discriminated against the complainant. He admitted having received the complainants bid, but because it was not itemized, he disregarded it on ground of technicality. While he listed the complainants name in the minutes of the auction sale, no amount was placed opposite her name because her bid was invalid. He explained to the complainant that only itemized bids were considered and that she should have submitted separate bids and not just one bid for the two (2) items. In an Evaluation Report dated November 30, 2005,3 the Office of the Court Administrator (OCA) submitted its findings: The respondent stated in his Minutes of the Auction Sale that the complainant submitted a bid only for the DVD in the amount of P1,200.00. But based on the certified photocopies of the bids of all those who participated in the auction sale, complainants bid of P10,200.00 for the two items was the highest. It must be remembered that this Court has countless times reiterated that the conduct and behavior of everyone connected with an office charged with the dispensation of justice must not only be characterized by propriety and decorum but above else (sic) must be above suspicion. The conduct of the respondent in disregarding the highest bid of the complainant and his making a false entry in the minutes of the auction sale is clearly an act of dishonesty which erodes the faith and confidence of our people in the judiciary.4 The OCA recommended: 1. That the instant administrative complaint be REDOCKETED as a result administrative matter; 2. That Sheriff Ariel R. Pascasio be found GUILTY of Dishonesty in the performance of his official duties; and 3. That Sheriff Pascasio be SUSPENDED for a period of two (2) months and STERNLY WARNED that a repetition of the same or a similar act in the future shall be dealt with more severely.5 Pursuant to the OCAs recommendation, the Court, in a Resolution dated February 15, 2006, directed that the complaint be re-docketed as a regular administrative matter and required the parties to manifest whether they were willing to submit the matter for resolution on the basis of the pleadings filed.6 On March 21, 2006, the complainant, through her counsel Atty. Randy B. Escolango, filed a Manifestation with Motion7 manifesting that she would file a Reply to controvert the respondents allegations in his comment, at the same time asking for an extension of fifteen (15) days for the filing of her reply. Despite several extensions granted, Atty. Escolango failed to file the complainants reply. He was required to show cause why he should not be disciplinary dealt with or held in contempt for his failure,8 and was later imposed a fine of P2,000.00. Finally, on August 22, 2008,

Atty. Escolango complied, claiming that he could no longer locate and contact the complainant. He presumed that the complainant was no longer interested in pursuing the case as the respondent had already been dismissed from the service; thus, it was no longer necessary to file a reply.9 In a Resolution dated December 3, 2008,10 the Court "[deemed] as waived the filing of complainants xxx reply." The case was referred to the Executive Judge of the Regional Trial Court (RTC) of Olongapo City for investigation, report and recommendation in a resolution dated March 4, 2009.11 In a memorandum dated September 24, 2009,12 the OCA reported that the respondent had already been ordered dismissed from the service in the Decision of May 7, 2008 in A.M. No. P-08-2454 entitled "Virgilio A. Musngi v. Ariel R. Pascasio, etc." At the time the present administrative case was referred to the Executive Judge of the RTC of Olongapo City, however, the respondents motion for reconsideration of his dismissal was still pending. It was eventually denied in a resolution dated April 28, 2009. In view thereof, the OCA recommended that the Resolution of March 4, 2009 referring the complaint to the Executive Judge of the RTC of Olongapo City, be set aside for being moot and academic, "respondent Pascasio having been already dismissed from the service and complainant Flores having shown no interest at all to pursue the case." However, the OCA submits that proceedings against respondent may continue without violating his right to due process. He was required to comment on the complaint and he presented evidence to controvert the charges against him.
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The Court agrees with the OCA that the respondent has been accorded due process when he was required to comment on the complaint during the preliminary investigation of the charges against him. While it is true that continued investigation is no longer feasible, the pleadings submitted by both parties are uncontroverted and their submitted evidence are sufficient to determine the respondents culpability. The respondent filed his comment on the complaint against him. Clearly, he was afforded an opportunity to be heard through his pleadings; hence, his right to due process was not impaired. The OCA found the respondent guilty of dishonesty in the performance of official duty instead of grave misconduct and grave abuse of authority as charged. As the penalty of suspension is no longer feasible in view of the respondents dismissal from the service, the OCA recommended that its original recommendation of a two-month suspension be converted into a payment of a two-month salary. In support of its finding that the respondent is guilty of dishonesty, the OCA, in its Evaluation Report of November 30, 2005, reported that the "respondent stated in [the] Minutes of the Auction Sale that the complainant submitted a bid only for the DVD in the amount of P1,200.00." On the other hand, the respondent, in his Comment, claimed that he included the complainants name in the minutes of the auction sale, but he did not place the amount of her bid as the bid was not itemized. A perusal of the minutes of the auction sale, attached to the records of the case, shows that, indeed, the complainants name was included but no amount of bid was indicated opposite her name. The bid of P1,200.00 for the DVD corresponds to the person listed as no. 13 among those who submitted bids. The complainants name was listed as no. 14, the last name on the list. No amount was indicated opposite her name.13 While the complainant may have failed to itemize her bid and to indicate how much she was willing to pay for each item, it is clear from her bid nevertheless that she was bidding for the two items at the combined price ofP10,200.00 when she listed therein, "Item(s): 1. Sony TV-21 inches [and] 2. DVD-JVC."14 In disregarding the bid of the complainant, which was the highest submitted bid, the respondent violated Section 19, Rule 39 of the Rules of Civil Procedure which directs that sale of personal property should be made in such parcels as likely to bring the highest price. The public

auction was conducted by the respondent to sell the levied personal properties in order to enforce the judgment against the defendants in Civil Case No. 16-03 of the MTCC of Olongapo City, Branch 4, to satisfy their indebtedness to the plaintiffs in the amount of P30,000.00. The respondent sold the personal properties for a total of P5,200.00 only, compared to the complainants bid of P10,200.00. Respondents failure to consider the complainants bid prejudiced the plaintiffs right to recover a bigger amount of the defendants indebtedness. Sheriffs play an important role in the administration of justice and high standards are expected of them. Their conduct, at all times, must not only be characterized by propriety and decorum but must, at all times, be above suspicion.15 Part of this stringent requirement is that agents of the law should refrain from the use of abusive, offensive, scandalous, menacing or otherwise improper language. Judicial employees are expected to accord due respect, not only to their superiors, but also to others and their rights at all times. Their every act and word should be characterized by prudence, restraint, courtesy and dignity.16 The respondents arrogant behavior, telling complainant, "Wala kang magagawa dahil ako ang masusunod. Ako ang sheriff dito, kung kanino ko gustong mapunta ang items, yun ang masusunod, was an evident violation of these rules of conduct for judicial employees. The Court defines misconduct as any unlawful conduct, on the part of a person concerned in the administration of justice, prejudicial to the rights of the parties or to the right determination of the cause. It generally means wrongful, improper and unlawful conduct motivated by a premeditated, obstinate or intentional purpose.17 It means intentional wrongdoing or deliberate violations of a rule of law or standard or behavior, especially by a government official. Dishonesty means a disposition to lie, cheat, deceive or defraud; untrustworthiness; lack of integrity, lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; and disposition to defraud, deceive or betray.18 Given the above parameters, the Court finds the respondent guilty of dishonesty as recommended by OCA. Under Section 52, B(2), Rule IV of the Revised Uniform Rules on Administrative Cases in the Civil Service, dishonesty is punishable by dismissal from the service. Since the respondent had previously been ordered dismissed from the service, suspension is no longer possible. Thus, instead of suspension, the respondent, shall be imposed a fine as alternative penalty. We deem the fine equivalent to three- month salary to be appropriate in light of the penalty of dismissal that it replaces and the potential damage that his dishonesty caused. WHEREFORE, the Court finds the respondent Ariel R. Pascacio, Sheriff III, Municipal Trial Court in Cities, Branch 5, Olongapo City, GUILTY of Dishonesty and he is hereby imposed a FINE in the amount equivalent to his three-month salary, deductible from the money value of his accrued leave credits, if he has any. SO ORDERED. A.M. No. P-09-2715 June 13, 2011 (formerly A.M. OCA I.P.I. No. 02-1383-RTJ) OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. EFREN E. TOLOSA, Sheriff IV, Regional Trial Court, Office of the Clerk of Court, Sorsogon City,Respondent. DECISION

BRION, J.: This administrative complaint stemmed from the administrative complaint, docketed as A.M. I.P.I. No. 02-1383-RTJ, filed by Gerardo D. Espiritu against Judge Jose L. Madrid of the Regional Trial Court (RTC), Branch 51, Sorsogon City, and Sheriff Ariosto Letada of the RTC, Branch 52, Sorsogon City, for Undue Delay in the Disposition of a Case and/or Manifest Bias or Partiality relative to the implementation of the Writ of Execution in Civil Case No. 5327, entitled "Loreto Brondial, et al. v. Vicente Go, et al." The complaint in A.M. OCA I.P.I. No. 02-1383-RTJ was dismissed in a Resolution dated September 15, 2003,1 for the failure of complainant Espiritu to substantiate his claim that Judge Madrid and Sheriff Letada conspired with each other in the nonimplementation of the writ. In the same Resolution, the Court directed the Office of the Court Administrator (OCA) to take appropriate action on its report that Efren E. Tolosa, Sheriff IV, Office of the Clerk of Court, RTC, Sorsogon City, who was the one originally designated to implement the writ of execution, violated Section 9, par. 2, Rule 39 of the Rules of Civil Procedure2when he did not turn over the checks that came into his possession to the Clerk of Court of the court that issued the writ on the same day he received them. In a letter dated October 21, 2003 of then Deputy Court Administrator, later Court Administrator and now Justice Jose P. Perez, Tolosa was asked to explain his failure to immediately turn over the checks as required by the Rules. In his letter-explanation dated November 1, 2003,3 Tolosa alleged: (1) he received the checks issued by the defendant in Civil Case No. 5327 but these were postdated and received on the condition that they would be returned to the defendant should the plaintiffs refuse to accept them; (2) the encashed amount of the checks, as well as the checks that have not been encashed, has already been withdrawn by Atty. Rofebar T. Gerona, counsel for the plaintiffs, from the Clerk of Court on December 21, 2000; and (3) there are two plaintiffs in the civil case and "they might have been doing some action without the knowledge of their counsel." The OCA found Tolosas explanation insufficient to excuse him from liability for his patent violation of Section 9, par. 2, Rule 39 of the Rules on Civil Procedure, and recommended that he be fined in the amount of P5,000.00, with a warning that a repetition of the same or similar acts in the future shall be dealt with more severely.4 In a Resolution dated November 16, 2009,5 the Court directed the OCA to docket separately the complaint against Tolosa; hence, the present administrative complaint. Asked to manifest to the Court whether he was willing to submit the case against him for resolution, based on the records/pleadings, Tolosa filed his answer, offering his sincere apology for the "misinterpretation" he had done in connection with the case and praying that the case against him be dismissed.6 The Antecedent Facts Espiritu is one of the legal heirs of one of the plaintiffs in Civil Case No. 5327. In a decision dated March 26, 1990, the RTC ordered the defendants therein, Vicente Go, et al., to pay jointly and severally the plaintiffs the sum ofP20,000.00 as actual or compensatory damages, P5,000.00 as attorneys fees and P3,000.00 as litigation expenses, and to pay the costs, with legal interest from the date of the decision until they are fully paid.7 Both parties appealed to the Court of Appeals (CA). In a decision dated May 14, 1997, the CA affirmed the RTC decision with modification as to the damages awarded to the plaintiffs, as

follows: P80,000.00 as actual or compensatory damages with interest at 6% per annum from the date of the filing of the complaint; P20,000.00 andP10,000.00 as moral and exemplary damages, respectively; P5,000.00 as attorneys fees; and P3,000.00 as litigation expenses, with interest of 6% per annum from the date the defendants were served a copy of the decision of the lower court, until the amounts are actually paid.8 The defendants contested the CA decision in a petition for review on certiorari filed with the Supreme Court. In a Resolution dated October 21, 1998, the Court dismissed the petition. The dismissal became final and executory on December 7, 1998.9 On February 16, 2000, upon the plaintiffs motion, the RTC directed the issuance of a Writ of Execution. Accordingly, Branch Clerk of Court William D. Erlano issued the corresponding Writ of Execution on February 29, 2000, directing the Provincial Sheriff or any of his deputies to enforce and implement the decision "pursuant to the provision of the Rules of Court" and to make a return of the writ "within the time provided for by law."10 The respondent was furnished a copy of the writ on March 31, 2000. Three (3) months thereafter, or on July 3, 2000, the complainants mother wrote Clerk of Court Marilyn D. Valino inquiring about the status of the writ. In a 1st Indorsement dated July 4, 2000,11 Clerk of Court Valino forwarded the letter to Tolosa, directing him to immediately execute and/or implement the Writ of Execution "in accordance with the decision and [in consonance] with the existing rules," and inviting his attention to the provisions of Section 14, Rule 39 of the Rules of Court. On July 17, 2000, Tolosa complied and submitted a Sheriffs Partial Return,12 reporting that he attempted to serve the writ twice, on April 17, 2000 and May 12, 2000, but defendant Vicente Go was not in his house on both occasions. He was able to implement the writ only on June 14, 2000. He reported that he received from defendant Vicente Go several postdated checks in the total amount of P118,000.00, in partial satisfaction of the judgment, and that he informed the complainants counsel of his receipt of the checks. Counsel did not make any comment on whether to accept the checks or not. On September 22, 2000, Espiritu, apparently unaware that there was a partial implementation of the writ, wrote Judge Madrid, complaining that Tolosa has failed to do his task, as mandated by the Rules of Court, despite that "several months have passed" and requesting that a substitute Sheriff be designated.13 In a 1st Indorsement dated September 26, 2000, Judge Madrid required Tolosa to comment on Espiritus letter.14 On October 10, 2000, Tolosa filed his comment/manifestation,15 explaining that as early as July 17, 2000, he already made a partial return of the Writ of Execution and that he had encashed the matured checks in the amount of P60,000.00. On the same day, he deposited the amount of P60,000.00 with the Branch Clerk of Court of the RTC, Branch 51, together with the other postdated checks. He enclosed an Acknowledgment Receipt dated October 10, 2000, signed by Branch Clerk of Court Erlano.16 The Courts Ruling The Court finds that the respondent committed two offenses in this case, (1) failure to make a return of the writ within the period provided by the Rules of Court; and (2) failure to turn over the checks he received by virtue of the implementation of the writ, to the court issuing it within the same day he received them.

Section 14, Rule 39 of the Rules of Court17 makes it mandatory for a sheriff to make a return of the writ of execution to the Clerk of Court or to the Judge issuing it immediately upon satisfaction, in part or in full, of the judgment. If the judgment cannot be satisfied in full, the sheriff shall make a report to the court within thirty (30) days after his receipt of the writ and state why full satisfaction could not be made. The sheriff shall continue to make a report to the court every (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. Failure of a sheriff to make periodic reports on the status of a writ of execution warrants administrative liability.18 The reason behind this requirement is to update the court on the status of the execution and to take the necessary steps to ensure the speedy execution of decisions.19 The writ was placed in the hands of Tolosa on March 31, 2000 but he submitted a Sheriffs Partial Return only on July 17, 2000. He submitted the return only after Espiritus mother wrote Clerk of Court Valino, complaining that he had not taken any action on the writ. Tolosa attributes the delay in the submission of his Sheriffs Return on the failure of the plaintiffs to decide whether or not to accept the checks delivered to him. He allegedly verbally informed Atty. Gerona, the plaintiffs counsel, but the latter could not definitely decide what to do with the checks. He believed that Atty. Gerona was the proper person to know because he was the one who requested the implementation of the writ. He further claimed that he was not sure whom to deal with because there were several persons claiming to be the legal heirs and persistently making demands from him of the amounts he received. The Court finds Sheriff Tolosas explanation on his delay to make a return of the writ in due time flimsy and untenable. The duty of a sheriff to make a return of the writ is ministerial and it is not his duty to wait for the plaintiff to decide whether or not to accept the checks as payment. A purely ministerial act or duty is one which an officer or tribunal performs in the context of a given set of facts, in a prescribed manner and without regard to the exercise of his own judgment, upon the propriety or impropriety of the act done.20 When a writ is placed in the hands of a sheriff, it is his duty, in the absence of any instructions to the contrary, to proceed with celerity and promptness to execute it according to its mandate.21 The Writ of Execution, issued by Branch Clerk of Court Erlano, specifically directed Tolosa to enforce and implement the decision "pursuant to the provision of the Rules of Court," and to return the writ "within the time provided for by law"22 but he simply ignored the instructions to him. The OCA correctly found that Tolosa violated Section 9, par. 2, Rule 39 of the Rules of Civil Procedure when he failed to turn over all the amounts he received by reason of implementing the writ, within the same day to the clerk of court that issued it. Sheriff Tolosa received, on June 14, 2000 from defendant Vicente Go five (5) checks, in varying amounts and different dates of maturity in the total amount of P118,000.00, in partial satisfaction of the judgment in favor of the plaintiffs. He encashed the matured check for P60,000.00, without having been authorized to do so. He kept in his possession the P60,000.00 cash and the four remaining checks. He turned them over to the clerk of court only on October 10, 2000. The amount of P60,000.00 and the four postdated checks were eventually delivered to the plaintiffs only on December 21, 2000. Tolosas acts of keeping and encashing the checks that matured spawned suspicion regarding his true intentions.
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A sheriff has no discretion whatsoever with respect to the disposition of the amounts he receives. If he finds that there is a need to clarify what to do with the checks, prudence and reasonableness dictate that clarification be sought immediately from the clerk or judge issuing it. He cannot escape liability for the "misinterpretation" he had done in connection with the case. Having been in the service for more than 26 years, respondent sheriff cannot wrongly interpret basic rules without appearing grossly incompetent or in bad faith.23

As an officer of the court, sheriffs are chargeable with the knowledge of what is the proper action to take in case there are questions in the writ which need to be clarified, and the knowledge of what he is bound to comply.24 He is expected to know the rules of procedure pertaining to his functions as an officer of the court,25 relative to the implementation of writs of execution, and should, at all times, show a high degree of professionalism in the performance of his duties. Any act deviating from the procedure laid down by the Rules is misconduct that warrants disciplinary action.26 Misconduct is defined as a transgression of some established or definite rule of action; more particularly, it is an unlawful behavior by the public officer. The misconduct is grave if it involves any of the additional elements of corruption, and willful intent to violate the law or to disregard established rules. For clear violation of established rules, coupled with having encashed the checks which matured without having been authorized to do so, the Court finds Tolosa guilty of Grave Misconduct, tempered only by his length of service. The Court takes into consideration Tolosas long years of service in the judiciary of about 25 years. Thus, in lieu of the dismissal that Section 52(A)(3), Rule IV of the Revised Uniform Rules on Administrative Cases in the Civil Service commands, we find the penalty of suspension for six (6) months appropriate. WHEREFORE, Sheriff Efren E. Tolosa, Sheriff IV, Regional Trial Court, Office of the Clerk of Court, Sorsogon City is found GUILTY of grave misconduct and he is hereby imposed the penalty of SUSPENSION of six (6) months without pay with a STERN WARNING that a repetition of the same or similar acts shall be dealt with more severely. SO ORDERED. G.R. No. 182918 June 6, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. EFREN PATELAN LAMBERTE @ "KALBO" and MARCELINO RUIZ NIMUAN @ "CELINE," Accused, MARCELINO RUIZ NIMUAN, Appellant. DECISION BRION, J.: We decide the appeal filed by accused Marcelino Ruiz Nimuan (appellant)1 from the November 23, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02352.2 The Factual Antecedents On November 25, 2004, the appellant, together with Efren Patelan Lamberte,3 was charged with murder4 before the Regional Trial Court (RTC), Branch 31, Agoo, La Union.5 A year and a half later, on April 7, 2006, the appellant was arrested.6 On April 12, 2006, the prosecution filed an amended information charging the appellant and Lamberte with the same crime of murder.7 The appellant pleaded not guilty when arraigned.8 His co-accused, Lamberte, remained at large. At the trial that followed, the prosecution established the facts outlined below. At about 6:00 p.m. of September 22, 2004, Eulalia Garcia was tending her sari-sari store along the National Highway in San Eugenio, Aringay, La Union when the appellant and Lamberte came to borrow her gas lamp. She noticed that both were drunk and armed. They said they were looking for

a bullet that fell on the ground. After finding the bullet, she asked them where they were going and they answered, "We are going to kill the doctor." The two then waited under a mango tree. Shortly thereafter, the victim (Dr. Jose Villanueva), on board a truck, passed by Garcias store on the way to his poultry farm. The appellant and Lamberte followed on foot. Ten (10) minutes later, Garcia heard two (2) gunshots coming from the direction of the poultry farm.9 It appears that the victim arrived at his poultry farm at around 7:00 p.m. to deliver medicines and bread to his workers, Alvin Manolong, Crispino Yaranon and Ferrer Anasario. After the delivery, the victim instructed the workers to resume their work. The workers then proceeded to Building 1 and left the victim standing beside his truck near Building 5.10 Subsequently, the workers heard gunfire coming from the victims direction. Manolong went down to investigate. On hearing a second shot, Manolong ran towards the parked truck and saw the victim lying on the ground with a gunshot wound in his stomach. Manolong called his companions, yelling that the victim had been shot.11 On hearing Manolongs cries for help, Yaranon and Anasario ran toward Building 5. On the way, they met the appellant and Lamberte. The appellant kicked Yaranon three times and hit him on the stomach with the butt of the carbine he was holding, while Lamberte poked a shotgun at Anasario. The appellant and Lamberte threatened Yaranon and Anasario with harm should they tell anyone that they (the appellant and Lamberte) were responsible for the killing of the victim. The appellant and Lamberte then left, going northward in the direction of the mango plantation, owned by Atty. Paulino Cases, where both worked as security guards.12 A postmortem examination confirmed that the victim died from shotgun wounds in the back.13 The victims widow, Dr. Eufemia Villanueva, presented in court the official receipts, amounting to P56,500.00, for the victims funeral and burial,14 and the victims 2003 and 2004 income tax returns to establish loss of earning capacity.15 The appellant denied any participation in the killing of the victim, and pointed to Lamberte as the person solely responsible. He claimed that he merely accompanied Lamberte to the victims farm when the latter suddenly shot the victim; Lamberte threatened him with death if he (appellant) did not escape with him.16 The RTC Ruling In its May 31, 2006 Decision, the RTC found the appellant guilty of murder. It gave credence to the positive testimony of the prosecution witnesses who saw the accused before and after the shooting incident, thus pointing to a conspiracy in the killing of the victim. It rejected the appellants denial of criminal liability. In imposing the death penalty, the RTC appreciated the qualifying and aggravating circumstances of treachery, evident premeditation and nighttime, without, however, explaining its reasons. The RTC ordered the appellant to pay the heirs of the victim P3 million in lost income, P8 million as moral damages, P2 million as exemplary damages, P100,000.00 as civil indemnity, and P60,000.00 as actual damages.17 The CA Ruling On intermediate appellate review, the CA fully agreed with the RTCs appreciation of the adduced evidence. While the appellate court appreciated the qualifying circumstance of treachery because the appellant was shot at the back, it disregarded nighttime as an aggravating circumstance because it is absorbed by treachery. The CA appreciated evident premeditation because the accused had sufficient time to reflect on the consequences of their acts from the time they told Garcia that they

would kill the victim to the time of killing. It likewise appreciated in the appellants favor the mitigating circumstance of intoxication because Garcia testified that the accused were drunk. Since the mitigating circumstance of intoxication offsets the aggravating circumstance of evident premeditation, the CA sentenced the appellant to suffer the penalty of reclusion perpetua. On civil indemnity, the appellate court modified the amounts awarded by the RTC. Civil indemnity and moral damages were reduced to P50,000.00 each, while the amount of exemplary damages was reduced to P25,000.00, consistent with prevailing jurisprudence. The amount of actual damages was reduced to P56,150.00, based on actual receipted expenses.18 The amount for loss of earning capacity was reduced to P622,453.95,19 based on the victims income tax returns20 from 2002 to 2004.21 From the CA, the case is now with us for final review. Our Ruling We affirm the appellants conviction for murder. The testimonies of the prosecution witnesses clearly prove that a conspiracy existed in the commission of the crime. Garcia testified that the appellant and Lamberte had the common design of killing the victim. The fact that each one was armed with a firearm shows that they acted with the singular purpose of killing the victim. Both accused threatened workers Manolong, Yaranon and Anasario with harm should they tell anyone that they (accused) killed the victim. Under these facts, it does not matter who actually shot the victim because of the conspiracy that existed. In conspiracy, the act of one is the act of all; each of the accused is equally guilty of the crime committed.22 The CA correctly appreciated the qualifying circumstance of treachery as the victim was shot at the back.23 The attack was deliberate, sudden and unexpected; it afforded the unsuspecting victim no opportunity to resist or defend himself.24 Nonetheless, we find that the CA misappreciated the aggravating circumstance of evident premeditation. For evident premeditation to be appreciated, there must be proof, as clear as the evidence of the crime itself, of (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the accused clung to his determination; and (3) a sufficient lapse of time between determination and execution to allow himself time to reflect upon the consequences of his act.25 In this case, there is dearth of evidence on when the accused first conceived of killing the victim and that they were afforded sufficient time to reflect on the consequences of their contemplated crime before its final execution. Moreover, the span of time (less than thirty minutes), from the time the accused showed their determination to kill the victim (when they told Garcia that they were "going to kill the doctor") up to the time they shot the victim, could not have afforded them full opportunity for meditation and reflection on the consequences of the crime they committed.26 Thus, the circumstance of evident premeditation cannot be appreciated. We also find that the CA erred in crediting the appellant with the mitigating circumstance of intoxication simply because Garcia testified that "the accused were both drunk."27 For intoxication to be considered as a mitigating circumstance, it must be shown that the intoxication impaired the willpower of the accused that he did not know what he was doing or could not comprehend the wrongfulness of his acts.28

In this case, there is no convincing proof of the nature and effect of the appellants intoxication. The mitigating circumstance of intoxication cannot be appreciated in the appellants favor merely on the testimony of a prosecution witness that he was drunk during the incident.29 Such testimony does not warrant a conclusion that the degree of the accuseds intoxication had affected his faculties.30
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The penalty for murder is reclusion perpetua to death under Article 248 of the Revised Penal Code, as amended. Since neither aggravating nor mitigating circumstances attended the commission of the felony, the proper imposable penalty on the appellant is reclusion perpetua. Lastly, we find it necessary to increase to P30,000.00 the amount of exemplary damages, to conform with recent jurisprudence.31 WHEREFORE, the November 23, 2007 Decision of the Court of Appeals in CA-G.R. CR-HC No. 02352 is herebyAFFIRMED with MODIFICATION. Appellant Marcelino Ruiz Nimuan is found guilty of murder as defined and penalized under Article 248 of the Revised Penal Code, and is sentenced to reclusion perpetua. He is further ordered to pay the heirs of Dr. Jose Villanueva P50,000.00 as civil indemnity ex delicto, P56,150.00 as actual damages, P50,000.00 as moral damages, P30,000.00 as exemplary damages, and P622,453.95 as indemnification for loss of earning capacity. SO ORDERED. G.R. No. 168335 June 6, 2011

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. NESTOR GALANG, Respondent. DECISION BRION, J.: We resolve the Petition for Review on Certiorari1 filed by the Republic of the Philippines (petitioner), challenging the decision2 dated November 25, 2004 and the resolution3 dated May 9, 2005 of the Court of Appeals (CA) in CA-G.R. CV No. 70004. The challenged decision affirmed the decision4 of the Regional Trial Court (RTC), Branch 62, Angeles City, declaring the marriage of Nestor Galang (respondent) and Juvy Salazar null and void on the ground of the latters psychological incapacity. The assailed resolution denied the petitioners motion for reconsideration. Antecedent Facts On March 9, 1994, the respondent and Juvy contracted marriage in Pampanga. They resided in the house of the respondents father in San Francisco, Mabalacat, Pampanga. The respondent worked as an artist-illustrator at the Clark Development Corporation, earning P8,500.00 monthly. Juvy, on the other hand, stayed at home as a housewife. They have one child, Christopher. On August 4, 1999, the respondent filed with the RTC a petition for the declaration of nullity of his marriage with Juvy, under Article 36 of the Family Code, as amended. The case was docketed as Civil Case No. 9494. He alleged that Juvy was psychologically incapacitated to exercise the essential obligations of marriage, as she was a kleptomaniac and a swindler. He claimed that Juvy stole his ATM card and his parents money, and often asked money from their friends and relatives

on the pretext that Christopher was confined in a hospital. According to the respondent, Juvy suffers from "mental deficiency, innate immaturity, distorted discernment and total lack of care, love and affection [towards him and their] child." He posited that Juvys incapacity was "extremely serious" and "appears to be incurable."5 The RTC ordered the city prosecutor to investigate if collusion existed between the parties. Prosecutor Angelito I. Balderama formally manifested, on October 18, 1999, that he found no evidence of collusion between the parties. The RTC set the case for trial in its Order of October 20, 1999. The respondent presented testimonial and documentary evidence to substantiate his allegations. In his testimony, the respondent alleged that he was the one who prepared their breakfast because Juvy did not want to wake up early; Juvy often left their child to their neighbors care; and Christopher almost got lost in the market when Juvy brought him there.6 The respondent further stated that Juvy squandered the P15,000.00 he entrusted to her. He added that Juvy stole his ATM card and falsified his signature to encash the check representing his (the respondents) fathers pension. He, likewise, stated that he caught Juvy playing "mahjong" and "kuwaho" three (3) times. Finally, he testified that Juvy borrowed money from their relatives on the pretense that their son was confined in a hospital.7 Aside from his testimony, the respondent also presented Anna Liza S. Guiang, a psychologist, who testified that she conducted a psychological test on the respondent. According to her, she wrote Juvy a letter requesting for an interview, but the latter did not respond.8 In her Psychological Report, the psychologist made the following findings: Psychological Test conducted on client Nestor Galang resembles an emotionally-matured individual. He is well-adjusted to the problem he meets, and enable to throw-off major irritations but manifest[s] a very low frustration tolerance which means he has a little ability to endure anxiety and the client manifests suppressed feelings and emotions which resulted to unbearable emotional pain, depression and lack of self-esteem and gained emotional tensions caused by his wifes behavior. The incapacity of the defendant is manifested [in] such a manner that the defendant-wife: (1) being very irresponsible and very lazy and doesnt manifest any sense of responsibility; (2) her involvement in gambling activities such as mahjong and kuwaho; (3) being an estafador which exhibits her behavioral and personality disorders; (4) her neglect and show no care attitude towards her husband and child; (5) her immature and rigid behavior; (6) her lack of initiative to change and above all, the fact that she is unable to perform her marital obligations as a loving, responsible and caring wife to her family. There are just few reasons to believe that the defendant is suffering from incapacitated mind and such incapacity appears to be incorrigible. xxx The following incidents are the reasons why the couple separated: 1. After the marriage took place, the incapacity of the defendant was manifested on such occasions wherein the plaintiff was the one who prepared his breakfast, because the defendant doesnt want to wake up early; this became the daily routine of the plaintiff before reporting to work;

2. After reporting from work, the defendant was often out gambling, as usual, the plaintiff was the one cooking for supper while the defendant was very busy with her gambling activities and never attended to her husbands needs; 3. There was an occasion wherein their son was lost in the public market because of the irresponsible attitude of the defendant; 4. That the defendant suffers from personality and behavioral disorders, there was an occasion wherein the defendant [would] steal money from the plaintiff and use them for gambling; 5. Defendant, being an estafador had been manifested after their marriage took place, wherein the defendant would come with stories so that people [would] feel pity on her and give her money. Through false pretenses she [would] be able to deceive and take money from neighbors, relatives and other people. 6. That the plaintiff convinced the defendant to stop her unhealthy lifestyle (gambling), but the defendant never listened to his advices; 7. That the plaintiff was the one who [was] taking care of their son, when the plaintiff will leave for work, the defendant [would] entrust their son to their neighbor and go [to] some place. This act reflects the incapacity of the defendant by being an irresponsible mother; 8. That the defendant took their son and left their conjugal home that resulted into the couples separation. Psychological findings tend to confirm that the defendant suffers from personality and behavioral disorders. These disorders are manifested through her grave dependency on gambling and stealing money. She doesnt manifest any sense of responsibility and loyalty and these disorders appear to be incorrigible. The plaintiff tried to forget and forgive her about the incidents and start a new life again and hoping she would change. Tried to get attention back by showing her with special care, treating her to places for a weekend vacation, cook[ing] her favorite food, but the defendant didnt care to change, she did not prepare meals, wash clothes nor clean up. She neglected her duties and failed to perform the basic obligations as a wife. So in the view of the above-mentioned psychological findings, it is my humble opinion that there is sufficient reason to believe that the defendant wife is psychologically incapacitated to perform her marital duties as a wife and mother to their only son.9 The RTC Ruling The RTC nullified the parties marriage in its decision of January 22, 2001. The trial court saw merit in the testimonies of the respondent and the psychologist, and concluded that: After a careful perusal of the evidence in the instant case and there being no controverting evidence, this Court is convinced that as held in Santos case, the psychological incapacity of respondent to comply with the essential marital obligations of his marriage with petitioner, which Dr. Gerardo Veloso said can be characterized by (a) gravity because the subject cannot carry out the normal and ordinary duties of marriage and family shouldered by any average couple existing under ordinary

circumstances of life and work; (b) antecedence, because the root cause of the trouble can be traced to the history of the subject before marriage although its overt manifestations appear over after the wedding; and (c) incurability, if treatments required exceed the ordinary means or subject, or involve time and expense beyond the reach of the subject are all obtaining in this case. xxxx WHEREFORE, premises considered, the instant petition is granted and the marriage between petitioner and defendant is hereby declared null and void pursuant to Article 36 of the Family Code of the Philippines.10 The CA Decision The petitioner, through the Office of the Solicitor General, appealed the RTC decision to the CA. The CA, in its decision dated November 25, 2004, affirmed the RTC decision in toto. The CA held that Juvy was psychologically incapacitated to perform the essential marital obligations. It explained that Juvys indolence and lack of sense of responsibility, coupled with her acts of gambling and swindling, undermined her capacity to comply with her marital obligations. In addition, the psychologist characterized Juvys condition to be permanent, incurable and existing at the time of the celebration of her marriage with the respondent.11 The petitioner moved to reconsider this Decision, but the CA denied his motion in its resolution dated May 9, 2005.12 The Petition and the Issues The petitioner claims in the present petition that the totality of the evidence presented by the respondent was insufficient to establish Juvys psychological incapacity to perform her essential marital obligations. The petitioner additionally argues that the respondent failed to show the juridical antecedence, gravity, and incurability of Juvys condition.13 The respondent took the exact opposite view. The issue boils down to whether there is basis to nullify the respondents marriage to Juvy on the ground that at the time of the celebration of the marriage, Juvy suffered from psychological incapacity that prevented her from complying with her essential marital obligations. The Courts Ruling After due consideration, we resolve to grant the petition, and hold that no sufficient basis exists to annul the marriage on the ground of psychological incapacity under the terms of Article 36 of the Family Code. Article 36 of the Family Code and Related Jurisprudence Article 36 of the Family Code provides that "a marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization."14

In Leouel Santos v. Court of Appeals, et al.,15 the Court first declared that psychological incapacity must be characterized by (a) gravity; (b) juridical antecedence; and (c) incurability. The defect should refer to "no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage." It must be confined to "the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage."16 We laid down more definitive guidelines in the interpretation and application of Article 36 of the Family Code in Republic of the Philippines v. Court of Appeals and Roridel Olaviano Molina, whose salient points are footnoted below.17 These guidelines incorporate the basic requirements we established in Santos.18 In Brenda B. Marcos v. Wilson G. Marcos,19 we further clarified that it is not absolutely necessary to introduce expert opinion in a petition under Article 36 of the Family Code if the totality of evidence shows that psychological incapacity exists and its gravity, juridical antecedence, and incurability can be duly established. Thereafter, the Court promulgated A.M. No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages)20 which provided that "the complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged." Our 2009 ruling in Edward Kenneth Ngo Te v. Rowena Ong Gutierrez Yu-Te21 placed some cloud in the continued applicability of the time-tested Molina22 guidelines. We stated in this case that instead of serving as a guideline, Molina unintentionally became a straightjacket; it forced all cases involving psychological incapacity to fit into and be bound by it. This is contrary to the intention of the law, since no psychological incapacity case can be considered as completely on "all fours" with another. Benjamin G. Ting v. Carmen M. Velez-Ting23 and Jocelyn M. Suazo v. Angelito Suazo,24 however, laid to rest any question regarding the continued applicability of Molina.25 In these cases, we clarified that Ngo Te26 did not abandon Molina.27 Far from abandoning Molina,28 Ngo Te29 simply suggested the relaxation of its stringent requirements. We also explained that Suazo30 that Ngo Te31 merely stands for a more flexible approach in considering petitions for declaration of nullity of marriages based on psychological incapacity.32 The Present Case In the present case and using the above guidelines, we find the totality of the respondents evidence the testimonies of the respondent and the psychologist, and the latters psychological report and evaluation insufficient to prove Juvys psychological incapacity pursuant to Article 36 of the Family Code. a. The respondents testimony The respondents testimony merely showed that Juvy: (a) refused to wake up early to prepare breakfast; (b) left their child to the care of their neighbors when she went out of the house; (c) squandered a huge amount of theP15,000.00 that the respondent entrusted to her; (d) stole the respondents ATM card and attempted to withdraw the money deposited in his account; (e) falsified the respondents signature in order to encash a check; (f) made up false stories in order to borrow money from their relatives; and (g) indulged in gambling. These acts, to our mind, do not per se rise to the level of psychological incapacity that the law requires. We stress that psychological incapacity must be more than just a "difficulty," "refusal" or "neglect" in the performance of some marital obligations. In Republic of the Philippines v. Norma

Cuison-Melgar, et al.,33 we ruled that it is not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he or she must be shown to be incapable of doing so because of some psychological, not physical, illness. In other words, proof of a natal or supervening disabling factor in the person an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage had to be shown.34 A cause has to be shown and linked with the manifestations of the psychological incapacity. The respondents testimony failed to show that Juvys condition is a manifestation of a disordered personality rooted in some incapacitating or debilitating psychological condition that rendered her unable to discharge her essential marital obligation. In this light, the acts attributed to Juvy only showed indications of immaturity and lack of sense of responsibility, resulting in nothing more than the difficulty, refusal or neglect in the performance of marital obligations. In Ricardo B. Toring v. Teresita M. Toring,35 we emphasized that irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility, and the like do not by themselves warrant a finding of psychological incapacity, as these may only be due to a person's difficulty, refusal or neglect to undertake the obligations of marriage that is not rooted in some psychological illness that Article 36 of the Family Code addresses. In like manner, Juvys acts of falsifying the respondents signature to encash a check, of stealing the respondents ATM, and of squandering a huge portion of the P15,000.00 that the respondent entrusted to her, while no doubt reprehensible, cannot automatically be equated with a psychological disorder, especially when the evidence shows that these were mere isolated incidents and not recurring acts. Neither can Juvys penchant for playing mahjong and kuwaho for money, nor her act of soliciting money from relatives on the pretext that her child was sick, warrant a conclusion that she suffered from a mental malady at the time of the celebration of marriage that rendered her incapable of fulfilling her marital duties and obligations. The respondent, in fact, admitted that Juvy engaged in these behaviors (gambling and what the respondent refers to as "swindling") only two (2) years after their marriage, and after he let her handle his salary and manage their finances. The evidence also shows that Juvy even tried to augment the familys income during the early stages of their marriage by putting up a sari-sari store and by working as a manicurist. b. The Psychologists Report The submitted psychological report hardly helps the respondents cause, as it glaringly failed to establish that Juvy was psychologically incapacitated to perform her essential marital duties at the material time required by Article 36 of the Family Code. To begin with, the psychologist admitted in her report that she derived her conclusions exclusively from the information given her by the respondent. Expectedly, the respondents description of Juvy would contain a considerable degree of bias; thus, a psychological evaluation based on this onesided description alone can hardly be considered as credible or sufficient. We are of course aware of our pronouncement in Marcos36 that the person sought to be declared psychologically incapacitated need not be examined by the psychologist as a condition precedent to arrive at a conclusion. If the incapacity can be proven by independent means, no reason exists why such independent proof cannot be admitted to support a conclusion of psychological incapacity, independently of a psychologists examination and report. In this case, however, no such independent evidence has ever been gathered and adduced. To be sure, evidence from independent sources who intimately knew Juvy before and after the celebration of her marriage would have made a lot of difference and could have added weight to the psychologists report.

Separately from the lack of the requisite factual basis, the psychologists report simply stressed Juvys negative traits which she considered manifestations of Juvys psychological incapacity (e.g., laziness, immaturity and irresponsibility; her involvement in swindling and gambling activities; and her lack of initiative to change), and declared that "psychological findings tend to confirm that the defendant suffers from personality and behavioral disorders x x x she doesnt manifest any sense of responsibility and loyalty, and these disorders appear to be incorrigible."37 In the end, the psychologist opined without stating the psychological basis for her conclusion that "there is sufficient reason to believe that the defendant wife is psychologically incapacitated to perform her marital duties as a wife and mother to their only son."38 We find this kind of conclusion and report grossly inadequate. First, we note that the psychologist did not even identify the types of psychological tests which she administered on the respondent and the root cause of Juvys psychological condition. We also stress that the acts alleged to have been committed by Juvy all occurred during the marriage; there was no showing that any mental disorder existed at the inception of the marriage. Second, the report failed to prove the gravity or severity of Juvys alleged condition, specifically, why and to what extent the disorder is serious, and how it incapacitated her to comply with her marital duties. Significantly, the report did not even categorically state the particular type of personality disorder found. Finally, the report failed to establish the incurability of Juvys condition. The reports pronouncements that Juvy "lacks the initiative to change" and that her mental incapacity "appears incorrigible"39 are insufficient to prove that her mental condition could not be treated, or if it were otherwise, the cure would be beyond her means to undertake. c. The Psychologists Testimony The psychologists court testimony fared no better in proving the juridical antecedence, gravity or incurability of Juvys alleged psychological defect as she merely reiterated what she wrote in her report i.e., that Juvy was lazy and irresponsible; played mahjong and kuhawo for money; stole money from the respondent; deceived people to borrow cash; and neglected her child without linking these to an underlying psychological cause. Again, these allegations, even if true, all occurred during the marriage. The testimony was totally devoid of any information or insight into Juvys early life and associations, how she acted before and at the time of the marriage, and how the symptoms of a disordered personality developed. Simply put, the psychologist failed to trace the history of Juvys psychological condition and to relate it to an existing incapacity at the time of the celebration of the marriage. She, likewise, failed to successfully prove the elements of gravity and incurability. In these respects, she merely stated that despite the respondents efforts to show love and affection, Juvy was hesitant to change. From this premise, she jumped to the conclusion that Juvy appeared to be incurable or incorrigible, and would be very hard to cure. These unfounded conclusions cannot be equated with gravity or incurability that Article 36 of the Family Code requires. To be declared clinically or medically incurable is one thing; to refuse or be reluctant to change is another. To hark back to what we earlier discussed, psychological incapacity refers only to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.40
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The Constitution sets out a policy of protecting and strengthening the family as the basic social institution, and marriage is the foundation of the family. Marriage, as an inviolable institution protected by the State, cannot be dissolved at the whim of the parties. In petitions for the declaration of nullity of marriage, the burden of proof to show the nullity of marriage lies with the plaintiff.41 Unless the evidence presented clearly reveals a situation where the parties, or one of them, could not have validly entered into a marriage by reason of a grave and serious psychological

illness existing at the time it was celebrated, we are compelled to uphold the indissolubility of the marital tie.42 WHEREFORE, in view of these considerations, we GRANT the petition. We SET ASIDE the Decision and the Resolution of the Court of Appeals, dated November 25, 2004 and May 9, 2005, respectively, in CA-G.R. CV No. 70004. Accordingly, we DISMISS respondent Nestor Galangs petition for the declaration of nullity of his marriage to Juvy Salazar under Article 36 of the Family Code. Costs against respondent Nestor Galang. SO ORDERED. A.M. No. SCC-11-16-P June 1, 2011 (formerly A.M. OCA I.P.I No. 10-33-SCC [P] SULTAN PANDAGARANAO A. ILUPA, Complainant, vs. MACALINOG S. ABDULLAH, Clerk of Court II, Shari'a Circuit Court, Marawi City, Respondent. RESOLUTION BRION, J.: The present administrative matter stemmed from the November 29, 2009 letter-complaint1 of Sultan Pandagaranao A. Ilupa (complainant) charging Clerk of Court II Macalinog S. Abdullah (respondent) of the Sharia Circuit Court (SCC) in Marawi City with abuse of authority in relation with the issuance of a certificate of divorce. The Facts The facts are summarized from the report of the Office of the Court Administrator (OCA) dated July 9, 2010.2 The charge The complainant alleges in support of the charge that the respondent exhibited ignorance of his duties as clerk of court when he issued a certificate of divorce, (OCRG Form No. 102) relying mainly on an illegal "Kapasadan" or Agreement. He claims that the agreement was executed under duress and intimidation; the certificate of divorce itself is defective and unreliable as there were erroneous entries in the document and unfilled blanks. He claims that the respondent took away his beautiful wife by force or had a personal interest in her. The complainant believes that the respondent should not have issued the divorce certificate because divorce is not recognized in the country and the "Kapasadan" or separation agreement had already been revoked by Philippine civil law. In a supplemental letter,3 the complainant alleges that he signed the "Kapasadan" because the Principal of the Mindanao State University, a certain Mackno, and Police Officer Hadji Amin threatened to kill him. For this reason, he wrote a letter to the SCC judge of Marawi City, assailing the agreement; he even personally handed a copy of the letter to the respondent who took no action on the matter. To save his marriage with Nella Rocaya Mikunug originally solemnized on May 19, 1959, based on the Maranao culture, and later renewed through a civil wedding before a Marawi City judge the

complainant filed a petition for restitution of marital rights4 with the SCC, Marawi City. To his dismay, the judge dismissed the petition without any notice or summons to him. He suspects that the dismissal was due to the respondents "hukos-pukos" or manipulation. The respondents comment In his comment dated March 19, 2010,5 the respondent prays that the complaint be denied for lack of merit. He mainly argues that his issuance of a certificate of divorce is not illegal, capricious or whimsical as he acted within the bounds of his authority. He explains that as court registrar, it is his ministerial duty to accept and register marriage contracts, conversions to Islam and divorce certificates. When he performs this duty, he assumes no responsibility with respect to the entries made by the applicants or owners of the documents to be registered. The respondent argues that contrary to the complainants claim, there was a divorce agreement, in the Maranao dialect, attached to the divorce certificate. The complainant even signed both pages of the agreement. Although the agreement was not labeled as such, its essence indicates that the couple agreed to have a divorce and it was so understood also by their children and the witnesses who signed the agreement. The respondent denies that he took the complainants wife by force or that he was interested in her; he claims that no evidence was ever adduced to prove these allegations. With the divorce agreement, Mrs. Ilupa applied for a certificate of divorce which he issued under Divorce Registry No. 2009-027 on November 5, 2009. He points out that in issuing the certificate of divorce, he observed the same procedure applied to all applicants or registrants. On the complainants claim that there is no divorce in the Philippines, the respondent points out that this is true only as far as the civil law is concerned, but not under the Muslim Law which recognizes divorce. The civil marriage they subsequently entered into was just an affirmation of their marriage vows under the Muslim Law. Also, the courts dismissal of the complainants petition for restitution of marital rights6 affirmed the divorce between the Ilupa couple. The administrative investigation In compliance with the Courts Resolution dated August 25, 2010,7 Executive Judge Gamor B. Disalo of the RTC, 12th Judicial Region, Marawi City, investigated the complaint, and submitted a Report and Recommendation dated January 19, 2010.8 It appears from the report that Judge Disalo heard the complaint three times, i.e., on December 15, 22 and 29, 2010. The respondent appeared at the hearing on December 15, 2010 and reiterated the arguments he earlier raised in his comment. He failed to appear at the subsequent hearings. The complainants non-cooperation prompted Judge Disalo to close the investigation and to conclude, based on the facts gathered by the OCA and on the cited applicable laws, that sufficient grounds existed to dismiss the complaint. The Courts Ruling We agree with the OCA and Judge Disalo that the complaint is devoid of merit. The issuance of a certificate of divorce is within the respondents duties, as defined by law. Articles 81 and 83 of the Muslim Code of the Philippines provide:

Article 81. District Registrar. - The Clerk of Court of the Sharia District Court shall, in addition to his regular functions, act as District Registrar of Muslim Marriages, Divorces, Revocations of Divorces, and Conversions within the territorial jurisdiction of said court. The Clerk of Court of the Sharia Circuit Court shall act as Circuit Registrar of Muslim Marriages, Divorces, Revocations of Divorces, and Conversations within his jurisdiction. Article 83. Duties of Circuit Registrar. - Every Circuit Registrar shall: a) File every certificate of marriage (which shall specify the nature and amount of the dower agreed upon), divorce or revocation of divorce and conversion and such other documents presented to him for registration; b) Compile said certificates monthly, prepare and send any information required of him by the District Registrar; c) Register conversions involving Islam; d) Issue certified transcripts or copies of any certificate or document registered upon payment of the required fees[.] We quote with approval the following excerpt from the OCAs Report: Evidently, respondent Clerk of Court merely performed his ministerial duty in accordance with the foregoing provisions. The alleged erroneous entries on the Certificate of Divorce cannot be attributed to respondent Clerk of Court considering that it is only his duty to receive, file and register the certificate of divorce presented to him for registration. Further, even if there were indeed erroneous entries on the certificate of divorce, such errors cannot be corrected nor cancelled through [his] administrative complaint. Anent the legality of the divorce of the complainant and Dr. Nella Rocaya Mikunug-Ilupa, this Office is bereft of any authority to rule on the matter. The issue is judicial in nature which cannot be assailed through this administrative proceeding. Finally, on the allegation that the respondent Clerk of Court manipulated the dismissal of his petition for restitution of marital rights, we find the same unsubstantiated. Aside from complainants bare allegation, there was no substantial evidence presented to prove the charge. It is a settled rule in administrative proceedings that the complainant has the burden of proving the allegations in his or her complaint with substantial evidence. In the absence of evidence to the contrary, the presumption that the respondent has regularly performed his duties will prevail (Rafael Rondina, et al. v. Associate Justice Eloy Bello, Jr., A.M. No. CA-5-43, 8 July 2005).
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RECOMMENDATION: Respectfully submitted, for the consideration of the Honorable Court, is the recommendation that the administrative case against Macalinog S. Abdullah, Clerk of Court II, Sharia Circuit Court, Marawi City, be DISMISSED for lack of merit.9 We find this evaluation and recommendation fully in order, and accordingly approve the Report. Thus, the complaint should be dismissed for lack of merit. WHEREFORE, premises considered, the administrative matter against Macalinog S. Abdullah, Clerk of Court II, Sharia Circuit Court, Marawi City, for abuse of authority is DISMISSED for lack of merit.

SO ORDERED. A.M. No. P-10-2794 June 1, 2011 (formerly A.M. OCA I.P.I. No. 08-2937-P) DANELLA G. SONIDO, Complainant, vs. JOSEFINA G. ILOCSO, Clerk III, Regional Trial Court, Branch 80, Morong, Rizal, Respondent. DECISION BRION, J.: We resolve the present administrative matter which arose from the affidavit-complaint filed, on September 5, 2008,1 by Danella G. Sonido (Sonido), charging Clerk III Josefina G. Ilocso, Regional Trial Court, Branch 80, Morong, Rizal (Branch 80), with Obstruction of Justice and Grave Misconduct. The Factual Background Sonido is the mother of Nathalie Mae G. Sonido who filed with the Rizal Prosecution Office a complaint against one Kristel Ann S. Asebo for violation of Republic Act (R.A.) No. 9262, the AntiViolence Against Women and Their Children Act of 2004, in Criminal Case No. 08-7977. In a resolution dated December 19, 2006,2 the Rizal Prosecution Office recommended the filing of an information against Kristel for violation of Section 5, par. 1, R.A. No. 9262. The information states: That on or about the 27th day of February, 2006, in the Municipality of Teresa, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the former sweetheart of the complainant[,] Nathalie Mae G. Sonido, did then and there, willfully, unlawfully and feloniously show the videos of the complainant to other persons showing the sensitive parts of her body, thereby causing mental or emotional anguish, public ridicule or humiliation to one Nathalie Mae G. Sonido.3 Sonido received a copy of the resolution on January 28, 2008.4 The following day, January 29, 2008,5 she went to the Metropolitan Trial Court in Morong, Rizal, to inquire about the status of the case. She was told that the case had been raffled to Branch 80. When she asked whom she should talk to about the case at Branch 80, she was advised to see Ilocso or Ka Pining, which she did. Ilocso then told Sonido that she would prepare the warrant of arrest. She advised Sonido to return the following day to get a copy of the warrant. Sonido returned the next day and several more times thereafter, but Ilocso consistently failed to give her a copy of the warrant and instead gave excuses for her repeated failures. Exasperated about the delay in the issuance of the warrant of arrest, Sonido confronted Ilocso about it. Ilocso allegedly assured Sonido that copies of the warrant had already been mailed to the proper authorities for implementation. Sonido claimed, however, that it was only on June 26, 2008 that Ilocso gave her a copy of the warrant with the remark, "sige ipahuli mo na yan." Thankful that she was finally able to get a copy of the warrant, Sonido even gave Ilocso P100.00. She immediately gave the warrant to SPO3 Minerva SG Marcelino, a police investigator, for execution.

The following day, June 27, 2008, Sonido alleged that she learned from PO1 Alsander R. Ecalnir (a member of the Teresa, Rizal Police and a resident of Morong) that the warrant had not been implemented as Kristel left the country in May 2008 to work as a caregiver in Taiwan. Sonido was dejected by this turn of events; her efforts to have Kristel arrested had all been in vain. She also doubts if Ilocso had really sent copies of the warrant of arrest to the police authorities, as Kristel was apparently able to secure police and National Bureau of Investigation (NBI) clearances for her travel to Taiwan. She believes that Ilocso gave her a copy of the warrant of arrest when Kristel had already left the country. Sonido inquired from the police of Morong and Teresa, Rizal if they had received copies of the warrant of arrest; they both answered in the negative.6 She even called up the NBI to inquire on the matter, and she got the same answer. In her Comment7 submitted on October 27, 2008, Ilocso denied Sonidos accusations, dismissing them as mere suspicions. She alleged that her failure to release the warrant of arrest resulted from mere memory lapse and was an honest mistake on her part. She maintained that she had no intention of causing Sonido any harm. Ilocso also attributed the delay or omission in the preparation and release of the warrant of arrest to her heavy workload as clerk in charge of criminal cases in a court where almost 700 cases were pending. She further explained that from January 21, 2008 to February 8, 2008, the Supreme Court conducted a judicial audit at Branch 80, and she was personally tasked to make available to the audit team all the folders of the criminal cases for inventory. Additionally, she assisted in the preparation of the courts semestral inventory report for July to December 2007, and the monthly case reports for March and April 2008. Ilocso claimed that because of her heavy workload which caused her to suffer from fatigue and stress, she almost forgot Sonidos request for a copy of the warrant of arrest. She emphasized that she did not have the slightest intention of delaying the early disposition of the criminal case. She extended her apologies to the Court and to Sonido. On the recommendation of the Office of the Court Administrator, the Court resolved to (1) re-docket the complaint as a regular administrative matter; and (2) require the parties to manifest whether they were willing to submit the case for decision on the basis of the records.8 Sonido submitted the case for decision in a Manifestation filed on August 10, 2010.9 Ilocso asked for time to submit additional evidence,10 which the Court granted.11 On September 2, 2010, Ilocso filed a supplemental comment.12 She reiterated substantially the same arguments which she had raised earlier. Again, she blamed her busy schedule for her inability to have the warrant of arrest released. She even denied receiving P100.00 from Sonido, saying that she did not accept the money as she was shamed by the delay in the release of the warrant. To explain the Morong Police Station certification13 that it had not received a copy of the warrant as of June 30, 2008, Ilocso claimed that she had not yet endorsed the warrant to the Morong police when she gave Sonido a copy. The same was true with the other government authorities Sonido dealt with. She said that she and her co-employees had difficulty in locating the case record as its folder was very thin. Finally, she informed the Court that the parties in the criminal case, who went through mediation under the auspices of the Philippine Mediation Center, executed a compromise agreement on

December 2, 2009.14 Nathalie, the complainant in the criminal case, executed an affidavit of desistance15 and asked for the dismissal of the case, which the court granted.16 Ilocso prayed for the dismissal of the present administrative matter as "the delay in the release of the warrant of arrest was not deliberate and [she] failed, in good faith, to promptly locate it."17 The Courts Ruling We find that respondent Ilocso has been gravely remiss in the performance of her duties in Criminal Case No. 08-7977, resulting not only in the delay in the service of a copy of the warrant to Sonido (notwithstanding her repeated assurances in that regard), but in the failure to arrest the accused because copies of the warrant of arrest were not sent to the police authorities. Because of the failure to timely serve the warrant, the accused escaped arrest and was able to leave the country and place herself beyond the reach of the warrant. Kristel, the accused in the criminal case, left the country for a job in Taiwan in May 2008. Sonido, the mother of the complainant in the criminal case, Nathalie, was given a copy of the warrant only on June 26, 2008, after having been given a run around by Ilocso. Looking back at what happened, Sonidos ordeal started when she went to Ilocso to ask for a copy of the warrant after she (Sonido) received, on January 28, 2008, a copy of the resolution finding probable cause in the criminal case against Kristel. Ilocso told Sonido to return the next day, but when she did, she still failed to get a copy of the warrant. Sonido returned several more times with the same results. Ilocso instead gave her all kinds of excuses, e.g., that she had not yet prepared the warrant but she was already working on it; that nobody was there to sign the warrant; or that she lost the folder and could not locate it. The OCA found Ilocso guilty of simple neglect of duty and recommended that she be suspended for one month without pay.18 We disagree with this finding as Ilocsos infraction is more serious than simple neglect of duty. The delay in the release of the warrant of arrest in Criminal Case No. 08-7977 did not happen because Ilocso simply forgot about it or her workload was so heavy that it took her several months to prepare and release it. The delay, to our mind, was by design and was not an innocent lapse or mistake. Ilocso waited for the proper time to give Sonido a copy of the warrant and to send copies to the implementing police authorities. The proper time obviously was when the accused could no longer be arrested because she had already left the country. Ilocsos promises, her excuses, the delay from the filing of the information to the release of the warrant of arrest, the time of the release to Sonido of a copy of the warrant, and the timing of the departure of the accused for Taiwan all lead us to conclude that the release of the warrant was delayed to favor the accused.
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Ilocso could not have missed the urgency of Sonidos request for a copy of the warrant of arrest. She kept on coming back for it until she could not stand the long wait anymore. She confronted Ilocso about it. How could Ilocso have forgotten, as she claimed, Sonidos request when she herself admitted that Sonido saw her no less than five times19 to ask for a copy of the warrant? Ilocso only gave Sonido a copy of the warrant when it was already too late as it could no longer be served on the accused. These circumstances, to our mind, only show that there was a design to allow the accused to evade the service of a warrant of arrest. It took Ilocso almost five (5) months, from the time of Sonidos initial inquiry, to prepare and release the warrant to the proper authorities. For knowingly delaying the release of the warrant of arrest in Criminal Case No. 08-7977, Ilocso had placed the court in a very negative light. It prejudiced the Courts standing in the community as it

projected an image of a Court that is unable to enforce its processes on time. For this reason, we find her liable not only for simple neglect of duty, but for the more serious offense of conduct prejudicial to the best interest of the service. In Liberty M. Toledo v. Liza E. Perez, etc.,20 we held that while the Rules do not provide a definition or enumeration of the acts that constitute conduct prejudicial to the best interest of the service, they refer to acts or omissions that violate the norm of public accountability and diminish or tend to diminish the peoples faith in the judiciary. Without doubt, Ilocsos very much delayed action on Sonidos request for a copy of the warrant of arrest in the criminal case and in the delivery of the warrant to the police authorities cast doubts on the capability of the court to administer justice fairly and expeditiously. Any misconduct similar to Ilocsos act is likely to reflect adversely on the administration of justice.21 Thus, Ilocso should be made to answer for her infraction in a way that will serve as a lesson to everyone in the judiciary to be forthright in his dealings with the public, and to act speedily on matters within his area of responsibility, regardless of who is involved. To be sure, the prejudice she caused and her liability for her conduct can in no way be extinguished or mitigated by the issuance of a second warrant of arrest, or by the complainants subsequent voluntary desistance from pursuing the case. The harm had already been done on the aggrieved party and on the judiciary when these developments transpired. The Civil Service Commission classifies conduct prejudicial to the best interest of the service as a grave offensepunishable by suspension without pay from six (6) months and one (1) day to one (1) year for the first offense, and dismissal from the service for the second offense.22 In light of the brazen way Ilocso hoodwinked Sonido and given the prejudice she caused to the institution she serves, we deem a suspension for one (1) year without pay an appropriate penalty. WHEREFORE, premises considered, Josefina G. Ilocso, Clerk III, Regional Trial Court, Branch 80, Morong, Rizal, is declared LIABLE for Conduct Prejudicial to the Best Interest of the Service. She shall suffer the penalty ofSUSPENSION for one (1) year without pay, and is WARNED that a similar offense in the future shall be dealt with more severely. SO ORDERED. A.M. No. RTJ-10-2246 June 1, 2011 (formerly A.M. OCA I.P.I. No. 09-3219-RTJ) ATTY. RANDY P. BARENG, Complainant, vs. JUDGE ZENAIDA R. DAGUNA, Regional Trial Court, Branch 19, Manila, Respondent. RESOLUTION BRION, J.: Before us is the Complaint-Affidavit1 filed by Atty. Randy P. Bareng, on July 8, 2009, against Presiding Judge Zenaida Daguna of the Regional Trial Court (RTC), Branch 19, Manila. Atty. Bareng accused Judge Daguna of gross misconduct and manifest abuse of functions of her office. The Antecedents

Atty. Bareng is the counsel of Romulo Awingan, one of the accused in Criminal Case Nos. 05237561 and 05-237562, for double murder, entitled "People of the Philippines v. Licerio Antiporda, Jr., Lloyd Antiporda, Romulo Awingan and Richard Mecate." These two murder cases were consolidated before the RTC, Manila, Branch 29 presided by Judge Cielito M. Grulla.2 On October 26, 2005, Judge Grulla issued an Order3 granting the public prosecutors motion to withdraw the informations filed based on the findings of the Secretary of Justice.4 The private complainant filed a Motion for Reconsideration, Inhibition and Transfer Cases to Regular Court. Judge Grulla voluntarily inhibited herself from the case, and did not resolve the motion for reconsideration and the motion to transfer the cases. The consolidated cases were subsequently reraffled to the RTC, Manila, Branch 19, presided by Judge Daguna. In her December 9, 2005 Resolution,5 Judge Daguna granted the private complainants motion for reconsideration and set aside Judge Grullas October 26, 2005 Order. Accused Awingan, through Atty. Bareng, filed a motion for reconsideration. Judge Daguna denied the motion in her Order of February 3, 2006.6 Awingan, thereafter, filed a petition for certiorari and prohibition before the Court of Appeals (CA), alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Judge Daguna. During the pendency of the CA petition, Judge Daguna issued warrants of arrest against all the accused. The CA granted Awingans petition for certiorari and prohibition in its November 10, 2006 Decision.7 The CA found that Judge Daguna acted with grave abuse of discretion because she "arbitrarily and whimsically disregarded the guidelines for acting on the Peoples motion to withdraw informations and practiced unreasonable and inexplicable selectivity by not considering all the records available to her in order to make her independent assessment and evaluation of the merits of the cases before her."8 The CA nullified her two resolutions, ordered her to grant the motion to withdraw the informations filed, and prohibited her from further proceeding with Criminal Case Nos. 05-237561-62. Since the warrants of arrest against all the accused were still in force, Atty. Bareng filed before the RTC a Manifestation and Motion, on November 15, 2006,9 to inform the RTC of the CA Decision and to ask for its immediate implementation. He attached a certified copy of the CA Decision. Judge Daguna denied the motion for lack of merit in her December 4, 2006 Order.10 She pointed out that the Rules of Court provides that only final and executory judgments may be executed. She noted that the required entry of judgment, to show that the decision was executory, was not submitted with the motion, and that the record of the case showed that the private complainant filed a motion for reconsideration before the CA. Judge Daguna also ordered Atty. Bareng "to SHOW CAUSE within ten (10) days from receipt why he should not be held in contempt of court or otherwise dealt with administratively for deliberately attempting to mislead the Court."11 Atty. Bareng moved for the reconsideration of the Order,12 but Judge Daguna turned the motion down in her Order of January 3, 2007.13 She found Atty. Bareng guilty of contempt of court and penalized him with a fine ofP1,000.00, and warned him against the repetition of the same offense. Atty. Bareng moved for the reconsideration of this Order14 and subsequently filed a supplement to this motion on March 5, 2007.15 When the RTC failed to immediately resolve the motion, Atty. Bareng filed his first motion to resolve, dated January 2, 2008.16 On February 4, 2008, he filed his manifestation and second motion to resolve.17

In the Order18 issued, Judge Daguna stated that she resolved Atty. Barengs motion for reconsideration on July 31, 2007, but her Order might not have been released; hence, she directed that the Order be reprinted and the parties be furnished with copies. Since Judge Daguna denied his motion for reconsideration for lack of merit,19Atty. Bareng filed his notice of appeal20 on May 20, 2008, after receiving his copy of the order on May 6, 2008.21 On July 8, 2009, Atty. Bareng filed with the Office of the Court Administrator (OCA) his complaintaffidavit,22charging Judge Daguna with gross misconduct and manifest abuse of functions of her office, based on the following allegations: 1. That Judge Daguna, in her December 4, 2006 Order, insinuated that there was "pecuniary estimation" attached to the manifestation and motion filed by Atty. Bareng; this, according to Atty. Bareng, was unfair and tainted with malice; 2. That despite Atty. Barengs explanation, Judge Daguna found him guilty of contempt of court; 3. That he filed a motion for reconsideration and supplement to the motion for reconsideration; 4. That after the lapse of almost one year, he filed his first motion to resolve; 5. That after more than one month, he filed a manifestation and second motion to resolve; 6. That Judge Daguna claimed that she had resolved the motion for reconsideration as early as July 31, 2007 but apparently the order had not been released; and 7. That he filed a notice of appeal on May 20, 2008 but Judge Daguna had not acted on the appeal despite his motion to resolve and/or elevate appeal dated June 19, 2009. In her July 31, 2009 Comment,23 Judge Daguna denied that the delays attributed to her were her fault. She blamed her staff for the delay. Thus: 7. As regards paragraph 19 to 22, it was a good thing that the good lawyer, herein complainant, filed a "Motion To Resolve" thereby getting the attention of the Court on the purely inadvertent failure on the part of the court staff to mail the Order dated July 31, 2007. At any rate, the same has been settled by reprinting the same and had it released by mail to the parties. The situation in the office then has to be taken into consideration as a backgrounder of the inadvertence, with this office being understaffed as the Clerk in-charge of the criminal cases had gone AWOL, and the Process Server, who pitches in during the absence of the clerks for the typing of notices and mailing was detailed to the Office of the Clerk of Court. So it was one of the court stenographers who assumed the clerical duties of typing the notices and mailing during his free time as stenographer. The Order dated July 31, 2007 (Annex "6") was duly attached to the record but the staff could not explain why the copies thereof and the notices were missing for which reason the Court hastily issued the Order dated March 14, 2008 (Annex "7") after investigating the staff over the lapse averted to. Meanwhile, the respondent had started to be ailing and was slowed down by her ailment but it was never a lapse committed by the respondent but admittedly a lapse on the part of the court staff[.] She also explained the delay in forwarding the records to the CA, as follows:

8. The "Notice of Appeal" interposed by Atty. Randy P. Bareng to the Order of this Court convicting him for contempt of Court and subjecting him to a fine of P1,000.00 has been duly acted upon by the Court by readily issuing an Order dated May 21, 2008 (Annex "8") giving due course thereto with a directive addressed to the staff to forward the documents appurtenant to the contempt proceedings. However[,] to her great dismay, she learned of this another lapse committed by the staff after she received a copy of this administrative complaint that the said Order has not been released on time and has not even been mailed to the parties. Worse, it appears from the record that the appurtenant documents were only forwarded to the Court of Appeals on June 23, 2009 as shown in the Transmittal Letter (Annex "9") after the herein complainant filed a "Motion To Resolve And /Or Elevate Appeal". The Branch Clerk explained that it was pure oversight on his part considering that everything seemed regular on the record as the proceedings in these cases are suspended due to the incidents pending for resolution in the appellate courts. But he failed to remember that there was an order that was to be complied with relative to the contempt proceedings particularly the transmittal of the documents on appeal. He honestly thought it has already been taken care of. The Clerk in-charge for criminal cases in turn said that he did not bother to have the Order (dated May 21, 2008) mailed to the parties as he thought that there was no need for it since the directive of the Court was only to forward the appurtenant record/documents to the Court of Appeals. Yet he failed to forward the same on time as the thought was sidelined by other equally important duties he had to attend to and admitted that his attention was called upon receipt of the "Motion To Resolve and/or Elevate Appeal. This Clerk in-charge of criminal cases is a new employee and understandably has failed to grasp the extent of his duties as such; 9. The Branch Clerk did not bother to inform me of the "Motion to Resolve and/or Elevate Appeal" filed by Atty. Bareng allegedly to spare me of the anxieties that the matter would cause in deference to my present health condition, as it inevitably has now caused my blood pressure to shoot up. While the administrative case was pending, Judge Daguna applied for disability retirement in late 2009. She was allowed to retire, but because of the two (2) pending administrative cases against her, the amount of P50,000.00 was withheld from her retirement benefits to answer for whatever adverse decision the Court may later impose on her. The OCAs Report/Recommendation In its submission dated February 24, 2010,24 the OCA found no evidence to sustain the charges of gross misconduct and manifest abuse of functions of her office against Judge Daguna. The OCA, however, found Judge Daguna guilty of gross inefficiency. The OCAs report stated: The inefficiency of the respondent Judge is apparent in the following instances: (1) She acknowledged the fact that she had first known of the filing of the Motion to Resolve from the complainant himself which also led to her knowledge of the failure to mail her 31 July 2007 Order; (2) She likewise learned first hand, when she received a copy of the present administrative complaint, that her 21 May 2008 Order giving due course to the complainants Notice of Appeal was not released on time; (3) She attempted to escape responsibility as regards the failure of the court staff in mailing the said twin Orders by stating that they were resolved on time. It is not likewise clear why the respondent Judge did not pay much attention to the desist order of the appellate court. It must be noted that the respondent rendered the 31 July 2007 Order beyond the 90-day reglementary period reckoned from the complainants Motion for Reconsideration dated 31 January 2007. Granting arguendo that the said Order was indeed issued, the same was issued with more

than 3 months of delay or a period of 6 months from the filing of the complainants last pleading which is a flagrant violation of Rule 3.05, Canon 3 of the Code of Judicial Ethics and Section 15 (1) and (2), Article VII of the Constitution. xxx Lastly, judges are not allowed to use their staff as shields to evade responsibility for mistakes and mishaps in the course of the performance of their duties (Hilario v Concepcion, 327 SCRA 96). He should be the master of his own domain and take responsibility for the mistakes of his subjects (Pantaleon v Guadiz, Jr., 323 SCRA 147). Judges are bound to dispose of the courts business promptly and to decide cases within the required period (Dela Cruz v Bersamira, 336 SCRA 253). Delay in the disposition of even one (1) case constitutes gross inefficiency which the Supreme Court will not tolerate. The OCA recommended that the case be redocketed as a regular administrative matter and that Judge Daguna be fined P10,000.00, deductible from the P50,000.00 withheld from her retirement benefits. The Courts Ruling We agree with the OCAs finding that Judge Daguna is liable for gross inefficiency for failing to adopt a system of record management in her court. Judge Daguna violated Rule 3 of the Code of Judicial Conduct that provides: Rule 3.08 A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions or other judges and court personnel.
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Rule 3.09 A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity. On July 31, 2007,25 Judge Daguna also resolved Atty. Barengs motion for reconsideration which was filed on January 31, 2007, or way beyond the required period. There was also a delay in sending the records of the appealed case to the CA. Rule 3.05, Canon 3 of the Code of Judicial Conduct provides that "A judge shall dispose of the courts business promptly and decide cases within the required periods." Rule 140 of the Rules of Court provides: SECTION 9. Less Serious Charges. Less serious charges include: 1. Undue delay in rendering a decision or order, or in transmitting the records of a case; xxx SECTION 11. Sanctions. xxx B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed:

1. Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or 2. A fine of more than P10,000.00 but not exceeding P20,000.00. In addition to gross inefficiency, we find Judge Daguna guilty of delay in rendering an order, as well as delay in transmitting the records of a case. Based on Rule 140 of the Rules of Court, the penalty for a less serious charge is either suspension or a fine. Considering Judge Dagunas retirement, we consider a total fine of P15,000.00 to be the appropriate penalty. This fine shall be deducted from the P50,000.00 withheld from her retirement benefits. WHEREFORE, premises considered, Judge Zenaida R. Daguna, Presiding Judge of the Regional Trial Court, Branch 19, Manila, is hereby declared GUILTY of gross inefficiency, and of undue delay in rendering an order and in transmitting the records of a case. She is hereby FINED Fifteen Thousand Pesos (P15,000.00), to be deducted from the Fifty Thousand Pesos (P50,000.00) withheld from her retirement benefits. SO ORDERED. A.M. No. P-11-2931 June 1, 2011 (formerly A.M. OCA IPI No. 08-2852-P) JOHN A. MENDEZ, ANGELITO, CABALLERO and IVY CABALLERO, Complainants, vs. NERISSA A. BALBUENA, Court Interpreter, Municipal Trial Court in Cities, Branch 7, Cebu City,Respondent. DECISION BRION, J.: We resolve the present administrative case against Nerissa A. Balbuena (respondent), Court Interpreter, Municipal Trial Court in Cities (MTCC), Branch 7, Cebu City, filed by John A. Mendez, Angelito Caballero and the latters daughter Ivy Caballero, for Oppression and Conduct Unbecoming a Public Officer. In a Verified Complaint-Affidavit dated November 3, 2006,1 Mendez narrated that in the early morning of May 4, 2006, the respondent, who lived next door to his rented room in the house of Angelito, called him up by phone, complaining that two (2) of the respondents boarders were almost sideswiped by the motorcycle of his co-workers. The respondent demanded an apology from them. Mendezs co-workers did what the respondent demanded and apologized to one of the boarders. Not content with the apology given by Mendezs co-workers, the respondent turned her ire on Mendez and asked whether he has a license to operate his mineral water refilling station. He answered that its owner has a license to operate and sell. To avoid any further argument with the respondent, Mendez decided to pack his clothes and other belongings, and to transfer temporarily to his mothers house. However, before he could leave his place, the respondent called by phone, hurled invectives at him and called him a "shameless" person. The respondent told him to immediately leave the premises, threatening that she would secure police assistance to bodily carry him from his rented room to the street. The respondent kept shouting while pounding hard on the wall that separates their rooms.

Mendez further claimed that in the early morning of May 5, 2006, Ivy went to see him at his mothers house to report that the respondent, accompanied by three (3) police officers, barged into his place, ransacked his room, and threw all his clothes out into the street. The respondent also cut-off his telephone line. Mendezs allegations were corroborated by Angelito, who was Mendezs landlord, and the latters daughter, Ivy. In a sworn Joint Affidavit dated November 3, 2006,2 Angelito and Ivy confirmed that the respondent, who lives in one part of their house, pounded very hard on the wall that separates their respective dwellings and hurled invectives against Mendez. They claimed that in the morning of May 5, 2006, the respondent barged into their dwelling, with three (3) policemen in tow, and without any search warrant, ransacked their belongings and threw them into the canal. The respondent also threw out the clothes of Mendez. The complainants went to the Office of the Barangay Captain in Barangay Sambag 2, Cebu City, and filed a case for "Malicious Mischief, Dirtying and Throwing the Clothes to the Canal, and Conduct Unbecoming" against the respondent, docketed as Barangay Case No. 2006-089.3 No settlement/conciliation was reached between the parties and the case was certified for filing in court. In a 1st Indorsement dated January 2, 2007, the Office of the Court Administrator (OCA), referred the complaint to the respondent for her comment within ten (10) days from receipt. On February 10, 2007, she asked that she be given an extension ending on February 14, 2007. The request was granted. The respondent failed to comment within the extended period. The OCA, in a tracer-letter dated May 30, 20074reiterated its directive for the filing of comment within five (5) days from notice; otherwise it "[would] submit [the] matter to the Court without [the] comment." The respondent received a copy of the tracer-letter on June 15, 2007 through one "A. Cometa." Verification with the MTC Personnel Division of the OCA showed that the MTCC of Cebu, Branch 7 has an employee named Annabelle Cometa. After waiting for two months without any compliance from the respondent, the Court issued a Resolution dated August 4, 2008 directing her to "[show cause] why she should not be administratively charged with refusing to submit her comment despite the two (2) directives from the OCA, and to [submit] the required comment within five (5) days from receipt of notice, with notice that should she fail to comply, the Court shall take the necessary action against her and decide the administrative complaint on the basis of the record at hand." Still, nothing was heard from her. Because of the respondents failure to comment despite warning that the case shall be submitted to the Court even without her comment, we deemed the case submitted for resolution5 after considering the respondents right to submit controverting evidence waived. This case now therefore submitted for decision based solely on the evidence submitted under the complaint. We find the respondents acts deplorable. It is clear from her actions that she harassed and threatened her neighbors and even used the police to perpetrate these acts. Employees of the judiciary should be very circumspect in how they conduct themselves inside and outside the office,6 particularly when they use agents of the law in their actions. By her actions, she directly implied that she was using her court position to unilaterally enforce what she wanted i.e., to harass complainant Mendez. By so doing, she brought the image of the judiciary to disrepute, as this is not the way of the law and of those who enforce the law. It matters not that her acts were not work-related.7 Employees of the judiciary should be living examples of uprightness, not only in the performance of official duties, but also in their personal and private dealings with other people, so as

to preserve at all times the good name and standing of the courts in the community.8 Any scandalous behavior or any act that may erode the peoples esteem for the judiciary is unbecoming of an employee.9 Professionalism, respect for the rights of others, good manners and right conduct are expected of all judicial officers and employees.10 At all times, court employees should avoid situations which tend to arouse suspicions that they are utilizing their official position for personal gain or advantage, to the prejudice of the public.11 The Code of Judicial Ethics mandates that court personnel must not only be, but also be perceived to be, free from any impropriety with respect to both their official duties and their behavior anywhere else. The image of the judiciary is mirrored in the conduct of its personnel whether inside or outside the court. Thus, court personnel must exhibit a high sense of integrity not only in the performance of their official duties but also in their personal affairs.12 The respondents ugly display of an oppressive and overbearing character failed to meet the exacting standards required of employees of the judiciary and deserves administrative sanctions from the Court. The respondents continued harassment of complainants to force them to leave the premises so she could occupy the whole place cannot and should not be countenanced. Clearly, respondent is guilty of oppression and of conduct unbecoming a court employee acts that amount to simple misconduct.13 The Court abhors as well the respondents utter disregard of the Courts Resolution requiring her to comment on the verified complaints. It should be borne in mind that a Court resolution requiring comment on an administrative complaint against officials and employees of the judiciary should not be construed as a mere request from the Court, nor should it be complied with partially, inadequately or selectively.14 The Court shall not and will not tolerate the indifference of a respondent to an administrative complaint and to resolutions requiring action on these complaints. The respondents deliberate refusal to comply with the Resolutions of the Court constitutes gross insubordination,15 even outright disrespect for the Court.16 Under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service, the following penalties are prescribed for the offenses committed by the respondent: 1. Oppression 1st offense - Suspension (6 mos 1 day to 1 year) 2nd offense - Dismissal 2. Simple Misconduct 1st Offense - Suspension (1 mo 1 day to 6 mos) 2nd offense - Dismissal 3. Gross Insubordination 1st offense - Suspension 6 mos 1 day to 1 year 2nd offense - Dismissal The same Rule provides that if the respondent is found guilty of two or more charges or counts, the penalty to be imposed shall be that corresponding to the most serious charge or count and the rest

shall be aggravating circumstances.17 Where aggravating and no mitigating circumstances are present, the penalty that shall be imposed at the maximum.18
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WHEREFORE, respondent Nerissa A. Balbuena, Court Interpreter, Municipal Trial Court in Cities, Branch 7, Cebu City, is found GUILTY of Oppression and Conduct Unbecoming a Public Officer, Misconduct and Gross Insubordination. She is hereby suspended without pay for a period of one (1) year, effective upon receipt of the Courts decision. The respondent is further WARNED that a commission of the same or similar acts in the future shall be dealt with more severely. Let a copy of this Resolution be attached to the respondents 201 file. SO ORDERED. G.R. No. 163252 July 27, 2011

ABOSTA SHIPMANAGEMENT CORPORATION, Petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION) and ARNULFO R. FLORES, Respondents. DECISION BRION, J.: The petition for review on certiorari1 before us seeks the reversal of the resolutions of the Court of Appeals (CA), dated October 20, 20032 and April 6, 2004,3 rendered in CA-G.R. SP No. 66806. The Facts Respondent Arnulfo R. Flores entered into a 12-month contract of employment, as radio officer, with the petitioner Abosta Shipmanagement Corporation (agency) for and in behalf of Panstar Shipping Co. Ltd. (Panstar) of Busan, South Korea. Under the contract, Flores was to receive a salary of US$728.00/month for a 48-hour work week, a guaranteed overtime pay of US$439.00 a month, a monthly vacation pay of US$146.00, and a supplemental allowance of US$33.00 a month. Flores joined the vessel M/V Morning Charm sometime in June 1997. The Master of the vessel, Captain B.H. Mun, and Chief Engineer Gowang Gun Lee are from South Korea. Aside from Flores, there were other Filipino workers on the vessel. On November 29, 1997, Flores was repatriated due to alleged infractions committed while on board the vessel. In reaction, he filed a complaint for illegal dismissal on January 13, 1998 against the agency and Panstar. The Compulsory Arbitration Proceedings Before the labor arbiter, Flores alleged that in the course of his employment, he was asked by the Master to coordinate with several crew members who were requesting that they be allowed to resign or pre-terminate their employment contracts due to the alleged mismanagement of the vessel. He acted as coordinator as bidden, but was surprised to learn later that he was one of those whose resignations were accepted. He sought clarification from the Master, only to be told that he was

among the crew members who were considered to have resigned; hence, his discharge on November 29, 1997. Upon his return to Manila, he immediately informed the agency that he had been erroneously included among those who were considered resigned. He was surprised to learn that he was blamed for having instigated the mass resignation of the Filipino crew. When he tried to explain his side, the agency told him that the action taken by the Master was final and that it was not interested in his story. For their part, the agency and Panstar argued that Flores, while in their employ, insistently and rudely questioned the crews working schedule, including the propriety of requiring them to render overtime services. They claimed that Flores instigated the crew to rebel against the authority of the Master, under the guise of questioning social security and income tax deductions. As a result, the crew members became unruly, arrogant, and impolite, and were even violent in expressing their views. They even refused to obey the lawful orders of the Master and the senior officers, thus causing dissension on board the vessel. The agency alleged that sometime in September 1997, Flores prepared a petition for five Filipino crew members from the engine department, demanding the ouster of 1st Assistant Engineer Rodolfo Escarola, reportedly for incompetence and inefficiency; they threatened mass resignation. To create further unrest and dissatisfaction, Flores induced Sofronio Tibay, Herman Sebuando, Primitive Ferrer and Raymundo Angel, of the same department, to write a letter to the ship management that they would be taking their emergency leaves, one after the other, in November 1997. They charged the vessel officers of mismanaging the crew. When confronted about the letter, however, they denied most of the letters contents, pointing to Flores as the author of the letter. At Flores instigation, the crew members threatened to disembark without waiting for their replacements. The Master asked them to work for a less drastic solution, but they maintained their threat. In light of the growing unrest on board the ship and Flores negative work attitude, the Master, Capt. B.H. Mun, asked Flores to explain why he should not be administratively sanctioned for (1) disrespecting his superior officers through his unruly, discourteous, impolite and violent behavior; (2) inciting the crew to commit insubordination and engaging in an activity which tends to create discontent among the crew or to destroy harmonious relations with the principal; and (3) inefficiency and other infractions, specifically: (a) staying at his quarters most of the time while on duty, leaving unattended the messages from the charterer or from the Panstar office; (b) revealing confidential messages to the crew without the Masters permission; and (c) insubordination. According to the agency and Panstar, Flores became enraged after he was informed of the charges, but could only vehemently deny the accusations. The Master then decided to separate Flores from the service as the former was convinced that the charges were well-founded. The agency and Panstar claimed that Flores was paid his overtime pay, salary for November 1997, and accrued vacation leave pay. In a decision dated August 20, 1999,4 Labor Arbiter Adolfo C. Babiano dismissed the complaint for lack of merit. He found that the evidence the agency and Panstar presented were convincing enough to prove that Flores was a serious threat to the safety of the vessel and its crew. He noted that Flores failed to refute the agencys and Panstars allegations that he incited the crew to rebel against the authority of the Master and the vessels senior officers. He also found Flores to have been paid all his monetary entitlements. On appeal by Flores, the National Labor Relations Commission (NLRC), in its decision of December 29, 2000,5reversed the labor arbiters ruling. The NLRC found that the agency and Panstar failed to

prove (1) that Flores termination of employment was for a just or authorized cause and (2) that he was accorded due process. It opined that the main basis for the dismissal action against Flores was the accusation that he agitated the crew to rebel against the authorities of M/V Morning Charm, as reported by the Chief Officer (Chief Mate) and the 1st Assistant Engineer. The reports, the NLRC believe, did not constitute proof of the validity of the dismissal. Moreover, the NLRC noted that Flores was dismissed immediately after the Master conducted his inquiry on November 17, 1997. It stressed that the Masters so called administrative inquiry did not satisfy the due process requirements, as Flores was not given an adequate time for his defense. Accordingly, the NLRC declared Flores to have been illegally dismissed. It directed the agency and Panstar to pay Flores, jointly and severally, US$2,184.00 as salary for the unexpired portion of his contract, P50,000.00 in moral damages, and P25,000.00 in exemplary damages, plus 10% attorneys fees. The agency moved for reconsideration, but the NLRC denied the motion in its order of July 18, 2001.6 The agency then sought relief from the CA, through a petition for certiorari under Rule 65 of the Rules of Court. The CA Ruling In its first assailed resolution (dated October 20, 2003),7 the CA dismissed the petition due to insufficiency in substance,8 as the petitioner failed to show that the NLRC committed grave abuse of discretion in reversing the labor arbiters decision finding Flores dismissal legal. It sustained the NLRCs conclusion that the dismissal was without a valid cause and that Flores was denied due process. The second assailed CA resolution9 denied the agencys motion for reconsideration, prompting the agencys present appeal10 to this Court. The Petitioners Case Through its submissions the petition itself,11 the reply to Flores comment12 and the memorandum13 the agency contends that in affirming the NLRC ruling, the CA deviated from the "substantial evidence rule" in quasi-judicial proceedings. It argues that Flores employer, Panstar, met this standard of evidence through the affirmative declarations (reports) of Capt. B.H. Mun, Chief Officer Alfredo R. de Luna and 1st Assistant Engineer Rodolfo Escarola that Flores committed the infractions which led to his dismissal. In the face of these positive statements, the agency points out that Flores could only offer bare and self-serving denials. It stresses too that, contrary to the impression of the NLRC and the CA, Flores dismissal was not only for inciting members of the crew to rebel against the ship officers, but also for other causes such as inefficiency and insubordination or disobedience to the lawful orders of a superior officer, all prejudicial to the interests of the employer. The agency insists that Flores contumacious acts, while on board the vessel, constituted a serious and grave offense which posed a threat to the safety of the crew and the vessel. It adds that they also reflected Flores arrogance and disobedience to lawful orders/directives of his superiors, punishable by dismissal pursuant to Section 31 of the Philippine Overseas Employment Administration Standard Employment Contract. The agency posits that the CA erred in brushing aside the findings of the labor arbiter. It calls attention to the labor arbiters observation that Flores failed to refute the agencys allegation that he incited the crew to rebel against the authority of the Master and the senior officers of the vessel.

Flores did not also refute the charge that to pressure the principal, he induced some members of the crew to take their emergency leaves one by one and to threaten the principal to an early sign-off. The Case for Flores In his comment14 and memorandum,15 Flores asks that the petition be dismissed for raising purely questions of fact and not of law. He contends that the appellate courts findings are not to be disturbed as they are binding upon this Court and, although there are certain exceptions to the rule, the petition does not fall within any of the exceptions.16 Flores further submits that aside from raising only questions of fact, the agency failed to state any special and important reasons to justify the exercise by the Court of its discretionary appellate jurisdiction in the case.17 The Courts Ruling The procedural question We first resolve the procedural issue of whether we should rule on the petition which, as Flores contends, raises only questions of fact and not of law. While it is true that the Court is not a trier of facts, we deem it proper to re-examine the evidence in view of the variance in the factual findings of the labor arbiter, on the one hand, and of the NLRC and the CA, on the other hand. The substantive issue After a careful and objective study of the parties submissions, we find that there is substantial evidence on record supporting Flores dismissal. "Substantial evidence[, it must be stressed,] is more than a mere scintilla[. It means such] relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise."18 The agency, to our mind, succeeded in showing, by substantial evidence, that its principal (Panstar) had a valid reason for terminating Flores employment. The Master, Capt. B.H. Mun, decided to dismiss him not only for agitating the crew to rebel against the authorities of the vessel M/V Morning Charm (which the NLRC considered as the main reason for the dismissal),19 but for several other infractions. As the records show, and as Capt. B.H. Mun stressed in his letter of November 17, 1997 to the agency management,20 Flores was also charged with inefficiency or neglect of duty, insubordination, insolent and disrespectful behavior, and other actuations which made him unfit for his position and rank. Capt. B.H. Muns letter chronicled the bases of the charges lodged against Flores, and its salient points may be summarized as follows: 1. Since Flores came on board, he had been complaining about the deduction of US$40.00 from the crews monthly allotment for the Associated Marine Officers and Seamens Union of the Philippines (AMOSUP) Fund. To Capt. B.H. Muns knowledge, the crew members were aware of the deduction. Despite this, Flores prepared a letter to the International Transport Workers Federation (ITF) and asked the crew members to sign it. Capt. B.H. Mun asked Flores to explain the contents of the ITF letter to the crew to avoid any misunderstanding. Instead of pacifying the crew, he stirred them up and made them even more agitated. Also, despite Capt. B.H. Muns instructions to the contrary, he prepared letters for the crew

containing his own complaints and sentiments against the company rather than those of the crew. 2. He revealed to the crew all outgoing and incoming messages, without informing Capt. B.H. Mun. 3. Contrary to Capt. B.H. Muns instructions, Flores issued shore-passes to the deck crew without the permission of the chief mate when the vessel made a port call at Maputo during its last voyage. The deck crew members were not supposed to go on shore as cargo was being unloaded at the time. It was a rush operation which had to be supervised and monitored to avoid damage to the cargo and to be on alert for stowaways. Flores went on shore nevertheless, with some of the crew to whom he had issued shore-passes. 4. Flores entered in his overtime sheet 40-50 hours in excess of the monthly 85 hours, despite the captains instructions to the crew not to go over 85 hours; Flores did this to give the impression that he was doing a lot of work. 5. Flores stayed most of the time at the crew restroom while on duty instead of the radio room, resulting in the failure, at times, of the charterer and the Panstar Busan Office to communicate with the vessel by INMARSAT phone. This gave rise to several complaints, especially from the charterer who was compelled to use two communication devices the facsimile machine and the telex to send the same instruction or message to the vessel. Capt. B.H. Mun considered the foregoing infractions and a few more mentioned in his letter as indications of Flores efforts to bypass his authority and to act at cross purposes with him. It is clear that the letters of Chief Officer De Luna21 and 1st Assistant Engineer Escarola22 to Panstars Capt. Chung, detailing how Flores agitated the crew (with charges of mismanagement of the vessel), and Capt. B.H. Muns letter to the agency all depict a radio officer who undermined the authority of the shipmaster and the other officers in the guise of raising labor-management issues on board the vessel. Additionally and as an indication of his disrespect for the vessels management, as well as his low regard for his work, he neglected his duties as radio officer and disobeyed Capt. B.H. Muns instructions on several occasions. It is no surprise that his record of service23 yielded a very poor assessment or a "no further employment" assessment. The NLRC grossly erred in rejecting the letters as proof of the validity of Flores dismissal. It misappreciated the contents of the letters, especially that of Capt. B.H. Mun. They did not contain "a mere accusation of wrongdoing."24 The letters made direct affirmative statements on Flores transgressions, all of which only elicited angry denials from him. More significantly, he failed to refute the charges in the compulsory arbitration proceedings, as the labor arbiter emphasized in his decision. This aspect of the case should have been given due consideration by the NLRC. In a different vein, Flores questioned the probative value of Capt. B.H. Muns statements, contending that they are self-serving. He regarded them as pure hearsay which cannot be considered as evidence. It bears stressing in this regard that under the law, technical rules of evidence are not binding in administrative proceedings, and the NLRC and the labor arbiters "shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process."25 Hearsay or not, and by way of reiteration, Capt. B.H. Muns statements cannot just be ignored, for Flores himself admitted in his position paper, as noted by the labor arbiter, that the shipmaster asked him to be the coordinator or go-between for several crew members who wanted to pre-terminate

their contract.26 It is not disputed that Flores acted as such coordinator between the crew and Capt. B.H. Mun. Thus, Capt. B.H. Mun specifically asked him to explain to the crew the deduction of US$40.00 from their monthly allotment for the AMOSUP Fund so that they would understand and would not to be agitated; instead of doing this, he stirred up the crew further. In fractured English, Capt. B.H. Mun stated: Notwithstand he should if necessary take all his way be persuaded and kindly explained to the crew about misunderstanding ITF contents, but he did has to say nothing of crew persuasion, more excite with big voices and stir up to the crew to mischief. Two anhalf months ago, I asked him that dont be helping to crew to be sent company their letters specially, because his prepared it for crew had writ down his own complaining with unless and reactive stories thru their letter. He didnt still follow to master instruction thats why help to nice preparing crew letter according to his say.27 The fact that Flores acted as coordinator or liaison between the crew and the vessels officers signifies that Flores did interact with the crew, and had the opportunity to sow discontent among them towards the shipmanagement. Flores infractions, as mentioned in the letters, could not have been just pigments of the imagination of Capt. B.H. Mun and the other officers as Flores insinuated; they were reporting on Flores actual transgressions while on board the vessel. Still on the probative value of the letters, Flores wondered why the agency did not present in evidence the vessels logbook28 the official records of a ships voyage that the master is required by law to keep and where he records the decision/s he made during the voyage, including all happenings on board.29 The existence of a logbook, however, does not at all preclude the admission and consideration of other accounts of what was happening on board the vessel, such as, in this instance, the shipmasters report. In Abacast Shipping and Management Agency, Inc. v. NLRC,30 the Court explained The [logbook] is a respectable record that can be relied upon to authenticate the charges filed and the procedure taken against the employees prior to their dismissal. Curiously, however, no entry from such [logbook] was presented at all in this case. What was offered instead was the shipmasters report, which was later claimed to be a collation of excerpts from such book. xxxx At that, even if the shipmasters report were to be admitted and considered, a close reading thereof will show that the private respondents have not committed any act that would justify the termination of their services before the expiration of the contracts. While the shipmasters report was not considered in Abacast Shipping, the reason behind the rejection was the Courts conclusion that the separated employees had not committed any act that would justify their dismissal, as their dismissal was based on mere apprehension. This situation does not obtain in Flores case. As mentioned earlier, Capt. B.H. Muns report made affirmative statements regarding Flores infractions that led to his dismissal. These infractions involved not only instigating several crew members to rebel against the vessels authorities and to disrespect their superiors, but also other transgressions that made him unfit to continue in employment. Even as he assailed the reports of Capt. B.H. Mun and the other officers as hearsay and selfserving, Flores failed to controvert the affirmative statements made in the reports. The reports were submitted on compulsory arbitration. He did not refute the charges, thus leaving them unrebutted. Capt. B.H. Muns statements, corroborated by the reports of Chief Officer De Luna and 1st Assistant Engineer Escarola, should have therefore been admitted as sufficient support for the charges.
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On the whole, we are convinced that Flores dismissal was justified on the following grounds: 1. Sowing intrigue and dissension on board the vessel M/V Morning Charm;31 2. Inefficiency and neglect of duty;32 and 3. Insubordination or disobedience of the lawful orders of the shipmaster.33 The NLRCs rulings, disregarding these grounds, do not only constitute errors in the appreciation of evidence; they were gross errors as they practically disregarded the petitioners evidence. Hence, the CA erred in not recognizing these errors for what they were grossly abusive acts that affected the NLRCs exercise of its jurisdiction. The procedural due process issue The records bear out that Flores was not given a reasonable opportunity to present his side vis--vis the charges at the time he was dismissed. As the NLRC noted, Flores was immediately dismissed after Capt. B.H. Mun conducted his inquiry on November 17, 1997. Although Flores merely issued a vehement denial, Capt. B.H. Mun should have given him a reasonable time to explain, if necessary, in writing. While this lapse in procedure cannot negate the existence of a valid cause for Flores dismissal, as discussed above, the violation of his right to procedural due process warrants the payment of indemnity in the form of nominal damages, as we held in Agabon v. National Labor Relations Commission.34 Given the circumstances in the present case, we deem an award of nominal damages to Flores in the amount of P30,000.00 to be appropriate. In sum, we find the petition meritorious. WHEREFORE, premises considered, the resolutions dated October 20, 2003 and April 6, 2004 of the Court of Appeals are SET ASIDE. We DECLARE the dismissal of respondent Arnulfo R. Flores LEGAL, but AWARD him nominal damages in the amount of P30,000.00 for the violation of his procedural due process rights. No cost. SO ORDERED. G.R. No. 164679 July 27, 2011

OFFICE OF THE OMBUDSMAN, Petitioner, vs. ULDARICO P. ANDUTAN, JR., Respondent. DECISION BRION, J.: Through a petition for review on certiorari,1 the petitioner Office of the Ombudsman (Ombudsman) seeks the reversal of the decision2 of the Court of Appeals (CA), dated July 28, 2004, in "Uldarico P. Andutan, Jr. v. Office of the Ombudsman and Fact Finding and Intelligence Bureau (FFIB), etc.," docketed as CA-G.R. SP No. 68893. The assailed decision annulled and set aside the decision of

the Ombudsman dated July 30, 2001,3 finding Uldarico P. Andutan, Jr. guilty of Gross Neglect of Duty. THE FACTUAL ANTECEDENTS Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the Department of Finance (DOF). On June 30, 1998, then Executive Secretary Ronaldo Zamora issued a Memorandum directing all non-career officials or those occupying political positions to vacate their positions effective July 1, 1998.4 On July 1, 1998, pursuant to the Memorandum, Andutan resigned from the DOF.5 On September 1, 1999, Andutan, together with Antonio P. Belicena, former Undersecretary, DOF; Rowena P. Malonzo, Tax Specialist I, DOF; Benjamin O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel Asia); Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and Chief Operating Officer, Steel Asia; and Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc., was criminally charged by the Fact Finding and Intelligence Bureau (FFIB) of the Ombudsman with Estafa through Falsification of Public Documents, and violations of Section 3(a), (e) and (j) of Republic Act No. (R.A.) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.6 As government employees, Andutan, Belicena and Malonzo were likewise administratively charged of Grave Misconduct, Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service.7 The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates (TCCs) to Steel Asia, among others.8 During the investigation, the FFIB found that Steel Asia fraudulently obtained TCCs worth Two Hundred Forty-Two Million, Four Hundred Thirty-Three Thousand, Five Hundred Thirty-Four Pesos (P242,433,534.00).9 The FFIB concluded that Belicena, Malonzo and Andutan in their respective capacities irregularly approved the "issuance of the TCCs to several garment/textile companies and allowing their subsequent illegal transfer" to Steel Asia.10 On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-affidavits. Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary Conference on March 13, 2000. Upon the respondents failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case submitted for resolution. On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty.11 Having been separated from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or instrumentality of the government, including government owned and controlled agencies or corporations.12 After failing to obtain a reconsideration of the decision,13 Andutan filed a petition for review on certiorari before the CA. On July 28, 2004,14 the CA annulled and set aside the decision of the Ombudsman, ruling that the latter "should not have considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides that the Ombudsman "may not conduct the necessary investigation of any administrative act or omission complained of if it believes that x x x [t]he complaint was filed after

one year from the occurrence of the act or omission complained of";15 and second, the administrative case was filed after Andutans forced resignation.16 THE PETITIONERS ARGUMENTS In this petition for review on certiorari, the Ombudsman asks the Court to overturn the decision of the CA. It submits, first, that contrary to the CAs findings, administrative offenses do not prescribe after one year from their commission,17 and second, that in cases of "capital" administrative offenses, resignation or optional retirement cannot render administrative proceedings moot and academic, since accessory penalties such as perpetual disqualification and the forfeiture of retirement benefits may still be imposed.18 The Ombudsman argues that Section 20 of R.A. 6770 is not mandatory. Consistent with existing jurisprudence, the use of the word "may" indicates that Section 20 is merely directory or permissive.19 Thus, it is not ministerial upon it to dismiss the administrative complaint, as long as any of the circumstances under Section 20 is present.20 In any case, the Ombudsman urges the Court to examine its mandate under Section 13, Article XI of the 1987 Constitution, and hold that an imposition of a one (1) year prescriptive period on the filing of cases unconstitutionally restricts its mandate.21 Further, the Ombudsman submits that Andutans resignation from office does not render moot the administrative proceedings lodged against him, even after his resignation. Relying on Section VI(1) of Civil Service Commission (CSC) Memorandum Circular No. 38,22 the Ombudsman argues that "[a]s long as the breach of conduct was committed while the public official or employee was still in the service x x x a public servants resignation is not a bar to his administrative investigation, prosecution and adjudication."23 It is irrelevant that Andutan had already resigned from office when the administrative case was filed since he was charged for "acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public."24 Furthermore, even if Andutan had already resigned, there is a need to "determine whether or not there remains penalties capable of imposition, like bar from reentering the (sic) public service and forfeiture of benefits."25 Finally, the Ombudsman reiterates that its findings against Andutan are supported by substantial evidence. THE RESPONDENTS ARGUMENTS Andutan raises three (3) counterarguments to the Ombudsmans petition. First, Andutan submits that the CA did not consider Section 20(5) of R.A. 6770 as a prescriptive period; rather, the CA merely held that the Ombudsman should not have considered the administrative complaint. According to Andutan, Section 20(5) "does not purport to impose a prescriptive period x x x but simply prohibits the Office of the Ombudsman from conducting an investigation where the complaint [was] filed more than one (1) year from the occurrence of the act or omission complained of."26 Andutan believes that the Ombudsman should have referred the complaint to another government agency.27 Further, Andutan disagrees with the Ombudsmans interpretation of Section 20(5). Andutan suggests that the phrase "may not conduct the necessary investigation" means that the Ombudsman is prohibited to act on cases that fall under those enumerated in Section 20(5).28 Second, Andutan reiterates that the administrative case against him was moot because he was no longer in the public service at the time the case was commenced.29 According to Andutan, Atty. Perez v. Judge Abiera30 and similar cases cited by the Ombudsman do not apply since the administrative investigations against the respondents in those cases were commenced prior to their

resignation. Here, Andutan urges the Court to rule otherwise since unlike the cases cited, he had already resigned before the administrative case was initiated. He further notes that his resignation from office cannot be characterized as "preemptive, i.e. made under an atmosphere of fear for the imminence of formal charges"31 because it was done pursuant to the Memorandum issued by then Executive Secretary Ronaldo Zamora. Having established the propriety of his resignation, Andutan asks the Court to uphold the mootness of the administrative case against him since the cardinal issue in administrative cases is the "officers fitness to remain in office, the principal penalty imposable being either suspension or removal."32 The Ombudsmans opinion - that accessory penalties may still be imposed - is untenable since it is a fundamental legal principle that "accessory follows the principal, and the former cannot exist independently of the latter."33 Third, the Ombudsmans findings were void because procedural and substantive due process were not observed. Likewise, Andutan submits that the Ombudsmans findings lacked legal and factual bases. ISSUES Based on the submissions made, we see the following as the issues for our resolution: I. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from conducting an administrative investigation a year after the act was committed? II. Does Andutans resignation render moot the administrative case filed against him? III. Assuming that the administrative case is not moot, are the Ombudsmans findings supported by substantial evidence? THE COURTS RULING We rule to deny the petition. The provisions of Section 20(5) are merely directory; the Ombudsman is not prohibited from conducting an investigation a year after the supposed act was committed. The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by jurisprudence.34 In Office of the Ombudsman v. De Sahagun,35 the Court, speaking through Justice Austria-Martinez, held: [W]ell-entrenched is the rule that administrative offenses do not prescribe [Concerned Taxpayer v. Doblada, Jr., A.M. No. P-99-1342, September 20, 2005, 470 SCRA 218; Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476; Heck v. Judge Santos, 467 Phil. 798, 824 (2004); Floria v. Sunga, 420 Phil. 637, 648-649 (2001)]. Administrative offenses by their very nature pertain to the character of public officers and employees. In disciplining public officers and employees, the object sought is not the punishment of the officer or employee but the improvement of the public service and the preservation of the publics faith and confidence in our government [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481; Remolona v. Civil Service Commission, 414 Phil. 590, 601 (2001)]. Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:

SEC. 20. Exceptions. The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that: xxxx (5) The complaint was filed after one year from the occurrence of the act or omission complained of. (Emphasis supplied) proscribes the investigation of any administrative act or omission if the complaint was filed after one year from the occurrence of the complained act or omission. In Melchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA 476], the Court held that the period stated in Section 20(5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion given to the Ombudsman on whether it would investigate a particular administrative offense. The use of the word "may" in the provision is construed as permissive and operating to confer discretion [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481; Jaramilla v. Comelec, 460 Phil. 507, 514 (2003)]. Where the words of a statute are clear, plain and free from ambiguity, they must be given their literal meaning and applied without attempted interpretation [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481;National Federation of Labor v. National Labor Relations Commission, 383 Phil. 910, 918 (2000)]. In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50], the Court interpreted Section 20 (5) of R.A. No. 6770 in this manner: Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's complaint is barred by prescription considering that it was filed more than one year after the alleged commission of the acts complained of. Petitioner's argument is without merit. The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner contends. When used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced. Applying Section 20(5), therefore, it is discretionary upon the Ombudsman whether or not to conduct an investigation on a complaint even if it was filed after one year from the occurrence of the act or omission complained of. In fine, the complaint is not barred by prescription. (Emphasis supplied) The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory, the negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not," becomes prohibitory and therefore becomes mandatory in character, is not plausible. It is not supported by jurisprudence on statutory construction. [emphases and underscoring supplied] Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within its discretion to conduct the administrative investigation.

However, the crux of the present controversy is not on the issue of prescription, but on the issue of the Ombudsmans authority to institute an administrative complaint against a government employee who had already resigned. On this issue, we rule in Andutans favor. Andutans resignation divests the Ombudsman of its right to institute an administrative complaint against him. Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public servant at the time the case was filed. The Ombudsman argued in both the present petition and in the petition it filed with the CA that Andutans retirement from office does not render moot any administrative case, as long as he is charged with an offense he committed while in office. It is irrelevant, according to the Ombudsman, that Andutan had already resigned prior to the filing of the administrative case since the operative fact that determines its jurisdiction is the commission of an offense while in the public service. The Ombudsman relies on Section VI(1) of Civil Service Commission Memorandum Circular No. 38 for this proposition, viz.: Section VI. 1. x x x An officer or employee under administrative investigation may be allowed to resign pending decision of his case but it shall be without prejudice to the continuation of the proceeding against him. It shall also be without prejudice to the filing of any administrative, criminal case against him for any act committed while still in the service. (emphasis and underscoring supplied) The CA refused to give credence to this argument, holding that the provision "refers to cases where the officers or employees were already charged before they were allowed to resign or were separated from service."36 In this case, the CA noted that "the administrative cases were filed only after Andutan was retired, hence the Ombudsman was already divested of jurisdiction and could no longer prosecute the cases."37 Challenging the CAs interpretation, the Ombudsman argues that the CA "limited the scope of the cited Civil Service Memorandum Circular to the first sentence."38 Further, according to the Ombudsman, "the court a quo ignored the second statement in the said circular that contemplates a situation where previous to the institution of the administrative investigation or charge, the public official or employee subject of the investigation has resigned."39 To recall, we have held in the past that a public officials resignation does not render moot an administrative case that was filed prior to the officials resignation. In Pagano v. Nazarro, Jr.,40 we held that: In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July 2004, 434 SCRA 654, 658], this Court categorically ruled that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the service does not render moot the administrative case against him. Resignation is not a way out to evade administrative liability when facing administrative sanction. The resignation of a public servant does not preclude the finding of any administrative

liability to which he or she shall still be answerable [Baquerfo v. Sanchez, A.M. No. P-05-1974, 6 April 2005, 455 SCRA 13, 19-20]. [emphasis and underscoring supplied] Likewise, in Baquerfo v. Sanchez,41 we held: Cessation from office of respondent by resignation [Reyes v. Cristi, A.M. No. P-04-1801, 2 April 2004, 427 SCRA 8] or retirement [Re: Complaint Filed by Atty. Francis Allan A. Rubio on the Alleged Falsification of Public Documents and Malversation of Public Funds, A.M. No. 2004-17-SC, 27 September 2004; Caja v. Nanquil, A.M. No. P-04-1885, 13 September 2004] neither warrants the dismissal of the administrative complaint filed against him while he was still in the service [Tuliao v. Ramos, A.M. No. MTJ-95-1065, 348 Phil. 404, 416 (1998), citing Perez v. Abiera, A.C. No. 223-J, 11 June 1975, 64 SCRA 302; Secretary of Justice v. Marcos, A.C. No. 207-J, 22 April 1977, 76 SCRA 301] nor does it render said administrative case moot and academic [Sy Bang v. Mendez, 350 Phil. 524, 533 (1998)]. The jurisdiction that was this Courts at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased in office during the pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)]. Respondents resignation does not preclude the finding of any administrative liability to which he shall still be answerable [OCA v. Fernandez, A.M. No. MTJ-03-1511, 20 August 2004]. [emphases and underscoring supplied) However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the Court found that the public officials subject of the administrative cases resigned, either to prevent the continuation of a case already filed42 or to pre-empt the imminent filing of one.43 Here, neither situation obtains. The Ombudsmans general assertion that Andutan pre-empted the filing of a case against him by resigning, since he "knew for certain that the investigative and disciplinary arms of the State would eventually reach him"44 is unfounded. First, Andutans resignation was neither his choice nor of his own doing; he was forced to resign. Second, Andutan resigned from his DOF post on July 1, 1998, while the administrative case was filed on September 1, 1999, exactly one (1) year and two (2) months after his resignation. The Court struggles to find reason in the Ombudsmans sweeping assertions in light of these facts. What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed the administrative case against him. Additionally, even if we were to accept the Ombudsmans position that Andutan foresaw the filing of the case against him, his forced resignation negates the claim that he tried to prevent the filing of the administrative case. Having established the inapplicability of prevailing jurisprudence, we turn our attention to the provisions of Section VI of CSC Memorandum Circular No. 38. We disagree with the Ombudsmans interpretation that "[a]s long as the breach of conduct was committed while the public official or employee was still in the service x x x a public servants resignation is not a bar to his administrative investigation, prosecution and adjudication."45 If we agree with this interpretation, any official even if he has been separated from the service for a long time may still be subject to the disciplinary authority of his superiors, ad infinitum. We believe that this interpretation is inconsistent with the principal motivation of the law which is to improve public service and to preserve the publics faith and confidence in the government, and not the punishment of the public official concerned.46 Likewise, if the act committed by the public official is indeed inimical to the interests of the State, other legal mechanisms are available to redress the same. The possibility of imposing accessory penalties does not

negate the Ombudsmans lack of jurisdiction. The Ombudsman suggests that although the issue of Andutans removal from the service is moot, there is an "irresistible justification" to "determine whether or not there remains penalties capable of imposition, like bar from re-entering the public service and forfeiture of benefits."47 Otherwise stated, since accessory penalties may still be imposed against Andutan, the administrative case itself is not moot and may proceed despite the inapplicability of the principal penalty of removal from office. We find several reasons that militate against this position. First, although we have held that the resignation of an official does not render an administrative case moot and academic because accessory penalties may still be imposed, this holding must be read in its proper context. In Pagano v. Nazarro, Jr.,48 indeed, we held: A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128, 9 May 2005, 458 SCRA 301, 305]. The instant case is not moot and academic, despite the petitioners separation from government service. Even if the most severe of administrative sanctions - that of separation from service - may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of benefits. [emphasis and underscoring supplied] Reading the quoted passage in a vacuum, one could be led to the conclusion that the mere availability of accessory penalties justifies the continuation of an administrative case. This is a misplaced reading of the case and its ruling. Esther S. Pagano who was serving as Cashier IV at the Office of the Provincial Treasurer of Benguet filed her certificate of candidacy for councilor four days after the Provincial Treasurer directed her to explain why no administrative case should be filed against her. The directive arose from allegations that her accountabilities included a cash shortage of P1,424,289.99. She filed her certificate of candidacy under the pretext that since she was deemed ipso facto resigned from office, she was no longer under the administrative jurisdiction of her superiors. Thus, according to Pagano, the administrative complaint had become moot. We rejected Paganos position on the principal ground "that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the service does not render moot the administrative case against him. Resignation is not a way out to evade administrative liability when facing administrative sanction."49Our position that accessory penalties are still imposable thereby negating the mootness of the administrative complaint merely flows from the fact that Pagano pre-empted the filing of the administrative case against her. It was neither intended to be a stand-alone argument nor would it have justified the continuation of the administrative complaint if Paganos filing of candidacy/resignation did not reek of irregularities. Our factual findings in Pagano confirm this, viz.: At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial Treasurer that she needed to explain why no administrative charge should be filed against her, after it discovered the cash shortage of P1,424,289.99 in her accountabilities. Moreover, she had already filed her answer. To all intents and purposes, the administrative proceedings had already been commenced at the time she was considered separated from service through her precipitate filing of her certificate of candidacy. Petitioners bad faith was manifest when she filed it,

fully knowing that administrative proceedings were being instituted against her as part of the procedural due process in laying the foundation for an administrative case.50 (emphasis and underscoring supplied)
1avv phil

Plainly, our justification for the continuation of the administrative case notwithstanding Paganos resignation was her "bad faith" in filing the certificate of candidacy, and not the availability of accessory penalties. Second, we agree with the Ombudsman that "fitness to serve in public office x x x is a question of transcendental [importance]51" and that "preserving the inviolability of public office" compels the state to prevent the "re-entry [to] public service of persons who have x x x demonstrated their absolute lack of fitness to hold public office."52However, the State must perform this task within the limits set by law, particularly, the limits of jurisdiction. As earlier stated, under the Ombudsmans theory, the administrative authorities may exercise administrative jurisdiction over subordinates ad infinitum; thus, a public official who has validly severed his ties with the civil service may still be the subject of an administrative complaint up to his deathbed. This is contrary to the law and the public policy behind it. Lastly, the State is not without remedy against Andutan or any public official who committed violations while in office, but had already resigned or retired therefrom. Under the "threefold liability rule," the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability.53 Even if the Ombudsman may no longer file an administrative case against a public official who has already resigned or retired, the Ombudsman may still file criminal and civil cases to vindicate Andutans alleged transgressions. In fact, here, the Ombudsman through the FFIB filed a criminal case for Estafa and violations of Section 3(a), (e) and (j) of the Anti-Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not only be meted out the penalty of imprisonment, but also the penalties of perpetual disqualification from office, and confiscation or forfeiture of any prohibited interest.54 Conclusion Public office is a public trust. No precept of administrative law is more basic than this statement of what assumption of public office involves. The stability of our public institutions relies on the ability of our civil servants to serve their constituencies well. While we commend the Ombudsmans resolve in pursuing the present case for violations allegedly committed by Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that Andutan is no longer the proper subject of an administrative complaint, we find no reason to delve on the Ombudsmans factual findings. WHEREFORE, we DENY the Office of the Ombudsmans petition for review on certiorari, and AFFIRM the decision of the Court of Appeals in CA-G.R. SP No. 68893, promulgated on July 28, 2004, which annulled and set aside the July 30, 2001 decision of the Office of the Ombudsman, finding Uldarico P. Andutan, Jr. guilty of Gross Neglect of Duty. No pronouncement as to costs. SO ORDERED. G.R. No. 175291 July 27, 2011

THE HEIRS OF NICOLAS S. CABIGAS, NAMELY: LOLITA ZABATE CABIGAS, ANECITA C. CANQUE, DIOSCORO CABIGAS, FIDEL CABIGAS, and RUFINO CABIGAS, Petitioners, vs. MELBA L. LIMBACO, LINDA L. LOGARTA, RAMON C. LOGARTA, HENRY D. SEE, FREDDIE S. GO, BENEDICT Y. QUE, AWG DEVELOPMENT CORPORATION, PETROSA DEVELOPMENT CORPORATION, and UNIVERSITY OF CEBU BANILAD, INC., DECISION BRION, J.: We resolve the petition for review on certiorari1 filed by Lolita Cabigas, Anecita Canque, Dioscoro Cabigas, Fidel Cabigas, and Rufino Cabigas (petitioners), heirs of Nicolas S. Cabigas, to reverse and set aside the resolutions of the Court of Appeals (CA) in CA-G.R. CV No. 01144 dated May 31, 20062 and October 4, 2006,3 dismissing their ordinary appeal for being the wrong recourse. THE FACTS On February 4, 2003, the petitioners filed a complaint for the annulment of titles of various parcels of land registered in the names of Melba Limbaco, Linda Logarta, Ramon Logarta, Eugenio Amores, New Ventures Realty Corporation, Henry See, Freddie Go, Benedict Que, AWG Development Corporation (AWG), Petrosa Development Corporation (Petrosa), and University of Cebu Banilad, Inc. (UCB) with the Regional Trial Court (RTC) of Cebu City, docketed as Civil Case No. 28585. The complaint alleged that petitioner Lolita Cabigas and her late husband, Nicolas Cabigas, purchased two lots (Lot No. 7424 and Lot No. 9535) from Salvador Cobarde on January 15, 1980. Cobarde in turn had purchased these lots from Ines Ouano6 on February 5, 1948. Notwithstanding the sale between Ouano and Cobarde, and because the two lots remained registered in her name,7 Ouano was able to sell these same lots to the National Airports Corporation on November 25, 1952 for its airport expansion project. The National Airports Corporation promptly had the titles of these properties registered in its name. When the airport expansion project fell through, respondents Melba Limbaco, Ramon Logarta, and Linda Logarta, the legal heirs of Ouano, succeeded in reclaiming title to the two lots through an action for reconveyance filed with the lower court;8 the titles over these lots were thereafter registered in their names.9 They then subdivided the two lots10 and sold them to New Ventures Realty Corporation, Eugenio Amores, Henry See, Freddie Go, Benedict Que, Petrosa, and AWG. AWG, in turn, sold one of the parcels of land to UCB. All the buyers registered the titles over their respective lots in their names. After the respondents had filed their individual Answers, respondents Henry See, Freddie Go and Benedict Que filed a motion to set the case for hearing on special affirmative defenses on July 8, 2004. On the other hand, respondents AWG, Petrosa, and UCB filed a motion for summary judgment on April 13, 2005, admitting as true the facts stated in the petitioners complaint, but claiming that the petitioners had no legal right to the properties in question. THE RTC RESOLUTION On August 23, 2005, the RTC issued a resolution,11 granting the motion for summary judgment filed by AWG, Petrosa and UCB, and dismissing the petitioners complaint. According to the RTC, while

the petitioners alleged bad faith and malice on the part of Ouano when she sold the same properties to the National Airports Corporation, they never alleged bad faith on the part of the buyer, the National Airports Corporation. Since good faith is always presumed, the RTC concluded that the National Airports Corporation was a buyer in good faith and its registration of the properties in its name effectively transferred ownership over the two lots, free from all the unrecorded prior transactions involving these properties, including the prior sale of the lots to Cobarde. As the RTC explained, the unregistered sale of the lots by Ouano to Cobarde was merely an in personam transaction, which bound only the parties. On the other hand, the registered sale between Ouano and the National Airports Corporation, a buyer in good faith, was an in rem transaction that bound the whole world. Since Cobardes rights to the properties had already been cut off with their registration in the name of the National Airports Corporation, he could not sell any legal interest in these properties to the Cabigas spouses. Hence, under the Torrens system, the petitioners are strangers to the lots and they had no legally recognized interest binding it in rem that the courts could protect and enforce against the world.12 The petitioners filed a notice of appeal to question the RTC resolution. In response, respondents AWG, Petrosa, and UCB filed a motion to dismiss the appeal, claiming that the petitioners raised only questions of law in their appeal; thus, they should have filed an appeal by certiorari with the Supreme Court, and not an ordinary appeal with the appellate court. THE COURT OF APPEALS RESOLUTIONS In its May 31, 2006 resolution, the CA ruled that the petitioners should have filed a petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court instead of an ordinary appeal since they only raised a question of law, i.e., the propriety of the summary judgment. Accordingly, insofar as the respondents who filed the motion for summary judgment are concerned, namely, AWG, Petrosa, and UCB, the CA dismissed the petitioners appeal. However, the CA remanded the case to the RTC for further proceedings on the Motion to Set Case for Hearing on Special and Affirmative Defenses filed by respondents Henry See, Freddie Go, and Benedict Que. In its October 4, 2006 resolution, the CA resolved the petitioners motion for reconsideration, as well as the Partial Motion for Reconsideration filed by respondents Henry See, Freddie Go, and Benedict Que. The CA observed that it did not have jurisdiction to entertain the appeal since it raised a pure question of law. Since it dismissed the appeal based on a technicality, it did not have the jurisdiction to order that the case be remanded to the RTC. Furthermore, the trial court had already dismissed the case in its entirety when it held that the petitioners had no enforceable right as against the respondents, since they had no registered legal interest in the properties. There was thus no need to remand the case to the RTC. Hence, the petitioners seek recourse with this Court via the present petition, raising the following grounds: (1) The Court of Appeals committed grave and serious error in dismissing the appeal and in holding that a summary judgment is appealable only through a petition for review on certiorari under Rule 45 to the Supreme Court. (2) The paramount and overriding considerations of substantial justice and equity justify the reversal and setting aside of the questioned resolutions.

THE RULING We AFFIRM the assailed CA resolutions. Petitioners availed of the wrong mode of appeal Section 2, Rule 41 of the Rules of Court provides the three modes of appeal, which are as follows: Section 2. Modes of appeal. (a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (b) Petition for review. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42. (c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. The first mode of appeal, the ordinary appeal under Rule 41 of the Rules of Court, is brought to the CA from the RTC, in the exercise of its original jurisdiction, and resolves questions of fact or mixed questions of fact and law. The second mode of appeal, the petition for review under Rule 42 of the Rules of Court, is brought to the CA from the RTC, acting in the exercise of its appellate jurisdiction, and resolves questions of fact or mixed questions of fact and law. The third mode of appeal, the appeal by certiorari under Rule 45 of the Rules of Court, is brought to the Supreme Court and resolves only questions of law. Where a litigant files an appeal that raises only questions of law with the CA, Section 2, Rule 50 of the Rules of Court expressly mandates that the CA should dismiss the appeal outright as the appeal is not reviewable by that court. There is a question of law when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted, and the doubt concerns the correct application of law and jurisprudence on the matter.13 On the other hand, there is a question of fact when the doubt or controversy arises as to the truth or falsity of the alleged facts. While the petitioners never filed their appellants brief, we discern from the petitioners submissions to the CA,14 as well as from their petition with this Court, their perceived issues with respect to the RTCs summary judgment, and they are as follows: a) Whether or not the National Airports Corporation acted with good faith when it purchased the properties from Ouano; b) Whether the heirs of Ouano acted with good faith in recovering the properties from the National Airports Corporation; and

c) Whether the subsequent buyers of the properties acted with good faith in purchasing the properties from the heirs of Ouano. Given that the question of whether a person acted with good faith or bad faith in purchasing and registering real property is a question of fact,15 it appears, at first glance, that the petitioners raised factual issues in their appeal and, thus, correctly filed an ordinary appeal with the CA. After reviewing the RTC resolution being assailed, however, we find that the petitioners actually raised only questions of law in their appeal. We quote the pertinent portions of the RTC decision: The main issue to be resolved is who between [the] plaintiffs and the defendants have a better right to the subject lots. In selling the land in favor of the National Airports Corporation[,] plaintiffs alleged bad faith and malice on the part of the seller Ine[s] Ouano but have not pleaded bad faith on the part of the buyer. Since good faith is always presumed under Article 427 of the Civil Code, the National Airports Corporation was therefore a buyer in good faith. Being [a] purchaser in good faith and for value, it is axiomatic that the right of [the] National Airports Corporation must be upheld and its titles protected over the claim of the plaintiffs. In the case of Flordeliza Cabuhat vs. The Honorable Court of Appeals, G.R. No. 122425, September 28, 2001, the Supreme Court upheld the validity of the title of an innocent purchaser in good faith and for value and at the same time invoked the principle of stability of our Torrens system and indefeasibility of title guaranteeing the integrity of land titles once the claim of ownership is established and recognized. "However, it is well-settled that even if the procurement of a certificate of title was tainted with fraud and misrepresentation, such defective title may be the source of a completely legal and valid title in the hands of an innocent purchaser for value. Thus: where innocent third persons, relying on the correctness of the certificate of title thus issued, acquire rights over the property the court cannot disregard such rights and order the total cancellation of the certificate. The effect of such an outright cancellation would be to impair public confidence in the certificate of title, for everyone dealing with property registered under [the] Torrens system would have to inquire in every instance whether the title has been regularly or irregularly issued. This is contrary to the evident purpose of the law. Every person dealing with the registered land may safely rely on the correctness of the certificate of title issued therefore and the law will in no way oblige him to go behind the certificate to determine the condition of the property." The subject lots being registered land under the Torrens [s]ystem the recordation of the sale by the National Airports Corporation, a buyer in good faith gave National Airports Corporation a title free of all unrecorded prior transactions, deeds, liens and encumbrances, and conversely forever erased or cut off the unrecorded interest of Salvador Cobarde. Section 50 of Article 496 of the Land Registration Act (now sec. 51 of PD 1529) reads: "No deed, mortgage, lease or other voluntary instrument, except a will, purporting to convey or affect registered land shall take effect as a conveyance or bind the land xxx. The act of registration shall be the operative act to convey and affect [the] land." In the case of National Grains Authority v. IAC, 157 SCRA 380, the Supreme Court ruled, thus, the possession by plaintiffs and their predecessors-in-interest is irrelevant to this case because possession of registered land can never ripen into ownership. "No title to registered land in derogation of the title of the registered owner shall be acquired by prescription or adverse possession." (Sec. 46 of Act 496, now Sec. 47 of PD 1529). In the eyes of the Torrens system, the unregistered sale of the property by Ine[s] Ouano to Salvador Cobarde did not bind the land or the whole world in rem; it bound, in personam, only the parties. On

the other hand, the registered sale by Ine[s] Ouano to National Airports Corporation, a buyer in good faith, bound the land in rem, meaning that the whole world was put on constructive notice that thenceforth the land belonged to National Airports Corporation free of all prior transactions, deeds and encumbrances, such as the claim of Salvador Cobarde, which were at the very moment National Airports Corporation registered its title free of prior claims forever erased or cut off by operation of law. xxxx Salvador Cobarde, whose rights to the property had been erased or cut off by operation of law, had nothing or had no legally recognized interest in the property that he could sell when he "sold" the property to Nicolas and Lolita Cabigas. Nicolas and Lolita Cabigas having bought nothing could transmit nothing to their successors-in-interest, the plaintiffs herein. Under the Torrens system, herein plaintiffs are strangers to the property; they possess no legally recognized interest binding the property in rem that courts could protect and enforce against the world.16 As astutely observed by the CA, the RTC resolution merely collated from the pleadings the facts that were undisputed, admitted, and stipulated upon by the parties, and thereafter ruled on the legal issues raised by applying the pertinent laws and jurisprudence on the matter. In other words, the RTC did not resolve any factual issues, only legal ones. When there is no dispute as to the facts, the question of whether or not the conclusion drawn from these facts is correct is a question of law.17 When the petitioners assailed the summary judgment, they were in fact questioning the conclusions drawn by the RTC from the undisputed facts, and raising a question of law. In light of the foregoing, jurisdiction over the petitioners appeal properly lay with this Court via an appeal by certiorari, and the CA was correct in dismissing the appeal for lack of jurisdiction. Rendition of summary judgment was proper Even if we overlook the procedural lapse and resolve the case on the merits, we still affirm the assailed CA resolutions. Under the Rules of Court, a summary judgment may be rendered where, on motion of a party and after hearing, the pleadings, supporting affidavits, depositions and admissions on file show that, "except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."18 The Court explained the concept of summary judgment in Asian Construction and Development Corporation v. Philippine Commercial International Bank:19 Summary or accelerated judgment is a procedural technique aimed at weeding out sham claims or defenses at an early stage of litigation thereby avoiding the expense and loss of time involved in a trial. Under the Rules, summary judgment is appropriate when there are no genuine issues of fact which call for the presentation of evidence in a full-blown trial. Even if on their face the pleadings appear to raise issues, when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed by the Rules must ensue as a matter of law. The determinative factor, therefore, in a motion for summary judgment, is the presence or absence of a genuine issue as to any material fact. [Emphasis supplied.]

The petitioners assert that the RTC erred in rendering a summary judgment since there were factual issues that required the presentation of evidence at a trial. We disagree with the petitioners. At the outset, we note from the respondents pleadings that several respondents20 denied that the sale between anwhile, missed the information against all the accused. on in Court, claiming that cutors, who are his subordinates. Ouano and Cobarde ever occurred. It would, therefore, appear that a factual issue existed that required resolution through a formal trial, and the RTC erred in rendering summary judgment. A closer examination of the parties submissions, however, makes it apparent that this is not a genuine issue of fact because, as will be discussed below, the petitioners do not have any legally enforceable right to the properties in question, as their predecessors-in-interest are not buyers in good faith. i. Cabigas spouses are not buyers in good faith A purchaser in good faith is one who buys the property of another without notice that some other person has a right to or interest in such property, and pays a full and fair price for the same at the time of such purchase or before he has notice of the claim of another person.21 It is a well-settled rule that a purchaser cannot close his eyes to facts which should put a reasonable man upon his guard, and then claim that he acted in good faith under the belief that there was no defect in the title of the vendor. His mere refusal to believe that such defect exists, or his willful closing of his eyes to the possibility of the existence of a defect in his vendors title, will not make him an innocent purchaser for value, if it afterwards develops that the title was in fact defective, and it appears that he had such notice of the defect as would have led to its discovery had he acted with that measure of precaution which may reasonably be required of a prudent man in a like situation.22 We are dealing with registered land, a fact known to the Cabigas spouses since they received the duplicate owners certificate of title from Cobarde when they purchased the land. At the time of the sale to the Cabigas spouses, however, the land was registered not in Cobardes name, but in Ouanos name. By itself, this fact should have put the Cabigas spouses on guard and prompted them to check with the Registry of Deeds as to the most recent certificates of title to discover if there were any liens, encumbrances, or other attachments covering the lots in question. As the Court pronounced in Abad v. Sps. Guimba:23 [The law protects to a greater degree a purchaser who buys from the registered owner himself. Corollarily, it] requires a higher degree of prudence from one who buys from a person who is not the registered owner, although the land object of the transaction is registered. While one who buys from the registered owner does not need to look behind the certificate of title, one who buys from one who is not the registered owner is expected to examine not only the certificate of title but all factual circumstances necessary for [one] to determine if there are any flaws in the title of the transferor, or in [the] capacity to transfer the land. (emphasis supplied) Instead, the Cabigas spouses relied completely on Cobardes representation that he owned the properties in question, and did not even bother to perform the most perfunctory of investigations by checking the properties titles with the Registry of Deeds. Had the Cabigas spouses only done so, they would easily have learned that Cobarde had no legal right to the properties they were acquiring since the lots had already been registered in the name of the National Airports Corporation in 1952. Their failure to exercise the plain common sense expected of real estate buyers bound them to the consequences of their own inaction.

ii. No allegation that the National Airports Corporation registered the lots in bad faith All the parties to this case trace their ownership to either of the two persons that Ouano sold the properties to either to Cobarde, who allegedly purchased the land in 1948, or to the National Airports Corporation, which bought the land in 1952. Undoubtedly, the National Airports Corporation was the only party that registered the sale with the Registry of Deeds. For this registration to be binding, we now have to determine whether the National Airports Corporation acted with good faith when it registered the properties, in accordance with Article 1544 of the Civil Code, which provides: Article 1544. If the same thing should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be movable property. Should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first recorded it in the Registry of Property. Should there be no inscription, the ownership shall pertain to the person who in good faith was first in the possession; and, in the absence thereof, to the person who presents the oldest title, provided there is good faith.
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Based on this provision, the overriding consideration to determine ownership of an immovable property is the good or bad faith not of the seller, but of the buyer; specifically, we are tasked to determine who first registered the sale with the Registry of Property (Registry of Deeds) in good faith. As accurately observed by the RTC, the petitioners, in their submissions to the lower court, never imputed bad faith on the part of the National Airports Corporation in registering the lots in its name. This oversight proves fatal to their cause, as we explained in Spouses Chu, Sr. v. Benelda Estate Development Corporation: In a case for annulment of title, therefore, the complaint must allege that the purchaser was aware of the defect in the title so that the cause of action against him will be sufficient. Failure to do so, as in the case at bar, is fatal for the reason that the court cannot render a valid judgment against the purchaser who is presumed to be in good faith in acquiring the said property. Failure to prove, much less impute, bad faith on said purchaser who has acquired a title in his favor would make it impossible for the court to render a valid judgment thereon due to the indefeasibility and conclusiveness of his title.24 Since the petitioners never alleged that the National Airports Corporation acted with bad faith when it registered the lots in its name, the presumption of good faith prevails. Consequently, the National Airports Corporation, being a registrant in good faith, is recognized as the rightful owner of the lots in question, and the registration of the properties in its name cut off any and all prior liens, interests and encumbrances, including the alleged prior sale to Cobarde, that were not recorded on the titles. Cobarde, thus, had no legal rights over the property that he could have transferred to the Cabigas spouses. Since the Cabigas spouses have no legally recognizable interest in the lots in question, it follows that the petitioners, who are subrogated to the rights of the former by virtue of succession, also have no legally recognizable rights to the properties that could be enforced by law. The petitioners clearly have no cause of action against the respondents, and the RTC correctly dismissed their complaint for annulment of title.

WHEREFORE, premises considered, we DENY the petition for lack of merit, and AFFIRM the Resolutions, dated May 31, 2006 and October 4, 2006, of the Court of Appeals in CA-G.R. CV No. 01144. No costs. SO ORDERED. A.M. No. P-10-2852 July 27, 2011 (Formerly A.M. OCA IPI No. 09-3270-P) OFFICE OF ADMINISTRATIVE SERVICES, OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. LEDA O. URI, Court Stenographer I, Municipal Trial Court, Alaminos, Laguna, Respondent. RESOLUTION BRION, J.: On September 23, 2009, the Leave Division of the Office of the Court Administrator (OCA) reported on the tardiness incurred by Leda O. Uri, Court Stenographer I, Municipal Trial Court, Alaminos, Laguna. The report showed that Leda was tardy 13 times in July 2009 and 10 times in August 2009.1 Attached to the report were copies of Ledas Daily Time Records for July and August 2009.2 Leda was asked to comment on the report of her tardiness in the OCAs 1st Indorsement dated October 23, 2009.3 Leda submitted her comment where she did not deny her tardiness. She gave the following explanation: In my defense, and honestly there is very little defensible ground for me to stand on here, notice that in some days where I was found tardy, a very little difference of something like one (1) or two (2) minutes made it so. This goes to show that in an ordinary given day, I would have timed in within the regulation time but some factors like uncontrollable traffic and others created hindrances. Still, in most instances, my duties as a mother to a two (2) years old daughter and as a wife, equally timedemanding as ever, not being satisfied with the care a house help could provide until personally seeing to it that my child and husband are well cared of every morning, paid the price of coming to office at a later time. This make me consider requesting for a flexi-time schedule, if you may allow. Finally, while being tardy is not what I willfully wanted to become, it is a lesson to be learned and rightfully so, I vow to immediately correct the same. And if it is of any worth, this is the first time in almost fourteen (14) years of dedicated service to the judiciary that I committed the infraction and I am so sorry about it.4 On February 12, 2010, Leda submitted a supplemental letter written in Tagalog5 where she admitted that she had been tardy and that she understood that there was a penalty for it. She explained that she and her family used to rent a house close to her office, but in September 2008, for financial reasons, they moved to Sto. Angel in San Pablo City to live with her father who was already old and living alone. Because of the distance from San Pablo City to Alaminos, it also took her a longer time to reach the office. Leda added that she is the sole financial support of her husband who recently lost his job, her child, her father, her parent-in-law and her orphaned niece. To augment her income, she decided to open a small sari-sari store in Bay, Laguna, financed by her aunt abroad. At the times that she slept in Bay with her husband and her child, she left for San Pablo at 4:30 a.m. to check on her father and her niece. Only after she had taken care of the needs of her father and her niece would she go to work even if she was late. She would rather be late than absent. Leda wrote

that it would be difficult for her to stop working now since her child is only two years old. She asked that she be given another chance to improve herself and to prove that she could make the necessary changes. She said that she would accept any penalty but asked for a lighter penalty, if possible. In its Report dated June 8, 2010,6 the OCA found that Ledas explanation does not merit consideration to justify her habitual tardiness, citing Re: Imposition of Corresponding Penalties7 where we ruled that moral obligations, performance of household chores, traffic problems, health conditions, domestic and financial concerns are not sufficient reasons to excuse habitual tardiness. The OCA recommended that the case be redocketed as a regular administrative matter and that Leda be reprimanded for habitual tardiness with a warning that a repetition of the same or similar offense would warrant the imposition of a more severe penalty. On November 23, 2010, Leda submitted a Manifestation8 that reads: This is in connection with A.M. No. P-10-2852 [Formerly A.M. OCA IPI No. 09-3270-P] for tardiness incurred on July and August, in 2009. I beg the good indulgence of this Honorable Court to reconsider if possible the above mentioned case, considering that I have already served a one (1) month suspension without pay, following the Decision in A.M. No. P-10-2845 [Formerly A.M. OCA IPI No. 10-3321-P], also for tardiness incurred on September and October, in 2009, which is much later than the present case. And that I am asking your Honor, to please give me another chance for I have learned my lesson from my suspension and I am so sorry for what happened. Leda has acknowledged her infraction and has felt remorse for her tardiness in the months of July and August 2009. Considering that she has been in the service for fourteen (14) years9 and had been suspended without pay for one month for her tardiness in September and October 2009, we find the penalty of severe reprimand to be proper for the prior tardiness she committed in the earlier months of July and August 2009. WHEREFORE, premises considered, we find Leda O. Uri, Court Stenographer I, Municipal Trial Court, Alaminos, Laguna, GUILTY of habitual tardiness. She is hereby SEVERELY REPRIMANDED, with the WARNING that any future finding of habitual tardiness, within the next two (2) years from notice of this Resolution, shall merit a penalty graver than the one-month suspension previously imposed on her. SO ORDERED. A.M. No. P-11-2888 July 27, 2011 (formerly A.M. OCA I.P.I. No. 09-3252-P) GOLDEN SUN FINANCE CORPORATION, represented by RACHELLE L. MARMITO, Complainant, vs. RICARDO R. ALBANO, Sheriff III, Metropolitan Trial Court (MeTC), Branch 62, Makati City, Respondent. DECISION BRION, J.:

Ricardo R. Albano (respondent), Sheriff III, Metropolitan Trial Court (MeTC), Branch 62, Makati City, was charged with negligence and grave misconduct by the Golden Sun Finance Corporation (complainant), represented by Rachelle L. Marmito, the complainants Head Auditor. THE COMPLAINT In a verified letter-complaint dated September 1, 2009, the complainant alleged that on January 7, 2009, it filed a complaint for the recovery of a Honda Civic Sedan with the Regional Trial Court (RTC), Quezon City, Branch 81, against one Lucila S. Reyes, docketed as Civil Case No. 0964026. The subject motor vehicle, registered in the name of Reyes, was encumbered in its favor, as shown in the Certificate of Registration issued by the Land Transportation Office. The RTC decided in favor of the complainant and issued a writ of replevin. However, the complainant found out that the motor vehicle had already been levied upon by the respondent by virtue of a writ of execution issued on March 27, 2009 by the MeTC, Makati City, Branch 62, in Criminal Case Nos. 353822-23 for violation of Batas Pambansa Bilang 22 against Reyes. It was sold at a public auction conducted by the respondent on April 29, 2009, with the Royal Makati Credit Resource as the highest bidder. On the same day, a Certificate of Sale was issued in favor of the Royal Makati Credit Resource. The complainant averred that the levy and sale of the motor vehicle by the respondent was illegal. It claimed that the respondent was negligent when he levied upon the motor vehicle and proceeded with the auction sale without looking into the cars Certificate of Registration to determine whether it was encumbered or not. The encumbrance on the motor vehicle having been made prior to the suit filed by the Royal Makati Credit Resource, the complainant posited that its claim should have priority over the formers claims. Required by the Office of the Court Administrator (OCA) to comment on the charges against him,1 the respondent contended that he had no knowledge that the car was encumbered because the Certificate of Registration was never shown to him. He also had no knowledge that the car was the subject of a writ of replevin in Civil Case No. 0964026.2 Thus, the respondent asked for the dismissal of the complaint, stressing that he had acted within the scope of his duty as sheriff when he enforced the writ of execution. THE OCAS REPORT AND RECOMMENDATION In a Memorandum Report dated November 3, 2010,3 the OCA evaluated the complaint and submitted its findings: The encumbrance in the instant case has been properly recorded in the Land Transportation Office and, as attested to by the complainant, in the Register of Deeds of Rizal Province. Such record is constructive notice of its contents and all interests, legal and equitable, included therein. This presumption cannot be defeated by lack of notice or knowledge of what the public record contains any more than one may be permitted to show that he was ignorant of the provisions of law. Hence, the respondent is charged with knowledge of the duly registered encumbrance on the property he levied. In the case of Caja vs. Nanquil, the Court has declared that "the respondent sheriffs act of levying complainants real property despite its being mortgaged is tantamount to negligence. As an officer of the court, he knew fully well that the property cannot be used to satisfy the judgment debt since the mortgagee is the preferred creditor in relation to the said property."

In the instant administrative complaint, the respondent not only levied the encumbered vehicle, but sold it in an execution sale, the proceeds of which would not satisfy the judgment debt because of the existing encumbrance. Thus, the implementation of the writ of execution, although impressively carried out with such celerity and promptness, had been to naught. It must be pointed out that the recovery of the vehicle itself was the subject of Civil Case No. 0964026 filed by GSFC before the Quezon City Regional Trial Court, Branch 81. The OCA recommended that - (1) the complaint be redocketed as a regular administrative matter, (2) the respondent be held administratively liable for simple neglect of duty, and (3) the respondent be suspended without pay for one (1) month and one (1) day, with a stern warning that the commission of the same or similar offense in the future shall be dealt with more severely. The Court, as recommended, (a) directed that the complaint be redocketed as a regular administrative matter, and (b) required the parties to manifest whether they were willing to submit the case for decision based on the pleadings/records already filed and submitted.4 Both the complainant and the respondent complied, manifesting that they were submitting the case for decision based on the pleadings/records on file.5 THE COURTS RULING We disagree with the OCAs recommendation. We fail to find sufficient basis to declare the respondent administratively liable for simple neglect of duty. Section 9(b), Rule 39 of the Rules of Court states the manner by which judgments for money may be satisfied by levy: SEC. 9. Execution of judgments for money, how enforced. xxxx (b) Satisfaction by levy. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment.

In determining properties to be levied upon, the Rules require the sheriff to levy only on those "properties of the judgment debtor" which are "not otherwise exempt from execution." For purposes of the levy, a property is deemed to belong to the judgment debtor if he holds a beneficial interest in such property that he can sell or otherwise dispose of for value.6 In a contract of mortgage, the debtor retains beneficial interest over the property notwithstanding the encumbrance, since the mortgage only serves to secure the fulfillment of the principal obligation.7 Indeed, even if the debtor defaults, this fact does not operate to vest in the creditor the ownership of the property;8 the creditor must still resort to foreclosure proceedings. Thus, a mortgaged property may still be levied upon by the sheriff to satisfy the judgment debtors obligations, as what happened in the present case. After ascertaining the judgment debtors (Reyes) interest over the car, the respondent properly enforced the levy thereon an act that, to our mind, is in accordance with the Rules of Court.
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It was thus irrelevant for the complainant to argue that had the respondent checked the cars certificate of registration, the respondent would have been aware of the encumbrance. The encumbrance, until foreclosed, will not in any way affect the judgment debtors rights over the property or exempt the property from the levy. Even the pendency of the proceeding for replevin that the complainant instituted would not serve to prevent the sheriff from levying on the car, since Reyes default and the complainants right to foreclose still had to be settled in the proceeding.9 The OCAs recommendation was based supposedly on our ruling in Caja v. Nanquil.10 We find, however, that the OCA has read our ruling out of context. In that case, the Court held Sheriff Atilano Nanquil administratively liable, not so much for levying on the property of the judgment debtor that was already mortgaged to a third party, but for levying on the judgment debtors real properties without checking if there were other personal properties that could satisfy the judgment debt. "[Sheriff Nanquil] should have exhausted all means before going after the real property,"11 as required under Section 9(b), Rule 39 of the Rules of Court. We also found Sheriff Nanquil liable for levying properties of the judgment debtor far from and in excess of the value of the judgment debt.12 We emphasize that a sheriffs duty to execute a writ is simply ministerial,13 and he is bound to perform only those tasks stated under the Rules of Court and no more. Any interest a third party may have on the property levied upon by the sheriff to enforce a judgment is the third partys responsibility to protect through the remedies provided under Rule 39 of the Rules of Court.14 Thus, we can not hold the respondent liable on the ground that the complainant cites. If at all, the respondent should have required, as a matter of sound established practice, the production of the certificate of registration, but this is an altogether different matter that we do not here pass upon. WHEREFORE, premises considered, the administrative charges for negligence and grave misconduct against Ricardo R. Albano, Sheriff III, Metropolitan Trial Court, Branch 62, Makati City, are DISMISSED. Costs against the complainant Golden Sun Finance Corporation. SO ORDERED. G.R. No. 172699 July 27, 2011

ELECTROMAT MANUFACTURING and RECORDING CORPORATION, Petitioner, vs. HON. CIRIACO LAGUNZAD, in his capacity as Regional Director, National Capital Region, Department of Labor and Employment; and HON. HANS LEO J. CACDAC, in his capacity as Director of Bureau of Labor Relations, Department of Labor and Employment, Public Respondents. NAGKAKAISANG SAMAHAN NG MANGGAGAWA NG ELECTROMAT-WASTO, Private Respondent.

DECISION BRION, J.: We resolve the present petition for review on certiorari1 assailing the decision2 and the resolution3 of the Court of Appeals (CA) dated February 3, 2006 and May 11, 2006, respectively, rendered in CA G.R. SP No. 83847. The Antecedents The private respondent Nagkakaisang Samahan ng Manggagawa ng Electromat-Wasto (union), a charter affiliate of the Workers Advocates for Struggle, Transformation and Organization (WASTO), applied for registration with the Bureau of Labor Relations (BLR). Supporting the application were the following documents: (1) copies of its ratified constitution and by-laws (CBL); (2) minutes of the CBLs adoption and ratification; (3) minutes of the organizational meetings; (4) names and addresses of the union officers; (5) list of union members; (6) list of rank-and-file employees in the company; (7) certification of non-existence of a collective bargaining agreement (CBA) in the company; (8) resolution of affiliation with WASTO, a labor federation; (9) WASTOs resolution of acceptance; (10) Charter Certificate; and (11) Verification under oath. The BLR thereafter issued the union a Certification of Creation of Local Chapter (equivalent to the certificate of registration of an independent union), pursuant to Department Order No. (D.O.) 40-03.4 On October 1, 2003, the petitioner Electromat Manufacturing and Recording Corporation (company) filed a petition for cancellation of the unions registration certificate, for the unions failure to comply with Article 234 of the Labor Code. It argued that D.O. 40-03 is an unconstitutional diminution of the Labor Codes union registration requirements under Article 234. On November 27, 2003, Acting Director Ciriaco A. Lagunzad of the Department of Labor and Employment (DOLE)-National Capital Region dismissed the petition.5 In the appeal by the company, BLR Director Hans Leo J. Cacdac affirmed the dismissal.6 The company thereafter sought relief from the CA through a petition for certiorari, contending that the BLR committed grave abuse of discretion in affirming the unions registration despite its noncompliance with the requirements for registration under Article 234 of the Labor Code. It assailed the validity of D.O. 40-03 which amended the rules of Book V (Labor Relations) of the Labor Code. It posited that the BLR should have strictly adhered to the union registration requirements under the Labor Code, instead of relying on D.O. 40-03 which it considered as an invalid amendment of the law since it reduced the requirements under Article 234 of the Labor Code. It maintained that the BLR should not have granted the unions registration through the issuance of a Certification of Creation of Local Chapter since the union submitted only the Charter Certificate issued to it by WASTO. The CA Decision In its decision rendered on February 3, 2006,7 the CA Tenth Division dismissed the petition and affirmed the assailed BLR ruling. It brushed aside the companys objection to D.O. 40-03, and its submission that D.O. 40-03 removed the safety measures against the commission of fraud in the registration of unions. It noted that "there are sufficient safeguards found in other provisions of the Labor Code to prevent the same."8 In any event, it pointed out that D.O. 40-03 was issued by the DOLE pursuant to its rule-making power under the law.9

The company moved for reconsideration, arguing that the unions registration certificate was invalid as there was no showing that WASTO, the labor federation to which the union is affiliated, had at least ten (10) locals or chapters as required by D.O. 40-03. The CA denied the motion,10 holding that no such requirement is found under the rules. Hence, the present petition. The Case for the Petitioner The company seeks a reversal of the CA rulings, through its submissions (the petition11 and the memorandum12), on the ground that the CA seriously erred and gravely abused its discretion in affirming the registration of the union in accordance with D.O. 40-03. Specifically, it assails as unconstitutional Section 2(E), Rule III of D.O. 40-03 which provides: The report of creation of a chartered local shall be accompanied by a charter certificate issued by the federation or national union indicating the creation or establishment of the chartered local. The company points out that D.O. 40-03 delisted some of the requirements under Article 234 of the Labor Code for the registration of a local chapter. Article 234 states: ART. 234. Requirements of Registration.13 Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) The names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and (e) Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it. The company contends that the enumeration of the requirements for union registration under the law is exclusive and should not be diminished, and that the same requirements should apply to all labor unions whether they be independent labor organizations, federations or local chapters. It adds that in making a different rule for local chapters, D.O. 40-03 expanded or amended Article 234 of the Labor Code, resulting in an invalid exercise by the DOLE of its delegated rule-making power. It thus posits that the unions certificate of registration which was issued "in violation of the letters of Article 234 of the Labor Code"14 is void and of no effect, and that the CA committed grave abuse of discretion when it affirmed the unions existence. The Case for the Union In a Resolution dated January 16, 2008,15 the Court directed union board member Alex Espejo, in lieu of union President Roberto Beltran whose present address could not be verified, to furnish the

Court a copy of the union comment/opposition to the companys motion for reconsideration dated February 22, 2006 in CA G.R. SP No. 83847, which the union adopted as its comment on the present petition.16 Through this comment/opposition,17 the union submits that the company failed to show that the CA committed reversible error in upholding the registration certificate issued to it by the BLR. Citing Castillo v. National Labor Relations Commission,18 it stressed that the issuance of the certificate by the DOLE agencies was supported by substantial evidence, which should be entitled to great respect and even finality. The Courts Ruling We resolve the core issue of whether D.O. 40-03 is a valid exercise of the rule-making power of the DOLE. We rule in the affirmative. Earlier in Progressive Development Corporation v. Secretary, Department of Labor and Employment,19 the Court encountered a similar question on the validity of the old Section 3, Rule II, Book V of the Rules Implementing the Labor Code20 which stated: Union affiliation; direct membership with a national union. - The affiliate of a labor federation or national union may be a local or chapter thereof or an independently registered union. a) The labor federation or national union concerned shall issue a charter certificate indicating the creation or establishment of a local or chapter, copy of which shall be submitted to the Bureau of Labor Relations within thirty (30) days from issuance of such charter certificate. xxxx e) The local or chapter of a labor federation or national union shall have and maintain a constitution and by-laws, set of officers and books of accounts. For reporting purposes, the procedure governing the reporting of independently registered unions, federations or national unions shall be observed. Interpreting these provisions of the old rules, the Court said that by force of law,21 the local or chapter of a labor federation or national union becomes a legitimate labor organization upon compliance with Section 3, Rule II, Book V of the Rules Implementing the Labor Code, the only requirement being the submission of the charter certificate to the BLR. Further, the Court noted that Section 3 omitted several requirements which are otherwise required for union registration, as follows: 1) The requirement that the application for registration must be signed by at least 20% of the employees in the appropriate bargaining unit; 2) The submission of officers addresses, principal address of the labor organization, the minutes of organization meetings and the list of the workers who participated in such meetings; 3) The submission of the minutes of the adoption or ratification of the constitution and bylaws and the list of the members who participated in it.22 Notwithstanding these omissions, the Court upheld the governments implementing policy expressed in the old rules when it declared in Progressive Development

Undoubtedly, the intent of the law in imposing lesser requirements in the case of a branch or local of a registered federation or national union is to encourage the affiliation of a local union with a federation or national union in order to increase the local unions bargaining powers respecting terms and conditions of labor.23 It was this same Section 3 of the old rules that D.O. 40-03 fine-tuned when the DOLE amended the rules on Book V of the Labor Code, thereby modifying the governments implementing policy on the registration of locals or chapters of labor federations or national unions. The company now assails this particular amendment as an invalid exercise of the DOLEs rule-making power. We disagree. As in the case of D.O. 9 (which introduced the above-cited Section 3 of the old rules) in Progressive Development, D.O. 40-03 represents an expression of the governments implementing policy on trade unionism. It builds upon the old rules by further simplifying the requirements for the establishment of locals or chapters. As in D.O. 9, we see nothing contrary to the law or the Constitution in the adoption by the Secretary of Labor and Employment of D.O. 40-03 as this department order is consistent with the intent of the government to encourage the affiliation of a local union with a federation or national union to enhance the locals bargaining power. If changes were made at all, these were those made to recognize the distinctions made in the law itself between federations and their local chapters, and independent unions; local chapters seemingly have lesser requirements because they and their members are deemed to be direct members of the federation to which they are affiliated, which federations are the ones subject to the strict registration requirements of the law.
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In any case, the local union in the present case has more than satisfied the requirements the petitioner complains about; specifically, the union has submitted: (1) copies of the ratified CBL; (2) the minutes of the CBLs adoption and ratification; (3) the minutes of the organizational meetings; (4) the names and addresses of the union officers; (5) the list of union members; (6) the list of rank-andfile employees in the company; (7) a certification of non-existence of a CBA in the company; (8) the resolution of affiliation with WASTO and the latters acceptance; and (9) their Charter Certificate. These submissions were properly verified as required by the rules. In sum, the petitioner has no factual basis for questioning the unions registration, as even the requirements for registration as an independent local have been substantially complied with. We, thus, find no compelling justification to nullify D.O. 40-03. Significantly, the Court declared in another case:24 Pagpalain cannot also allege that Department Order No. 9 is violative of public policy. x x x [T]he sole function of our courts is to apply or interpret the laws. It does not formulate public policy, which is the province of the legislative and executive branches of government. It cannot, thus, be said that the principles laid down by the Court in Progressive and Protection Technology constitute public policy on the matter. They do, however, constitute the Courts interpretation of public policy, as formulated by the executive department through its promulgation of rules implementing the Labor Code. However, this public policy has itself been changed by the executive department, through the amendments introduced in Book V of the Omnibus Rules by Department Order No. 9. It is not for us to question this change in policy, it being a well-established principle beyond question that it is not within the province of the courts to pass judgments upon the policy of legislative or executive action. This statement is as true then as it is now. In light of the foregoing, we find no merit in the appeal.

WHEREFORE, premises considered, we DENY the petition for lack of merit. The assailed decision and resolution of the Court of Appeals are AFFIRMED. Costs against the petitioner Electromat Manufacturing and Recording Corporation. SO ORDERED. G.R. No. 167246 July 20, 2011

GEORGE LEONARD S. UMALE, Petitioner, vs. CANOGA PARK DEVELOPMENT CORPORATION, Respondent. DECISION BRION, J.: Before us is a petition for review on certiorari1 filed by George Leonard S. Umale (petitioner), challenging the August 20, 2004 Decision2 of the Court of Appeals (CA) in CA-G.R. SP. No. 78836 and its subsequent February 23, 2005 Resolution3 that denied his motion for reconsideration. The CA reversed the Decision4 of the Regional Trial Court (RTC)-Branch 68, Pasig City, that dismissed Canoga Park Development Corporations complaint for unlawful detainer on the ground of litis pendentia. ANTECEDENTS On January 4, 2000, the parties entered into a Contract of Lease5 whereby the petitioner agreed to lease, for a period of two (2) years starting from January 16, 2000, an eight hundred sixty (860)square-meter prime lot located in Ortigas Center, Pasig City owned by the respondent. The respondent acquired the subject lot from Ortigas & Co. Ltd. Partnership through a Deed of Absolute Sale, subject to the following conditions: (1) that no shopping arcades or retail stores, restaurants, etc. shall be allowed to be established on the property, except with the prior written consent from Ortigas & Co. Ltd. Partnership and (2) that the respondent and/or its successors-in-interest shall become member/s of the Ortigas Center Association, Inc. (Association), and shall abide by its rules and regulations.6 On October 10, 2000, before the lease contract expired, the respondent filed an unlawful detainer case against the petitioner before the Metropolitan Trial Court (MTC)-Branch 68, Pasig City, docketed as Civil Case No. 8084.7The respondent used as a ground for ejectment the petitioners violation of stipulations in the lease contract regarding the use of the property. Under this contract, the petitioner shall use the leased lot as a parking space for light vehicles and as a site for a small drivers canteen,8 and may not utilize the subject premises for other purposes without the respondents prior written consent.9 The petitioner, however, constructed restaurant buildings and other commercial establishments on the lot, without first securing the required written consent from the respondent, and the necessary permits from the Association and the Ortigas & Co. Ltd. Partnership. The petitioner also subleased the property to various merchants-tenants in violation of the lease contract. The MTC-Branch 68 decided the ejectment case in favor of the respondent. On appeal, the RTCBranch 155, Pasig City affirmed in toto the MTC-Branch 68 decision.10 The case, however, was reraffled to the RTC-Branch 267, Pasig City because the Presiding Judge of the RTC-Branch 155, upon motion, inhibited himself from resolving the petitioners motion for reconsideration.11 The RTCBranch 267 granted the petitioners motion, thereby reversing and setting aside the MTC-Branch 68

decision. Accordingly, Civil Case No. 8084 was dismissed for being prematurely filed.12 Thus, the respondent filed a petition for review with the CA on April 10, 2002.13 During the pendency of the petition for review, the respondent filed on May 3, 2002 another case for unlawful detainer against the petitioner before the MTC-Branch 71, Pasig City. The case was docketed as Civil Case No. 9210.14 This time, the respondent used as a ground for ejectment the expiration of the parties lease contract. On December 4, 2002, the MTC-Branch 71 rendered a decision15 in favor of the respondent, the dispositive portion of which read, as follows: WHEREFORE, judgment is hereby rendered in favor of the plaintiff [referring to the respondent] and against the defendant and all persons claiming rights under him, as follows: 1. Defendant and all persons claiming rights under him are ordered to peacefully vacate the premises located at Lot 9, Block 5, San Miguel Avenue, Ortigas Center, Pasig City, covered by Transfer Certificate of Title No. 488797 of the Registry of Deeds of Pasig City and to surrender the possession thereof to the plaintiff; 2. Defendant is ordered to pay unto plaintiff the following: a. Damages for the use of the property after the expiration of the lease contract therefor in the amount of One Hundred Fifty Thousand Pesos (P150,000.00) a month, beginning 16 January 2002 until he and all those claiming rights under him have vacated and peacefully turned over the subject premises to the plaintiff; and b. One Hundred Thousand Pesos (P100,000.00) as and for attorneys fees together with costs of suit. 3. With respect to the commercial units built by [the] defendant on the subject land, he is hereby ordered to remove the same from the subject land and to restore the subject land in the same condition as it was received unto the plaintiff, at his exclusive account, failing which the same shall be removed by the plaintiff, with expenses therefor chargeable to the defendant. On appeal, the RTC-Branch 68 reversed and set aside the decision of the MTC-Branch 71, and dismissed Civil Case No. 9210 on the ground of litis pendentia.16 The petitioner, however, was still ordered to pay rent in the amount of seventy-one thousand five hundred pesos (P71,500.00) per month beginning January 16, 2002, which amount is the monthly rent stipulated in the lease contract. Aggrieved by the reversal, the respondent filed a Petition for Review under Rule 42 of the Rules of Court with the CA. The respondent argued that there exists no litis pendentia between Civil Case Nos. 8084 and 9210 because the two cases involved different grounds for ejectment, i.e., the first case was filed because of violations of the lease contract, while the second case was filed due to the expiration of the lease contract. The respondent emphasized that the second case was filed based on an event or a cause not yet in existence at the time of the filing of the first case.17 The lease contract expired on January 15, 2002,18 while the first case was filed on October 10, 2000. On August 20, 2004, the CA nullified and set aside the assailed decision of the RTC-Branch 68, and ruled that there was no litis pendentia because the two civil cases have different causes of

action. The decision of the MTC- Branch 71 was ordered reinstated. Subsequently, the petitioners motion for reconsideration was denied; hence, the filing of the present petition for review on certiorari. In presenting his case before this Court, the petitioner insists that litis pendentia exists between the two ejectment cases filed against him because of their identity with one another and that any judgment on the first case will amount to res judicata on the other. The petitioner argues that the respondent reiterated the ground of violations of the lease contract, with the additional ground of the expiration of the lease contract in the second ejectment case. Also, the petitioner alleges that all of the elements of litis pendentia are present in this case, thus, he prays for the reversal and setting aside of the assailed CA decision and resolution, and for the dismissal of the complaint in Civil Case No. 9210 on the ground of litis pendentia and/or forum shopping. THE COURTS RULING We disagree with the petitioner and find that there is no litis pendentia. As a ground for the dismissal of a civil action, litis pendentia refers to a situation where two actions are pending between the same parties for the same cause of action, so that one of them becomes unnecessary and vexatious.19 Litis pendentia exists when the following requisites are present: identity of the parties in the two actions; substantial identity in the causes of action and in the reliefs sought by the parties; and the identity between the two actions should be such that any judgment that may be rendered in one case, regardless of which party is successful, would amount to res judicata in the other.20 In the present case, the parties bone of contention is whether Civil Case Nos. 8084 and 9210 involve the same cause of action. The petitioner argues that the causes of action are similar, while the respondent argues otherwise. If an identity, or substantial identity, of the causes of action in both cases exist, then the second complaint for unlawful detainer may be dismissed on the ground of litis pendentia. We rule that Civil Case Nos. 8084 and 9210 involve different causes of action. Generally, a suit may only be instituted for a single cause of action.21 If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment on the merits in any one is ground for the dismissal of the others.22 Several tests exist to ascertain whether two suits relate to a single or common cause of action, such as whether the same evidence would support and sustain both the first and second causes of action23 (also known as the "same evidence" test),24 or whether the defenses in one case may be used to substantiate the complaint in the other.25 Also fundamental is the test of determining whether the cause of action in the second case existed at the time of the filing of the first complaint.26 Of the three tests cited, the third one is especially applicable to the present case, i.e., whether the cause of action in the second case existed at the time of the filing of the first complaint and to which we answer in the negative. The facts clearly show that the filing of the first ejectment case was grounded on the petitioners violation of stipulations in the lease contract, while the filing of the second case was based on the expiration of the lease contract. At the time the respondent filed the first ejectment complaint on October 10, 2000, the lease contract between the parties was still in effect. The lease was fixed for a period of two (2) years, from January 16, 2000, and in the absence

of a renewal agreed upon by the parties, the lease remained effective until January 15, 2002. It was only at the expiration of the lease contract that the cause of action in the second ejectment complaint accrued and made available to the respondent as a ground for ejecting the petitioner. Thus, the cause of action in the second case was not yet in existence at the time of filing of the first ejectment case. In response to the petitioners contention that the similarity of Civil Case Nos. 8084 and 9210 rests on the reiteration in the second case of the cause of action in the first case, we rule that the restatement does not result in substantial identity between the two cases. Even if the respondent alleged violations of the lease contract as a ground for ejectment in the second complaint, the main basis for ejecting the petitioner in the second case was the expiration of the lease contract. If not for this subsequent development, the respondent could no longer file a second complaint for unlawful detainer because an ejectment complaint may only be filed within one year after the accrual of the cause of action,27 which, in the second case, was the expiration of the lease contract.
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Also, contrary to petitioners assertion, there can be no conflict between the decisions rendered in Civil Case Nos. 8084 and 9210 because the MTC-Branch 71 decided the latter case on the sole issue of whether the lease contract between the parties had expired. Although alleged by the respondent in its complaint, the MTC-Branch 71 did not rule on the alleged violations of the lease contract committed by the petitioner. We note that the damages awarded by the MTC-Branch 71 in Civil Case No. 9210 were for those incurred after the expiration of the lease contract,28 not for those incurred prior thereto. Similarly, we do not find the respondent guilty of forum shopping in filing Civil Case No. 9210, the second civil case. To determine whether a party violated the rule against forum shopping, the test applied is whether the elements of litis pendentia are present or whether a final judgment in one case will amount to res judicata in another.29 Considering our pronouncement that not all the requisites of litis pendentia are present in this case,the CA did not err in declaring that the respondent committed no forum shopping. Also, a close reading of the Verification and Certification of Non-Forum Shopping30 (attached to the second ejectment complaint) shows that the respondent did disclose that it had filed a former complaint for unlawful detainer against the petitioner. Thus, the respondent cannot be said to have committed a willful and deliberate forum shopping. WHEREFORE, the instant petition is DENIED. The assailed Decision dated August 20, 2004 and Resolution dated February 23, 2005 of the Court of Appeals in CA-G.R. SP. No. 78836 are AFFIRMED. SO ORDERED. G.R. No. 181919 July 20, 2011

JONES INTERNATIONAL MANPOWER SERVICES, INC., represented by its President, EDWARD G. CUE,Petitioner, vs. BELLA AGCAOILI-BARIT, Respondent. DECISION BRION, J.:

We pass upon the present petition for review on certiorari1 seeking the reversal of the January 23, 2008 Decision2and the February 27, 2008 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 101069.4 The Antecedents Summarized below are the relevant facts on record. On November 21, 2003, respondent Bella Agcaoili-Barit filed a complaint5 for non-payment of salaries and refund of transportation fare against the petitioner Jones International Manpower Services, Inc. (agency), owned and managed by Edward G. Cue. Barit alleged that she entered into a two-year employment contract (July 23, 1999 to July 23, 2001) with the agency, for its foreign principal in the Kingdom of Saudi Arabia, Mohamad Hameed Al-Naimi (Hameed), as a domestic helper with a salary of US$200.00 a month. She did her job diligently and with dedication, but was paid only US$100.00 a month and, starting January 2001, was not paid any salary at all. She extended her employment for another 10 months upon Hameed's request as her replacement had not yet been deployed by the agency. Hameed refused to pay her salaries even during the extension. Fed up with her situation, she left Hameed on May 29, 2002 and had a live-in relationship with another Filipino overseas worker, Thomas Ambrosio, allegedly her boyfriend. As the law of Saudi Arabia prohibits such a relationship, she was arrested and imprisoned for more than a year. She claimed that she embraced the Islam religion and was exonerated of the charges against her. She was released from prison on October 14, 2003 and immediately left for home, arriving in the Philippines on October 15, 2003. She demanded payment of her salaries for one year and four months, payment of wage differentials from July 1999 to December 2000, and the refund of her airfare to the Philippines. In defense, the agency argued that Barit's contract of employment expired on July 23, 2001, without any complaint from her. Her contract was extended for another two years with her consent. It alleged that Barit left her employer without permission. She was then reported missing to the Saudi police who found her staying with Ambrosio. She was subsequently arrested and imprisoned. Hameed was helpless in providing Barit assistance because she violated marital law and the offense was nonemployment related. Her passport, air ticket and the balance of her unpaid salaries were turned over to the Saudi authorities pursuant to Saudi law. The agency denied liability for Barit's alleged unpaid salaries beginning July 2001 as her employment contract, which it facilitated, was only for two years. The contract expired on July 23, 2001. It maintained it had no involvement or participation in the alleged extension of Barit's employment with Hameed. It also argued that it had no liability for the refund of her airfare to the Philippines. The agency argued further that it was not also liable for Barit's alleged wage differentials from July 1999 to December 2000 and unpaid wages from January 2001 to July 23, 2001. It pointed out that all wages due her were paid in full, while the final wages due her before she left her employment were turned over to the Saudi government. It stressed that it was highly illogical for Barit to agree to an extension of her employment contract with the same employer who, she claimed, had not paid her salaries and underpaid her wages in the past two years of her contract. The Compulsory Arbitration Rulings

On March 31, 2004, Labor Arbiter Nieves Vivar-de Castro found Barit's money claims meritorious.6 She directed the agency and its foreign principal to pay Barit salary differentials from July 23, 1999 to December 31, 2000 and her unpaid salaries from January 2001 to July 23, 2001. The labor arbiter, however, absolved the agency of liability for Barit's alleged unpaid benefits during her second or extended employment as it did not participate or intervene in securing this extended posting. The agency appealed to the National Labor Relations Commission (NLRC). In its decision dated August 28, 2006,7the NLRC granted the appeal. It set aside the labor arbiter's ruling and dismissed the complaint, but awarded Barit financial assistance of P10,000.00 "for reasons of equity." In the main, the labor arbitration body rejected Barit's submission that she was compelled to leave Hameed because he had been underpaying and was not paying her salaries. The NLRC did not believe that she would agree to continue working for the same employer for another ten (10) months, when the employer had not been paying her salaries before and during her extended employment. Barit moved for reconsideration, but the NLRC denied the motion in a resolution dated March 30, 2007.8 She then sought relief from the CA through a petition for certiorari, charging the NLRC with grave abuse of discretion in setting aside the labor arbiter's decision, and in holding that the agency is not solidarily liable with her employer for the underpayment and non-payment of her wages. The CA Decision In its decision of January 23, 2008,9 the CA found that the NLRC committed grave abuse of discretion in setting aside the labor arbiter's decision. It upheld the labor arbiter's award to Barit of salary differentials from July 23, 1999 to December 31, 2000 and unpaid salaries from January 2001 to July 23, 2001, to be paid solidarily by the agency and its foreign principal. It brushed aside Hameed's defense, through his letters dated November 15, 2003,10 January 21, 200411 and February 28, 2004,12 that he had fully paid Barit's salaries since day one of her employment. It declared that absent any evidence, such as payrolls, payslips or acknowledgment receipts, Hameed is deemed to have failed to discharge the onus probandi of payment. Its motion for reconsideration turned down by the CA,13 the agency now appeals to the Court by way of the present petition for review on certiorari. The Petitioner's Case Aside from the petition itself,14 the agency submitted a memorandum,15 as required by the Court,16 and a reply17to Barit's comment. Through these submissions, the agency asks for a reversal of the CA decision on the ground that the appellate court erred in (1) affirming the labor arbiter's award to Barit of salary differentials from July 23, 1999 to December 31, 2000 despite the non-inclusion of the claim for underpayment of wages in the complaint, in violation of the NLRC Rules of Procedure; and (2) disregarding the "other similar documents" the agency submitted to the labor arbiter to prove that Barit was fully paid of her wages. On the first issue, the agency cites Section 7(b) and (d), Rule V of the 2005 Revised Rules of Procedure of the NLRC, as follows: b) The position papers of the parties shall cover only those claims and causes of action raised in the complaint or amended complaint excluding those that may have been amicably settled, and

accompanied by all supporting documents, including the affidavits of witnesses, which shall take the place of their direct testimony. d) In their position papers and replies, the parties shall not be allowed to allege facts, or present evidence to prove facts and any cause or causes of action not referred to or included in the original or amended complaint or petition. The agency argues that the labor arbiter ignored these rules when she took cognizance of Barit's claim for wage underpayment which was mentioned only in the latter's position paper. It points out that in the complaint18 Barit filed with the NLRC, she underlined only (1) non-payment of wages and (2) refund of transportation fare as her only causes of action. It posits that the labor arbiter and the CA both erred in ignoring the rules. On a different plane, the agency contends that the award of salary differentials to Barit has no legal basis as she herself admitted that she received a monthly salary of SR600 that, if converted to US dollars in 1999-2000, was equivalent to US$200.00, thus negating the claim of underpayment of wages. The agency insists that Barit's wages had been paid in full as evidenced by the letters19 of Hameed which show that all the salaries and other benefits due Barit, including her passport and other belongings, were paid and given to her before she was released from jail and repatriated to the Philippines, in accordance with the laws of Saudi Arabia. The agency bewails the CA's failure to give due consideration to what took place after Barit left her employer in May 2002. Barit was then apprehended by the authorities of Saudi Arabia for living-in with a man who was not her husband. She was imprisoned for having committed a marital offense and was discharged only after she served out her sentence, not exonerated by the court as she claimed. It further contends that the CA failed to give consideration to the policy of the government of Saudi Arabia not to allow the release of foreign workers from prison without their employers paying all their salaries and other benefits, as well as releasing all their personal belongings. The Case for Respondent Barit Through her comment20 and memorandum,21 filed on June 27, 2008 and October 22, 2008, respectively, Barit prays that the petition be denied for lack of merit. On the first issue, she argues that the agency resorted to hairsplitting or pure semantics in denying liability for her claim of underpayment of wages. She refers particularly to the agency's contention that wage differentials should not have been awarded to her because she did not include underpayment of wages as a cause of action in her complaint. She insists that the complaint form that she accomplished shows that her cause of action was for non-payment and underpayment of wages as the two terms appear in only one box. In any event, she explains that "to underpay,"22 means "to pay less than what is normal or required." Since she was paid only half of her wages, there was an amount that was not paid and this was the other half of her wages. There is, therefore, non-payment of this other half. She posits that in this context, she was correct in pursuing her claim of underpayment of wages. On the issue of non-payment of wages, Barit maintains that the CA committed no error in ruling that the agency failed to present substantial evidence to prove due payment of her wages while she was under the employ of Hameed. She takes offense at the agency's submission that the issuance of monthly payslips or the keeping of payrolls is seldom or rarely done in the case of domestic helpers. She argues that with this reasoning, the agency would be placing domestic helpers in a different category of workers, a distinction which is repugnant to the Constitution.

Barit further argues that the burden of proving payment of what is due the employee is upon the employer and, since she is an overseas worker, also upon the employer's recruitment agency. She contends that her employer's letters,23 purporting to show that her salaries and other benefits had all been paid, are self-serving unofficial statements that have dubious evidentiary value. She reasons out that such letters, which were mentioned in the case cited by the agency in its submissions,24 cannot be considered as "other documents" for nowhere in that case was the term "other documents" discussed and neither did the ruling give an example of "other similar documents that have the same force and effect as payrolls, employment records and remittances."25 In the absence of evidence proving payment, Barit submits that her employer and the agency are solidarily liable for the award, pursuant to the law and the rules. Finally, Barit takes exception to the agency's argument faulting the CA for disregarding other relevant circumstances in the case, such as the completion of her contract without the filing of any claim for unpaid or underpaid salaries on her part, and her supposedly voluntary act of renewing her contract and living-in with another Filipino worker which led to her imprisonment. She maintains that these circumstances, even if considered, do not change the fact that there has been gross violation of Philippine laws by her employer and by the agency, for which they should be made solidarily liable. She explains that she was forced to act because of the long suffering inflicted on her by her employer who refused to pay her salaries in full and compelled her to extend her contract for another year. The Court's Ruling The Court, as a rule,26 is bound by the factual findings of the CA, but has the discretion to reexamine the evidence in a case when a basic conflict exists between the CA's findings of fact and those of the NLRC.27 In this case, such conflict exists and we need to reexamine their findings to determine: (1) whether Barit had been underpaid and/or had not been paid her wages during her employment in Saudi Arabia; and (2) whether the agency is solidarily liable with the foreign employer if Barit is indeed entitled to her money claims. We find merit in the petition. Under the circumstances of Barit's employment in Saudi Arabia, we wonder how she could have and why she remained in the service of the same employer for a considerable period of time if she had been underpaid her salaries or had not been paid at all, and why she had kept silent about her salary situation. Nowhere in the records does it appear that Barit complained about the alleged underpayment and non-payment of her wages with the Philippine labor or consular representatives in Saudi Arabia, or even with the Saudi authorities themselves. Neither is there any showing too that she ever objected to or protested her iniquitous work situation directly with Hameed, if that had really been the case, nor that Barit identified or spoke of any problem that could have prevented her from seeking relief in Saudi Arabia, as the NLRC noted.28 Barit abruptly left her employer, not because she was being exploited with respect to her wages, but for a personal reason - she left in order to live with her boyfriend Ambrosio. As a consequence of what she did, she ran afoul of the law of Saudi Arabia. This analysis leads us to conclude that the NLRC's conclusion is not without basis; substantial basis exists to believe that Barit received her full salaries for the entire duration of her original contract, or from July 23, 1999 to July 23, 2001. The NLRC further opined that to make the agency liable for Barit's alleged unpaid and underpaid wages on the sole ground that it failed to submit copies of payslips and payrolls is unfair as the agency appears to have taken all available means to secure the necessary documents from Barit's employer to dispute her claims. The NLRC stressed that the labor arbiter should have considered other factors in resolving the case.

The records support the NLRC's appreciation of the merits of Barit's claim. As early as September 28, 2002, the agency inquired with Barit's employer how she was faring in Saudi Arabia, in relation particularly to the case brought against her by the Saudi authorities and to her unpaid salaries.29 The inquiry was prompted by Barit's mother's inquiry about her situation in Saudi Arabia. On October 3, 2002, the agency received an answer from Hameed30 advising the agency's President, Edward G. Cue, that Barit had left his residence and was discovered by the Saudi police to be living with Ambrosio and that Hameed could not intervene as she committed "a crime related to martial (sic) affair."31 Hameed also informed Cue that Barit's passport and air ticket, and the balance of the money due her were handed over to the authorities, pursuant to the law of Saudi Arabia. Additionally, Hameed intimated that if necessary, the agency could seek verification from the Philippine Embassy in Saudi Arabia about what he reported to Cue. On November 15, 2003, the agency received another letter32 from Hameed in response to Cue's overseas call regarding Barit's unpaid salary. Hameed again informed Cue that "[t]here is no more pending salary with us, all her personal belongings were turned over to the police as this is the law here in Saudi Arabia." Hameed also told Cue that Barit finished her two-year contract and she could not have signed another contract with him if she had not been paid her past salaries. On November 21, 2004, Hameed again wrote Cue33 informing the agency official that as he said in his previous letters, "everything has been paid to her" and that the Saudi authorities will not release her from jail unless everything is settled, for the Saudi government is very strict when it comes to unpaid salaries. In light of this exchange between the agency and Hameed, and the real reason why Barit left Hameed's employ, we are as convinced as the NLRC that she had been paid her salaries in full for her first employment contract (which the agency facilitated), from July 23, 1999 to July 23, 2001. The argument that absent the payslips or payrolls, the agency failed to present proof of payment of Barit's claim should be viewed in the context of the realities of domestic service. The relationship between Hameed and his family, on the one hand, and Barit, on the other hand, was largely confined within Hameed's household. It was not as structured as the relationship obtaining in an office or in an industrial plant. There was very little or no paperwork at all, even on wage payments. As the NLRC opined: Just like our local domestic house helpers who receive their wages directly from their employers without any payslip or voucher to acknowledge payment and receipt, we do not expect the case of herein complainant x x x to be any different. It is, therefore, understandable that no payslip or payroll could be presented by respondent agency.34 We find this NLRC view to be a fair and credible assessment of the employment relationship between Barit and her Saudi employer, at least, in relation to the payment of Barit's wages. In sum, we hold that the NLRC committed no grave abuse of discretion in dismissing the complaint. The CA thus erred in granting the petition for certiorari.
1avv phi1

WHEREFORE, premises considered, the assailed Decision and Resolution of the Court of Appeals are set aside, and the Decision of the NLRC dated August 28, 2006 is REINSTATED. SO ORDERED. G.R. No. 187246 July 20, 2011

EDWIN TABAO y PEREZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. RESOLUTION BRION, J.: Edwin Tabao (petitioner) seeks reconsideration of our Resolution, dated June 8, 2009, denying his petition for review on certiorari for failure to show any reversible error in the assailed Court of Appeals (CA) decision to warrant the exercise of this Courts discretionary appellate jurisdiction, and for raising substantially factual issues. The evidence for the prosecution reveals the following facts: At around 10:00 p.m. of January 21, 1993, the petitioner was driving his Toyota Corolla car bearing plate number PCH-111 along Governor Forbes corner G. Tuazon Street towards Nagtahan when it suddenly ramped on an island divider, bumping Rochelle Lanete who was crossing the street. As a result of the impact, Rochelle was thrown into the middle of the road on her back.1 Thereafter, Leonardo Mendez speeding blue Toyota Corona car with plate number PES-764 ran over Rochelles body. Bystanders armed with stones and wooden clubs followed Mendez car until it stopped near the Nagtahan Flyover.2 Francisco Cielo, a newspaper delivery boy, pleaded with the bystanders not to hurt Mendez. Cielo went inside Mendez car, sat beside him, got his drivers license, and ordered him to move the car backwards. Mendez followed his order, but his car hit the center island twice while backing up.3 Cielo went out of the car and approached the sprawled body of Rochelle; he and the petitioner brought Rochelles body inside Mendez car. The three of them (the petitioner, Cielo and Mendez) brought Rochelle to the UST Hospital,4 where she died on February 6, 1993 due to septicemia secondary to traumatic injuries.5 The defense presented a different version of the incident. The petitioner narrated that at around 10:00 p.m. of January 21, 1993, he was driving along Governor Forbes corner G. Tuazon Street when his car ramped on an island at the foot of the Nagtahan Flyover. He tried to move the car backwards, but failed to do so. He alighted from his car and then saw that its two rear wheels had been elevated.6 He returned inside his car to turn off its engine; he then noticed that many people were approaching his car.7 He again alighted from his vehicle and saw a person lying on the road.8 He looked at his left side and saw a car that was "running fast like a wind" pass by. He approached the person lying on the road, and noticed that she was still breathing and moaning. Afterwards, he saw Mendez car backing up; he carried the victim towards that car.9 Thereafter, he, Mendez and Cielo brought the victim to the UST Hospital.10 Mendez, for his part, testified that at around 9:00 to 9:30 p.m. of January 21, 1993, he left his girlfriends house in Blumentritt, Sta. Cruz, Manila. As he was driving along Governor Forbes corner G. Tuazon Street on his way home, he saw a vehicle that had ramped on an island divider. Suddenly, another vehicle overtook his car from the right and cut his lane. He slowed down his car when he saw a rug-like object fall from the car that overtook him,11and stopped when he realized that what had fallen was a persons body. When he moved his car backwards to help this person, many people approached his car. He alighted from his car and inquired from them what had happened. The people replied that someone was run over; some of them pointed to him as the culprit. He denied having run over the victim when they tried to hurt him. The petitioner carried the victim and placed her inside Mendez car. Thereafter, the two of them brought the victim to the UST Hospital.12

The Office of the City Prosecutor found probable cause and thereafter charged the petitioner and Mendez with reckless imprudence resulting to homicide before the Regional Trial Court (RTC), Branch 39, Manila.13 The RTC, in its decision14 dated September 15, 2003, found that it was "very clear that both accused are responsible for the death of Rochelle Lanete,"15 and convicted the two (2) accused of the crime charged. It found that the petitioners car first hit the victim, causing her to be thrown into the road on her back, and that Mendez car ran over her as she was lying down. It held that the two failed to observe the necessary precaution and due care in operating their respective vehicles, to wit: the petitioner was not attentive to his driving such that he failed to see the island divider and bumped Rochelle; Mendez was driving his car too fast at nighttime such that he was unable to avoid running over her as her body lay prone on the street. The RTC sentenced them to suffer the indeterminate penalty of four months and one day of arresto mayor, as minimum, to two years, 10 months and 20 days of prision correccional, as maximum. It also ordered them to pay the heirs of the victim the following amounts: (a) P478,434.12 as actual damages; (b) P50,000.00 as civil indemnity; and (c) P50,000.00 as moral damages.16 The petitioner filed an appeal before the CA, docketed as CA-G.R. CR. No. 28401. The CA, in its decision17 dated July 27, 2007, agreed with the factual findings of the RTC, and affirmed its decision with the modification that the petitioner be sentenced to suffer an indeterminate penalty of four months and one day of arresto mayor, as minimum, to four years, nine months and 10 days of prision correccional, as maximum. The petitioner moved to reconsider this decision, but the CA denied his motion in its resolution18 of March 17, 2009. The petitioner filed before this Court a petition for review on certiorari alleging that the courts a quo erred in convicting him of the crime charged. As earlier stated, we denied this petition for failure to show any reversible error in the assailed CA decision to warrant the exercise of our discretionary appellate jurisdiction, and for raising substantially factual issues. The petitioner now comes to us via the present motion for reconsideration, raising the following arguments: I. THE FINDINGS OF FACTS OF BOTH THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ARE HIGHLY SPECULATIVE, MANIFESTLY MISTAKEN AND UNSUPPORTED BY THE EVIDENCE [ON RECORD;] II. [THE] COURT OF APPEALS [ERRED IN UPHOLDING HIS] CONVICTION [ON THE BASIS OF THE] INCREDIBLE AND UNRELIABLE TESTIMONY OF x x x VICTOR SORIANO[; and] III. THE [SUPREME] COURT DISREGARDED [HIS CONSTITUTIONAL] PRESUMPTION OF INNOCENCE.19 In its Comment, the People of the Philippines, through the Office of the Solicitor General, prays that the motion be denied for being pro forma; the petitioner merely advanced the same arguments which he raised in his appellants brief and motion for reconsideration before the CA. After due consideration, we resolve to DENY the motion. As a general rule, findings of fact of the trial court, especially when affirmed by the CA, are binding and conclusive upon this Court; we will not normally disturb these factual findings unless they are palpably unsupported by the evidence on record or unless the judgment itself is based on a

misapprehension of facts.20 After a careful review of the records, we see no reason to overturn the lower courts factual findings that found the petitioner guilty of the crime charged.

Reckless imprudence, generally defined by our penal law, consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Imprudence connotes a deficiency of action. It implies a failure in precaution or a failure to take the necessary precaution once the danger or peril becomes foreseen. Thus, in order for conviction to be decreed for reckless imprudence, the material damage suffered by the victim, the failure in precaution on the part of the accused, and the direct link between material damage and failure in precaution must be established beyond reasonable doubt. We are morally convinced that all three were established in this case in accordance with the required level of evidence in criminal cases.
21

The petitioner was positively identified by an eyewitness The fact of Rochelle Lanetes death was stipulated during pre-trial, as well as duly established during trial.22 What remain to be proven beyond reasonable doubt are the inexcusable lack in precaution on the part of the petitioner and the direct link of his negligence to the victims death. An eyewitness account established that the petitioners vehicle actually hit Rochelle Lanete. Eyewitness identification is vital evidence, and, in most cases, decisive of the success or failure of the prosecution.23 One of the prosecution witnesses, Victor Soriano, unfortunately for the petitioners cause, saw the incident in its entirety; Victor thus provided direct evidence as eyewitness to the very act of the commission of the crime.24 In his September 1, 1994 testimony, Victor positively identified the petitioner as the person who drove the car that ramped on an island divider along Governor Forbes corner G. Tuazon Street, and hit Rochelle. To directly quote from the records:

ATTY. ALICIA SERRANO: Q: Mr. Soriano, do you remember where were you on or about 10:00 oclock (sic) of January 21, 1993? VICTOR SORIANO: A: Yes, maam. Q: Where were you? A: I was at the corner of Governor Forbes and G. Tuazon. Q: What were you doing at the corner of Governor Forbes and G. Tuazon at that time? A: My sidecar was parked there because I was waiting for my wife, maam. Q: And when you were there at the corner of G. Tuazon and Governor Forbes at the said time and place, was there any unusual incident that happened? A: Yes, sir. Q: And what was that unusual incident? A: I saw an accident involving a speeding car which ramped over the island and bumped a woman who was crossing the street. Q: When you saw that the car ramped over the island and hit and bumped a woman, what happened to the woman that was hit and bumped by the car which you said ramped over the island? A: The woman was thrown at the middle of the road on her back, maam. Q: When you saw this woman after being hit and bumped by the car that ramped over the island and was thrown at the middle of the road, what else happened? xxxx A: The woman was no longer moving at that time when I saw another car coming. xxxx Q: What else happened when you saw the car coming very fast? A: The woman sprawled at the middle of the road was ran over by the speeding car and that car stopped while going up to the flyover. xxxx

Q: You said you saw a car that ramped over the island and that the car that ramped over the island was the car that hit and bumped the victim that was thrown at the middle of the street. Now, will you be able to identify before this court the driver of that car that ramped over the island and hit and bumped the victim? A: Yes, maam. Q: If that driver of the car that hit and bumped the victim is inside the courtroom, would you be able to point to him before this Honorable Court? A: Yes, maam, he is here. Q: Will you kindly point before this courtroom who is that driver of the car that hit and bumped the victim? Although, Your Honor, there was already a stipulation at the start of the pre-trial admitting that the accused Tabao is the driver of the car which ramped at the divider. INTERPRETER: Witness approaching a man seated inside the courtroom and who stood up and identified as Edwin Tabao, the accused in this case.25 [emphases ours] On cross-examination, Victor further elaborated on what he saw of the incident: ATTY. ESTEBAN NANCHO: Q: Mr. Soriano, you said that the first car ramped over the island and bumped a woman, and as a result of that, the woman was thrown at the middle of Forbes Street. Do you confirm that? VICTOR SORIANO: A: Yes, sir, that is true. Q: And can you tell us how the woman was hit, was bumped by the car that ramped over the island? A: The woman was crossing the street and when she saw the on-coming car, she tried to avoid that but the car [which] ramped over the island bumped the woman. Q: In other words, the car first ramped over the island before it hit the woman? A: Yes, sir. Q: What part of the car bumped the woman? A: The bumper of the car, the left side of the bumper. Q: What part of the body of the victim was hit by the car? A: Her left side of the body.

Q: Are you saying that the victim was facing the car when the car bumped her. A: Yes, sir, she was facing the car. She was about to avoid that car. Q: How was the woman thrown at the middle of Forbes Street? A: She was thrown backwards. Q: And what part of the body of the victim first hit the pavement? A: The back of her head. xxxx Q: And you said after the woman was thrown at the middle of the street[,] another speeding car ran over the body of the woman? A: Yes, sir. xxxx Q: Now, from the time the body of the victim was thrown at the middle of the street, how much time had lapsed when the second car ran over the body of the victim? A: Not more than one minute. When I saw the car, it was a little bit far then I saw the car running very fast. It did not take more than a minute. xxxx Q: Now, did you point at any person gathered at the scene of the accident that it were (sic) the 2 accused who were responsible for the accident? A: I told Cielo about that and I told him that whoever brought the victim to the hospital is the one who ran over the victim.26 The petitioner nonetheless claims that Victor is not a credible witness due to inconsistencies between his affidavit and court testimony. He harps on the fact that Victor declared in his affidavit that the petitioners car first hit Rochelle before it ramped on an island divider; while he testified in court that the petitioners vehicle ramped on the island divider before hitting the victim. We find these arguments unmeritorious. Discrepancies and/or inconsistencies between a witness affidavit and testimony in open court do not impair credibility as affidavits are taken ex parte and are often incomplete or inaccurate for lack or absence of searching inquiries by the investigating officer.27 At any rate, Victor was able to sufficiently explain the discrepancies between his affidavit and court statements. Victor reasoned out that the secretary who typed his affidavit made a mistake; and explained that he signed the affidavit despite the inaccuracies in paragraph 2 because the secretary told him, "kasi ho magugulo ang naimakinilya na."28 Accordingly, when Victor informed his lawyer during the first day of the hearing

about the inaccuracy, the latter told him to state the truth regardless of what was written in his affidavit. The general rule that contradictions and discrepancies between the testimony of a witness and his statements in an affidavit do not necessarily discredit him is not without exception, as when the omission in the affidavit refers to a very important detail of the incident that one relating the incident as an eyewitness would not be expected to fail to mention, or when the narration in the sworn statement substantially contradicts the testimony in court.29 In the present case, we see no substantial contradiction in Victors affidavit and in his court statements as he declared in both that he saw the petitioners car ramp on the island divider and bump Rochelle. As to whether the car ramped on the center island before or after it bumped the victim does not detract from the fundamental fact that Victor saw and identified the petitioner as the driver of the car that ramped on the island divider and hit Rochelle. As earlier discussed, Victor sufficiently explained this inconsistency during the trial. Victor, who stood only seven meters from the incident, clearly and in a straightforward manner described how the petitioners car had bumped the victim. We thus see no reason to overturn the lower courts finding regarding Victors credibility, more so since the petitioner did not impute any ill motive that could have induced Victor to testify falsely. The fundamental and settled rule is that the trial court's assessment regarding the credibility of witnesses is entitled to the highest degree of respect and will not be disturbed on appeal, especially when the assessment is affirmed by the CA. The positive identification in this case, coupled with the failure of the defense to impute any ill-motive on the eyewitness, to our mind, works to dispel reasonable doubt on the fact that the petitioners car had in fact hit Rochelle. The eyewitness account provides the necessary link between the petitioners failure to exercise precaution in operating his vehicle and Rochelle Lanetes death. The petitioner failed to exercise precaution in operating his vehicle The right of a person using public streets and highways for travel in relation to other motorists is mutual, coordinate and reciprocal.30 He is bound to anticipate the presence of other persons whose rights on the street or highway are equal to his own.31 Although he is not an insurer against injury to persons or property, it is nevertheless his duty to operate his motor vehicle with due and reasonable care and caution under the circumstances for the safety of others as well as for his own.32 The petitioner repeatedly admitted that as he drove his vehicle on his way home from work on January 21, 1993,he did not notice the island divider at the foot of the Nagtahan Flyover. As a result, his car ramped on the island so that both its rear wheels became "elevated" from the road and he could no longer maneuver the vehicle.33 The petitioner even testified that his car had to be towed.34 Later, during cross-examination, he admitted that all four wheels of his car, not just the two rear wheels mentioned in his earlier testimony, lost contact with the ground.35 The entire vehicle, therefore, ended up on top of the island divider. He puts the blame for the ramping and, essentially, his failure to notice the island on the darkness of nighttime and the alleged newness of the island.36 To our mind, the fact that the petitioners entire vehicle ended up ramped on the island divider strongly indicates what actually happened in the unfortunate incident. The vehicle could not have ended up in that condition had the petitioner been driving at a reasonable speed. We are not persuaded by the petitioners rather simplistic account that mere darkness, coupled with the traffic islands alleged newness, caused his car to veer off the traffic trajectory of Governor Forbes Street and to end up jumping on top of the traffic island intended to channel vehicular traffic going to the Nagtahan Flyover.

A motorist is expected to exercise ordinary care and drive at a reasonable rate of speed commensurate with all the conditions encountered,37 to enable him to keep the vehicle under control and, whenever necessary, to put the vehicle to a full stop to avoid injury to others using the highway.38 It has not escaped our notice that the intersection of Governor Forbes Street and G. Tuazon Street is adjacent to the vicinity of the incident. A driver approaching an intersection is generally under duty, among others, to keep and maintain his vehicle under control so he can, if needed, stop at the shortest possible notice.39 Ordinary or reasonable care in the operation of a motor vehicle at an intersection would naturally require more precaution than is necessary when driving elsewhere in a street or highway.40 The fact that the petitioner was driving near the Governor Forbes Street and G. Tuazon Street intersection gives rise to the expectation that he would drive at a speed that anticipated or would have anticipated that other persons are on the road, whether as pedestrians or as motorists. The facts show, however, that the petitioner was driving his car at an inappropriate speed for a vehicle crossing an intersection. Otherwise, he should have been able to put his vehicle to a complete stop or, at the very least, at a speed that would have prevented his car from climbing entirely on top of the island divider. That the petitioners entire vehicle landed on top of the traffic island body, chassis, four wheels and all sufficiently indicates his speed at that time. The force that propels an entire car off the street and on top of a traffic island could only have been inordinate speed, or at least speed beyond that of a motorist coming from or going to an intersection. In short, the ramping of his vehicle demonstrably indicates to us that the petitioner failed to observe the duty to maintain a reasonable speed. We therefore believe Victors testimony that the petitioner was speeding when he bumped the victim.41 We are likewise not persuaded by the petitioners claim that darkness and the traffic islands alleged newness justify his failure to notice the island. The petitioners admission that he did not notice the traffic island is in itself an indication of his failure to observe the vigilance demanded by the circumstances. Ultimately, it shows the criminal recklessness for which he has been convicted. The record shows that pedestrians were present in the vicinity at the time of the incident. The CA even pointed out that the vicinity is near residential areas, while we pointed out its proximity to an intersection. The darkness and these circumstances should have caused the petitioner to be more alert and more vigilant, to say nothing of slowing his car down. Newly constructed or not, the island divider should have received the petitioners due attention. His bare allegation that the island lacked markers or reflectorized marks is likewise not persuasive. As the trial court correctly observed, many other vehicles passed the same road that night but only the petitioner failed to notice the island divider.42 We thus find the trial court to be correct when it held that the petitioner failed to exercise precaution in operating his vehicle on the night of the incident. The location of the victims injuries vis--vis the position of the petitioners vehicle The petitioner insists that his car could not have bumped the victim because his car was coming from the right side (i.e., from Espaa), while the victim was hit on the left side of her body. He argues that if the victim was on her way to her house on Mabini Street coming from the corner of Governor Forbes Street and G. Tuazon Street (where she alighted), then the responsible vehicle could only have come from the left (i.e., from Nagtahan) as only those vehicles coming from this direction could hit the victim on the left side of her body. He further claims that his car had no dents or scratches. The petitioners arguments are misleading.

Dr. Sergio Alteza, Jr., the attending physician, testified that the victim suffered multiple injuries "compatible and consistent with a vehicular accident."43 He did not state that the injuries suffered by the victim were only on her left side. In fact, a perusal of Dr. Altezas initial medical report shows that the victim suffered injuries both on the left and right sides of her body. In addition, Dr. Floresto Arizala, Jr., the National Bureau of Investigation medico-legal officer who conducted an autopsy on Rochelles body, confirmed that the victim suffered injuries on various parts of her lower right and left extremities as a result of the initial or primary impact. The petitioner relies heavily on Dr. Altezas statement allegedly declaring that the victims injuries on her lower left leg and left thigh were the "primary impact" injuries. However, this statement was not based on the actual incident but on Dr. Altezas presumptions. For clarity, we reproduce Dr. Altezas testimony: ATTY. SERRANO: Q: Now doctor, you said that these injuries you found x x x on the body of the victim are compatible and consistent with a vehicular accident. Would you tell this court how these injuries were sustained? xxxx Doctor, what would be the possible situation when you use compatible and consistent vehicular accident? DR. ALTEZA: A: If I would be allowed to make some presumptions, if the patient was standing up at that time he was hit by a vehicle, I would presume that the primary impact injuries, injuries hit first by the vehicle are the injuries of the lower leg and the left thigh considering that the height of the injuries are approximately the height of the bumper as well as the hood of the car. Q: There are several kinds of vehicles, doctor? A: Yes, Your Honor, I was thinking of a car. Now, after being hit by [a] car, under normal condition, the victim is normally thrown at the surface of the street.44 [emphases ours] From this exchange, we find it clear that Dr. Alteza was merely making a hypothetical statement that a person who is presumed to be standing when hit by a vehicle would suffer primary impact injuries on his lower leg and left thigh. He never declared that Rochelle suffered primary impact injuries on her lower left extremities. At any rate, it was not improbable for the victim to have been hit on the left side of her body as Victor testified that she (victim) tried to avoid the petitioners car, and was in fact facing the car when she was hit. We likewise do not believe the petitioners claim that his vehicle was not involved in the incident due to the absence of dents or scratches. As the petitioner himself admitted, his vehicle was not subjected to any investigation after the incident. Moreover, the pictures of the car, presented by the petitioner in court, were taken long after the incident and after a repair had already been done to the vehicle. There was therefore no way of verifying petitioners claim that his car did not have any dent or scratch after the incident. At any rate, the absence of a dent or a scratch on the petitioners car, assuming it to be true, does not conclusively prove his non-participation in the incident. The absence

of any dent or scratch is influenced by several factors: the type of paint, the speed of the car, the points of impact, and the material used on the cars exteriors. Weight of expert testimony The petitioner likewise claims that the CA violated Section 49, Rule 130 of the Revised Rules of Court when it disregarded the testimony of defense witness Police Senior Inspector Danilo Cornelio who testified that the petitioners car could not have bumped the victim because the latters body was not thrown in line with the car, but on its side. The petitioner argues that P/Sr. Insp. Cornelio is highly qualified in the field of traffic accident investigation, and as such, his statements are "backedup by [the] principles of applied physics, engineering, and mathematics."45 The petitioners arguments fail to convince us. Section 49, Rule 130 of the Revised Rules of Court states that the opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, may be received in evidence. The use of the word "may" signifies that the use of opinion of an expert witness is permissive and not mandatory on the part of the courts. Allowing the testimony does not mean, too, that courts are bound by the testimony of the expert witness. The testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law. It has been held of expert testimonies: Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they may choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect. The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of abuse of discretion.46 We emphasize that P/Sr. Insp. Cornelio was not an eyewitness to the incident; his testimony was merely based on the Traffic Accident Report prepared by SPO4 Edgar Reyes who himself did not witness the incident. At any rate, nowhere in P/Sr. Insp. Cornelios testimony did he conclusively state that the petitioner could not have been involved in the incident. For clarity, we reproduce the pertinent portions of P/Sr. Insp. Cornelios testimony: ATTY. SERRANO: Q: When you said in line with the motor vehicle that bumped the victim, is it that when a victim is bumped by the motor vehicle, the victim would be thrown in line with the vehicle? P/SR. INSP. CORNELIO: A: Yes, Maam. Usually, that is the outcome of the incident.

Q: He cannot be thrown sideward? A: Maybe if another vehicle would hit the pedestrian because that also happened. When a pedestrian is hit by a vehicle and another vehicle hit the pedestrian, it will be thrown somewhere else. Q: Mr. Witness, you are testifying as far as the vehicle of Tabao is concerned. You said that the line of vehicle that bumped the victim would be in line. Are you telling us that it is not possible that when the vehicle of Tabao hit the victim, the victim would be thrown sidewards? A: Yes, Maam. Q: What do you mean, yes, Maam? A: He can be thrown either in front of the vehicle that hit the victim or slightly offset with the car of Tabao. It [may be] but not far from the side. Q: But he would be thrown sidewise[,] not frontal? A: Slightly to the side but not considerable length of distance away from the car. It is sidewards. Q: In your Mathematics, do you consider that if a vehicle is speeding fast, he could have thrown anything that is bumped by that vehicle far away from the vehicle? A: Yes, Maam, possible. Q: So, that probability is also possible aside from the probability that you said the victim is thrown in line or in front. So, you are now saying it could be said that the victim can be thrown sidewise? A: It [may be] thrown sidewise. As I said [a while] ago, it might be slightly offset with the vehicle that hit the pedestrian but not too far from the side of the bumping vehicle. Q: So, it could depend on the speed of the vehicle that bumped the object bumped? A: Yes, Maam. Q: Whether it is forward or sidewise, the distance of the object thrown would depend on the speed of the vehicle that bumped? A: Yes, Maam. Q: So, if it is speeding, it could be thrown farther? A: Yes, Maam. Q: Sidewise or frontal? A: It should be frontal. Q: You said it could be thrown sidewise do I take it correct[ly,] it can be thrown sidewise also?

A: Maybe. As I have said [a while] ago, it [may be] slightly offset with the line of the vehicle. xxxx Q: So, do we take it from you that your basis only of telling the court that Tabao is not in [any way] responsible is the distance of the victim from the car that bumped? A: I am not saying categorically that the car of Tabao is not responsible. But as I can see in the sketch presented today in this Honorable Court, the position of the victim is too far from the vehicle of Mr. Tabao. If I were the investigator in this particular case, I should indicate the measurement of the victim from the car and this sketch [does] not indicate the distance. Q: Now, failure of the investigator to indicate the distance, would that show that it was not Tabao who bumped the victim? A: I cannot say categorically that the car of Tabao indeed, hit the victim. Because the distance is very significant in this sketch for proper evaluation. xxxx Q: So, it cannot be said that when an object is bumped by a vehicle, it will be thrown forward. It will all depend on which portion of the bumper hit by object bumped? A: Yes, Maam.47 From the foregoing, it is clear that P/Sr. Insp. Cornelio did not discount the possibility that the victim could have been thrown on the side. He likewise admitted that the location of an accident victim in relation to the vehicle would also depend on the speed of the vehicle and the point of impact. The defense of denial The petitioner denied that his car had bumped the victim, and insists that he just saw the victims body sprawled on the road after his car had already ramped on the island divider. The petitioners defense of denial must crumble in light of Victors positive and specific testimony. We reiterate that the petitioner, aside from merely alleging the inconsistency between Victors affidavit and court testimony, did not impute any ill motive on Victors part to falsely testify against him. The petitioner, in fact, admitted that he and Victor did not know each other prior to the incident. We have consistently held that positive identification of the accused, when categorical and consistent, and without any showing of ill-motive on the part of the testifying eyewitness, should prevail over the denial of the accused whose testimony is not substantiated by clear and convincing evidence.48 A denial is negative evidence. To be believed, it must be buttressed by strong evidence of non-culpability; otherwise, the denial is purely self-serving and has no evidentiary value.49
1avv phi1

We significantly note that the petitioner claimed for the first time in his present petition that he saw a "rug-like thing"50 being thrown out of a passing car as he was about to alight from his car after turning off its engine; he later discovered that the thing thrown was a persons body. He reiterated this claim in his motion for reconsideration before this Court. This assertion was a clear rip-off from his coaccused Mendez version who likewise claimed to have seen the same thing. To our mind, the modification of the petitioners story was a belated attempt to cover up his failure to convincingly explain the presence of the victims slumped body on the road near his car and a last-ditch effort to

exculpate himself. Nowhere in his affidavit or earlier court testimonies, or even in his previous pleadings with the lower courts, did he ever state that a passing car had thrown a "rug-like thing"51 on the street. The petitioners sudden change of story at this stage of the proceedings casts doubt on the veracity of his claim. In addition, we are baffled by the petitioners act of frequenting the hospital after the incident. Amanda Ycong, the victims aunt, testified that she saw the petitioner "several times" at the hospital when the victim was confined there; but would immediately leave whenever he saw members of the victims family. We find it highly unusual for a person who allegedly had no participation in the incident to be overly concerned with the victims well-being. What puzzles us even more is why the petitioner would evade members of the victims family whenever he was seen by them at the hospital. All told, we see no reason to overturn the lower courts findings of fact and conclusions of law finding the petitioner guilty beyond reasonable doubt of the crime charged. WHEREFORE, premises considered, the Court resolves to DENY the motion with FINALITY, no substantial argument having been adduced to warrant the reconsideration sought. Costs against the petitioner. SO ORDERED. G.R. No. 183711 July 5, 2011

EDITA T. BURGOS, Petitioner, vs. PRESIDENT GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL CLEMENT, LT. COL. MELQUIADES FELICIANO, DIRECTOR GENERAL OSCAR CALDERON, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 183712 EDITA T. BURGOS, Petitioner, vs. PRESIDENT GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO GOMEZ, LT. COL. MELQUIADES FELICIANO, LT. COL. NOEL CLEMENT,Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 183713 EDITA T. BURGOS, Petitioner, vs. CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, GEN. HERMOGENES ESPERON, JR., Commanding General of the Philippine Army, LT. GEN. ALEXANDER YANO; Chief of the Philippine National Police, DIRECTOR GENERAL AVELINO RAZON, JR., Respondents.

RESOLUTION BRION, J.: We review,1 in light of the latest developments in this case, the decision2 dated July 17, 2008 of the Court of Appeals (CA) in the consolidated petitions for Habeas Corpus,3 Contempt4 and Writ of Amparo5 filed by Edita T. Burgos (petitioner). The assailed CA decision dismissed the petition for the issuance of the Writ of Habeas Corpus; denied the petitioners motion to declare the respondents in Contempt; and partially granted the privilege of the Writ of Amparo.6 On June 22, 2010, we issued a Resolution7 referring the present case to the Commission on Human Rights (CHR), as the Courts directly commissioned agency tasked with the continuation of the investigation of Jonas Joseph T. Burgos abduction and the gathering of evidence, with the obligation to report its factual findings and recommendations to this Court. We found the referral necessary as the investigation by the PNP-CIDG, by the AFP Provost Marshal, and even by the CHR had been less than complete; for one, there were very significant lapses in the handling of the investigation. In particular, we highlighted the PNP-CIDGs failure to identify the cartographic sketches of two (one male and one female) of the five abductors of Jonas, based on their interview of eyewitnesses to the abduction.8 We held: Considering the findings of the CA and our review of the records of the present case, we conclude that the PNP and the AFP have so far failed to conduct an exhaustive and meaningful investigation into the disappearance of Jonas Burgos, and to exercise the extraordinary diligence (in the performance of their duties) that the Rule on the Writ of Amparo requires. Because of these investigative shortcomings, we cannot rule on the case until a more meaningful investigation, using extraordinary diligence, is undertaken. From the records, we note that there are very significant lapses in the handling of the investigation - among them the PNP-CIDGs failure to identify the cartographic sketches of two (one male and one female) of the five abductors of Jonas based on their interview of eyewitnesses to the abduction. This lapse is based on the information provided to the petitioner by no less than State Prosecutor Emmanuel Velasco of the DOJ who identified the persons who were possibly involved in the abduction, namely: T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the AFP. No search and certification were ever made on whether these persons were AFP personnel or in other branches of the service, such as the Philippine Air Force. As testified to by the petitioner, no significant follow through was also made by the PNP-CIDG in ascertaining the identities of the cartographic sketches of two of the abductors despite the evidentiary leads provided by State Prosecutor Velasco of the DOJ. Notably, the PNP-CIDG, as the lead investigating agency in the present case, did not appear to have lifted a finger to pursue these aspects of the case. We note, too, that no independent investigation appeared to have been made by the PNP-CIDG to inquire into the veracity of Lipios and Manuels claims that Jonas was abducted by a certain @KA DANTE and a certain @KA ENSO of the CPP/NPA guerilla unit RYG. The records do not indicate whether the PNP-CIDG conducted a follow-up investigation to determine the identities and whereabouts of @KA Dante and @KA ENSO. These omissions were aggravated by the CA finding that the PNP has yet to refer any case for preliminary investigation to the DOJ despite its representation before the CA that it had forwarded all pertinent and relevant documents to the DOJ for the filing of appropriate charges against @KA DANTE and @KA ENSO.

While significant leads have been provided to investigators, the investigations by the PNP-CIDG, the AFP Provost Marshal, and even the Commission on Human Rights (CHR) have been less than complete. The PNP-CIDGs investigation particularly leaves much to be desired in terms of the extraordinary diligence that the Rule on the Writ of Amparo requires. Following the CHRs legal mandate, we gave the Commission the following specific directives:9 (a) ascertaining the identities of the persons appearing in the cartographic sketches of the two alleged abductors as well as their whereabouts; (b) determining based on records, past and present, the identities and locations of the persons identified by State Prosecutor Velasco alleged to be involved in the abduction of Jonas, namely: T/Sgt. Jason Roxas (Philippine Army); Cpl. Maria Joana Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the AFP; further proceedings and investigations, as may be necessary, should be made to pursue the lead allegedly provided by State Prosecutor Velasco on the identities of the possible abductors; (c) inquiring into the veracity of Lipios and Manuels claims that Jonas was abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla unit RYG; (d) determining based on records, past and present, as well as further investigation, the identities and whereabouts of @KA DANTE and @KA ENSO; and (e) undertaking all measures, in the investigation of the Burgos abduction, that may be necessary to live up to the extraordinary measures we require in addressing an enforced disappearance under the Rule on the Writ of Amparo. In this same Resolution, we also affirmed the CAs dismissal of the petitions for Contempt and for the issuance of a Writ of Amparo with respect to President Macapagal-Arroyo, as she is entitled as President to immunity from suit.10 On March 15, 2011, the CHR submitted to the Court its Investigation Report on the Enforced Disappearance of Jonas Burgos (CHR Report), in compliance with our June 22, 2010 Resolution.11 In this Report, the CHR recounted the investigations undertaken, whose pertinent details we quote below: On June 26, 2010, the CHR issued Resolution CHR IV No. A2010-100 to intensify the investigation of the case of the Burgos enforced disappearance; and for this purpose, created a Special Investigation Teamheaded by Commissioner Jose Manuel S. Mamauag. xxx In compliance with the directive mentioned in the above-quoted En Banc Resolution of the Supreme Court, the Team conducted field investigations by: (1) interviewing a) civilian authorities involved in the first investigation of the instant case; b) military men under detention for alleged violations of Articles of War; c) Security Officers of Ever Gotesco Mall, Commonwealth Avenue, Quezon City; d) two (2) of the three (3) CIDG witnesses; e) two (2) eyewitnesses who described to the police sketch artist two (2) faces of a male and female abductors of Jonas Burgos; f) Rebel-Returnees (RRs); g) officers and men in the military and police service; h) local officials and other government

functionaries; and i) ordinary citizens; (2) inquiring into the veracity of CIDG witnesses Lipios and Manuels claims that Jonas was abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla unit RYG; (3) securing case records from the prosecution service and courts of law; (4) visiting military and police units. Offices, camps, detention centers, and jails and requesting copies of documents and records in their possession that are relevant to the instant case; (5) searching for and interviewing witnesses and informants; and (6) pursuing leads provided by them. S. Emails "Star-Struck" 38. Pursuing the lead mentioned in the anonymous e-mail, which was attached to the Burgos petition as Exhibit "J", "that the team leader (T.L.) in the Jonas Burgos abduction was a certain Army Captain, (promotable to Major), a good looking guy (tisoy), and a potential showbiz personality known otherwise as Captain Star-struck," the Team requested the CHR Clearance Section, Legal Division for any information leading to T.L. or to all Philippine Army applicants for CHR clearance whose ranks are Captains or Majors promoted during the years 2007 to 2009. 39. Sometime in November 2010, the Team was able to track down one CHR clearance-applicant who most likely possesses and/or matches the information provided in the said lead. But when his photo/picture was presented to the eyewitnesses, they failed to identify him. 40. Undaunted with the negative identification, the Team suspected that the "team leader" might not have participated in the actual abduction inside Hapag Kainan Restaurant, the scene of the crime, but most probably was in one of the "three cars" allegedly used during the operation while giving orders or commanding the actual abductors. 41. In relation to the above suspicion, the Team has theorized that officers below the rank of Captain might have perpetrated the actual abduction. 42. The Team explored this possibility and focused its attention on the officers of the 7th ID, PA, namely: Lt. Vicente O. Dagdag, Jr., the S-4 of 65 IB who executed an affidavit relative to the alleged stolen Plate No. TAB-194; 2Lt. Rey B. Dequito of 56th IB, the witness against Edmond Dag-Uamn for the alleged crime of murder; and 1Lt. Usmalik Tayaban, the Team Leader with the 56th IB who issued a Custody Receipt in connection with the Petition for Habeas Corpus filed in Angeles City relative to the 2006 Emerito Lipio abduction case against the police and military personnel. T. Face-book account 43. Google search of the names of the above mentioned individuals yielded negative result except for 1Lt. Usmalik Tayaban, whose name was connected to a social networking site, the Face-book account of PMA BATCH SANGHAYA 2000. 44. In the Facebook account Sanghaya, the contents of which is categorized as "PUBLIC" or open to public viewing, it appears that "Malik" Tayaban is a graduate of the Philippine Military Academy (PMA) Batch Sanghaya of 2000. Other leads were also discovered, such as the following: vernacular description of "tisoy" which was mentioned by one of the users in the "comment portion" of the account which incidentally was also mentioned in the anonymous e-mail as the "team leader" (T.L.); the picture of a man sporting a "back-pack", which was also mentioned by witness Elsa. Per Elsas account, the person in the cartographic sketch was wearing a "back-pack." 45. Aware of the intricacies of the above-mentioned leads, the Team caused the reproduction of all pictures in the Facebook account for future reference; and requested the NBI (Burgos) Team for a copy of the PMA Sanghaya Batch 2000 Year Book, also for future reference.

U. The PMA Year Book 46. Through the efforts of the NBI (Burgos) Team, the Team was able to get the PMA Year Book of Sanghaya Batch 2000 and the location of one important eyewitness in the abduction. V. JEFFREY CABINTOY 47. On December 1, 2010, the Team together with the NBI Team were able to locate Jeffrey Cabintoy (Jeffrey), one of the two (2) eyewitnesses who provided the police cartographic artist with the description of two (2) principal abductors of Jonas Burgos. Jeffrey narrated in details (sic) the circumstances that happened before and during the abduction. 48. On December 7, 2010, the Team and Jeffrey went to the place of incident at Ever Gotesco Mall, Quezon City to refresh his memory and re-enact what transpired. In the afternoon of the same date, the Team invited Jeffrey to the CHR Central Office in Quezon City, where he was shown for identification twenty (20) copies of colored photographs/pictures of men and the almost two hundred forty-four (244) photographs/pictures stored in the computer and lifted from the profiles of the Philippine Military Academy Year Book of Batch Sanghaya 2000. 49. Jeffrey pointed to a man in the two (2) colored group pictures/photographs, that he identified as among the 8-man group who abducted Jonas Burgos. For record and identification purposes, the Team encircled the face that Jeffrey identified in the two pictures; then he affixed his signature on each picture. Also, while leafing through the pictures of the PMA graduates in the Year Book of Sanghaya 2000 Batch, the witness identified a picture, with a bold and all-capitalized name HARRY AGAGEN BALIAGA JR and the words Agawa, Besao, Mt. Province printed there under the capitalized words PHILIPPINE ARMY written on the upper portion, as the same person he pointed out in the two group pictures just mentioned above. Immediately thereafter, the Team caused the production of the photo identified by Jeffrey and asked him to affix his signature, which he also did. 50. After examining each of these pictures, Jeffrey declared that it dawned on him that based on his recollection of faces involved in the abduction of Jonas Burgos, he now remembers the face of a man, other than the two (2) faces whose description he already provided before to a police sketch artist, who was part of the 8-man group of abductors. And he also confirms it now that the person he is referring to was indeed seen by him as one of those who abducted Jonas Burgos at Hapag Kainan Restaurant of Ever Gotesco Mall, Commonwealth Avenue, Quezon City. 51. When asked how certain he was of the person he identified, considering that the printed copy of the photo lifted from the Face-book Sanghaya Account was taken sometime in the year 2010; while the picture appearing in the computer was lifted from the PMA Sanghaya 2000 Batch Year Book, Jeffrey replied "Ang taong ito ay aking natatandaan sa kadahilanan na nuong una siya ay nakaupo na katabi sa bandang kaliwa nang taong dumukot at natapos silang mag usap lumapit sa akin at pilit akong pinipigilan na wag daw makialam at ang sabi nya sa akin ay "WAG KA DITONG MAKIALAM KASI ANG TAONG ITO AY MATAGAL NA NAMING SINUSUBAYBAYAN DAHIL SA DROGA" kahit pa halos nagmamakaawa na nang tulong ang taong dinukot; at matapos nuon ay sapilitan na nilang binitbit sa labas ang biktima." ( I remember this man for the reason that at first he was seated at the left side of the person abducted; and after they talked, he approached me and was preventing me forcefully saying not to interfere and he said to me: "DONT YOU INTERFERE HERE SINCE WE HAVE BEEN DOING SOME SURVEILLANCE ON THIS MAN FOR SOME TIME ALREADY BECAUSE OF DRUGS" despite that the man was already pleading for help, and after that, they forcibly dragged the victim outside.)

52. When asked if he could identify the picture of Jonas Burgos, Jeffrey affirmed that the person in the picture is the person referred to by him as the victim of abduction and his name is Jonas Burgos. He further stated that he learned of the victims name when he saw his picture flashed on TV and hear his name. When asked if he is willing to execute an affidavit on the facts that he has just provided, he answered yes and at that juncture the Team assisted him in the preparation of his "Sinumpaang Salaysay" based on his personal knowledge and in a language known to him. After which, the Team asked Jeffrey to read, examine and determine whether all the information he just provided are reflected in his "Sinumpaang Salaysay" and Jeffrey answered yes. Thereafter, Jeffrey affixed his signature after being sworn to before a lady CHR lawyer and a duly commissioned Notary Public for and in Quezon City. W. Daguman confirmed Tayabans and Baliagas actual affiliation with the military and their assignment at the 56th Infantry Battalion, 7th ID 53. On December 10, 2010, the Team went to the Bulacan Provincial Jail to visit Edmond Dag-Uman and asked him to identify his former Company Commander at the 56th IB, 71 ID, Lt. Usmalik Tayaban and to identify the pictures. 54. Edmond Dag-uman identified the encircled in the picture as LT. HARRY A. BALIAGA, JR., and the man with a receding hair as LT. USMALIK TAYABAN, his former Company Commander. 55. When asked if he was willing to reduce in writing his precious statements and those that just mentioned, he replied "BAKA MAPAHAMAK AKO NYAN! (That might endanger me!). Following a lengthy discussion on the pros and cons of executing a sworn statement and the assurance of the Team to exclude his statements that are critical to the military establishment, it dawned on Daguman that his statement would be of help to the Commission in bringing his case to the proper authorities for review and appropriate action, that he eventually expressed his willingness to do so. 56. After which the Team immediately went to a "Computer Caf" nearby to encode the "Salaysay", then the printed copy was presented to him for his determination whether he is in full accord with the contents therein. Edmond spent about thirty (30) minutes reading it and changed the word "Charlie" to "Bravo" and then affixed his initial on it. He also signed the "Sinumpaang Salaysay" after being sworn to before a team member authorized to administer oath. X. Second visit to ELSA AGASANG and her Supplemental Sworn Statement 57. On January 26, 2011, the Team along with witness Jeffrey went to Bicol to meet witness Elsa. The aim was to help Elsa recall the faces of those she saw in the abduction by showing to her recently-acquired pictures of suspects. 58. For the first time they would re-unite, after almost four years since that fateful day of April 28, 2007, when both of them had the experience of witnessing an abduction incident, which rendered them jobless and unsafe. 59. The Team told Jeffrey to sit in front of Elsa without introducing him to her. After about half an hour into the conversation, she expressed disbelief when she realized that she was facing in person he co-worker that she knew very well. 60. On January 29, 2011, Elsa executed her Karagdagang Sinumpaang Salaysay affirming her Salaysay given before PCI Lino DL Banaag at the CIDU, Quezon City Police District Office, Camp Karingal, Quezon City; and corroborating the material allegations contained in the Sinumpaang Salaysay of Jeffrey.

On the basis of the evidence it had gathered, the CHR submitted the following findings:12 Based on the facts developed by evidence obtaining in this case, the CHR finds that the enforced disappearance of Jonas Joseph T. Burgos had transpired; and that his constitutional rights to life liberty and security were violated by the Government have been fully determined. Jeffrey Cabintoy and Elsa Agasang have witnessed on that fateful day of April 28, 2007 the forcible abduction of Jonas Burgos by a group of about seven (7) men and a woman from the extension portion of Hapag Kainan Restaurant, located at the ground floor of Ever Gotesco Mall, Commonwealth Avenue, Quezon City. xxxx The eyewitnesses mentioned above were Jeffrey Cabintoy (Jeffrey) and Elsa Agasang (Elsa), who at the time of the abduction were working as busboy and Trainee-Supervisor, respectively, at Hapag Kainan Restaurant. In his Sinumpaang Salaysay, Jeffrey had a clear recollection of the face of HARRY AGAGEN BALIAGA, JR. as one of the principal abductors, apart from the faces of the two abductors in the cartographic sketches that he described to the police, after he was shown by the Team the pictures in the PMA Year Book of Batch Sanghaya 2000 and group pictures of men taken some years thereafter. The same group of pictures were shown to detained former 56th IB Army trooper Edmond M. Daguman (Dag-uman), who also positively identified Lt. Harry Baliaga, Jr. Dagumans Sinumpaang Salaysay states that he came to know Lt. Baliaga as a Company Commander in the 56th IB while he was still in the military service (with Serial No. 800693, from 1997 to 2002) also with the 56th IB but under 1Lt. Usmalik Tayaban, the Commander of Bravo Company. When he was arrested and brought to the 56th IB Camp in April 2005, he did not see Lt. Baliaga anymore at the said camp. The similar reaction that the pictures elicited from both Jeffrey and Daguman did not pass unnoticed by the Team. Both men always look pensive, probably because of the pathetic plight they are in right now. It came as a surprise therefore to the Team when they could hardly hide their smile upon seeing the face of Baliaga, as if they know the man very well. Moreover, when the Team asked how Jeffrey how certain was he that it was indeed Baliaga that he saw as among those who actually participated in Jonas abduction, Jeffrey was able to give a graphic description and spontaneously, to boot, the blow by blow account of the incident, including the initial positioning of the actors, specially Baliaga, who even approached, talked to, and prevented him from interfering in their criminal act. A Rebel-returnee (RR) named Maria Vita Lozada y Villegas @KA MY, has identified the face of the female in the cartographic sketch as a certain Lt. Fernando. While Lozada refuses to include her identification of Lt. Fernando in her Sinumpaang Salaysay for fear of a backlash, she told the Team that she was certain it was Lt. Fernando in the cartographic sketch since both of them were involved in counter-insurgency operations at the 56th IB, while she was under the care of the battalion from March 2006 until she left the 56th IB Headquarters in October 2007. Lozadas involvement in counter-insurgency operations together with Lt. Fernando was among the facts gathered by the CHR Regional Office 3 Investigators, whose investigation into the enforced disappearance of Jonas Joseph Burgos was documented by way of an After Mission Report dated August 13, 2008. Most if not all the actual abductors would have been identified had it not been for what is otherwise called as evidentiary difficulties shamelessly put up by some police and military elites. The deliberate

refusal of TJAG Roa to provide the CHR with the requested documents does not only defy the Supreme Court directive to the AFP but ipso facto created a disputable presumption that AFP personnel were responsible for the abduction and that their superiors would be found accountable, if not responsible, for the crime committed. This observation finds support in the disputable presumption "That evidence willfully suppressed would be adverse if produced." (Paragraph (e), Section 3, Rule 131 on Burden of Proof and Presumptions, Revised Rules on Evidence of the Rules of Court of the Philippines). In saying that the requested document is irrelevant, the Team has deemed that the requested documents and profiles would help ascertain the true identities of the cartographic sketches of two abductors because a certain Virgilio Eustaquio has claimed that one of the intelligence operatives involved in the 2007 ERAP 5 case fits the description of his abductor. As regards the PNP CIDG, the positive identification of former 56th IB officer Lt. HARRY A. BALIAGA, JR. as one of the principal abductors has effectively crushed the theory of the CIDG witnesses that the NPAs abducted Jonas.Baliagas true identity and affiliation with the military have been established by overwhelming evidence corroborated by detained former Army trooper Daguman. For lack of material time, the Commission will continue to investigate the enforced disappearance of Jonas Burgos as an independent body and pursuant to its mandate under the 1987 Constitution. Of particular importance are the identities and locations of the persons appearing in the cartographic sketches; the allegations that CIDG Witnesses Emerito G. Lipio and Meliza Concepcion-Reyes are AFP enlisted personnel and the alleged participation of Delfin De Guzman @ Ka Baste in the abduction of Jonas Burgos whose case for Murder and Attempted Murder was dismissed by the court for failure of the lone witness, an army man of the 56th IB to testify against him. Interview with Virgilio Eustaquio, Chairman of the Union Masses for Democracy and Justice (UMDJ), revealed that the male abductor of Jonas Burgos appearing in the cartographic sketch was among the raiders who abducted him and four others, identified as Jim Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona otherwise known as ERAP FIVE. Unfortunately, and as already pointed out above, The Judge Advocate General (TJAG) turned down the request of the Team for a profile of the operatives in the so-called "Erap 5" abduction on the ground of relevancy and branded the request as a fishing expedition per its Disposition Form dated September 21, 2010. Efforts to contact Virgilio Eustaquio to secure his affidavit proved futile, as his present whereabouts cannot be determined. And due to lack of material time, the Commission decided to pursue the same and determine the whereabouts of the other members of the "Erap 5" on its own time and authority as an independent body. Based on the above-cited findings, the CHR submitted the following recommendations for the Courts consideration, viz:13 i. To DIRECT the Department of Justice (DOJ), subject to certain requirements, to immediately admit witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the Witness Protection, Security and Benefit Program under Republic Act No. 6981; ii. To DIRECT the Department of Justice (DOJ) to commence the filing of Criminal Charges for Kidnapping/Enforced Disappearance and/or Arbitrary Detention against 1LT. HARRY AGAGEN BALIAGA, JR. of the Philippine Army, as Principal by Direct Participation in the

abduction of Jonas Joseph T. Burgos on April 28, 2007 from Ever Gotesco Mall, Commonwealth Avenue, Quezon City; iii. To DIRECT the Department of Justice to cause the filing of Obstruction of Justice against Emerito Lipio y Gonzales; Marlon Manuel y de Leon; and Meliza Concepcion-Reyes for giving false or fabricated information to the CIDG and for their willful refusal to cooperate with the CHR Team in the investigation of the herein enforced disappearance; iv. To DIRECT Cavite Provincial Prosecutor Emmanuel Velasco to appear before the Supreme Court and to divulge his source/informant as the same does not fall under the privilege communication rule; v. To DIRECT the PNP-CIDG RC, NCRCIDU, Atty. Joel Napoleon M. Coronel, to explain his Memorandum to the CIDG-CIDD stating that "the witnesses were reportedly turned over by the Bulacan PPO and Philippine Army to the CIDG for investigation," considering that said witnesses were not under police or military custody at the time of the supposed turn-over in the evening of August 22, 2007 and to identify the PNP officer who directed the CIDG operatives to fetch Emerito G. Lipio in Bulacan and the two other CIDG witnesses for tactical interrogation; vi. To REQUIRE General Roa of the Judge Advocate General Office, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, to explain their failure and/or refusal to provide the CHR with copies of documents relevant to the case of Jonas T. Burgos, particularly the following: (a) Profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army) and three (3) other enlisted personnel mentioned in paragraph (1) of the dispositive portion of the Supreme Court En Banc Resolution issued on 22 June 2010 in the instant consolidated cases, including a certain 2Lt. Fernando, a lady officer involved in the counterinsurgency operations of the 56th IB in 2006 to 2007; (b) copies of the records of the 2007 ERAP 5 incident in Kamuning, Quezon City and the complete list of the intelligence operatives involved in that said covert military operation, including their respective Summary of Information and individual pictures; and (c) complete list of the officers, women and men assigned at the 56th and 69th Infantry Battalion and the 7th Infantry Division from January 1, 2004 to June 30, 2007 with their respective profiles, Summary of Information and pictures; including the list of captured rebels and rebels who surrendered to the said camps and their corresponding pictures and copies of their Tactical Interrogation Reports and the cases filed against them, if any; vii. To DIRECT the PNP-CIDG to comply with its mandate under paragraph (3) of the dispositive portion of the Supreme Court En Banc Resolution promulgated on 22 June 2010 in the instant consolidated cases; viii. To DIRECT Harry A. Baliaga, Jr., the Philippine Armys 56th Infantry Battalion in Bulacan and 7th Infantry Division at Fort Magsaysay in Laur, Nueva Ecija to produce the living body of the victim Jonas Joseph T. Burgos before this Court; ix. To DIRECT the Department of Justice to review and determine the probable liability/accountability of the officers and enlisted personnel concerned of the Philippine Armys 56th IB and the 7th ID, relative to the torture and/or other forms of ill-treatment of Edmond M. Dag-uman, while he was in detention at Fort Magsaysay sometime in October 2005, as part of the collateral discoveries in the conduct of this investigation;

x. To DIRECT the Department of Justice to review the case filed against Edmond Dag-uman alias DELFIN DE GUZMAN with the Regional Trial Court Branch 10 in Malolos City docketed as Criminal Case Nos. 1844-M-2005 and 186-M-2006; and the legal basis, if any, for his continued detention at the Bulacan Provincial Jail in Malolos City; and xi. To DIRECT the Department of Interior and Local Government (DILG) to study the probable liability of Adelio A. Asuncion, former Jail Warden of Bulacan Provincial Jail for his failure to account the records of the inmates more specifically the records of turn-over Edmond Dag-uman from the 7th ID. Pursuant to our June 22, 2010, the CHR furnished the petitioner with the copy of its report, which the petitioner apparently relied upon in filing a criminal complaint against Lt. Harry A. Baliaga, Jr. and other members of the military.14 OUR RULING A. Amparo After reviewing the evidence in the present case, the CA findings and our findings in our June 22, 2010 Resolution heretofore mentioned, including the recent CHR findings that Lt. Harry A. Baliaga, Jr., (Lt. Baliaga) of the 56th Infantry Battalion, 7th Infantry Division, Philippine Army is one of the abductors of Jonas, we resolve to hold in abeyance our ruling on the merits in the Amparo aspect of the present case and refer this case back to the CA in order to allow Lt. Baliaga and the present Amparo respondents to file their respective Comments on the CHR Report within a non-extendible period of fifteen (15) days from receipt of this Resolution. The CA shall continue with the hearing of the Amparo petition in light of the evidence previously submitted, the proceedings it already conducted and the subsequent developments in this case, particularly the CHR Report. Thereafter, the CA shall rule on the merits of the Amparo petition. For this purpose, we order that Lt. Baliaga be impleaded as a party to the Amparo petition (CA-G.R. SP No. 00008-WA). This directive to implead Lt. Baliaga is without prejudice to similar directives we may issue with respect to others whose identities and participation may be disclosed in future investigations. We also note that Office of the Judge Advocate General (TJAG) failed and/or refused to provide the CHR with copies of documents relevant to the case of Jonas, and thereby disobeyed our June 22, 2010 Resolution. To recall, we issued a Resolution declaring the CHR as the Courts directly commissioned agency tasked with the continuation of the investigation of Jonas abduction and the gathering of evidence, with the obligation to report its factual findings and recommendations to this Court. In this same Resolution, we required the then incumbent Chiefs of the AFP and the PNP to make available and to provide copies to the CHR, of all documents and records in their possession and as the CHR may require, relevant to the case of Jonas, subject to reasonable regulations consistent with the Constitution and existing laws. In its March 15, 2011 Report, the CHR recommended, for the Courts consideration:15 vi. To REQUIRE General Roa of the Judge Advocate General Office, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, to explain their failure and/or refusal to provide the CHR with copies of documents relevant to the case of Jonas T. Burgos, particularly the following: (a) Profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army) and three (3) other enlisted personnel mentioned in paragraph (1) of the dispositive portion of the Supreme Court En Banc Resolution issued on 22 June 2010 in the instant consolidated cases, including a certain 2Lt. Fernando, a lady officer involved in the counter-insurgency operations of the 56th IB in 2006 to 2007; (b) copies of the records of the 2007 ERAP 5 incident in Kamuning, Quezon City and the

complete list of the intelligence operatives involved in that said covert military operation, including their respective Summary of Information and individual pictures; and (c) complete list of the officers, women and men assigned at the 56th and 69th Infantry Battalion and the 7th Infantry Division from January 1, 2004 to June 30, 2007 with their respective profiles, Summary of Information and pictures; including the list of captured rebels and rebels who surrendered to the said camps and their corresponding pictures and copies of their Tactical Interrogation Reports and the cases filed against them, if any. Section 16 of the Rule on the Writ of Amparo provides that any person who otherwise disobeys or resists a lawful process or order of the court may be punished for contempt, viz: SEC. 16. Contempt. The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine Acting on the CHRs recommendation and based on the above considerations, we resolve to require General Roa of TJAG, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, at the time of our June 22, 2010 Resolution, and then incumbent Chief of Staff, AFP,16 to show cause and explain, within a non-extendible period of fifteen (15) days from receipt of this Resolution, why they should not be held in contempt of this Court for defying our June 22, 2010 Resolution. B. Habeas Corpus In light of the new evidence obtained by the CHR, particularly the Cabintoy evidence that positively identified Lt. Baliaga as one of the direct perpetrators in the abduction of Jonas and in the interest of justice, we resolve to set aside the CAs dismissal of the habeas corpus petition and issue anew the writ of habeas corpus returnable to the Presiding Justice of the CA who shall immediately refer the writ to the same CA division that decided the habeas corpus petition (CA-GR SP No. 99839). For this purpose, we also order that Lt. Baliaga be impleaded as a party to the habeas corpus petition and require him together with the incumbent Chief of Staff, AFP; the incumbent Commanding General, Philippine Army; and the Commanding Officer of the 56th IB at the time of the disappearance of Jonas, Lt. Col. Feliciano to produce the person of Jonas and to show cause why he should not be released from detention. The CA shall rule on the merits of the habeas corpus petition in light of the evidence previously submitted to it, the proceedings already conducted, and the subsequent developments in this case (particularly the CHR report) as proven by evidence properly adduced before it. The Court of Appeals and the parties may require Prosecutor Emmanuel Velasco, Jeffrey Cabintoy, Edmund Dag-uman, Melissa Concepcion Reyes, Emerito Lipio and Marlon Manuel to testify in this case. C. Petition for Contempt In dismissing the petition, the CA held:17 Undoubtedly, the accusation against respondents is criminal in nature. In view thereof, the rules in criminal prosecution and corollary recognition of respondents constitutional rights inevitably come into play. As held in People v. Godoy:

In proceedings for criminal contempt, the defendant is presumed innocent and the burden is on the prosecution to prove the charges beyond reasonable doubt. Hence, assuming that there is circumstantial evidence to support petitioners allegations, said circumstantial evidence falls short of the quantum of evidence that is required to establish the guilt of an accused in a criminal proceeding, which is proof beyond reasonable doubt. The pertinent provision of the Rules of Court on contempt, in relation to a Habeas Corpus proceeding, is Section 16, Rule 102, which provides: Sec. 16. Penalty for refusing to issue writ, or for disobeying the same. - A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, and may also be punished by the court or judge as for contempt. [emphasis supplied] In Montenegro v. Montenegro,18 we explained the types and nature of contempt, as follows: Contempt of court involves the doing of an act, or the failure to do an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed. It is defined as "disobedience to the court by acting in opposition to its authority, justice and dignity."7 The power to punish contempt is inherent in all courts, because it is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of the courts; and, consequently, to the due administration of justice. xxx Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of the contemptuous act. Criminal contempt is "conduct directed against the authority and dignity of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect." On the other hand, civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is to punish, then it is criminal in nature; but if to compensate, then it is civil. [emphasis supplied] We agree with the CA that indirect contempt is the appropriate characterization of the charge filed by the petitioner against the respondents and that the charge is criminal in nature. Evidently, the charge of filing a false return constitutes improper conduct that serves no other purpose but to mislead, impede and obstruct the administration of justice by the Court. In People v. Godoy,19 which the CA cited, we specifically held that under paragraph (d) of Section 3, Rule 71 of the Rules of Court, any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice constitutes criminal contempt. A criminal contempt proceeding has been characterized as sui generis as it partakes some of the elements of both a civil and criminal proceeding, without completely falling under either proceeding. Its identification with a criminal proceeding is in the use of the principles and rules applicable to criminal cases, to the extent that criminal procedure is consistent with the summary nature of a contempt proceeding. We have consistently held and established that the strict rules that govern

criminal prosecutions apply to a prosecution for criminal contempt; that the accused is afforded many of the protections provided in regular criminal cases; and that proceedings under statutes governing them are to be strictly construed.20 Contempt, too, is not presumed. In proceedings for criminal contempt, the defendant is presumed innocent and the burden is on the prosecution to prove the charges beyond reasonable doubt.21 The presumption of innocence can be overcome only by proof of guilt beyond reasonable doubt, which means proof to the satisfaction of the court and keeping in mind the presumption of innocence that precludes every reasonable hypothesis except that for which it is given. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely true than the contrary. It must establish the truth of the fact to a reasonable certainty and moral certainty a certainty that convinces and satisfies the reason and conscience of those who are to act upon it.22 For the petitioner to succeed in her petition to declare the respondents in contempt for filing false returns in the habeas corpus proceedings before the CA, she has the burden of proving beyond reasonable doubt that the respondents had custody of Jonas. As the CA did, we find that the pieces of evidence on record as of the time of the CA proceedings were merely circumstantial and did not provide a direct link between the respondents and the abduction of Jonas; the evidence did not prove beyond reasonable doubt that the respondents had a hand in the abduction of Jonas, and consequently, had custody of him at the time they filed their returns to the Writ of habeas corpus denying custody of Jonas. However, the subsequent developments in this case, specifically, the investigative findings presented to us by the CHR pointing to Lt. Baliaga as one of the abductors of Jonas, have given a twist to our otherwise clear conclusion. Investigations will continue, consistent with the nature of Amparo proceedings to be alive until a definitive result is achieved, and these investigations may yet yield additional evidence affecting the conclusion the CA made. For this reason, we can only conclude that the CAs dismissal of the contempt charge should be provisional, i.e., without prejudice to the re-filing of the charge in the future should the petitioner find this step warranted by the evidence in the proceedings related to Jonass disappearance, including the criminal prosecutions that may transpire. To adjust to the extraordinary nature of Amparo and habeas corpus proceedings and to directly identify the parties bound by these proceedings who have the continuing obligation to comply with our directives, the AFP Chief of Staff, the Commanding General of the Philippine Army, the Director General of the PNP, the Chief of the PNP-CIDG and the TJAG shall be named as parties to this case without need of naming their current incumbents, separately from the then incumbent officials that the petitioner named in her original Amparo and habeas corpus petitions, for possible responsibility and accountability. In light of the dismissal of the petitions against President Gloria Macapagal-Arroyo who is no the longer the President of the Republic of the Philippines, she should now be dropped as a partyrespondent in these petitions. WHEREFORE, in the interest of justice and for the foregoing reasons, we RESOLVE to: I. IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA-G.R. SP No. 99839) a. ISSUE a Writ of Habeas Corpus anew, returnable to the Presiding Justice of the Court of Appeals who shall immediately refer the writ to the same Division that decided the habeas corpus petition;

b. ORDER Lt. Harry A. Baliaga, Jr. impleaded in CA-G.R. SP No. 99839 and G.R. No. 183711, and REQUIRE him, together with the incumbent Chief of Staff, Armed Forces of the Philippines; the incumbent Commanding General, Philippine Army; and the Commanding Officer of the 56th IB, 7th Infantry Division, Philippine Army at the time of the disappearance of Jonas Joseph T. Burgos, Lt. Col. Melquiades Feliciano, to produce the person of Jonas Joseph T. Burgos under the terms the Court of Appeals shall prescribe, and to show cause why Jonas Joseph T. Burgos should not be released from detention; c. REFER back the petition for habeas corpus to the same Division of the Court of Appeals which shall continue to hear this case after the required Returns shall have been filed and render a new decision within thirty (30) days after the case is submitted for decision; and d. ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of the Philippine Army to be impleaded as parties, separate from the original respondents impleaded in the petition, and the dropping or deletion of President Gloria Macapagal-Arroyo as party-respondent. II. IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CA-G.R. SP No. 100230) e. AFFIRM the dismissal of the petitioners petition for Contempt in CA-G.R. SP No. 100230, without prejudice to the re-filing of the contempt charge as may be warranted by the results of the subsequent CHR investigation this Court has ordered; and f. ORDER the dropping or deletion of former President Gloria Macapagal-Arroyo as partyrespondent, in light of the unconditional dismissal of the contempt charge against her. III. IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CA-G.R. SP No. 00008-WA) g. ORDER Lt. Harry A. Baliaga, Jr., impleaded in CA-G.R. SP No. 00008-WA and G.R. No. 183713, without prejudice to similar directives we may issue with respect to others whose identities and participation may be disclosed in future investigations and proceedings; h. DIRECT Lt. Harry A. Baliaga, Jr., and the present Amparo respondents to file their Comments on the CHR report with the Court of Appeals, within a non-extendible period of fifteen (15) days from receipt of this Resolution.
1avv phil

i. REQUIRE General Roa of the Office of the Judge Advocate General, AFP; the Deputy Chief of Staff for Personnel, JI, AFP, at the time of our June 22, 2010 Resolution; and then Chief of Staff, AFP, Gen. Ricardo David, (a) to show cause and explain to this Court, within a non-extendible period of fifteen (15) days from receipt of this Resolution, why they should not be held in contempt of this Court for their defiance of our June 22, 2010 Resolution; and (b) to submit to this Court, within a non-extendible period of fifteen (15) days from receipt of this Resolution, a copy of the documents requested by the CHR, particularly: 1) The profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army); Cpl. Maria Joana Francisco (Philippine Air Force); M/Sgt. Aron Arroyo (Philippine Air Force); an alias T.L. - all reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the Armed Forces of the Philippines and 2Lt. Fernando, a lady officer involved in the counter-insurgency operations of the 56th IB in 2006 to 2007;

2) Copies of the records of the 2007 ERAP 5 incident in Kamuning, Quezon City and the complete list of the intelligence operatives involved in that said covert military operation, including their respective Summary of Information and individual pictures; and 3) Complete list of the officers, women and men assigned at the 56th and 69th Infantry Battalion and the 7th Infantry Division from January 1, 2004 to June 30, 2007 with their respective profiles, Summary of Information and pictures; including the list of captured rebels and rebels who surrendered to the said camps and their corresponding pictures and copies of their Tactical Interrogation Reports and the cases filed against them, if any. These documents shall be released exclusively to this Court for our examination to determine their relevance to the present case and the advisability of their public disclosure. j. ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of the Philippine Army to be impleaded as parties, in representation of their respective organizations, separately from the original respondents impleaded in the petition; and the dropping of President Gloria Macapagal-Arroyo as party-respondent; k. REFER witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the Department of Justice for admission to the Witness Protection Security and Benefit Program, subject to the requirements of Republic Act No. 6981; and l. NOTE the criminal complaint filed by the petitioner with the DOJ which the latter may investigate and act upon on its own pursuant to Section 21 of the Rule on the Writ of Amparo. SO ORDERED. A.C. No. 6689 August 24, 2011

RIZALINA L. GEMINA, Complainant, vs. ATTY. ISIDRO S. MADAMBA, Respondent. DECISION BRION, J.: We review Resolution No. XVIII-2008-101 dated March 6, 2008 of the Board of Governors of the Integrated Bar of the Philippines (IBP), dismissing the complaint filed by Rizalina L. Gemina (complainant). The complaint charged Atty. Isidro S. Madamba (respondent) with deceit, malpractice and gross negligence, and prayed for his suspension/disbarment.1 The complainant alleged that she is an heir of the registered owner of several parcels of land located in Laoag City.2 These parcels of land were unlawfully sold by Francisco Eugenio in connivance with the respondent. The documents pertaining to the transactions over these lands were notarized by the respondent either without the presence of the affiants or with their forged signatures. The documents the complainant referred to were:

1. Waiver of Rights & Interest 2. Affidavit of Buyer/Transferee 3. Deed of Adjudication3 & Sale 4. Affidavit of Non-Tenancy 5. Deed of Absolute Sale The complainant alleged that the Waiver of Rights and Interests was submitted by Eugenio to the Department of Agrarian Reform. This document shows that it was entered in the respondents Notarial Register as Doc. No. 2283, Page No. 252, Book No. VIII, Series of 2003. However, when she went to the Office of the Clerk of Court (OCC), Regional Trial Court, Isabela, to request for a copy, she found out that Doc. No. 2283, Page No. 252, Book No. VIII, Series of 2003 was an Affidavit of Buyer/Transferee allegedly executed by the Spouses Efren Alonzo and Imelda Alonzo on September 29, 2003. In the column "REMARKS" of Document No. 2283, the word cancelled was written, but no reason was given for the cancellation, nor was a copy of the alleged cancelled document in the records. The same Affidavit of Buyer/Transferee was also entered in the respondents Notarial Register as Doc. No. 2285, Page No. 253, Book No. VIII, Series of 2003. The complainant submitted a Certification dated May 3, 2004 issued by Clerk of Court Artemio H. Quidilla, Jr., that a certified true copy of Doc. No. 2283, Page No. 252, Book No. VIII, Series of 2003 cannot be issued because the respondent did not submit notarial reports for the years 2003 and 2004, although he was commissioned as a Notary Public for these years.4 The complainant also asked for a certified true copy of a Deed of Adjudication and Sale allegedly executed by Eugenio and the other heirs, and notarized by the respondent on July 22, 2003. The instrument shows that this document was entered in the respondents Notarial Register as Doc. No. 2263, Page No. 248, Book No. VIII, Series of 2003, but no copy was submitted to the OCC. In the column "REMARKS," the words "without copy" appeared, without stating the reason for the absence of a copy. Clerk of Court Quidilla issued a Certification dated June 21, 2004 that indeed, no copy was submitted.5 In another unlawful sale of a parcel of land, an Affidavit of Non-Tenancy was notarized by the respondent. It was entered in his Notarial Register as Doc. No. 2448, Page No. 276, Book No. VIII, Series of 2004. The affidavit referred to a Deed of Sale involving a 2,500-square meter property. The Deed of Sale was notarized by the respondent on November 14, 2002 and entered in his Notarial Register as Doc. No. 2212, Page No. 239, Book No. VIII, Series of 2002. To verify the authenticity of the Deed of Sale, the complainant tried to secure a copy but she discovered that no such Deed of Sale existed. In fact, a different document corresponds to Doc. No. 2212, Page No. 239, Book No. VIII, Series of 2002. It refers to an Affidavit of Discrepancy, instead of a Deed of Sale. On the column "REMARKS," the word "cancelled" appeared without indicating the reason for the cancellation. This was confirmed by Clerk of Court Quidilla in his 1st Indorsement dated July 16, 2004, stating that "Doc. No. 2212, Series of 2002 pertains to an Affidavit of Discrepancy executed by Joseph Lim Clemente on November 15, 2002."6 In his Comments and Compliance dated August 29, 2006,7 the respondent admitted the complainants allegations on the notarization of the subject documents, but denied any participation in the sale and transfer of the lands covered by the documents. He claimed that it was his secretary who prepared and drafted the documents. He claimed that his only participation was to affix his signature on the documents; he was already 82 years old and insulin dependent, so he had no more time to prepare documents and enter documents in his notarial register. He begged for leniency and

consideration from the Court, and asked for forgiveness for his inadvertent acts. He apologized and committed himself not to repeat these misdeeds. In a resolution dated November 29, 2006, we referred the complaint to the IBP for investigation, report and recommendation.8 In the position paper she submitted to the IBP, the complainant reiterated her charges against the respondent, further stating that as a member of the Philippine Bar, the respondent allowed himself to be used as a Notary Public to illegally enable third parties to claim rights over properties to which the complainant has hereditary rights. By notarizing documents through false representations, without the signatories personally present before him as required under the Notarial Law, the respondent should be held guilty of dishonesty and conduct unbecoming of a member of the Philippine Bar.9 The respondent likewise reiterated in his position paper10 his explanations contained in his comment submitted to this Court Respondent does not deny having affix[ed] his signatures in the subject documents but he was never a participant in the alleged unlawful sale. His participation is limited to the affixing [of] his signature in the subject documents. The alleged manipulation was committed by her [sic] clerk[]secretary who enjoyed his trust and confidence having been in said position for almost two decades. Said clerk-secretary is responsible for the preparation and entry of the documents in the Notarial Book. As such, he has all the chance to do [the] things he wanted to do, which of course respondent has no least suspicion to suspect him to do illegal and unlawful acts to his Notarial Register. When respondent was still strong, he personally prepare [sic] document and personally do [sic] the entry of his Notarial Documents in his Notarial Book, but in the early [year] of 1999, his sickness was aggravated and he became insulin dependent. This necessarily weakens his body and eyesight. And so he has no choice except to trust said secretary-clerk for the preparation and entry of notarial documents in his notarial register. On February 12, 2008, Commissioner Rebecca Villanueva-Maala submitted to the IBP Board of Governors her Report and Recommendation,11 recommending the dismissal of the complaint for lack of merit, finding that: In her Complaint, complainant alleged that she is an heir of a registered owner of some parcels of land in Laoag City. However, no documentary evidence was presented to support the same. She insisted that respondent notarized documents without the appearance before him of the persons who executed the same, but no clear and sufficient evidence was also presented. Rule 130, Section 14 of the Rules of Court provides that "Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated." In the herein case, although complainant made it appear that she has evidence to prove that there was anomaly in the notarization of the subject documents, she failed to present the same. An attorney enjoys the legal presumption that he is innocent of the charges preferred against him until the contrary is proved and that as an officer of the court he has performed his duties in accordance with his oath (Acosta v. Serrano, 75 SCRA 254; Atienza v. Evangelista, 80 SCRA 338). The burden of proof rests upon the complainant to overcome the presumption and establish his charges by a clear preponderance of evidence (Baldoman v. Luspo, 64 SCRA 74; In re De Guzman, 55 SCRA 139).

The IBP Board of Governors, in its Resolution No. XVIII-2008-101 dated March 6, 2008 adopted and approved Commissioner Maalas Report and Recommendation, and dismissed the complaint against the respondent for lack of merit.12 We totally disagree with the findings of Commissioner Maala for the following reasons: First, the IBP cannot inquire into whether the complainant is an heir of the registered owner of the land. It is not within its authority to determine whether the complainant has a legal right to the properties involved in the transactions and to require her to submit proof to that effect. Its function is limited to disciplining lawyers, and it cannot determine issues of law and facts regarding the parties legal rights to a dispute. Second, from the respondents own admissions, it cannot be doubted that he is guilty of the charges against him. His admissions show that he had notarized documents without reading them and without ascertaining what the documents purported to be. He had completely entrusted to his secretary the keeping and the maintenance of his Notarial Register. This eventually resulted in inaccuracies in the entry of the notarial acts in his Notarial Register. The excerpts from the transcript of stenographic notes taken during the hearing held on November 12, 2007, presided by IBP Commissioner Oliver L. Pantaleon,13 show: MR. GEMINA: Your Honor, itong Affidavit of Discrepancy is not an Affidavit of Discrepancy. Minamanipulate niya yong ano This is a Deed of Sale. Pinalitan niya yong ano, eh, document number. This is a Deed of Sale pertaining to the property Noong sinita na namin siya pinalitan naniya, the same number pero iba na ang pangalan. Affidavit of Discrepancy na ang pinalabas. The same document number, page 3, number 8. And we were able to get a copy of these documents. COMM. PANTALEON: You can submit that also. ATTY. MADAMBA: That is really true, Your Honor, because I have said I am not the one anymore preparing my reports on notarial. I relied on my secretary. So everything there will present to me and I sign it believing that all are clear. COMM. PANTALEON: So you admit that particular allegation. ATTY. MADAMBA: Yes, that I have notarized that two documents. MR. GEMINA: Not only that, Your Honor, there are several documents we can prove. ATTY. MADAMBA: Well, I have already submitted.

The Court is likewise convinced that the respondent notarized the Waiver of Rights and Interests executed by one Juanito Peniera without asking for proof of identity, relying merely on assurances and his belief that the person before him was a "wise man."14 It was shown during the hearing on November 12, 2007 that the document was a forgery. The transcript of stenographic notes of what transpired during the hearing on November 12, 200715shows: COMM. PANTALEON: Right now, what is your evidence to show that this person did not personally appear before the respondent? MR. GEMINA: Can I talk, your Honor? COMM. PANTALEON: What is your name? MR. GEMINA: I am Candido Gemina, Jr., husband of the complainant. The signature of Juanito Peniera was a forgery. In fact, we also filed a case against Francisco Eugenio and he was sentenced to jail on that matter. COMM. PANTALEON: On this document? MR. GEMINA: Yes, on that document. COMM. PANTALEON: Why do you say that the signature of Juanito Peniera in this case was forged? MR. GEMINA: He testified in court in Laoag City that he did not sign. COMM. PANTALEON: Juanito Peniera testified in court? MR. GEMINA: Yes, sir.

The IBP resolution, based wholly on Commissioner Maalas Report and Recommendation, totally missed and disregarded the submitted evidence and the respondents testimony during the hearing of the complaint. The IBP apparently had treated the respondent with exceptional leniency. In our view, the respondents age and sickness cannot be cited as reasons to disregard the serious lapses he committed in the performance of his duties as a lawyer and as a notary public. The inaccuracies in his Notarial Register entries and his failure to enter the documents that he admittedly notarized constitute dereliction of duty as a notary public. He cannot escape liability by putting the blame on his secretary. The lawyer himself, not merely his secretary, should be held accountable for these misdeeds.16 A notary public is empowered to perform a variety of notarial acts, most common of which are the acknowledgement and affirmation of documents or instruments. In the performance of these notarial acts, the notary public must be mindful of the significance of the notarial seal affixed on documents. The notarial seal converts a document from a private to a public instrument, after which it may be presented as evidence without need for proof of its genuineness and due execution. Thus, notarization should not be treated as an empty, meaningless or routinary act. A notary public exercises duties calling for carefulness and faithfulness. Notaries must inform themselves of the facts they certify to; most importantly, they should not take part or allow themselves to be part of illegal transactions.17 Canon 1 of the Code of Professional Responsibility requires every lawyer to uphold the Constitution, obey the laws of the land, and promote respect for the law and legal processes. The Notarial Law and the 2004 Rules on Notarial Practice, moreover, require a duly commissioned notary public to make the proper entries in his Notarial Register and to refrain from committing any dereliction or any act which may serve as cause for the revocation of his commission or the imposition of administrative sanctions.18 Under the 2004 Rules on Notarial Practice, the respondents failure to make the proper entry or entries in his Notarial Register of his notarial acts, his failure to require the presence of a principal at the time of the notarial acts, and his failure to identify a principal on the basis of personal knowledge by competent evidence are grounds for the revocation of a lawyers commission as a notary public.19 WHEREFORE, the Court finds respondent Atty. Isidro S. Madamba GUILTY of violating the Notarial Law, the 2004 Rules on Notarial Practice and the Code of Professional Responsibility, and hereby orders the REVOCATION of his notarial commission, if still existing. He is further SUSPENDED indefinitely from reappointment as a Notary Public. Considering the seriousness of his violations, he deserves disbarment from the practice of law but taking into account his old age and sickness, the Court, for humanitarian reasons, hereby orders his SUSPENSION from the practice of law for a period of one (1) year.
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Let copies of this Decision be furnished the Integrated Bar of the Philippines, and all courts in the country for their information and guidance. Let also a copy of this decision be appended to Atty. Isidro S. Madambas personal record as a member of the Bar. SO ORDERED. G.R. No. 186487 August 15, 2011

ROSITO BAGUNU, Petitioner, vs. SPOUSES FRANCISCO AGGABAO & ROSENDA ACERIT, Respondents.

RESOLUTION BRION, J.: We resolve the motion for reconsideration1 filed by Rosito Bagunu (petitioner) to reverse our April 13, 2009 Resolution2 which denied his petition for review on certiorari for lack of merit. FACTUAL ANTECEDENTS R.L.O. Claim No. 937/DENR Case No. 5177 The present controversy stemmed from a protest filed by the spouses Francisco Aggabao and Rosenda Acerit (respondents) against the petitioners free patent application over a parcel of unregistered land located in Caniogan, Sto. Tomas, Isabela (subject land), pending before the Department of Environment and Natural Resources, Region II, Tuguegarao City, Cagayan (DENR Regional Office). The subject land was previously owned by Marcos Binag, who later sold it (first sale) to Felicisimo Bautista (Bautista). In 1959, Bautista, in turn, sold the subject land (second sale) to Atty. Samson Binag. On December 12, 1961, Atty. Binag applied for a free patent3 over the subject land with the Bureau of Lands (now Lands Management Bureau).4 On November 24, 1987, Atty. Binag sold the subject land (third sale) to the petitioner,5 who substituted for Atty. Binag as the free patent applicant. The parties deed of sale states that the land sold to the petitioner is the same lot subject of Atty. Binags pending free patent application.6 The deeds evidencing the successive sale of the subject land, the Bureau of Lands survey,7 and the free patent applications uniformly identified the subject land as Lot 322. The deeds covering the second and third sale also uniformly identified the boundaries of the subject land.8 On December 28, 1992, the respondents filed a protest against the petitioners free patent application. The respondents asserted ownership over Lot 322 based on the Deeds of Extrajudicial Settlement with Sale, dated June 23, 1971 and April 15, 1979, executed in their favor by the heirs of one Rafael Bautista.9 The Office of the Regional Executive Director of the DENR conducted an ocular inspection and formal investigation. The DENR Regional Office found out that the petitioner actually occupies and cultivates "the area in dispute including the area purchased by [the respondents]."10 On July 10, 1998, the DENR Regional Office ruled that the petitioner wrongfully included Lot 322 in his free patent application since this lot belongs to the respondents. The DENR Regional Office ordered: 1. [The respondents to] file their appropriate public land application covering Lot No. 322, Pls-541-D xxx; 2. [The petitioners free patent application] be amended by excluding Lot No. 322, Pls-541-D, as included in Lot No. 258;

3. [A] relocation survey xxx to determine the exact area as indicated in [the parties] respective technical description of x x x Lot Nos. 258 and 322, Pls-541-D.11 The petitioner moved for reconsideration. The DENR Regional Office denied the motion ruling that in determining the identity of a lot, the boundaries and not the lot number assigned to it - are controlling. Since the boundaries indicated in the deed of sale in the petitioners favor correspond to the boundaries of Lot 258, what the petitioner acquired was Lot 258, notwithstanding the erroneous description of the lot sold as Lot 322.12 On appeal, the DENR Secretary affirmed13 the ruling of the DENR Regional Office. After noting the differences in the boundaries stated in the parties respective Deeds of Sale, the DENR Secretary concluded that the land claimed by the petitioner is, in fact, distinct from that claimed by the respondents. The DENR Secretary ruled that based on the parties respective deeds of sale, the Subdivision Plan of the lot sold to the petitioner and Atty. Binags affidavit - claiming that the designation of Lot 322 in the Deed of Sale in the petitioners favor is erroneous - what the petitioner really acquired was Lot 258 and not Lot 322.14 The petitioner appealed to the Court of Appeals (CA). COURT OF APPEALS RULING The CA affirmed the ruling of the DENR Secretary. Applying the doctrine of primary jurisdiction, the CA ruled that since questions on the identity of a land require a technical determination by the appropriate administrative body, the findings of fact of the DENR Regional Office, as affirmed by the DENR Secretary, are entitled to great respect, if not finality.15 The petitioner assails this ruling before the Court. Civil Case No. 751 In the meantime, on November 22, 1994 (or during the pendency of the respondents protest), Atty. Binag filed a complaint for reformation of instruments, covering the second and third sale, against Bautista and the petitioner (the civil case) with the Cabagan, Isabela Regional Trial Court (RTC). Atty. Binag alleged that while the deeds evidencing the successive sale of the subject land correctly identified the boundaries of the land sold, the deeds, nevertheless, erroneously identified the subject land as Lot 322, instead of Lot 258.16 On December 9, 1994, the petitioner and Bautista filed a motion to dismiss with the RTC, citing the pendency of the land protest before the Bureau of Lands. The RTC held in abeyance its resolution on the motion to dismiss.17 After obtaining a favorable ruling from the DENR Regional Office, the respondents joined Atty. Binag in the civil case by filing a complaint-in-intervention against the petitioner. The complaint-inintervention captioned the respondents causes of action as one for Quieting of Title, Reivindicacion and Damages.18 The respondents alleged that the petitioners claim over Lot 322 is a cloud on their title and ownership of Lot 322. The respondents also alleged that they were in peaceful, continuous, public and adverse possession of Lot 322 from the time they fully acquired it in 1979 until sometime in August of 1992, when the petitioner, through stealth and strategy, ejected them from Lot 322 after transferring his possession from Lot 258.19 The respondents asked the RTC to declare them as owners of Lot 322. After the CA affirmed the DENR Secretarys favorable resolution on the respondents protest, the respondents asked the RTC to suspend the civil case or, alternatively, to adopt the DENR Secretarys ruling.20 In their prayer, the respondents asked the RTC to:

1. [Adopt] the findings of the DENR as affirmed by the Court of Appeals xxx thus, the cause of action xxx for reformation of contracts be granted; 2. [Order the petitioner] to vacate Lot 322 xxx and his [Free Patent Application] be amended to exclude Lot 322 xxx. 3. [Set the case] for hearing to receive evidence on the claim of the [respondents] for damages[.] THE PETITION The petitioner argues that the CA erred in affirming the DENR Secretarys jurisdiction to resolve the parties conflicting claims of ownership over Lot 322, notwithstanding that the same issue is pending with the RTC. By ruling that the petitioner bought Lot 258 (and not Lot 322) from Atty. Binag and for adjudicating Lot 322 to the respondents, the DENR effectively reformed contracts and determined claims of ownership over a real property matters beyond the DENRs competence to determine. The petitioner faults the CA for applying the doctrine of primary jurisdiction since the issue of who has a better right over Lot 322 does not involve the "specialized technical expertise" of the DENR. On the contrary, the issue involves interpretation of contracts, appreciation of evidence and the application of the pertinent Civil Code provisions, which are matters within the competence of the courts. The petitioner claims that the DENR Secretarys factual finding, as affirmed by the CA, is contrary to the evidence. The petitioner asserts that the Deed of Sale in his favor clearly identified the property sold as Lot 322, which was the same land Atty. Binag identified in his free patent application; that the area of Lot 322, as previously determined in a survey caused by the vendor himself (Atty. Binag), tallies with the area stated in the deed in his favor; that he has been in possession of Lot 322 since 1987, when it was sold to him; and that his present possession and cultivation of Lot 322 were confirmed by the DENR Regional Office during its ocular investigation. The petitioner also invites our attention to the incredulity of the respondents claim of ownership over Lot 322, based on Atty. Binags testimony during the hearing on the respondents protest. According to the petitioner, the respondents could not have expressed interest in buying Lot 322 from Atty. Binag had they already acquired Lot 322 from the heirs of one Rafael Bautista. The petitioner adds that as early as 1979, the respondents were already aware of Atty. Binags free patent application over Lot 322. Yet, they filed their protest to the free patent application only in 1992 when the petitioner had already substituted Atty. Binag. The petitioner claims that the respondents inaction is inconsistent with their claim of ownership. Lastly, the petitioner contests the adjudication of Lot 322 in the respondents favor by claiming that the respondents presented no sufficient evidence to prove their (or their predecessor-in-interests) title. In our April 13, 2009 Resolution, we denied the petition for failure to sufficiently show any reversible error in the assailed CA Decision and for raising substantially factual issues. The petitioner moved for reconsideration, confining his arguments to the issue of jurisdiction and the consequent applicability of the primary jurisdiction doctrine. THE RULING

We deny the motion for reconsideration. Questions of fact generally barred under Rule 45 The main thrust of the petitioners arguments refers to the alleged error of the DENR and the CA in identifying the parcel of land that the petitioner bought an error that adversely affected his right to apply for a free patent over the subject land. In his motion for reconsideration, the petitioner apparently took a cue from our April 13, 2009 Resolution, denying his petition, since his present motion limitedly argues against the DENRs jurisdiction and the CAs application of the doctrine of primary jurisdiction. The petitioner correctly recognized the settled rule that questions of fact are generally barred under a Rule 45 petition. In the present case, the identity of Lots 258 and 322 is a central factual issue. The determination of the identity of these lots involves the task of delineating their actual boundaries in accordance with the parties respective deeds of sale and survey plan, among others. While there are instances where the Court departs from the general rule on the reviewable issues under Rule 45, the petitioner did not even attempt to show that his case falls within the recognized exceptions.21 On top of this legal reality, the findings and decision of the Director of Lands22 on questions of fact, when approved by the DENR Secretary, are generally conclusive on the courts,23and even on this Court, when these factual findings are affirmed by the appellate court. We shall consequently confine our discussions to the petitioners twin legal issues. The determination of the identity of a public land is within the DENRs exclusive jurisdiction to manage and dispose of lands of the public domain The petitioner insists that under the law24 actions incapable of pecuniary estimation, to which a suit for reformation of contracts belong, and those involving ownership of real property fall within the exclusive jurisdiction of the Regional Trial Court. Since these actions are already pending before the RTC, the DENR Secretary overstepped his authority in excluding Lot 322 from the petitioners free patent application and ordering the respondents to apply for a free patent over the same lot. In an action for reformation of contract, the court determines whether the parties written agreement reflects their true intention.25 In the present case, this intention refers to the identity of the land covered by the second and third sale. On the other hand, in a reivindicatory action, the court resolves the issue of ownership of real property and the plaintiffs entitlement to recover its full possession. In this action, the plaintiff is required to prove not only his ownership, but also the identity of the real property he seeks to recover.26 While these actions ordinarily fall within the exclusive jurisdiction of the RTC, the courts jurisdiction to resolve controversies involving ownership of real property extends only to private lands. In the present case, neither party has asserted private ownership over Lot 322. The respondents acknowledged the public character of Lot 322 by mainly relying on the administrative findings of the DENR in their complaint-in-intervention, instead of asserting their own private ownership of the property. For his part, the petitioners act of applying for a free patent with the Bureau of Lands is an acknowledgment that the land covered by his application is a public land27 whose management and disposition belong to the DENR Secretary, with the assistance of the Bureau of Lands. Section 4, Chapter 1, Title XIV of Executive Order No. 29228 reads: Section 4. Powers and Functions. - The Department [of Environment and Natural Resources] shall: xxx

(4) Exercise supervision and control over forest lands, alienable and disposable public lands, mineral resources and, in the process of exercising such control, impose appropriate taxes, fees, charges, rentals and any such form of levy and collect such revenues for the exploration, development, utilization or gathering of such resources; xxx (15) Exercise exclusive jurisdiction on the management and disposition of all lands of the public domain and serve as the sole agency responsible for classification, sub-classification, surveying and titling of lands in consultation with appropriate agencies[.] (Underscoring supplied.) Under Section 14(f) of Executive Order No. 192,29 the Director of the Lands Management Bureau has the duty, among others, to assist the DENR Secretary in carrying out the provisions of Commonwealth Act No. 141 (C.A. No. 141)30 by having direct executive control of the survey, classification, lease, sale or any other forms of concession or disposition and management of the lands of the public domain. As the CA correctly pointed out, the present case stemmed from the protest filed by the respondents against the petitioners free patent application. In resolving this protest, the DENR, through the Bureau of Lands, had to resolve the issue of identity of the lot claimed by both parties. This issue of identity of the land requires a technical determination by the Bureau of Lands, as the administrative agency with direct control over the disposition and management of lands of the public domain. The DENR, on the other hand, in the exercise of its jurisdiction to manage and dispose of public lands, must likewise determine the applicants entitlement (or lack of it) to a free patent. (Incidentally, the DENR Regional Office still has to determine the respondents entitlement to the issuance of a free patent31 in their favor since it merely ordered the exclusion of Lot 322 from the petitioners own application.) Thus, it is the DENR which determines the respective rights of rival claimants to alienable and disposable public lands; courts have no jurisdiction to intrude on matters properly falling within the powers of the DENR Secretary and the Director of Lands,32 unless grave abuse of discretion exists. After the DENR assumed jurisdiction over Lot 322, pursuant to its mandate, the RTC must defer the exercise of its jurisdiction on related issues on the same matter properly within its jurisdiction,33 such as the distinct cause of action for reformation of contracts involving the same property. Note that the contracts refer to the same property, identified as "Lot 322," - which the DENR Regional Office, DENR Secretary and the CA found to actually pertain to Lot 258. When an administrative agency or body is conferred quasi-judicial functions, all controversies relating to the subject matter pertaining to its specialization are deemed to be included within its jurisdiction since the law does not sanction a split of jurisdiction34 The argument that only courts of justice can adjudicate claims resoluble under the provisions of the Civil Code is out of step with the fast-changing times. There are hundreds of administrative bodies now performing this function by virtue of a valid authorization from the legislature. This quasi-judicial function, as it is called, is exercised by them as an incident of the principal power entrusted to them of regulating certain activities falling under their particular expertise.35 The DENR has primary jurisdiction to resolve conflicting claims of title over public lands The petitioner argues that the CA erred in applying the doctrine of primary jurisdiction, claiming that the issue (of who has a better right over Lot 322) does not require the "specialized technical expertise" of the DENR. He posits that the issue, in fact, involves interpretation of contracts,

appreciation of evidence and application of the pertinent Civil Code provisions, which are all within the competence of regular courts. We disagree. Under the doctrine of primary jurisdiction, courts must refrain from determining a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to its resolution by the latter, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact36 In recent years, it has been the jurisprudential trend to apply [the doctrine of primary jurisdiction] to cases involving matters that demand the special competence of administrative agencies[. It may occur that the Court has jurisdiction to take cognizance of a particular case, which means that the matter involved is also judicial in character. However, if the case is such that its determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court. This is the doctrine of primary jurisdiction.] It applies "where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body, in such case the judicial process is suspended pending referral of such issues to the administrative body for its view."37 The application of the doctrine of primary jurisdiction, however, does not call for the dismissal of the case below. It need only be suspended until after the matters within the competence of [the Lands Management Bureau] are threshed out and determined. Thereby, the principal purpose behind the doctrine of primary jurisdiction is salutarily served.38 (Emphases added.) The resolution of conflicting claims of ownership over real property is within the regular courts area of competence and, concededly, this issue is judicial in character. However, regular courts would have no power to conclusively resolve this issue of ownership given the public character of the land, since under C.A. No. 141, in relation to Executive Order No. 192,39 the disposition and management of public lands fall within the exclusive jurisdiction of the Director of Lands, subject to review by the DENR Secretary.40 While the powers given to the DENR, through the Bureau of Lands, to alienate and dispose of public land do not divest regular courts of jurisdiction over possessory actions instituted by occupants or applicants (to protect their respective possessions and occupations),41 the respondents complaintin-intervention does not simply raise the issue of possession whether de jure or de facto but likewise raised the issue of ownership as basis to recover possession. Particularly, the respondents prayed for declaration of ownership of Lot 322. Ineluctably, the RTC would have to defer its ruling on the respondents reivindicatory action pending final determination by the DENR, through the Lands Management Bureau, of the respondents entitlement to a free patent, following the doctrine of primary jurisdiction.
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Undoubtedly, the DENR Secretarys exclusion of Lot 322 from the petitioners free patent application and his consequent directive for the respondents to apply for the same lot are within the DENR Secretarys exercise of sound administrative discretion. In the oft-cited case of Vicente Villaflor, etc. v. CA, et al,42 which involves the decisions of the Director of Lands and the then Minister of Natural Resources, we stressed that the rationale underlying the doctrine of primary jurisdiction applies to questions on the identity of the disputed public land since this matter requires a technical

determination by the Bureau of Lands. Since this issue precludes prior judicial determination, the courts must stand aside even when they apparently have statutory power to proceed, in recognition of the primary jurisdiction of the administrative agency. WHEREFORE, we hereby DENY the motion for reconsideration. No costs. SO ORDERED. G.R. No. 176350 August 10, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. JHON-JHON ALEJANDRO y DELA CRUZ @ "NOGNOG," Appellant. DECISION BRION, J.: We resolve in this appeal the challenge to the May 31, 2006 decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01251. The CA affirmed the May 14, 2004 decision2 of the Regional Trial Court (RTC), Branch 231, Pasay City, finding appellant Jhon-Jhon Alejandro y dela Cruz (appellant) guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002) and imposing on him the penalty of life imprisonment. BACKGROUND FACTS The prosecution charged the appellant with violation of Section 5, Article II of R.A. No. 9165 before the RTC, under an Information that states: That on or about the 1st day of September 2002, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously sell and deliver 0.06 gram of Methylamphetamine Hydrochloride (shabu), a dangerous drug.3 (emphases in the original) The appellant pleaded not guilty to the charge.4 During the pre-trial, the prosecution and the defense stipulated on the following: PRE-TRIAL ORDER xxxx III. Evidence of the Prosecution: A. Testimonial (witnesses) xxxx B. Documentary

Exhibit "A" - Affidavit of Arrest Exhibit "B" - Buy-bust Money Exhibit "C" - Booking and Information Sheet Exhibit "D" - Request for Laboratory Examination Exhibit "E" - Physical Science Report No. D-1331-02 C. Real Evidence x x x Exhibit "F" - subject specimen xxxx VI. Stipulation of Facts (Including those admitted or undisputed): The accused with counsel and the Trial Prosecutor have agreed on the following: Exhibits C, D, & E admitted their existence only but not as to the source xxxx This pre-trial order shall control the course of the trial in this case, unless modified by the Court to prevent manifest injustice. The trial prosecutor as well as the accused and counsel have signed this pre-trial order to attest to the correctness thereof and their conformity thereto which may accordingly be used in evidence in this case.5[emphases ours] Thus, the defense admitted the existence of Exhibits "C" (Booking and Information Sheet), "D" (Request for Laboratory Examination) and "E" (Physical Science Report No. D-1331-02). The parties also agreed, during the pre-trial, to dispense with the testimony of the forensic chemist, Police Inspector (P/Insp.) Lourdeliza M. Gural. The prosecution presented, as its witnesses, Senior Police Officer 1 (SPO1) Jesus Tan and Police Officer 1 (PO1) Timothy Mengote. The appellant and Reggie Morilla took the witness stand for the defense. The evidence for the prosecution established that in the afternoon of September 1, 2002, SPO1 Tan was in the office of the District Drug Enforcement Group, Southern Police District, Taguig, Metro Manila, when a confidential informant called and told him about the illegal drug activities of the appellant, alias "Nog-nog." Police Superintendent (P/Supt.) Mariano Fegarido conducted a briefing, and then dispatched Senior Police Officer 2 (SPO2) Nilo Banzuela, Senior Police Officer 1 (SPO1)Alberto Sangalang, Police Officer 3 (PO3) Carlos Cachapero, SPO1 Tan, and PO1 Mengote, to meet with the informant.6 At around 5:00 p.m., the police met with the informant at the Pio Del Pilar Elementary School. Thereafter, SPO1 Tan, PO1 Mengote and the informant went to M. Dela Cruz Street in Pasay City to conduct a surveillance.7 There, the informant pointed to a person standing at the corner of Mary Luz Street and M. Dela Cruz Street, and identified him as the appellant.8 They observed the appellant for

about half an hour, and saw that there were people approaching him. They also observed that there was an "exchange of goods" between the appellant and the people who approached him.9 The police thereafter returned to the station where they underwent another briefing and planned an entrapment operation. Under the plan, PO1 Mengote was designated as the poseur-buyer.10 SPO2 Banzuela, SPO1 Tan, SPO1 Sangalang, PO1 Mengote, PO3 Cachapero and the informant returned to M. Dela Cruz Street to conduct the buy-bust operation. When they arrived at the place at around 6:00 p.m., they saw the appellant sitting in front of a sari-sari store. The informant introduced PO1 Mengote to the appellant as a buyer (i.e., a "shabu scorer"). The appellant asked, "Magkano ba?" PO1 Mengote answered, "Halagang piso." PO1 Mengote then gave the one hundred peso marked money to the appellant. The appellant, in turn, pulled out a plastic sachet from his right pocket and handed it to PO1 Mengote. Upon receiving the plastic sachet, PO1 Mengote made the pre-arranged signal (i.e., wiped his face with a towel) to his companions. Immediately, the other members of the buy-bust team approached the appellant. They introduced themselves as police officers, recovered the buy-bust money from the appellant, and arrested him. They then brought him and the confiscated items to the police station.11 At the police station, they forwarded the seized items to the Philippine National Police (PNP) Crime Laboratory where they were examined by P/Insp. Gural.12 The laboratory examination, conducted by P/Insp. Gural on the confiscated specimen, yielded the following result: PHYSICAL SCIENCE REPORT NO. D-1331-02 xxxx SPECIMEN SUBMITTED: A One (1) small brown staple wire-sealed evidence envelope with signature markings containing one (1) small heat sealed transparent plastic sachet with markings "TM-1-010902" containing 0.06 gram of white crystalline substance and marked as A-1. xxxx FINDINGS: Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for the presence of Methylamphetamine hydrochloride, a dangerous drug. CONCLUSION: Specimen A-1 contains Methylamphetamine hydrochloride, a dangerous drug.13 In his defense, the appellant submitted a different version of events. He testified that at around 6:00 p.m. of September 1, 2002, he was in front of his grandmothers store on Mary Luz Street, Pasay City, when eight (8) policemen arrived. PO1 Mengote and SPO1 Tan approached and asked him about the whereabouts of a certain "Terio." When he replied that he did not know where Terio was, the police brought him to the Pio Del Pilar Elementary School in Makati City14 from where the police apparently received a text message informing them that Terio was in Pasay City. The police and the appellant returned to Mary Luz Street, and entered a house owned by Terio. Inside, they saw its occupant, Enrico Yatco. The police searched the house for about half an hour. Afterwards, they

brought the appellant and Enrico to the Sothern Police District.15 At the police station, PO1 Mengote and SPO1 Tan showed six (6) pieces of plastic sachets to the appellant and forced him to admit ownership.16 Reggies testimony was summarized by the RTC as follows: REGGIE MORILLA, the caretaker of the store owned by the accuseds grandmother, testified that he has been living with the family of the accused for three (3) years already. The family of the accused is located at 51 Mary Luz St., M. dela Cruz, Pasay City. On September 1, 2002, he was inside the store while the accused was standing outside when suddenly he heard a commotion. So he peeped through a hole in the store and saw two policemen in civilian attire handcuffing the accused. He asked assistance from his neighbors. Then he saw the accused being taken out of Mary Luz St. Later, they returned the accused and they led the accused inside a house and then after thirty minutes, he was brought out and was boarded inside an owner type jeep.17 The RTC, in its decision of May 14, 2004, found the appellant guilty beyond reasonable doubt of the crime charged, and sentenced him to suffer the penalty of life imprisonment. The RTC also ordered the appellant to pay a P500,000.00 fine.18 The records of this case were originally transmitted to this Court on appeal. Pursuant to our ruling in People v. Efren Mateo y Garcia,19 we endorsed the case and its records to the CA for appropriate action and disposition. The CA affirmed the RTC decision.20 The CA held that the appellant and his counsel entered into a stipulation of facts whereby they agreed on the admissibility of the request for laboratory examination of the submitted specimen and on the findings of P/Insp. Gural. Hence, they cannot be allowed to question, on appeal, the identity and integrity of the plastic sachet of shabu seized from the appellant by members of the entrapment team. The CA added that the prosecution witnesses positively identified the appellant as the person who handed the plastic sachet of shabu to the poseur-buyer.21 The CA further held that the police officers are presumed to have performed their duties in a regular manner, in the absence of any evidence of improper motive on their part. It, likewise, disregarded the appellants defense of denial, as it was "unsupported by reliable corroborative evidence."22 In his brief, the appellant claims that the trial court erred in convicting him of the crime charged despite the prosecutions failure to prove his guilt beyond reasonable doubt. He claims that the integrity of the seized item had been compromised due to the failure of the apprehending police to mark it.23 The Office of the Solicitor General counters with the argument that the appellant cannot now question the identity and integrity of the specimen confiscated from him as he already entered into a stipulation regarding the admissibility of the request for laboratory examination and on the result of this examination. In addition, the appellant failed to impute any ill motive on the part of the police officers to falsely testify against him.24 THE COURTS RULING We resolve to ACQUIT the appellant, for the prosecutions failure to prove his guilt beyond reasonable doubt.

The Constitution mandates that an accused shall be presumed innocent until the contrary is proven beyond reasonable doubt. The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. In doing so, the prosecution must rest its case on its own merits and cannot merely rely on the weakness of the defense. If the prosecution fails to meet the required quantum of evidence, the defense does not even need to present any evidence in its behalf; the presumption of innocence prevails and the accused should be acquitted.25 Reasonable Doubt on the Corpus Delicti The elements necessary for the prosecution of illegal sale of drugs under Section 5 of R.A. No. 9165 are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material in the prosecution for illegal sale of dangerous drugs is proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of the corpus delicti, i.e., the body or substance of the crime that establishes that a crime has actually been committed, as shown by presenting the object of the illegal transaction.26 In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of the offense and proof of its existence is vital to sustain a judgment of conviction beyond reasonable doubt.27 To remove any doubt or uncertainty on the identity and integrity of the seized drug, the evidence must definitely show that the illegal drug presented in court is the very same illicit drug actually recovered from the appellant; otherwise, the prosecution for drug pushing under R.A. No. 9165 fails.28 a. The Chain of Custody Rule and the "Marking" Requirement Dangerous Drugs Board Regulation No. 1, Series of 2002, which implements R.A. No. 9165, defines chain of custody as "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction." In Junie Malillin y Lopez v. People,29 we explained the importance of establishing the chain of custody of the confiscated drugs, in this wise: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering - without regard to whether the same is advertent or otherwise not - dictates the level of strictness in the application of the chain of custody rule.30

Thus, crucial in proving chain of custody is the marking of the seized drugs or other related items immediately after they are seized from the accused. "Marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized.31 Long before Congress passed R.A. No. 9165, this Court has consistently held that failure of the authorities to immediately mark the seized drugs casts reasonable doubt on the authenticity of the corpus delicti.32 Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, thus preventing switching, "planting," or contamination of evidence.33 In the present case, the records do not show that the apprehending team marked the seized items with their initials immediately upon confiscation. In Sanchez,34 we explained that consistency with the chain of custody rule requires that the marking of the seized items be done (1) in the presence of the apprehended violator, and (2) immediately upon confiscation. We clarified in People v. Manuel Resurreccion35 that "[m]arking upon immediate confiscation" does not exclude the possibility that marking can be at the police station or office of the apprehending team. In the present case, the testimonies of the apprehending officers do not indicate that they ever marked the seized items, either at the place of seizure or at the police station. How the police could have omitted such a basic and vital procedure in the initial handling of the seized drugs truly baffles us. Going back to what we earlier discussed, succeeding handlers of the specimen will use the markings as reference. If at the first instance or opportunity, the apprehending team did not mark the seized item/s, then there is nothing to identify it later on as it passes from one hand to another. Curiously, the seized item already bore the markings "TM-1-010902" when it was examined by the forensic chemist. In the absence, however, of specifics on how, when and where this marking was done, and who witnessed the marking procedure, we cannot accept this marking as compliance with the chain of custody requirement required by the law. In People v. Ranilo Dela Cruz y Lizing,36 the Court reversed the accuseds conviction for the failure of the police to mark the plastic sachet in the presence of the accused or his representatives. People v. Zaida Kamad y Ambing,37 likewise, resulted in an acquittal for the failure of the prosecution to provide specific details on how the seized shabu was marked. The second link in the chain of custody is the turnover of the confiscated drug from PO1 Mengote to the police station. To recall, after PO1 Mengote allegedly received the plastic sachet from the appellant, he made the pre-arranged signal to his companions. The other members of the buy-bust team approached the appellant, introduced themselves as police officers, and arrested him. Thereafter, they brought him and the confiscated item to the police station. Notably, the testimonies of the prosecution witnesses failed to identify the person who took custody of the seized item at the police station. Although the request for laboratory examination was signed by P/Supt. Fegarido, the Chief of the District Drug Enforcement Group, we cannot assume that he was the person who received the seized item from PO1 Mengote, in the absence of any testimony proving such fact. For the succeeding links in the chain of custody, the evidence shows that the confiscated item was forwarded to the PNP Crime Laboratory by one SPO2 Pepano, and then received by a certain "Relos." P/Insp. Gural examined the submitted specimen, and found it positive for the presence of methylamphetamine hydrochloride. As previously discussed, there was a missing link in the custody of the confiscated item after it left the possession of PO1 Mengote. The police did not only fail to mark the specimen immediately upon seizure; it likewise failed to identify the police officer to whose

custody the confiscated item was given at the police station. Thus, we cannot conclude with certainty that the item seized from the appellant was the same as that presented for laboratory examination and, later on, presented in court. That the defense admitted the existence of the Booking and Information Sheet (Exh. "C"), the Request for Laboratory Examination (Exh. "D") and Physical Science Report No. D-1331-02 (Exh. "E") during the pre-trial did not amount to an admission of the identity of the seized specimen. What the admissions proved were merely the existence and authenticity of the request for laboratory examination and the result of this examination, not the required chain of custody from the time of seizure of evidence. Simply put, the admission regarding the existence of Exhibits "C," "D" and "E" has no bearing on the question of whether the specimen submitted for chemical analysis was the same as that seized from the appellant.38 To interpret the stipulations as an admission that the appellant was the source of the specimen would be contrary to the pre-trial order (stating that Exhibits "C", "D" and "E" were admitted as to their existence only and not as to the source); it would also bind the appellant to an unceremonious withdrawal of his plea of not guilty. In like manner, the stipulation during the pre-trial regarding the non-presentation of the forensic chemist, P/Insp. Gural, merely covers the handling of the specimen at the forensic laboratory and the result of the examination, but not the manner the specimen was handled before it came to the possession of the forensic chemist and after it left his possession.39 b. Non-compliance with the requirements of paragraph 1, Section 21, Article II of R.A. No. 9165 Section 21, paragraph 1, Article II of R.A. No. 9165 and Section 21(a), Article II of the Implementing Rules and Regulations (IRR) of RA No. 9165 give us the procedures that the apprehending team should observe in the handling of seized illegal drugs in order to preserve their identity and integrity as evidence. As indicated by their mandatory terms, strict compliance with the prescribed procedure is essential and the prosecution must show compliance in every case.40 Section 21, paragraph 1, Article II of R.A. No. 9165 reads: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof[.] This provision is further elaborated in Section 21(a), Article II of the IRR of R.A. No. 9165, which reads: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the

integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items[.] The records of the present case are bereft of evidence showing that the apprehending or buy-bust team followed the outlined procedure of Section 21 of R.A. No. 9165 and its IRR. PO1 Mengote narrated the police operation as follows: PROSECUTOR BERNABE SOLIS: Q: So [were] you able to locate him afterwards? PO1 TIMOTHY MENGOTE: A: Yes, sir. Q: Where was he at that time? A: At that time, he was in front of a sari-sari store or M. dela Cruz St., sir. Q: What was he doing at that time? A: He was just sitting there at that time, sir. xxxx Q: What did you do next? A: When we saw him, our asset introduced me to him as a "shabu scorer" sir. xxxx Q: So what was the reply of the accused? A: He said, "Magkano ba?" and I answered, "Halagang piso" sir. Q: What does "Piso" mean? A: P100.00 worth, sir. Q: After having conveyed your intention to buy P100.00 worth of shabu, what did the accused do, if any? A: When I had given him the buy bust money, he pulled x x x the shabu out of his right pocket pants, sir. xxxx Q: What did he do with the shabu which he pulled out of his right pocket? A: He handed over the stuff to me, sir.

Q: And after this exchange of goods, what did you do if any? A: I executed the pre-arranged signal by wiping my face with a face towel, sir. xxxx Q: And did your colleagues respond to the pre-arranged signal? A: Yes, sir. Q: What happened after that? A: I properly introduced myself to Jhon Jhon as a police officer, sir. xxxx Q: Upon the arrival of your back-up team, what happened next? A: They likewise introduced themselves as police officers and we recovered the buy bust money which was taken from his right hand sir. xxxx Q: What happened next? A: We apprised him of his rights, arrested him and brought him to our office sir.41 From these exchanges, clearly it appears that the apprehending team did not photograph or conduct a physical inventory of the item seized, whether at the place of seizure or at the police station. The non-compliance by the apprehending team with the photograph and physical inventory requirements under R.A. No. 9165 and its IRR was also evident in the testimony of another member of the buybust teams, PO1 Tan, who corroborated PO1 Mengotes testimony on material points. Notably, even the Joint Affidavit of Arrest42 of the members of the entrapment team made no mention of any inventory or photograph. Prior to the passage of R.A. No. 9165, the Court applied the procedure required by Dangerous Drugs Board Regulation No. 3, Series of 1979, amending Board Regulation No. 7, Series of 1974.43 Section 1 of this Regulation requires the apprehending team, having initial custody and control of the seized drugs, to immediately inventory and photograph the same in the presence of the accused and/or his representatives, who shall be required to sign and be given copies of the inventory. After the passage of R.A. No. 9165, the Court did not waver in ensuring that the prescribed procedures in the handling of the seized drugs were observed. In People v. Rosemarie R. Salonga,44 we acquitted the accused for the failure of the police to inventory and photograph the confiscated items. We also reversed the accuseds conviction in Gutierrez,45 for the failure of the buy-bust team to inventory and photograph the seized items without justifiable grounds. People v. Cantalejo46 also resulted in an acquittal because no inventory or photograph was ever made by the police.

We reached the same conclusions in the recent cases of People v. Erlinda Capuno y Tison,47 People v. Jay Lorena y Labag,48 and People v. Arnold Martinez y Angeles, et al.49 Lest the chain of custody rule be misunderstood, we clarify that non-compliance with the prescribed procedural requirements does not necessarily render the seizure and custody of the items void and invalid; the seizure may still be held to be valid, provided that (a) there is a justifiable ground for the non-compliance, and (b) the integrity and evidentiary value of the seized items are shown to have been properly preserved. These conditions, however, were not met in the present case as the prosecution did not even attempt to offer any justification for the failure of the police to follow the prescribed procedures in the handling of the seized items. As we held in People v. Ronaldo De Guzman y Danzil,50 the failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately explained. The justifiable ground for the non-compliance must be proven as a fact. The Court cannot presume what these grounds are or that they even exist. No Presumption of Regularity in the Performance of Official Duties In convicting the appellant of the crime charged, both the RTC and the CA relied on the evidentiary presumption that official duties have been regularly performed. However, this presumption is not conclusive and cannot, by itself, overcome the constitutional presumption of innocence. The presumption of regularity, it must be emphasized, obtains only when there is no deviation from the regular performance of duty. Where the official act in question is irregular on its face, no presumption of regularity can arise.51 Our declaration in People v. Samuel Obmiranis y Oreta52 is particularly instructive: It needs no elucidation that the presumption of regularity in the performance of official duty must be seen in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption, in other words, obtains only where nothing in the records is suggestive of the fact that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. Otherwise, where the official act in question is irregular on its face, an adverse presumption arises as a matter of course. There is indeed merit in the contention that where no ill motives to make false charges was successfully attributed to the members of the buy-bust team, the presumption prevails that said police operatives had regularly performed their duty, but the theory is correct only where there is no showing that the conduct of police duty was irregular. People v. Dulay and People v. Ganenas in fact both suggest that the presumption of regularity is disputed where there is deviation from the regular performance of duty. Suffice it to say at this point that the presumption of regularity in the conduct of police duty is merely just thata mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth.53 In the present case, the procedural lapses by the apprehending team in the handling of the seized items from their failure to mark it immediately upon confiscation, to their failure to inventory and photograph it in the presence of the accused, or his representative or counsel, a representative from the media and the DOJ, and any elected public official, without offering any justifiable ground effectively negated the presumption of regularity. Conclusion In fine, the totality of evidence presented in the present case does not support the appellant's conviction for violation of Section 5, Article II of R.A. No. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of the offense. The prosecutions failure to comply with

Section 21, Article II of R.A. No. 9165, and with the chain of custody requirement of this Act compromised the identity of the item seized, leading to the failure to adequately prove the corpus delicti of the crime charged. In accordance with the constitutional mandate that the guilt of the appellant must be proven beyond reasonable doubt, we hold for failure to establish the required quantum of evidence that the presumption of innocence must prevail and acquittal should follow as a matter of right.54 WHEREFORE, premises considered, we REVERSE and SET ASIDE the May 31, 2006 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01251. Appellant Jhon-Jhon Alejandro y dela Cruz is hereby ACQUITTED for the failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is confined for another lawful cause. Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director of the Bureau of Corrections is directed to report the action he has taken to this Court, within five (5) days from receipt of this Decision. SO ORDERED. G.R. No. 194031 August 8, 2011

JOBEL ENTERPRISES and/or MR. BENEDICT LIM, Petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION (Seventh Division, Quezon City) and ERIC MARTINEZ, SR.,Respondents. DECISION BRION, J.: We resolve the petition for review on certiorari1 before us, seeking the reversal of the resolutions dated June 9, 20102 and October 5, 20103 of the Court of Appeals (CA) in CA-G.R. SP No. 113980. The Antecedents The petitioner Jobel Enterprises (the company) hired respondent Eric Martinez, Sr. as driver in 2004. Martinez allegedly performed well during the first few months of his employment, but later became stubborn, sluggish and often came late to work. On January 27, 2005, Martinez had a fight with one of his co-employees and nephew, Roderick Briones. The companys proprietor, Benedict Lim, pacified the two and instructed Martinez to come early the next day for an important delivery. Martinez allegedly did not report for work the following day. The companys efforts to contact Martinez, through Briones, failed. On March 6, 2006, the company received a notice of hearing from the Department of Labor and Employment in Region IV-A (DOLE-RO-IV-A) in relation to an illegal dismissal complaint filed by Martinez. The DOLE-RO-IV-A failed to effect an amicable settlement between the parties; Martinez allegedly asked for P300,000.00 as settlement and manifested that he did not want to work anymore. Thereafter, Martinez formally filed an illegal dismissal complaint, with money claims, against the company and Lim.

The Compulsory Arbitration Rulings and Related Incidents On compulsory arbitration, Labor Arbiter Danna M. Castillon ruled that Martinez had been illegally dismissed.4 She awarded him backwages and separation pay amounting to P479,529.49, and wage differentials and 13th month pay in the combined amount of P53,363.44. On May 16, 2008, the petitioners appealed to the National Labor Relations Commission (NLRC), filing a notice of appeal, a memorandum of appeal and a motion to reduce bond. They likewise deposited a Rizal Commercial Banking Corporation managers check for P100,000.00.5 In its order of September 15, 2008,6 the NLRC denied the companys motion to reduce bond and directed the posting of an additional cash or surety bond forP432,892.93 within ten (10) days. The company complied by posting a surety bond in the required amount,7 but Martinez moved for the immediate dismissal of the appeal; he questioned the effectivity of the surety bond and the legal standing of the surety company.8 In answer, the company asked for a denial of the motion and submitted a copy of the joint declaration by the companys authorized representative and the Executive Vice-President of the surety company9 that the posted surety bond is genuine and shall be effective until final disposition of the case. It also submitted a copy of a certificate of authority issued by the Insurance Commission,10 and a certificate of accreditation and authority issued by this Court.11 The NLRC dismissed the appeal12 and denied the companys subsequent motion for reconsideration.13 The company, thereafter, elevated the case to the CA through a petition for certiorari under Rule 65 of the Rules of Court. The CA Decision The CA issued a resolution dismissing the petition on June 9, 2010 for the petitioners failure to attach to the petition a duplicate original or certified true copy of the assailed NLRC decision;14 the submitted copy was a mere photocopy, in violation of Section 3, Rule 46, in relation to Section 1, Rule 65 of the Rules of Court. The CA also denied the petitioners plea for a liberal interpretation of the rules in their motion for reconsideration,15 to which the petitioners attached a certified true copy of the assailed NLRC decision. The Petition The company now asks the Court to set aside the CA rulings on the ground that the dismissal of the petition was for purely technical reason, which it rectified when it attached a certified true copy of the assailed NLRC decision to its motion for reconsideration. The company pleads for understanding, claiming that its failure to initially comply with the rules was unintentional and was due purely to the oversight of its counsel who was then rushing the preparation of the final print of the petition and its attachments, while also working on other cases. The Case for Martinez In his comment dated April 1, 2011,16 Martinez prays for a dismissal of the petition. He submits that the filing of an appeal is a privilege and not a right; the appealing party must comply with the requirements of the law, specifically the submission of a cash or surety bond to answer for the monetary award. He points out that the award in the present case is more than P500,000.00, but the company posted a cash bond of only P100,000.00. He adds that although the company filed a motion to reduce bond, it must be approved by the NLRC within the same period to perfect an appeal or ten (10) days from receipt of a copy of the labor arbiters decision. He argues that the

company already lost the right to appeal, since the NLRCs denial of the motion came after the 10day appeal period. He stresses that the filing of a motion to reduce bond does not suspend the running of the period to appeal. Martinez did not comment on the CA resolutions dismissing the petition for certiorari. The Courts Ruling We find merit in the petition. We note that this case was dismissed on purely technical grounds at both the NLRC and the CA levels, in total disregard of the merits of the case. The NLRC dismissed the companys appeal for non-perfection for its failure "to substantially address the issue of failure to post the required appeal bond pursuant to Section 6, Rule VI of the 2005 Revised Rules of Procedure of the NLRC."17 In summarily throwing out the appeal, the NLRC apparently forgot that earlier, or on September 15, 2008, it gave the company "ten (10) unextendible days xxx within which to file an additional cash or surety bond in the amount of FOUR HUNDRED THIRTY TWO THOUSAND EIGHT HUNDRED NINETY TWO PESOS and 93/100 (P432,892.93)"18 when it denied the companys motion to reduce bond. The NLRC even warned that "[t]heir failure to post the required bond shall result in the dismissal of the appeal for non-perfection."19 As earlier mentioned, the company complied with the NLRC directive by posting a surety bond in the required amount20 within the 10-day period; it received a copy of the NLRC resolution directing it to post an additional cash or surety bond on October 13, 2008 and posted the bond on October 23, 2008. The company likewise submitted a joint declaration between the company representative and the surety company on the period of effectivity of the bond,21 and the documents on the legal status of the surety company.22 The NLRC grossly erred, therefore, in declaring that the company failed to address the issue of its failure to post the required bond. The CA grossly failed to consider this lapse. We note, too, that the CAs refusal to consider the petition was the absence of a duplicate original or certified true copy of the assailed NLRC decision, in violation of Section 3, Rule 46 of the Rules of Court (in relation to Section 1, Rule 65). The company though corrected the procedural lapse by attaching a certified copy of the NLRC decision to its motion for reconsideration. At this point, the CA should have at least considered the merits of the petitioners case as we did in Gutierrez v. Secretary of the Department of Labor and Employment.23 We held in that case that while "what [were] submitted were mere photocopies[,] there was substantial compliance with the Rules since petitioner attached to her Supplemental Motion for Reconsideration certified true copies of the questioned DOLE Orders."24
1av vphi1

Our own examination of the records shows that the companys case is not, on its face, unmeritorious and should have been considered further to determine what really transpired between the parties. For instance, the company argued that it did not dismiss Martinez. It claimed that Martinez refused to return to work and, during conciliation, demanded outright that he be paid P300,000.00, manifesting at the same time that he no longer wanted to work for the company. Before the labor arbiter, the company even manifested its willingness to accept Martinez back to work as no dismissal actually took place.25 Thus, the concrete issue posed was whether Martinez had been dismissed or had simply walked out of his job. Under these circumstances, we find that the CA precipitately denied the petition for certiorari based on an overly rigid application of the rules of procedure. In effect, it sacrificed substance to form in a

situation where the petitioners recourse was not patently frivolous or meritless. This is a matter of substantial justice in fact, a lack of it that we should not allow to remain uncorrected. WHEREFORE, premises considered, the petition is granted. The assailed resolutions of the Court of Appeals are SET ASIDE. The case is REMANDED to the National Labor Relations Commission for its resolution of the petitioners appeal with utmost dispatch. Costs against respondent Eric Martinez, Sr. SO ORDERED. G.R. No. 187858 August 9, 2011

THE CIVIL SERVICE COMMISSION, Petitioner, vs. RICHARD G. CRUZ, Respondent. DECISION BRION, J.: This petition for review on certiorari assails the decision1 and the resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 105410. These assailed CA rulings reversed and set aside the ruling of the Civil Service Commission (CSC) in Resolution No. 0803053 that denied respondent Richard G. Cruzs prayer for the award of back salaries as a result of his reinstatement to his former position. THE FACTS The respondent, Storekeeper A of the City of Malolos Water District (CMWD), was charged with grave misconduct and dishonesty by CMWD General Manager (GM) Nicasio Reyes. He allegedly uttered a false, malicious and damaging statement (Masasamang tao ang mga BOD at General Manager) against GM Reyes and the rest of the CMWD Board of Directors (Board); four of the respondents subordinates allegedly witnessed the utterance. The dishonesty charge, in turn, stemmed from the respondents act of claiming overtime pay despite his failure to log in and out in the computerized daily time record for three working days. The respondent denied the charges against him. On the charge of grave misconduct, he stressed that three of the four witnesses already retracted their statements against him. On the charge of dishonesty, he asserted that he never failed to log in and log out. He reasoned that the lack of record was caused by technical computer problems. The respondent submitted documents showing that he rendered overtime work on the three days that the CMWD questioned. GM Reyes preventively suspended the respondent for 15 days. Before the expiration of his preventive suspension, however, GM Reyes, with the approval of the CMWD Board, found the respondent guilty of grave misconduct and dishonesty, and dismissed him from the service.4 CSC RULING The respondent elevated the findings of the CMWD and his dismissal to the CSC, which absolved him of the two charges and ordered his reinstatement. In CSC Resolution No. 080305, the CSC found no factual basis to support the charges of grave misconduct and dishonesty.

In ruling that the respondent was not liable for grave misconduct, the CSC held: Cruz was adjudged guilty of grave misconduct for his alleged utterance of such maligning statements, "MASASAMANG TAO ANG MGA BOD AT GENERAL MANAGER". However, such utterance, even if it were true, does not constitute a flagrant disregard of rule or was actuated by corrupt motive. To the mind of the Commission, it was a mere expression of disgust over the management style of the GM and the Board of Directors, especially when due notice is taken of the fact that the latter officials were charged with the Ombudsman for various anomalous transactions.5 In ruling that the charge of dishonesty had no factual basis, the CSC declared: Based on the records of the case, the Commission is not swayed that the failure of Cruz to record his attendance on April 21 and 22, 2007 and May 5, 2007, while claiming overtime pay therefor, amounts to dishonesty. Cruz duly submitted evidence showing his actual rendition of work on those days. The residents of the place where he worked attested to his presence thereat on the days in question.6 The CSC, however, found the respondent liable for violation of reasonable office rules for his failure to log in and log out. It imposed on him the penalty of reprimand but did not order the payment of back salaries. The CMWD and the respondent separately filed motions for reconsideration against the CSC ruling. CMWD questioned the CSCs findings and the respondents reinstatement. The respondent, for his part, claimed that he is entitled to back salaries in light of his exoneration from the charges of grave misconduct and dishonesty. The CSC denied both motions. Both the CMWD and the respondent elevated the CSC ruling to the CA via separate petitions for review under Rule 43 of the Rules of Court. The CA dismissed the CMWDs petition and this ruling has lapsed to finality.7Hence, the issue of reinstatement is now a settled matter. As outlined below, the CA ruled in the respondents favor on the issue of back salaries. This ruling is the subject of the present petition with us. CA RULING Applying the ruling in Bangalisan v. Hon. CA,8 the CA found merit in the respondents appeal and awarded him back salaries from the time he was dismissed up to his actual reinstatement. The CA reasoned out that CSC Resolution No. 080305 totally exonerated the respondent from the charges laid against him. The CA considered the charge of dishonesty successfully refuted as the respondent showed that he performed overtime service. The CA thereby rejected the CSCs contention that the charge of dishonesty had been merely downgraded to a lesser offense; the CA saw the finding in CSC Resolution No. 080305 to be for an offense (failing to properly record his attendance) entirely different from the dishonesty charge because their factual bases are different. Thus, to the CA, CSC Resolution No. 080305 did not wholly restore the respondents rights as an exonerated employee as it failed to order the payment of his back salaries. The CA denied the CSCs motion for reconsideration. ISSUE WHETHER OR NOT [THE] RESPONDENT IS ENTITLED TO BACK SALARIES AFTER THE CSC ORDERED HIS REINSTATEMENT TO HIS FORMER POSITION, CONSONANT WITH THE CSC RULING THAT HE WAS GUILTY ONLY OF VIOLATION OF REASONABLE OFFICE RULES AND REGULATIONS.9

CSCs position The CSC submits that the CA erred in applying the ruling in Bangalisan, requiring as a condition for entitlement to back salaries that the government employee be found innocent of the charge and that the suspension be unjustified. CSC Resolution No. 080305 did not fully exculpate the respondent but found him liable for a lesser offense. Likewise, the respondents preventive suspension pending appeal was justified because he was not exonerated. The CSC also submits that the factual considerations in Bangalisan are entirely different from the circumstances of the present case. In Bangalisan, the employee, Rodolfo Mariano, a public school teacher, was charged with grave misconduct for allegedly participating, together with his fellow teachers, in an illegal mass action. He was ordered exonerated from the misconduct charge because of proof that he did not actually participate in the mass action, but was absent from work for another reason. Although the employee was found liable for violation of office rules and regulations, he was considered totally exonerated because his infraction stemmed from an act entirely different (his failure to file a leave of absence) from the act that was the basis of the grave misconduct charge (the unjustified abandonment of classes to the prejudice of the students). The CSC argues that in the present case, the charge of dishonesty and the infraction committed by the respondent stemmed from a single act his failure to properly record his attendance. Thus, the respondent cannot be considered totally exonerated; the charge of dishonesty was merely downgraded to a violation of reasonable office rules and regulations. Accordingly, the CSC posits that the case should have been decided according to our rulings in Jacinto v. CA10and De la Cruz v. CA11 where we held the award of back salaries to be inappropriate because the teachers involved were not fully exonerated from the charges laid against them. The respondents position The respondent maintains that he is entitled to reinstatement and back salaries because CSC Resolution No. 080305 exonerated him from the charges laid against him; for the purpose of entitlement to back salaries, what should control is his exoneration from the charges leveled against him by the CMWD. That the respondent was found liable for a violation different from that originally charged is immaterial for purposes of the back salary issue. The respondent also asserts that the Bangalisan ruling squarely applies since the CSC formally admitted in its Comment to CMWDs petition for review before the CA that the penalty of reprimand is not a reduced penalty for the penalty of dismissal imposable for grave misconduct and dishonesty.12 THE COURTS RULING We deny the petition for lack of merit. The issue of entitlement to back salaries, for the period of suspension pending appeal,13 of a government employee who had been dismissed but was subsequently exonerated is settled in our jurisdiction. The Courts starting point for this outcome is the "no work-no pay" principle public officials are only entitled to compensation if they render service. We have excepted from this general principle and awarded back salaries even for unworked days to illegally dismissed or unjustly suspended employees based on the constitutional provision that "no officer or employee in the civil service shall be removed or suspended except for cause provided by law";14 to deny these

employees their back salaries amounts to unwarranted punishment after they have been exonerated from the charge that led to their dismissal or suspension.15 The present legal basis for an award of back salaries is Section 47, Book V of the Administrative Code of 1987. Section 47. Disciplinary Jurisdiction. x x x. (4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. (italics ours) This provision, however, on its face, does not support a claim for back salaries since it does not expressly provide for back salaries during this period; our established rulings hold that back salaries may not be awarded for the period of preventive suspension16 as the law itself authorizes its imposition so that its legality is beyond question. To resolve the seeming conflict, the Court crafted two conditions before an employee may be entitled to back salaries: a) the employee must be found innocent of the charges and b) his suspension must be unjustified.17 The reasoning behind these conditions runs this way: although an employee is considered under preventive suspension during the pendency of a successful appeal, the law itself only authorizes preventive suspension for a fixed period; hence, his suspension beyond this fixed period is unjustified and must be compensated. The CSCs rigid and mechanical application of these two conditions may have resulted from a misreading of our rulings on the matter; hence, a look at our jurisprudence appears in order. Basis for award of back salaries The Court had the occasion to rule on the issue of entitlement to back salaries as early as 1941,18 when Section 260 of the Revised Administrative Code of 1917 (RAC)19 was the governing law. The Court held that a government employee, who was suspended from work pending final action on his administrative case, is not entitled to back salaries where he was ultimately removed due to the valid appointment of his successor. No exoneration or reinstatement, of course, was directly involved in this case; thus, the question of back salaries after exoneration and reinstatement did not directly arise. The Court, however, made the general statement that: As a general proposition, a public official is not entitled to any compensation if he has not rendered any service, and the justification for the payment of salary during the period of suspension is that the suspension was unjustified or that the official was innocent. Hence, the requirement that, to entitle to payment of salary during suspension, there must be either reinstatement of the suspended person or exoneration if death should render reinstatement impossible.20 (emphasis and underscoring ours) In Austria v. Auditor General,21 a high school principal, who was penalized with demotion, claimed payment of back salaries from the time of his suspension until his appointment to the lower position to which he was demoted. He argued that his later appointment even if only to a lower position of classroom teacher amounted to a reinstatement under Section 260 of the RAC. The Court denied his claim, explaining that the reinstatement under Section 260 of the RAC refers to the same position from which the subordinate officer or employee was suspended and, therefore, does not include demotional appointments. The word "reinstatement" was apparently equated to exoneration.

In the 1961 case of Gonzales v. Hon. Hernandez, etc. and Fojas22 interpreting the same provision, the Court first laid down the requisites for entitlement to back salaries. Said the Court: A perusal of the decisions of this Court23 x x x show[s] that back salaries are ordered paid to an officer or an employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal. In the case at bar, [the employee] was not completely exonerated, because although the decision of the Commissioner of Civil Service [ordering separation from service] was modified and [the employee] was allowed to be reinstated, the decision [imposed upon the employee the penalty of two months suspension without pay]. [emphasis and underscoring ours] Obviously, no exoneration actually resulted and no back salary was due; the liability for the offense charged remained, but a lesser penalty was imposed. In Villamor, et al. v. Hon. Lacson, et al.,24 the City Mayor ordered the dismissal from the service of city employees after finding them guilty as charged. On appeal, however, the decision was modified by considering "the suspension of over one year x x x, already suffered x x x [to be] sufficient punishment"25 and by ordering their immediate reinstatement to the service. The employees thereupon claimed that under Section 695 of the RAC, the punishment of suspension without pay cannot exceed two (2) months. Since the period they were not allowed to work until their reinstatement exceeded two months, they should be entitled to back salaries corresponding to the period in excess of two months. In denying the employees claim for back salaries, the Court held: The fallacy of [the employees] argument springs from their assumption that the modified decision had converted the penalty to that of suspension. The modified decision connotes that although dismissal or resignation would be the proper penalty, the separation from work for the period until their reinstatement, would be deemed sufficient. Said decision did not, in the least, insinuate that suspension should have been the penalty. x x x [T]he modified decision did not exonerate the petitioners. x x x And even if we consider the punishment as suspension, before a public official or employee is entitled to payment of salaries withheld, it should be shown that the suspension was unjustified or that the employee was innocent of the charges proffered against him.26 On the whole, these rulings left the application of the conditions for the award of back salaries far from clear. Jurisprudence did not strictly observe the requirements earlier enunciated in Gonzales as under subsequent rulings, the innocence of the employee alone served as basis for the award of back salaries. The innocence of the employee as sole basis for an award of back salaries In Tan v. Gimenez, etc., and Aguilar, etc.,27 we ruled that the payment of back salary to a government employee, who was illegally removed from office because of his eventual exoneration on appeal, is merely incidental to the ordered reinstatement. Tan was subsequently reiterated in Taala v. Legaspi, et al.,28 a case involving an employee who was administratively dismissed from the service following his conviction in the criminal case arising from the same facts as in the administrative case. On appeal, however, he was acquitted of the criminal charge and was ultimately ordered reinstated by the Office of the President. Failing to secure his actual reinstatement, he filed a mandamus petition to compel his superiors to reinstate him and to pay his back salaries from the date of his suspension to the date of his actual reinstatement. We found merit in his plea and held:

[The employee] had been acquitted of the criminal charges x x x, and the President had reversed the decision x x x in the administrative case which ordered his separation from the service, and the President had ordered his reinstatement to his position, it results that the suspension and the separation from the service of the [employee] were thereby considered illegal. x x x. x x x [In this case,] by virtue of [the Presidents order of reinstatement], [the employees] suspension and separation from the service x x x was thereby declared illegal, so that for all intents and purposes he must be considered as not having been separated from his office. The lower court has correctly held that the [employee] is entitled to back salaries.29 The Taala ruling was reiterated in Cristobal v. Melchor,30 Tan, Jr. v. Office of the President,31 De Guzman v. CSC32 and Del Castillo v. CSC33 - cases involving government employees who were dismissed after being found administratively liable, but who were subsequently exonerated on appeal. In Garcia v. Chairman Commission on Audit,34 the Court held that where the employee, who was dismissed after being found administratively liable for dishonesty, was acquitted on a finding of innocence in the criminal case (for qualified theft) based on the same acts for which he was dismissed the executive pardon granted him in the administrative case (in light of his prior acquittal) entitled him to back salaries from the time of his illegal dismissal up to his actual reinstatement. The above situation should be distinguished from the case of an employee who was dismissed from the service after conviction of a crime and who was ordered reinstated after being granted pardon. We held that he was not entitled to back salaries since he was not illegally dismissed nor acquitted of the charge against him.35 Incidentally, under the Anti-Graft and Corrupt Practices Act,36 if the public official or employee is acquitted of the criminal charge/s specified in the law, he is entitled to reinstatement and the back salaries withheld during his suspension, unless in the meantime administrative proceedings have been filed against him. In Tan, Jr. v. Office of the President,37 the Court clarified that the silence of Section 42 (Lifting of Preventive Suspension Pending Administrative Investigation) of the Civil Service Decree38 on the payment of back salaries, unlike its predecessor,39 is no reason to deny back salaries to a dismissed civil servant who was ultimately exonerated. Section 42 of P.D. No. 807, however, is really not in point x x x [as] it does not cover dismissed civil servants who are ultimately exonerated and ordered reinstated to their former or equivalent positions. The rule in the latter instance, just as we have said starting with the case of Cristobal vs. Melchor is that when "a government official or employee in the classified civil service had been illegally dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held."40 These cited cases illustrate that a black and white observance of the requisites in Gonzales is not required at all times. The common thread in these cases is either the employees complete exoneration of the administrative charge against him (i.e., the employee is not found guilty of any other offense), or the employees acquittal of the criminal charge based on his innocence. If the case presented falls on either of these instances, the conditions laid down in Gonzales become the two sides of the same coin; the requirement that the suspension must be unjustified is automatically subsumed in the other requirement of exoneration.

Illegal suspension as sole basis for an award of back salaries By requiring the concurrence of the two conditions, Gonzales apparently made a distinction between exoneration and unjustified suspension/dismissal. This distinction runs counter to the notion that if an employee is exonerated, the exoneration automatically makes an employees suspension unjustified. However, in Abellera v. City of Baguio, et al.,41 the Court had the occasion to illustrate the independent character of these two conditions so that the mere illegality of an employees suspension could serve as basis for an award of back salaries. Abellera, a cashier in the Baguio City Treasurers Office, was ordered dismissed from the service after being found guilty of dishonesty and gross negligence. Even before the period to appeal expired, the City of Baguio dismissed him from the service. On appeal, however, the penalty imposed on him was reduced "to two months suspension, without pay" although the appealed decision was affirmed "in all other respects." When the issue of Abelleras entitlement to back salaries reached the Court, we considered the illegality of Abelleras suspension - i.e., from the time he was dismissed up to the time of his actual reinstatement to be a sufficient ground to award him back salaries. The rule on payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, is already settled in this jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed not only if he is found innocent of the charges which caused his suspension (Sec. 35, RA 2260), but also when the suspension is unjustified. In the present case, upon receipt of the [Civil Service Commissioners] decision x x x finding [Abellera] guilty, but even before the period to appeal had expired, [the Baguio City officials] dismissed [Abellera] from the service and another one was appointed to replace him. [Abelleras] separation x x x before the decision of the Civil Service Commissioner had become final was evidently premature. [The Baguio City officials] should have realized that [Abellera] still had the right to appeal the Commissioner's decision to the Civil Service Board of Appeals within a specified period, and the possibility of that decision being reversed or modified.42 As it did happen on such appeal x x x the penalty imposed by the Commissioner was reduced x x x to only 2 months suspension. And yet, by [the Baguio City officials] action, [Abellera] was deprived of work for more than 2 years. Clearly, Abelleras second suspension from office [i.e., from the time he was dismissed up to his actual reinstatement] was unjustified, and the payment of the salaries corresponding to said period is, consequently, proper.43 (emphases and underscoring ours) The import of the Abellera ruling was explained by the Court in the subsequent case of Yarcia v. City of Baguio44that involved substantially similar facts. The Court clarified that the award of back salaries in Abellera was based on the premature execution of the decision (ordering the employees dismissal from the service), resulting in the employees unjustified "second suspension." Under the then Civil Service Rules, the Commissioner of Civil Service had the discretion to order the immediate execution of his decision in administrative cases "in the interest of public service." Unlike in Abellera, this discretion was exercised in Yarcia; consequently, the employees separation from the service pending his appeal "remained valid and effective until it was set aside and modified with the imposition of the lesser penalty."45 The unjustified "second suspension" mentioned in Abellera actually refers to the period when the employee was dismissed from the service up to the time of his actual reinstatement. Under our present legal landscape, this period refers to "suspension pending appeal."46

In Miranda v. Commission on Audit,47 the Court again had the occasion to consider the illegality of the suspension of the employee as a separate ground to award back salaries. Following the filing of several administrative charges against him, Engr. Lamberto Miranda was "preventively" suspended from June 2, 1978 to May 7, 1986. He was reinstated on May 22, 1986. On October 7, 1986, the administrative case against him was finally dismissed "for lack of evidence." When his claim for back salaries (from the time he was "preventively" suspended up to his actual reinstatement) was denied by the Commission on Audit, he brought a certiorari petition with this Court. In granting the petition, the Court ruled that since the law48 limits the duration of preventive suspension to a fixed period, Engr. Mirandas suspension for almost eight (8) years is "unreasonable and unjustified." Additionally, the Court observed that the dropping of the administrative case against Engr. Miranda for lack of evidence "is even an eloquent manifestation that the suspension is unjustified."49 The Court held: This being so, Engineer Miranda is entitled to backwages during the period of his suspension as it is already settled in this jurisdiction that a government official or employee is entitled to backwages not only if he is exonerated in the administrative case but also when the suspension is unjustified.50 (emphases and underscoring ours) Jurisprudential definition of exoneration The mere reduction of the penalty on appeal does not entitle a government employee to back salaries if he was not exonerated of the charge against him. This is the Courts teaching in City Mayor of Zamboanga v. CA.51 In this case, the employee was initially found guilty of disgraceful and immoral conduct and was given the penalty of dismissal by the City Mayor of Zamboanga. On appeal, however, the CA limited the employees guilt to improper conduct and correspondingly reduced the penalty to "six-months suspension without pay with a stern warning that repetition of the same or similar offense will be dealt with more severely."52 The CA also awarded him "full backwages."53 We held that the CA erred in awarding back salaries by reiterating the principle that back salaries may be ordered paid to an officer or employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal.54 The Court had the occasion to explain what constitutes "exoneration" in Bangalisan v. Hon. CA,55 the respondents cited case. In this case, the Secretary of Education found the public school teachers guilty as charged and imposed on them the penalty of dismissal. On appeal, the CSC affirmed the Secretarys ruling but reduced the penalty imposed to suspension without pay. However, the CSC found one of the teachers (Mariano) guilty only of violation of reasonable office rules and regulations, and only penalized her with reprimand. None of the petitioning public school teachers were awarded back salaries. On appeal to this Court, we awarded back salaries to Mariano. We explained that since the factual premise of the administrative charges against him - i.e., his alleged participation in the illegal mass actions, and his suspension - was amply rebutted, then Mariano was in effect exonerated of the charges against him and was, thus, entitled to back salaries for the period of his suspension pending appeal. With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of the resolution of the [CSC] will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct x x x [and] conduct prejudicial to the best interest of the service x x x for his participation

in the mass actions x x x. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service. However, the [CSC], in the questioned resolution, made [the] finding that Mariano was not involved in the "mass actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school or his intended absence and neither did he file an application for leave covering such absences. xxxx However, with regard to the other petitioners, the payment of their back wages must be denied. Although the penalty imposed on them was only suspension, they were not completely exonerated of the charges against them. The CSC made specific findings that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be noted that it was their participation in the mass actions that was the very basis of the charges against them and their subsequent suspension.56 Bangalisan clearly laid down the principle that if the exoneration of the employee is relative (as distinguished from complete exoneration), an inquiry into the factual premise of the offense charged and of the offense committed must be made. If the administrative offense found to have been actually committed is of lesser gravity than the offense charged, the employee cannot be considered exonerated if the factual premise for the imposition of the lesser penalty remains the same. The employee found guilty of a lesser offense may only be entitled to back salaries when the offense actually committed does not carry the penalty of more than one month suspension or dismissal.57 Bangalisan reiterated that the payment of back salaries, during the period of suspension of a member of the civil service who is subsequently ordered reinstated, may be decreed only if the employee is found innocent of the charges which caused the suspension and when the suspension is unjustified. This pronouncement was re-echoed in Jacinto v. CA,58 De la Cruz v. CA,59 and Hon. Gloria v. CA.60 Taking off from Bangalisan, the Court in De la Cruz categorically stated: The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders x x x were commuted by the CSC to six (6) months suspension is already settled. In Bangalisan v. Court of Appeals, we resolved the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases.61 In Hon. Gloria, involving the same factual situation as Bangalisan, the CA awarded the public school teachers back salaries - for the period beyond the allowable period of preventive suspension - since they were ultimately exonerated. In affirming the CA, the Court distinguished preventive suspension from suspension pending appeal for the purpose of determining the extent of an employees entitlement to back salaries. The Court ruled that under Executive Order (E.O.) No. 292, there are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (i) preventive suspension pending investigation62 and (ii) preventive suspension pending appeal;63 compensation is due only for the period of preventive suspension pending appeal should the employee be ultimately exonerated.64 Citing Floyd R. Mechem's A Treatise on the Law of Public Offices and Officers,65 Hon. Gloria ruled: Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states

that "payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified."66 (emphases and underscoring ours) A careful reading of these cases would reveal that a strict observance of the second condition for an award of back salaries becomes important only if the employee is not totally innocent of any administrative infraction. As previously discussed, where the employee is completely exonerated of the administrative charge or acquitted in the criminal case arising from the same facts based on a finding of innocence, the second requirement becomes subsumed in the first. Otherwise, a determination of the act/s and offense/s actually committed and of the corresponding penalty imposed has to be made. Unjustified suspension On the suspension/dismissal aspect, this second condition is met upon a showing that the separation from office is not warranted under the circumstances because the government employee gave no cause for suspension or dismissal. This squarely applies in cases where the government employee did not commit the offense charged, punishable by suspension or dismissal (total exoneration); or the government employee is found guilty of another offense for an act different from that for which he was charged. Bangalisan, Jacinto and De la Cruz illustrate the application of the two conditions Both the CA and the respondent applied Bangalisan to justify the award of back salaries. The CSC argues against this position with the claim that the rulings in Jacinto and De la Cruz, not Bangalisan, should apply. After due consideration, we see no reason why the cited rulings and their application should be pitted against one another; they essentially espouse the same conclusions after applying the two conditions for the payment of back salaries. Bangalisan, Jacinto and De la Cruz all stemmed from the illegal mass actions of public school teachers in Metro Manila in 1990. The teachers were charged with grave misconduct, gross neglect of duty, and gross violation of civil service law, rules and regulations, among others. The then Secretary of Education found them guilty and dismissed them from the service. The CSC, on appeal, ordered the teachers reinstated, but withheld the grant of their back salaries. The CSC found the teachers liable for conduct prejudicial to the best interest of the service and imposed on them the penalty of suspension. The CSC reasoned that since the teachers were not totally exculpated from the charge (but were found guilty of a lesser offense), they could not be awarded back salaries. When these cases reached the Court, the issue of the teachers entitlement to back salaries was raised. The teachers claimed that they were entitled to back salaries from the time of their dismissal or suspension until their reinstatement, arguing that they were totally exonerated from the charges since they were found guilty only of conduct prejudicial to the best interest of the service. Under this factual backdrop, we applied the two conditions and distinguished between the teachers who were absent from their respective classes because they participated in the illegal mass action, on one hand, and the teachers who were absent for some other reason, on the other hand. With respect to the teachers who participated in the illegal mass actions, we ruled that they were not entitled to back salaries since they were not exonerated. We explained that liability for a lesser offense, carrying a penalty less than dismissal, is not equivalent to exoneration. On the second

condition, we ruled that their suspension is not unjustified since they have given a ground for their suspension i.e., the unjustified abandonment of their classes to the prejudice of their students, the very factual premise of the administrative charges against them for which they were suspended. With respect to the teachers who were away from their classes but did not participate in the illegal strike, the Court awarded them back salaries, considering that: first, they did not commit the act for which they were dismissed and suspended; and second, they were found guilty of another offense, i.e., violation of reasonable office rules and regulations which is not penalized with suspension or dismissal. The Court ruled that these teachers were totally exonerated of the charge, and found their dismissal and suspension likewise unjustified since the offense they were found to have committed only merited the imposition of the penalty of reprimand.
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These cases show the Courts consistent stand in determining the propriety of the award of back salaries. The government employees must not only be found innocent of the charges; their suspension must likewise be shown to be unjustified. The Present Case We find that the CA was correct in awarding the respondent his back salaries during the period he was suspended from work, following his dismissal until his reinstatement to his former position. The records show that the charges of grave misconduct and dishonesty against him were not substantiated. As the CSC found, there was no corrupt motive showing malice on the part of the respondent in making the complained utterance. Likewise, the CSC found that the charge of dishonesty was well refuted by the respondents evidence showing that he rendered overtime work on the days in question. We fully respect the factual findings of the CSC especially since the CA affirmed these factual findings. However, on the legal issue of the respondents entitlement to back salaries, we are fully in accord with the CAs conclusion that the two conditions to justify the award of back salaries exist in the present case. The first condition was met since the offense which the respondent was found guilty of (violation of reasonable rules and regulations) stemmed from an act (failure to log in and log out) different from the act of dishonesty (claiming overtime pay despite his failure to render overtime work) that he was charged with. The second condition was met as the respondents committed offense merits neither dismissal from the service nor suspension (for more than one month), but only reprimand. In sum, the respondent is entitled to back salaries from the time he was dismissed by the CMWD until his reinstatement to his former position - i.e., for the period of his preventive suspension pending appeal. For the period of his preventive suspension pending investigation, the respondent is not entitled to any back salaries per our ruling in Hon. Gloria.67 WHEREFORE, the petition is hereby DENIED. Costs against the petitioner. SO ORDERED. G.R. No. 191995 August 3, 2011

PHILIPPINE VETERANS BANK, Petitioner, vs. JUSTINA CALLANGAN, in her capacity as Director of the Corporation Finance Department of the Securities and Exchange Commission and/or the SECURITIES AND EXCHANGE COMMISSION,Respondent. RESOLUTION BRION, J.: We resolve the motion for reconsideration1 filed by petitioner Philippine Veterans Bank (the Bank) dated August 5, 2010, addressing our June 16, 2010 Resolution that denied the Banks petition for review on certiorari. Factual Antecedents On March 17, 2004, respondent Justina F. Callangan, the Director of the Corporation Finance Department of the Securities and Exchange Commission (SEC), sent the Bank a letter, informing it that it qualifies as a "public company" under Section 17.2 of the Securities Regulation Code (SRC) in relation with Rule 3(1)(m) of the Amended Implementing Rules and Regulations of the SRC. The Bank is thus required to comply with the reportorial requirements set forth in Section 17.1 of the SRC.2 The Bank responded by explaining that it should not be considered a "public company" because it is a private company whose shares of stock are available only to a limited class or sector, i.e., to World War II veterans, and not to the general public.3 In a letter dated April 20, 2004, Director Callangan rejected the Banks explanation and assessed it a total penalty of One Million Nine Hundred Thirty-Seven Thousand Two Hundred Sixty-Two and 80/100 Pesos (P1,937,262.80) for failing to comply with the SRC reportorial requirements from 2001 to 2003. The Bank moved for the reconsideration of the assessment, but Director Callangan denied the motion in SEC-CFD Order No. 085, Series of 2005 dated July 26, 2005.4 When the SEC En Banc also dismissed the Banks appeal for lack of merit in its Order dated August 31, 2006, prompting the Bank to file a petition for review with the Court of Appeals (CA).5 On March 6, 2008, the CA dismissed the petition and affirmed the assailed SEC ruling, with the modification that the assessment of the penalty be recomputed from May 31, 2004.6 The CA also denied the Banks motion for reconsideration,7 opening the way for the Banks petition for review on certiorari filed with this Court.8 On June 16, 2010, the Court denied the Banks petition for failure to show any reversible error in the assailed CA decision and resolution.9 The Motion for Reconsideration The Bank reiterates that it is not a "public company" subject to the reportorial requirements under Section 17.1 of the SRC because its shares can be owned only by a specific group of people, namely, World War II veterans and their widows, orphans and compulsory heirs, and is not open to the investing public in general. The Bank also asks the Court to take into consideration the financial impact to the cause of "veteranism"; compliance with the reportorial requirements under the SRC, if

the Bank would be considered a "public company," would compel the Bank to spend approximately P40 million just to reproduce and mail the "Information Statement" to its 400,000 shareholders nationwide. The Courts Ruling We DENY the motion for reconsideration for lack of merit. To determine whether the Bank is a "public company" burdened with the reportorial requirements ordered by the SEC, we look to Subsections 17.1 and 17.2 of the SRC, which provide: Section 17. Periodic and Other Reports of Issuers. 17.1. Every issuer satisfying the requirements in Subsection 17.2 hereof shall file with the Commission: a) Within one hundred thirty-five (135) days, after the end of the issuers fiscal year, or such other time as the Commission may prescribe, an annual report which shall include, among others, a balance sheet, profit and loss statement and statement of cash flows, for such last fiscal year, certified by an independent certified public accountant, and a management discussion and analysis of results of operations; and b) Such other periodical reports for interim fiscal periods and current reports on significant developments of the issuer as the Commission may prescribe as necessary to keep current information on the operation of the business and financial condition of the issuer. 17.2. The reportorial requirements of Subsection 17.1 shall apply to the following: xxxx c) An issuer with assets of at least Fifty million pesos (P50,000,000.00) or such other amount as the Commission shall prescribe, and having two hundred (200) or more holders each holding at least one hundred (100) shares of a class of its equity securities: Provided, however, That the obligation of such issuer to file reports shall be terminated ninety (90) days after notification to the Commission by the issuer that the number of its holders holding at least one hundred (100) shares is reduced to less than one hundred (100). (emphases supplied) We also cite Rule 3(1)(m) of the Amended Implementing Rules and Regulations of the SRC, which defines a "public company" as "any corporation with a class of equity securities listed on an Exchange or with assets in excess of Fifty Million Pesos (P50,000,000.00) and having two hundred (200) or more holders, at least two hundred (200) of which are holding at least one hundred (100) shares of a class of its equity securities." From these provisions, it is clear that a "public company," as contemplated by the SRC, is not limited to a company whose shares of stock are publicly listed; even companies like the Bank, whose shares are offered only to a specific group of people, are considered a public company, provided they meet the requirements enumerated above. The records establish, and the Bank does not dispute, that the Bank has assets exceeding P50,000,000.00 and has 395,998 shareholders.10 It is thus considered a public company that must comply with the reportorial requirements set forth in Section 17.1 of the SRC.

The Bank also argues that even assuming it is considered a "public company" pursuant to Section 17 of the SRC, the Court should interpret the pertinent SRC provisions in such a way that no financial prejudice is done to the thousands of veterans who are stockholders of the Bank. Given that the legislature intended the SRC to apply only to publicly traded companies, the Court should exempt the Bank from complying with the reportorial requirements. On this point, the Bank is apparently referring to the obligation set forth in Subsections 17.5 and 17.6 of the SRC, which provide: Section 17.5. Every issuer which has a class of equity securities satisfying any of the requirements in Subsection 17.2 shall furnish to each holder of such equity security an annual report in such form and containing such information as the Commission shall prescribe. Section 17.6. Within such period as the Commission may prescribe preceding the annual meeting of the holders of any equity security of a class entitled to vote at such meeting, the issuer shall transmit to such holders an annual report in conformity with Subsection 17.5. (emphases supplied) In making this argument, the Bank ignores the fact that the first and fundamental duty of the Court is to apply the law.11 Construction and interpretation come only after a demonstration that the application of the law is impossible or inadequate unless interpretation is resorted to.12 In this case, we see the law to be very clear and free from any doubt or ambiguity; thus, no room exists for construction or interpretation. Additionally, and contrary to the Banks claim, the Banks obligation to provide its stockholders with copies of its annual report is actually for the benefit of the veterans-stockholders, as it gives these stockholders access to information on the Banks financial status and operations, resulting in greater transparency on the part of the Bank. While compliance with this requirement will undoubtedly cost the Bank money, the benefit provided to the shareholders clearly outweighs the expense. For many stockholders, these annual reports are the only means of keeping in touch with the state of health of their investments; to them, these are invaluable and continuing links with the Bank that immeasurably contribute to the transparency in public companies that the law envisions. WHEREFORE, premises considered, petitioner Philippine Veterans Banks motion for reconsideration is hereby DENIED with finality. SO ORDERED. G.R. No. 188086 August 3, 2011

FRANCIS BELLO, represented herein by his daughter and attorney-in-fact, Geraldine BelloOna,Petitioner, vs. BONIFACIO SECURITY SERVICES, INC. and SAMUEL TOMAS, Respondents. DECISION BRION, J.: We resolve the petition for review on certiorari,1 filed by petitioner Francis Bello, to challenge the decision2 and the resolution3 of the Court of Appeals (CA) in CA-G.R. SP. No. 105402.4

The Factual Background Respondent Bonifacio Security Services, Inc. (BSSI) is a domestic private corporation engaged in the business of providing security services. In July 2001, the BSSI hired Bello as a roving traffic marshal to manage traffic and to conduct security and safety-related operations in the Bonifacio Global City (BGC). In August 2001, Bello was posted at the Negros Navigation Company in Pier 2, North Harbor, to supervise sectoral operations. In November 2001, he was assigned at BGC as assistant detachment commander. After a week, he was transferred to Pacific Plaza Towers as assistant detachment commander and later as detachment commander. In June 2002, he was assigned at Pier 2, North Harbor as assistant detachment commander, but later reassigned to BGC. In August 2002, the BSSI hired a new operations manager, resulting in the reorganization of posts. In October 2002, Bello was assigned as roving traffic marshal at the BGC. On October 25, 2002, he filed an indefinite leave of absence when his new assignment took effect. On November 5, 2002, Bello filed a complaint against the BSSI and its General Manager, respondent Samuel Tomas, with the National Labor Relations Commission (NLRC),5 claiming that he had been constructively dismissed when he was demoted from a detachment commander to a mere traffic marshal. He alleged that he received a series of promotions from 2001 to 2002, from traffic marshal to supervisor, to assistant detachment commander, and to detachment commander.6 The BSSI denied Bellos claim of constructive dismissal, arguing that no promotion took place; Bellos designation as assistant detachment commander or detachment commander was not an employment position but a duty-related assignment; Bello abandoned his job when he went on an indefinite leave of absence and did not report for work.7 The Labor Arbiters Ruling In his December 29, 2005 decision,8 Labor Arbiter Cresencio G. Ramos, Jr. found that Bello was illegally dismissed, noting that the BSSI failed to adduce evidence that Bello abandoned his employment. Thus, he ordered Bellos reinstatement and awarded him backwages amounting to P391,474.25. After the NLRC dismissed the BSSIs belated appeal and subsequent motion for reconsideration,9 the latter filed a petition for certiorari with the CA. The CA granted the petition,10 thus reinstating BSSIs appeal with the NLRC. In its March 26, 2008 resolution, the NLRC affirmed the labor arbiters decision, finding that Bello had been constructively dismissed when he was demoted to the rank-and-file position of traffic marshal after occupying the supervisory position of assistant detachment commander and detachment commander.11 The denial of BSSIs subsequent motion for reconsideration led it back to the CA on a petition for certiorari under Rule 65 of the Rules of Court.12 The CA Ruling The CA nullified the NLRC resolutions, finding the records bereft of evidence substantiating the labor arbiters and the NLRCs conclusions that Bello had been constructively dismissed.13 It noted that Bello offered no evidence to prove that there was a series of promotions that would justify his claim of subsequent demotion. The CA denied the BSSIs motion for reconsideration,14 paving the way for the present petition. The Petition

Bello insists that he was constructively dismissed when he was demoted to a mere traffic marshal after having been promoted to the positions of supervisor, assistant detachment commander, and detachment commander. The Case for the BSSI The BSSI prays for the petitions outright dismissal due to a defective verification, arguing that the special power of attorney (SPA) of Bellos attorney-in-fact, Geraldine Bello-Ona, was limited to representing him in the NLRC case only and not to the present petition; and that Bello-Ona has no personal knowledge of the allegations in the petition. On the merits of the case, the BSSI contends that the CA correctly ruled that there was no evidence to substantiate the NLRCs finding of constructive dismissal. The Issues The core issues boil down to: whether the petition should be dismissed outright for defective verification; and whether the CA erred in annulling the NLRCs resolutions. The Courts Ruling The petition lacks merit. Verification of a pleading is a formal, not jurisdictional, requirement intended to secure the assurance that the matters alleged in a pleading are true and correct.15 Thus, the court may simply order the correction of unverified pleadings or act on them and waive strict compliance with the rules.16 It is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct.17 In this case, we find that the petitions verification substantially complied with the requirements of the rules. The SPA authorized Bello-Ona to represent Bello in the case entitled "Francis Bello v. Bonifacio Security Services, Inc. and/or Samuel Tomas, (CA) Case No. 047829-06; NLRC-N[CR] Case No. 00-11-09529-2002"18 the case from which the present petition originated. As the daughter of Bello, Bello-Ona is deemed to have sufficient knowledge to swear to the truth of the allegations in the petition, which are matters of record in the tribunals and the appellate court below. On the merits of the case, we find no reason to disturb the CA conclusion that there was no constructive dismissal. Case law defines constructive dismissal as a cessation of work because continued employment has been rendered impossible, unreasonable, or unlikely, as when there is a demotion in rank or diminution in pay, or both, or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee.19
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We note that, other than his bare and self-serving allegations, Bello has not offered any evidence that he was promoted in a span of four months since his employment as traffic marshal in July 2001 to a detachment commander in November 2001. During his six-month probationary period of employment,20 it is highly improbable that Bello would be promoted after just a month of employment, from a traffic marshal in July 2001 to supervisor in August 2001, and three months later to assistant detachment commander and to detachment commander in November 2001. At most, the BSSI merely changed his assignment or transferred him to the post where his service would be most beneficial to its clients. The management's prerogative of transferring and reassigning employees from one area of operation to another in order to meet the requirements of the business is generally not constitutive of constructive dismissal.21 We see this to be the case in the present

dispute so that the consequent reassignment of Bello to a traffic marshal post was well within the scope of the BSSIs management prerogative. WHEREFORE, we hereby DENY the petition and AFFIRM the assailed CA decision and resolution in CA-G.R. SP. No. 105402. Costs against the petitioner. SO ORDERED. G.R. No. 180006 September 28, 2011

COMMISSIONER OF INTERNAL REVENUE, Petitioner, vs. FORTUNE TOBACCO CORPORATION, Respondent. DECISION BRION, J.: Before the Court is a petition for review on certiorari filed under Rule 45 of the Rules of Court by petitioner Commissioner of Internal Revenue (CIR), assailing the decision dated July 12, 20071 and the resolution dated October 4, 2007,2 both issued by the Court of Tax Appeals (CTA) en banc in CTA E.B. No. 228. BACKGROUND FACTS Under our tax laws, manufacturers of cigarettes are subject to pay excise taxes on their products. Prior to January 1, 1997, the excises taxes on these products were in the form of ad valorem taxes, pursuant to Section 142 of the 1977 National Internal Revenue Code (1977 Tax Code). Beginning January 1, 1997, Republic Act No. (RA) 82403 took effect and a shift from ad valorem to specific taxes was made. Section 142(c) of the 1977 Tax Code, as amended by RA 8240, reads in part: Sec. 142. Cigars and cigarettes. x x x. (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 (P10.00) per pack, the tax shall be Twelve pesos (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.

xxxx The specific tax from any brand of cigarettes within the next three (3) years of effectivity of this Act shall not be lower than the tax [which] is due from each brand on October 1, 1996: Provided, however, That in cases where the specific tax rates 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. xxxx The rates of specific tax on cigars and cigarettes under paragraphs (1), (2), (3) and (4) hereof, shall be increased by twelve percent (12%) on January 1, 2000. [emphases ours] To implement RA 8240 and pursuant to its rule-making powers, the CIR issued Revenue Regulation No. (RR) 1-97 whose Section 3(c) and (d) echoed the above-quoted portion of Section 142 of the 1977 Tax Code, as amended.4 The 1977 Tax Code was later repealed by RA 8424, or the National Internal Revenue Code of 1997 (1997 Tax Code), and Section 142, as amended by RA 8240, was renumbered as Section 145. This time, to implement the 12% increase in specific taxes mandated under Section 145 of the 1997 Tax Code and again pursuant to its rule-making powers, the CIR issued RR 17-99, which reads: Section 1. New Rates of Specific Tax. The specific tax rates imposed under the following sections are hereby increased by twelve percent (12%) and the new rates to be levied, assessed, and collected are as follows: Section Description of Articles Present Specific Tax Rates (Prior to January 1, 2000) New Specific Tax Rates (Effective January 1, 2000)

145

CIGARS and CIGARETTES B) Cigarettes Packed by Machine (1) Net Retail Price (excluding VAT & Excise) exceeds P10.00 per pack (2) Net Retail Price (excluding VAT & Excise) isP6.51 up to P10.00 per pack (3) Net Retail Price (excluding VAT & Excise) isP5.00 to P6.50 per pack P12.00/pack P13.44/pack

P8.00/pack

P8.96/pack

P5.00/pack

P5.60/pack

(4) Net Retail Price (excluding VAT & Excise) is below P5.00 per pack

P1.00/pack

P1.12/pack

Provided, however, that the new specific tax rate for any existing brand of cigars [and] cigarettes packed by machine, distilled spirits, wines and fermented liquors shall not be lower than the excise tax that is actually being paid prior to January 1, 2000. [emphasis ours] THE FACTS OF THE CASE Pursuant to these laws, respondent Fortune Tobacco Corporation (Fortune Tobacco) paid in advance excise taxes for the year 2003 in the amount of P11.15 billion, and for the period covering January 1 to May 31, 2004 in the amount of P4.90 billion.5 In June 2004, Fortune Tobacco filed an administrative claim for tax refund with the CIR for erroneously and/or illegally collected taxes in the amount of P491 million.6 Without waiting for the CIRs action on its claim, Fortune Tobacco filed with the CTA a judicial claim for tax refund.7 In its decision dated May 26, 2006, the CTA First Division ruled in favor of Fortune Tobacco and granted its claim for refund.8 The CTA First Divisions ruling was upheld on appeal by the CTA en banc in its decision dated July 12, 2007.9 The CIRs motion for reconsideration of the CTA en bancs decision was denied in a resolution dated October 4, 2007.10 THE ISSUE Fortune Tobaccos claim for refund of overpaid excise taxes is based primarily on what it considers as an "unauthorized administrative legislation" on the part of the CIR. Specifically, it assails the proviso in Section 1 of RR 17-99 that requires the payment of the "excise tax actually being paid prior to January 1, 2000" if this amount is higher than the new specific tax rate, i.e., the rates of specific taxes imposed in 1997 for each category of cigarette, plus 12%. It claimed that by including the proviso, the CIR went beyond the language of the law and usurped Congress power. As mentioned, the CTA sided with Fortune Tobacco and allowed the latter to claim the refund. The CIR disagrees with the CTAs ruling and assails it before this Court through the present petition for review on certiorari. The CIR posits that the inclusion of the proviso in Section 1 of RR 17-99 was made to carry into effect the laws intent and is well within the scope of his delegated legislative authority.11 He claims that the CTAs strict interpretation of the law ignored Congress intent "to increase the collection of excise taxes by increasing specific tax rates on sin products."12 He cites portions of the Senates deliberation on House Bill No. 7198 (the precursor of RA 8240) that conveyed the legislative intent to increase the excise taxes being paid.13 The CIR points out that Section 145(c) of the 1997 Tax Code categorically declares that "[t]he excise tax from any brand of cigarettes within the [three-year transition period from January 1, 1997 to December 31, 1999] shall not be lower than the tax, which is due from each brand on October 1, 1996." He posits that there is no plausible reason why the new specific tax rates due beginning January 1, 2000 should not be subject to the same rule as those due during the transition period. To the CIR, the adoption of the "higher tax rule" during the transition period unmistakably shows the intent of Congress not to lessen the excise tax collection. Thus, the CTA should have construed the ambiguity or omission in Section 145(c) in a manner that would uphold the laws policy and intent.

Fortune Tobacco argues otherwise. To it, Section 145(c) of the 1997 Tax Code read and interpreted as it is written; it imposes a 12% increase on the rates of excise taxes provided under subparagraphs (1), (2), (3), and (4) only; it does not say that the tax due during the transition period shall continue to be collected if the amount is higher than the new specific tax rates. It contends that the "higher tax rule" applies only to the three-year transition period to offset the burden caused by the shift from ad valorem to specific taxes. THE COURTS RULING Except for the tax period and the amounts involved,14 the case at bar presents the same issue that the Court already resolved in 2008 in CIR v. Fortune Tobacco Corporation.15 In the 2008 Fortune Tobacco case, the Court upheld the tax refund claims of Fortune Tobacco after finding invalid the proviso in Section 1 of RR 17-99. We ruled: Section 145 states that during the transition period, i.e., within the next three (3) years from the effectivity of the Tax Code, the excise tax from any brand of cigarettes shall not be lower than the tax due from each brand on 1 October 1996. This qualification, however, is conspicuously absent as regards the 12% increase which is to be applied on cigars and cigarettes packed by machine, among others, effective on 1 January 2000. Clearly and unmistakably, Section 145 mandates a new rate of excise tax for cigarettes packed by machine due to the 12% increase effective on 1 January 2000 without regard to whether the revenue collection starting from this period may turn out to be lower than that collected prior to this date. By adding the qualification that the tax due after the 12% increase becomes effective shall not be lower than the tax actually paid prior to 1 January 2000, Revenue Regulation No. 17-99 effectively imposes a tax which is the higher amount between the ad valorem tax being paid at the end of the three (3)-year transition period and the specific tax under paragraph C, sub-paragraph (1)-(4), as increased by 12% a situation not supported by the plain wording of Section 145 of the Tax Code.16 Following the principle of stare decisis,17 our ruling in the present case should no longer come as a surprise. The proviso in Section 1 of RR 17-99 clearly went beyond the terms of the law it was supposed to implement, and therefore entitles Fortune Tobacco to claim a refund of the overpaid excise taxes collected pursuant to this provision. The amount involved in the present case and the CIRs firm insistence of its arguments nonetheless compel us to take a second look at the issue, but our findings ultimately lead us to the same conclusion. Indeed, we find more reasons to disagree with the CIRs construction of the law than those stated in our 2008 Fortune Tobacco ruling, which was largely based on the application of the rules of statutory construction. Raising government revenue is not the sole objective of RA 8240 That RA 8240 (incorporated as Section 145 of the 1997 Tax Code) was enacted to raise government revenues is a given fact, but this is not the sole and only objective of the law.18 Congressional deliberations show that the shift from ad valorem to specific taxes introduced by the law was also intended to curb the corruption that became endemic to the imposition of ad valorem taxes.19 Since ad valorem taxes were based on the value of the goods, the prices of the goods were often manipulated to yield lesser taxes. The imposition of specific taxes, which are based on the volume of goods produced, would prevent price manipulation and also cure the unequal tax treatment created by the skewed valuation of similar goods. Rule of uniformity of taxation violated by the proviso in Section 1, RR 17-99

The Constitution requires that taxation should be uniform and equitable.20 Uniformity in taxation requires that all subjects or objects of taxation, similarly situated, are to be treated alike both in privileges and liabilities.21 This requirement, however, is unwittingly violated when the proviso in Section 1 of RR 17-99 is applied in certain cases. To illustrate this point, we consider three brands of cigarettes, all classified as lower-priced cigarettes under Section 145(c)(4) of the 1997 Tax Code, since their net retail price is below P5.00 per pack: (E) New Specific Tax Due by Jan 2000 perRR 17-99 5.50 3.30

Brand22

Net Retail Price per pack

(A) (B) (C) Ad Valorem Specific Tax Specific Tax Due under Tax Due prior to Jan Section Jan 1997 to 1997 145(C)(4) Dec 1999

(D) New Specific Tax imposing 12% increase by Jan 2000

Camel KS Champion M 100 Union American Blend

4.71 4.56

5.50 3.30

1.00/pack 1.00/pack

5.50 3.30

1.12/pack 1.12/pack

4.64

1.09

1.00/pack

1.09

1.12/pack

1.12

Although the brands all belong to the same category, the proviso in Section 1, RR 17-99 authorized the imposition of different (and grossly disproportionate) tax rates (see column [D]). It effectively extended the qualification stated in the third paragraph of Section 145(c) of the 1997 Tax Code that was supposed to apply only during the transition period: 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[.] In the process, the CIR also perpetuated the unequal tax treatment of similar goods that was supposed to be cured by the shift from ad valorem to specific taxes. The omission in the law in fact reveals the legislative intent not to adopt the "higher tax rule" The CIR claims that the proviso in Section 1 of RR 17-99 was patterned after the third paragraph of Section 145(c) of the 1997 Tax Code. Since the laws intent was to increase revenue, it found no reason not to apply the same "higher tax rule" to excise taxes due after the transition period despite the absence of a similar text in the wording of Section 145(c). What the CIR misses in his argument is that he applied the rule not only for cigarettes, but also for cigars, distilled spirits, wines and fermented liquors: Provided, however, that the new specific tax rate for any existing brand of cigars [and] cigarettes packed by machine, distilled spirits, wines and fermented liquors shall not be lower than the excise tax that is actually being paid prior to January 1, 2000.

When the pertinent provisions of the 1997 Tax Code imposing excise taxes on these products are read, however, there is nothing similar to the third paragraph of Section 145(c) that can be found in the provisions imposing excise taxes on distilled spirits (Section 14123 ) and wines (Section 14224 ). In fact, the rule will also not apply to cigars as these products fall under Section 145(a).25 Evidently, the 1997 Tax Codes provisions on excise taxes have omitted the adoption of certain tax measures. To our mind, these omissions are telling indications of the intent of Congress not to adopt the omitted tax measures; they are not simply unintended lapses in the laws wording that, as the CIR claims, are nevertheless covered by the spirit of the law. Had the intention of Congress been solely to increase revenue collection, a provision similar to the third paragraph of Section 145(c) would have been incorporated in Sections 141 and 142 of the 1997 Tax Code. This, however, is not the case. We note that Congress was not unaware that the "higher tax rule" is a proviso that should ideally apply to the increase after the transition period (as the CIR embodied in the proviso in Section 1 of RR 17-99). During the deliberations for the law amending Section 145 of the 1997 Tax Code (RA 9334), Rep. Jesli Lapuz adverted to the "higher tax rule" after December 31, 1999 when he stated: This bill serves as a catch-up measure as government attempts to collect additional revenues due it since 2001. Modifications are necessary indeed to capture the loss proceeds and prevent further erosion in revenue base. x x x. As it is, it plugs a major loophole in the ambiguity of the law as evidenced by recent disputes resulting in the government being ordered by the courts to refund taxpayers. This bill clarifies that the excise tax due on the products shall not be lower than the tax due as of the date immediately prior to the effectivity of the act or the excise tax due as of December 31, 1999.26
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This remark notwithstanding, the final version of the bill that became RA 9334 contained no provision similar to the proviso in Section 1 of RR 17-99 that imposed the tax due as of December 31, 1999 if this tax is higher than the new specific tax rates. Thus, it appears that despite its awareness of the need to protect the increase of excise taxes to increase government revenue, Congress ultimately decided against adopting the "higher tax rule. WHEREFORE, in view of the foregoing, the petition is DENIED. The decision dated July 12, 2007 and the resolution dated October 4, 2007 of the Court of Tax Appeals in CTA E.B. No. 228 are AFFIRMED. No pronouncement as to costs. SO ORDERED. A.C. No. 8920 September 28, 2011

JUDGE RENE B. BACULI, Complainant, vs. ATTY. MELCHOR A. BATTUNG, Respondent. DECISION BRION, J.: Before us is the resolution1 of the Board of Governors of the Integrated Bar of the Philippines (IBP) finding Atty. Melchor Battung liable for violating Rule 11.03, Canon 11 of the Code of Professional Responsibility and recommending that he be reprimanded. The complainant is Judge Rene B.

Baculi, Presiding Judge of the Municipal Trial Court in Cities, Branch 2, Tuguegarao City. The respondent, Atty. Battung, is a member of the Bar with postal address on Aguinaldo St., Tuguegarao City. Background Judge Baculi filed a complaint for disbarment2 with the Commission on Discipline of the IBP against the respondent, alleging that the latter violated Canons 113 and 124 of the Code of Professional Responsibility. Violation of Canon 11 of the Code of Professional Responsibility Judge Baculi claimed that on July 24, 2008, during the hearing on the motion for reconsideration of Civil Case No. 2502, the respondent was shouting while arguing his motion. Judge Baculi advised him to tone down his voice but instead, the respondent shouted at the top of his voice. When warned that he would be cited for direct contempt, the respondent shouted, "Then cite me!"5 Judge Baculi cited him for direct contempt and imposed a fine of P100.00. The respondent then left. While other cases were being heard, the respondent re-entered the courtroom and shouted, "Judge, I will file gross ignorance against you! I am not afraid of you!"6 Judge Baculi ordered the sheriff to escort the respondent out of the courtroom and cited him for direct contempt of court for the second time. After his hearings, Judge Baculi went out and saw the respondent at the hall of the courthouse, apparently waiting for him. The respondent again shouted in a threatening tone, "Judge, I will file gross ignorance against you! I am not afraid of you!" He kept on shouting, "I am not afraid of you!" and challenged the judge to a fight. Staff and lawyers escorted him out of the building.7 Judge Baculi also learned that after the respondent left the courtroom, he continued shouting and punched a table at the Office of the Clerk of Court.8 Violation of Canon 12 of the Code of Professional Responsibility According to Judge Baculi, the respondent filed dilatory pleadings in Civil Case No. 2640, an ejectment case. Judge Baculi rendered on October 4, 2007 a decision in Civil Case No. 2640, which he modified on December 14, 2007. After the modified decision became final and executory, the branch clerk of court issued a certificate of finality. The respondent filed a motion to quash the previously issued writ of execution, raising as a ground the motion to dismiss filed by the defendant for lack of jurisdiction. Judge Baculi asserted that the respondent knew as a lawyer that ejectment cases are within the jurisdiction of First Level Courts and the latter was merely delaying the speedy and efficient administration of justice. The respondent filed his Answer,9 essentially saying that it was Judge Baculi who disrespected him.10 We quote from his Answer: 23. I only told Judge Rene Baculi I will file Gross ignorance of the Law against him once inside the court room when he was lambasting me[.]

24. It was JUDGE BACULI WHO DISRESPECTED ME. He did not like that I just submit the Motion for Reconsideration without oral argument because he wanted to have an occasion to just HUMILIATE ME and to make appear to the public that I am A NEGLIGENT LAWYER, when he said "YOU JUSTIFY YOUR NEGLIGENCE BEFORE THIS COURT" making it an impression to the litigants and the public that as if I am a NEGLIGENT, INCOMPETENT, MUMBLING, and IRRESPONSIBLE LAWYER. 25. These words of Judge Rene Baculi made me react[.] xxxx 28. Since I manifested that I was not going to orally argue the Motion, Judge Rene Baculi could have just made an order that the Motion for Reconsideration is submitted for resolution, but what he did was that he forced me to argue so that he will have the room to humiliate me as he used to do not only to me but almost of the lawyers here (sic). Atty. Battung asked that the case against him be dismissed. The IBP conducted its investigation of the matter through Commissioner Jose de la Rama, Jr. In his Commissioners Report,11 Commissioner De la Rama stated that during the mandatory conference on January 16, 2009, both parties merely reiterated what they alleged in their submitted pleadings. Both parties agreed that the original copy of the July 24, 2008 tape of the incident at the courtroom would be submitted for the Commissioners review. Judge Baculi submitted the tape and the transcript of stenographic notes on January 23, 2009. Commissioner De la Rama narrated his findings, as follows:12 At the first part of the hearing as reflected in the TSN, it was observed that the respondent was calm. He politely argued his case but the voice of the complainant appears to be in high pitch. During the mandatory conference, it was also observed that indeed, the complainant maintains a high pitch whenever he speaks. In fact, in the TSN, where there was already an argument, the complainant stated the following: Court: Do not shout. Atty. Battung: Because the court is shouting. Court: This court has been constantly under this kind of voice Atty. Battung, we are very sorry if you do not want to appear before my court, then you better attend to your cases and do not appear before my court if you do not want to be corrected! (TSN, July 24, 2008, page 3) (NOTE: The underlined words "we are very sorry" [ were] actually uttered by Atty. Battung while the judge was saying the quoted portion of the TSN) That it was during the time when the complainant asked the following questions when the undersigned noticed that Atty. Battung shouted at the presiding judge. Court: Did you proceed under the Revised Rules on Summary Procedure? *

Atty. Battung: It is not our fault Your Honor to proceed because we were asked to present our evidence ex parte. Your Honor, so, if should we were ordered (sic) by the court to follow the rules on summary procedure. (TSN page 3, July 24, 2008) It was observed that the judge uttered the following: Court: Do not shout. Atty. Battung: Because the court is shouting. (Page 3, TSN July 24, 2008) Note: * it was at this point when the respondent shouted at the complainant. Thereafter, it was observed that both were already shouting at each other. Respondent claims that he was provoked by the presiding judge that is why he shouted back at him. But after hearing the tape, the undersigned in convinced that it was Atty. Battung who shouted first at the complainant. Presumably, there were other lawyers and litigants present waiting for their cases to be called. They must have observed the incident. In fact, in the joint-affidavit submitted by Elenita Pacquing et al., they stood as one in saying that it was really Atty. Battung who shouted at the judge that is why the latter cautioned him "not to shout." The last part of the incident as contained in page 4 of the TSN reads as follows: Court: You are now ordered to pay a fine of P100.00. Atty. Battung: We will file the necessary action against this court for gross ignorance of the law. Court: Yes, proceed. (NOTE: Atty. Battung went out the courtroom) Court: Next case. Interpreter: Civil Case No. 2746. (Note: Atty. Battung entered again the courtroom) Atty. Battung: But what we do not like (not finished) Court: The next time Atty. Battung: We would like to clear Court: Sheriff, throw out the counsel, put that everything in record. If you want to see me, see me after the court.

Next case. Civil Case No. 2746 for Partition and Damages, Roberto Cabalza vs. Teresita Narag, et al. (nothing follows) Commissioner De la Rama found that the respondent failed to observe Canon 11 of the Code of Professional Responsibility that requires a lawyer to observe and maintain respect due the courts and judicial officers. The respondent also violated Rule 11.03 of Canon 11 that provides that a lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts. The respondents argument that Judge Baculi provoked him to shout should not be given due consideration since the respondent should not have shouted at the presiding judge; by doing so, he created the impression that disrespect of a judge could be tolerated. What the respondent should have done was to file an action before the Office of the Court Administrator if he believed that Judge Baculi did not act according to the norms of judicial conduct. With respect to the charge of violation of Canon 12 of the Code of Professional Responsibility, Commissioner De la Rama found that the evidence submitted is insufficient to support a ruling that the respondent had misused the judicial processes to frustrate the ends of justice. Commissioner De la Rama recommended that the respondent be suspended from the practice of law for six (6) months. On October 9, 2010, the IBP Board of Governors passed a Resolution adopting and approving the Report and Recommendation of the Investigating Commissioner, with the modification that the respondent be reprimanded. The Courts Ruling We agree with the IBPs finding that the respondent violated Rule 11.03, Canon 11 of the Code of Professional Responsibility. Atty. Battung disrespected Judge Baculi by shouting at him inside the courtroom during court proceedings in the presence of litigants and their counsels, and court personnel. The respondent even came back to harass Judge Baculi. This behavior, in front of many witnesses, cannot be allowed. We note that the respondent continued to threaten Judge Baculi and acted in a manner that clearly showed disrespect for his position even after the latter had cited him for contempt. In fact, after initially leaving the court, the respondent returned to the courtroom and disrupted the ongoing proceedings. These actions were not only against the person, the position and the stature of Judge Baculi, but against the court as well whose proceedings were openly and flagrantly disrupted, and brought to disrepute by the respondent. Litigants and counsels, particularly the latter because of their position and avowed duty to the courts, cannot be allowed to publicly ridicule, demean and disrespect a judge, and the court that he represents. The Code of Professional Responsibility provides: Canon 11 - A lawyer shall observe and maintain the respect due the courts and to judicial officers and should insist on similar conduct by others. Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.

We ruled in Roxas v. De Zuzuarregui, Jr.13 that it is the duty of a lawyer, as an officer of the court, to uphold the dignity and authority of the courts. Respect for the courts guarantees the stability of the judicial institution; without this guarantee, the institution would be resting on very shaky foundations. A lawyer who insults a judge inside a courtroom completely disregards the latters role, stature and position in our justice system. When the respondent publicly berated and brazenly threatened Judge Baculi that he would file a case for gross ignorance of the law against the latter, the respondent effectively acted in a manner tending to erode the public confidence in Judge Baculis competence and in his ability to decide cases. Incompetence is a matter that, even if true, must be handled with sensitivity in the manner provided under the Rules of Court; an objecting or complaining lawyer cannot act in a manner that puts the courts in a bad light and bring the justice system into disrepute. The IBP Board of Governors recommended that Atty. Battung be reprimanded, while the Investigating Commissioner recommended a penalty of six (6) months suspension. We believe that these recommended penalties are too light for the offense. In Re: Suspension of Atty. Rogelio Z. Bagabuyo, Former Senior State Prosecutor,14 we suspended Atty. Bagabuyo for one year for violating Rule 11.05, Canon 11, and Rule 13.02, Canon 13 of the Code of Professional Responsibility, and for violating the Lawyers Oath for airing his grievances against a judge in newspapers and radio programs. In this case, Atty. Battungs violations are no less serious as they were committed in the courtroom in the course of judicial proceedings where the respondent was acting as an officer of the court, and before the litigating public. His actions were plainly disrespectful to Judge Baculi and to the court, to the point of being scandalous and offensive to the integrity of the judicial system itself. WHEREFORE, in view of the foregoing, Atty. Melchor A. Battung is found GUILTY of violating Rule 11.03, Canon 11 of the Code of Professional Responsibility, for which he is SUSPENDED from the practice of law for one (1) year effective upon the finality of this Decision. He is STERNLY WARNED that a repetition of a similar offense shall be dealt with more severely. Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to the respondents personal record as an attorney; the Integrated Bar of the Philippines; the Department of Justice; and all courts in the country, for their information and guidance. SO ORDERED. A.M. No. P-10-2836 (from RTJ-07-2070) September 28, 2011

OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. JESUS VINCENT M. CARBON III, formerly Clerk III, Regional Trial Court, Zamboanga City, Respondent. DECISION BRION, J.: We resolve in this Decision the administrative charge against Jesus Vincent M. Carbon III (respondent or Carbon III) made pursuant to the directive of the Court in its June 4, 2008 Resolution in A.M. No. RTJ-07-2070 (formerly A.M. OCA IPI No. 07-2613-RTJ).

Background The case A.M. OCA IPI No. 07-2613-RTJ traces its roots to the affidavit-complaint of Joie Ramos against Judge Gregorio dela Pea III, Presiding Judge, Regional Trial Court (RTC), Branch 12, Zamboanga City, received by the Office of the Court Administrator (OCA) on February 28, 2007. Joie claimed that during the pendency of the case filed by Joies wife, for partition against the heirs of Venancio Go (Special Civil Action No. 551), before the sala of Judge Dela Pea, the latter asked money from him, and that he gave the latter around P300,000.00. However, when Joie refused to give more money to Judge Dela Pea, the latter dismissed Special Civil Action No. 551 and denied the motion for reconsideration. In support of his allegations, Joie attached to his complaint the affidavit of respondent Carbon III. The Court ordered Judge Dela Pea to comment. He duly complied and in this comment, he denied all of Joies allegations.1 On July 30, 2007, the Court issued a Resolution2 redocketing the case as a regular administrative matter (A.M. No. RTJ-07-2070), and referred the case for investigation, report and recommendation. In the investigation conducted by the assigned Justice of the Court of Appeals,3 Judge Dela Pea appeared and testified, but neither Joie nor his witnesses appeared. In light of this development, the investigating Justice opined that the charges against Judge Dela Pea were not supported by the required quantum of evidence in administrative disciplinary proceedings.4 The investigating Justice also noted Joies statement in his affidavit that he never had any direct communication with Judge Dela Pea, all communications and transactions having been coursed through respondent Carbon III who acted as go-between. The investigating Justice recommended the dismissal of the administrative complaint against Judge Dela Pea, and the investigation of respondent Carbon III based on the latters admissions in his affidavit. The Court approved the recommendation and dismissed the administrative complaint against Judge Dela Pea in its June 4, 2008 Resolution,5 and directed as well the Executive Judge of the RTC, Zamboanga City "to investigate the involvement of Jesus Vincent M. Carbon III, an employee of the RTC-OCC, Zamboanga City, in view of [the] admissions in his affidavit, and to submit a report and recommendation thereon within ninety (90) days from receipt of the records." We issued this Resolution pursuant to our authority to motu proprio investigate court personnel even in the absence of a direct complaint or of a complainant, and to discipline erring members and employees after the observance of due process.6 Our Resolution of June 4, 2008, for the investigation of respondent Carbon III was driven by the respondents affidavit7 in the case against Judge Dela Pena which states: I, Jesus Vincent M. Carbon III, of legal age, married, and a resident of Putik, Zamboanga City, Philippines, after being duly sworn in accordance with law, depose and state: That I am an employee of the Regional Trial Court in Zamboanga City, particularly the Office of the Clerk of Court; I have been in the employ of the said government agency for more than thirteen (13) years now; That, sometime early last year (2005), I became aware of the appointment of Gregorio dela Pea III, a local private law practitioner, as Presiding Judge of Regional Trial Court Branch 12; That, my personal association with Judge dela Pea III began shortly after his assumption of office; said association went further by virtue of my employment as a court employee and the fact that I am the son of my father who is his fellow Judge;

That sometime middle of last year, I personally approached Judge dela Pea III to make a follow-up on the case of a friend which has been then pending before his Branch; that, the said case is the case filed by Natasha Dioquino, the wife of my friend Joie Ramos, against the heirs of Venancio Go for inheritance; That after several follow-ups regarding the aforementioned case, Judge dela Pea III commented to me that the case is inherently weak. That such weakness can only be remedied, as he placed it, "kung meron tayo." Upon clarification, I came to understand that his phrase "kung meron tayo" came to mean as "money"; That as a result of such, Judge dela Pea III urged me several times to ask money from Joie Ramos, the husband of the (sic) Natasha Dioquino; that, on two separate occasions, I handed over to Judge dela Pea III the amounts of Php60000 and Php35000; That I am executing this Affidavit to attest to the truth of the foregoing and in support of charges against Judge Gregorio dela Pea III of the Regional Trial Court, Branch 12 of Zamboanga City and for whatever other action that may be filed against him. [emphases ours] The investigation of the respondent was assigned to Zamboanga City RTC Executive Judge Reynerio G. Estacio who scheduled the investigation for January 27 and April 17, 2009, and sent notices to respondent Carbon III at his known address, together with a copy of Joies affidavit and his own affidavit. Respondent Carbon III, however, did not appear nor did he submit any evidence in his defense. The return of the first notice to him at his address of record shows that the notice was received for him by a certain Michelle Reyes, while the second notice was returned unserved for the reason "House Closed." In fact, respondent Carbon III stopped reporting for work starting March 2007, without the benefit of any approved leave of absence. This was at about the time Judge Dela Pea was being asked by the Court to comment on the charges of Joie. Subsequently, Carbon III filed his resignation from office effective July 2007, but this resignation was never approved due to his failure to submit the required clearance. Parallel to this development, Joie wrote SC Administrator Christopher Lock on June 28, 2007 asking that the investigation against Judge Dela Pea be stopped because an unknown person sent him P300,000.00 cash to answer for the amount Judge Dela Pea borrowed. On October 8, 2007, Judge Dela Pea filed a Manifestation and Motion asking that Carbon III be compelled to state under oath the time, place and dates he allegedly gave the sums of P65,000.00 andP35,000.00 to Judge Dela Pea. Carbon III never resurfaced. In A.M. No. 08-3-115-RTC (Dropping from the Rolls of Mr. Jesus Vincent Carbon III, Clerk III, RTC, Office of the Clerk of Court, Zamboanga City), the Court issued a Resolution on April 2, 20088 that reads: The Court NOTES the Report dated 05 February 2008 of the Office of the Court Administrator [OCA] on the failure of Mr. Jesus Vincent Carbon III to submit his bundy cards from the month of March 2007 up to the present, submitting that he has not filed any application for leave; that Mr. Carbon III tendered his resignation effective 25 July 2007; and that, to date, he has not submitted the necessary clearances for his resignation. Upon the recommendation of the OCA, the Court resolves to: (1) DROP FROM THE ROLLS the name of Mr. Jesus Vincent Carbon III effective 24 March 2007 for having been absent without official leave (AWOL);

(2) DECLARE his position vacant; and (3) INFORM Mr. Carbon III of his separation from the service or dropping from the rolls at the address appearing in his 201 File, that is at B5 L7, A & N Subdivision, Sta. Barbara, Zamboanga City. In his Report and Recommendation9 of August 13, 2009, Judge Estacio found that the respondents act of demanding and receiving money from a party litigant constituted grave misconduct in office - a grave offense punishable by dismissal from the service pursuant to Section 23, Rule IX of the Omnibus Rules Implementing Book V of Executive Order No. 292, and other pertinent Civil Service Laws. Judge Estacio recommended the respondents dismissal from the service with prejudice to reemployment in any branch, instrumentality or agency of the government, including governmentowned and controlled corporations, and forfeiture of all his benefits, except accrued leave credits. The OCA, in its Report of March 23, 2010,10 agreed with Judge Estacios finding and recommendation. It cited Section 26, Rule 130 of the Rules of Court,11 and our ruling in Unchuan v. Lozada12 that "a mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him" because "it is fair to presume that they correspond with the truth, and it is his fault if they do not." As well, the OCA argued that the solicitation of money from a litigant in exchange for a favorable decision violates Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel.13 Thus, the OCA recommended that the case be redocketed as a regular administrative matter and that the respondent be found guilty of gross misconduct. Since the respondent had been dropped from the rolls, the OCA recommended that he be fined the amount of P40,000.00, with forfeiture of all the retirement benefits he is entitled to except accrued leave credits, if any, and that he be barred from re-employment in any branch or instrumentality of the government, including government-owned and controlled corporations. The Courts Ruling As a preliminary matter, we note the unusual twists this case took, as the respondent was initially only a witness in another case the investigation of Judge Dela Pena where he had an active role and where he made incriminatory admissions that led, after investigation, to the docketing of a separate administrative case against him. At or about the time Judge Dela Pea was being investigated (in which investigation respondent Carbon III submitted his affidavit), the respondent stopped reporting to his office and subsequently submitted a resignation letter that the Court did not approve for lack of the required clearance. An unusual twist came when the Court, instead of directly disapproving his resignation letter and relating his resignation to the investigation in the case of Judge Dela Pea, simply dropped him from the rolls and considered him separated from the service. To be sure, the OCAs recommendation and the subsequent Court action were unfortunate, but this lapse notwithstanding, we hold that, under the unique circumstances of this administrative matter, the respondents absence without leave and dropping from the rolls did not place him outside our reach as he apparently intended; he cannot use his disappearance as a shield against liability for his actions while he was in office. We can likewise continue with the case against him as this case was brought while he was still an active employee of the Court.
1wphi1

After he has been heard through his affidavit and after giving him the opportunity to explain himself and to put up his defenses, he cannot now hide under the claim of denial of due process. Joie was clear in his complaint regarding the illegality complained about bribery allegedly perpetrated by Judge Dela Pea through the respondent. Thus, it was a complaint, no less, against the respondent to which he responded with an admission that he indeed "followed up" the case and secured sums from Joie under the representation that these were to be given to Judge Dela Pea. In the ensuing

formal investigation, the respondent failed to appear despite notice. Instead, he conveniently dropped out of sight. It was under these facts that we maintain our continuing jurisdiction to hold the respondent administratively liable as a court employee for an illegality committed while in the service. On the merits, we agree with the OCAs finding that the respondent is guilty of gross misconduct as charged. He admitted in his affidavit that he followed up Natasha Dioquinos case with Judge Dela Pea and that he handed over to the latter, on two occasions, sums of money from Joie. While the case against Judge Dela Pea did not prosper for lack of evidence that he indeed demanded and received money in return for a favorable ruling on Natasha Dioquinos case, what remains uncontested is that money changed hands between Joie and the respondent on the understanding that these sums would be a consideration for receiving a favorable judgment on a case that the respondent "worked on." In plainer terms, what remained proven was a case-fixing activity where the respondent was a direct participant as the middleman and fixer between the decision maker and the litigant. Under these circumstances, that Judge Dela Pea might not have been a party to the nefarious arrangement is immaterial as what remained was the respondents demand for a bribe that implicated a judge, in fact a colleague of his own father in the Judiciary. Thus viewed, the respondents flawed character and unfitness for a position in the Judiciary stand out, aggravated by his shallow scheme to escape liability by dropping out of sight to render him out of the reach of our processes. As we held in the case of Office of the Ombudsman v. Uldarico P. Andutan, Jr.,14 separation from the service renders a former employee out of the reach of the governments administrative processes with respect to the former employment, but this claim does not hold true if the separation from the service was in contemplation of and to escape administrative liability from an offense that took place and was investigated while the employee was still in the service.15 Under Section 52(A)(3) of the Revised Uniform Rules on Administrative Cases in the Civil Service,16 grave misconduct carries the penalty of dismissal for the first offense. Since the respondent had earlier been declared dropped from the rolls, the penalty of dismissal is now ineffectual. In lieu of dismissal, we hereby impose an administrative fine of P40,000.00, with accompanying forfeiture of all the retirement or separation benefits he may be entitled to, except accrued leave credits. The P40,000.00 fine shall be deducted from any such accrued leave credits, with the respondent personally held liable for any deficiency which shall be directly payable to this Court. He is further declared disqualified from any future government service. WHEREFORE, we find respondent Jesus Vincent M. Carbon III GUILTY of grave misconduct, and impose on him a FINE of Forty Thousand Pesos (P40,000.00) and the forfeiture of whatever retirement or separation benefits may be due him, except accrued leave credits, if any. The P40,000.00 fine shall be deducted from any remaining accrued leave credits he may have; otherwise, we hold him personally liable for the fine to be directly paid to this Court. The Fiscal Management and Budget Office is DIRECTED to compute the monetary value of the respondents leave credits and to apply any remaining credit to the satisfaction of the fine imposed. We further declare him disqualified from re-employment in any branch, agency or instrumentality of the government, including government-owned and controlled corporations. Let a copy of this Decision be furnished the Office of the Ombudsman for whatever action it may deem appropriate. SO ORDERED. G.R. No. 158143 September 21, 2011

PHILIPPINE COMMERCIAL INTERNATIONAL BANK, Petitioner, vs. ANTONIO B. BALMACEDA and ROLANDO N. RAMOS, Respondents. DECISION BRION, J.: Before us is a petition for review on certiorari,1 filed by the Philippine Commercial International Bank2 (Bank or PCIB), to reverse and set aside the decision3 dated April 29, 2003 of the Court of Appeals (CA) in CA-G.R. CV No. 69955. The CA overturned the September 22, 2000 decision of the Regional Trial Court (RTC) of Makati City, Branch 148, in Civil Case No. 93-3181, which held respondent Rolando Ramos liable to PCIB for the amount ofP895,000.00. FACTUAL ANTECEDENTS On September 10, 1993, PCIB filed an action for recovery of sum of money with damages before the RTC against Antonio Balmaceda, the Branch Manager of its Sta. Cruz, Manila branch. In its complaint, PCIB alleged that between 1991 and 1993, Balmaceda, by taking advantage of his position as branch manager, fraudulently obtained and encashed 31 Managers checks in the total amount of Ten Million Seven Hundred Eighty Two Thousand One Hundred Fifty Pesos (P10,782,150.00). On February 28, 1994, PCIB moved to be allowed to file an amended complaint to implead Rolando Ramos as one of the recipients of a portion of the proceeds from Balmacedas alleged fraud. PCIB also increased the number of fraudulently obtained and encashed Managers checks to 34, in the total amount of Eleven Million Nine Hundred Thirty Seven Thousand One Hundred Fifty Pesos (P11,937,150.00). The RTC granted this motion. Since Balmaceda did not file an Answer, he was declared in default. On the other hand, Ramos filed an Answer denying any knowledge of Balmacedas scheme. According to Ramos, he is a reputable businessman engaged in the business of buying and selling fighting cocks, and Balmaceda was one of his clients. Ramos admitted receiving money from Balmaceda as payment for the fighting cocks that he sold to Balmaceda, but maintained that he had no knowledge of the source of Balmacedas money. THE RTC DECISION On September 22, 2000, the RTC issued a decision in favor of PCIB, with the following dispositive portion: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendants as follows: 1. Ordering defendant Antonio Balmaceda to pay the amount of P11,042,150.00 with interest thereon at the legal rate from [the] date of his misappropriation of the said amount until full restitution shall have been made[.] 2. Ordering defendant Rolando Ramos to pay the amount of P895,000.00 with interest at the legal rate from the date of misappropriation of the said amount until full restitution shall have been made[.]

3. Ordering the defendants to pay plaintiff moral damages in the sum of P500,000.00 and attorneys fees in the amount of ten (10%) percent of the total misappropriated amounts sought to be recovered. 4. Plus costs of suit. SO ORDERED.4 From the evidence presented, the RTC found that Balmaceda, by taking undue advantage of his position and authority as branch manager of the Sta. Cruz, Manila branch of PCIB, successfully obtained and misappropriated the banks funds by falsifying several commercial documents. He accomplished this by claiming that he had been instructed by one of the Banks corporate clients to purchase Managers checks on its behalf, with the value of the checks to be debited from the clients corporate bank account. First, he would instruct the Bank staff to prepare the application forms for the purchase of Managers checks, payable to several persons. Then, he would forge the signature of the clients authorized representative on these forms and sign the forms as PCIBs approving officer. Finally, he would have an authorized officer of PCIB issue the Managers checks. Balmaceda would subsequently ask his subordinates to release the Managers checks to him, claiming that the client had requested that he deliver the checks.5 After receiving the Managers checks, he encashed them by forging the signatures of the payees on the checks. In ruling that Ramos acted in collusion with Balmaceda, the RTC noted that although the Managers checks payable to Ramos were crossed checks, Balmaceda was still able to encash the checks.6 After Balmaceda encashed three of these Managers checks, he deposited most of the money into Ramos account.7 The RTC concluded that from the P11,937,150.00 that Balmaceda misappropriated from PCIB, P895,000.00 actually went to Ramos. Since the RTC disbelieved Ramos allegation that the sum of money deposited into his Savings Account (PCIB, Pasig branch) were proceeds from the sale of fighting cocks, it held Ramos liable to pay PCIB the amount of P895,000.00. THE COURT OF APPEALS DECISION On appeal, the CA dismissed the complaint against Ramos, holding that no sufficient evidence existed to prove that Ramos colluded with Balmaceda in the latters fraudulent manipulations.8 According to the CA, the mere fact that Balmaceda made Ramos the payee in some of the Managers checks does not suffice to prove that Ramos was complicit in Balmacedas fraudulent scheme. It observed that other persons were also named as payees in the checks that Balmaceda acquired and encashed, and PCIB only chose to go after Ramos. With PCIBs failure to prove Ramos actual participation in Balmacedas fraud, no legal and factual basis exists to hold him liable. The CA also found that PCIB acted illegally in freezing and debiting P251,910.96 from Ramos bank account. The CA thus decreed: WHEREFORE, the appeal is granted. The Decision of the trial court rendered on September 22, 2000[,] insofar as appellant Ramos is concerned, is SET ASIDE, and the complaint below against him is DISMISSED. Appellee is hereby ordered to release the amount of P251,910.96 to appellant Ramos plus interest at [the] legal rate computed from September 30, 1993 until appellee shall have fully complied therewith.

Appellee is likewise ordered to pay appellant Ramos the following: a) P50,000.00 as moral damages b) P50,000.00 as exemplary damages, and c) P20,000.00 as attorneys fees. No costs. SO ORDERED.9 THE PETITION In the present petition, PCIB avers that: I THE APPELLATE COURT ERRED IN HOLDING THAT THERE IS NO EVIDENCE TO HOLD THAT RESPONDENT RAMOS ACTED IN COMPLICITY WITH RESPONDENT BALMACEDA II THE APPELLATE COURT ERRED IN ORDERING THE PETITIONER TO RELEASE THE AMOUNT OFP251,910.96 TO RESPONDENT RAMOS AND TO PAY THE LATTER MORAL AND EXEMPLARY DAMAGES AND ATTORNEYS FEES10 PCIB contends that the circumstantial evidence shows that Ramos had knowledge of, and acted in complicity with Balmaceda in, the perpetuation of the fraud. Ramos explanation that he is a businessman and that he received the Managers checks as payment for the fighting cocks he sold to Balmaceda is unconvincing, given the large sum of money involved. While Ramos presented evidence that he is a reputable businessman, this evidence does not explain why the Managers checks were made payable to him in the first place. PCIB maintains that it had the right to freeze and debit the amount of P251,910.96 from Ramos bank account, even without his consent, since legal compensation had taken place between them by operation of law. PCIB debited Ramos bank account, believing in good faith that Ramos was not entitled to the proceeds of the Managers checks and was actually privy to the fraud perpetrated by Balmaceda. PCIB cannot thus be held liable for moral and exemplary damages. OUR RULING We partly grant the petition. At the outset, we observe that the petition raises mainly questions of fact whose resolution requires the re-examination of the evidence on record. As a general rule, petitions for review on certiorari only involve questions of law.11 By way of exception, however, we can delve into evidence and the factual circumstance of the case when the findings of fact in the tribunals below (in this case between those of the CA and of the RTC) are conflicting. When the exception applies, we are given latitude to review the evidence on record to decide the case with finality.12

Ramos participation in Balmacedas scheme not proven From the testimonial and documentary evidence presented, we find it beyond question that Balmaceda, by taking advantage of his position as branch manager of PCIBs Sta. Cruz, Manila branch, was able to apply for and obtain Managers checks drawn against the bank account of one of PCIBs clients. The unsettled question is whether Ramos, who received a portion of the money that Balmaceda took from PCIB, should also be held liable for the return of this money to the Bank. PCIB insists that it presented sufficient evidence to establish that Ramos colluded with Balmaceda in the scheme to fraudulently secure Managers checks and to misappropriate their proceeds. Since Ramos defense anchored on mere denial of any participation in Balmacedas wrongdoing is an intrinsically weak defense, it was error for the CA to exonerate Ramos from any liability. In civil cases, the party carrying the burden of proof must establish his case by a preponderance of evidence, or evidence which, to the court, is more worthy of belief than the evidence offered in opposition.13 This Court, inEncinas v. National Bookstore, Inc.,14 defined "preponderance of evidence" in the following manner: "Preponderance of evidence" is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." Preponderance of evidence is a phrase which, in the last analysis, means probability of the truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto. The party, whether the plaintiff or the defendant, who asserts the affirmative of an issue has the onus to prove his assertion in order to obtain a favorable judgment, subject to the overriding rule that the burden to prove his cause of action never leaves the plaintiff. For the defendant, an affirmative defense is one that is not merely a denial of an essential ingredient in the plaintiff's cause of action, but one which, if established, will constitute an "avoidance" of the claim.15 Thus, PCIB, as plaintiff, had to prove, by preponderance of evidence, its positive assertion that Ramos conspired with Balmaceda in perpetrating the latters scheme to defraud the Bank. In PCIBs estimation, it successfully accomplished this through the submission of the following evidence: [1] Exhibits "A," "D," "PPPP," "QQQQ," and "RRRR" and their submarkings, the application forms for MCs, show that [these MCs were applied for in favor of Ramos;] [2] Exhibits "K," "N," "SSSS," "TTTT," and "UUUU" and their submarkings prove that the MCs were issued in favor of x x x Ramos[; and] [3] [T]estimonies of the witness for [PCIB].16 We cannot accept these submitted pieces of evidence as sufficient to satisfy the burden of proof that PCIB carries as plaintiff. On its face, all that PCIBs evidence proves is that Balmaceda used Ramos name as a payee when he filled up the application forms for the Managers checks. But, as the CA correctly observed, the mere fact that Balmaceda made Ramos the payee on some of the Managers checks is not enough basis to conclude that Ramos was complicit in Balmacedas fraud; a number of other people were made payees on the other Managers checks yet PCIB never alleged them to be liable, nor did the Bank adduce any other evidence pointing to Ramos participation that would justify his separate

treatment from the others. Also, while Ramos is Balmacedas brother-in-law, their relationship is not sufficient, by itself, to render Ramos liable, absent concrete proof of his actual participation in the fraudulent scheme. Moreover, the evidence on record clearly shows that Balmaceda acted on his own when he applied for the Managers checks against the bank account of one of PCIBs clients, as well as when he encashed the fraudulently acquired Managers checks. Mrs. Elizabeth Costes, the Area Manager of PCIB at the time of the relevant events, testified that Balmaceda committed all the acts necessary to obtain the unauthorized Managers checks from filling up the application form by forging the signature of the clients representative, to forging the signatures of the payees in order to encash the checks. As Mrs. Costes stated in her testimony: Q: I am going into [these] particular instances where you said that Mr. Balmaceda [has] been making unauthorized withdrawals from particular account of a client or a client of yours at Sta. Cruz branch. Would you tell us how he effected his unauthorized withdrawals? A: He prevailed upon the domestic remittance clerk to prepare the application of a Managers check which [has] been debited to a clients account. This particular Managers check will be payable to a certain individual thru his account as the instruction of the client. Q: What was your findings in so far as the particular alleged instruction of a client is concerned? A: We found out that he forged the signature of the client. Q: On that particular application? A: Yes sir. Q: Showing to you several applications for Managers Check previously attached as Annexes "A, B, C, D and E["] of the complaint. Could you please tell us where is that particular alleged signature of a client applying for the Managers check which you claimed to have been forged by Mr. Balmaceda? A: Here sir. xxxx Q: After the accomplishment of this application form as you stated Mrs. witness, do you know what happened to the application form? A: Before that application form is processed it goes to several stages. Here for example this was signed supposed to be by the client and his signature representing that, he certified the signature based on their records to be authentic. Q: When you said he to whom are you referring to? A: Mr. Balmaceda. And at the same time he approved the transaction. xxxx

Q: Do you know if the corresponding checks applied for in the application forms were issued? A: Yes sir. Q: Could you please show us where these checks are now, the one applied for in Exhibit "A" which is in the amount of P150,000.00, where is the corresponding check? A: Rolando Ramos dated December 26, 1991 and one of the signatories with higher authority, this is Mr. Balmacedas signature. Q: In other words he is likewise approving signatory to the Managers check? A: Yes sir. This is an authority that the check [has] been encashed. Q: In other words this check issued to Rolando Ramos dated December 26, 1991 is a cross check but nonetheless he allowed to encash by granting it. Could you please show us? ATTY. PACES: Witness pointing to an initial of the defendant Antonio Balmaceda, the notation cross check. A: And this is his signature. xxxx Q: How about the check corresponding to Exhibit E-2 which is an application for P125,000.00 for a certain Rolando Ramos. Do you have the check? A: Yes sir. ATTY. PACES: Witness producing a check dated December 19, 1991 the amount of P125,000.00 payable to certain Rolando Ramos. Q: Can you tell us whether the same modus operandi was ad[o]pted by Mr. Balmaceda in so far as he is concerned? A: Yes sir he is also the right signer and he authorized the cancellation of the cross check.17 (emphasis ours) xxxx Q: These particular checks [Mrs.] witness in your findings, do you know if Mr. Balmaceda [has] again any participation in these checks? A: He is also the right signer and approved officer and he was authorized to debit on file. xxxx

Q: And do you know if these particular checks marked as Exhibit G-2 to triple FFF were subsequently encashed? A: Yes sir. Q: Were you able to find out who encashed? A: Mr. Balmaceda himself and besides he approved the encashment because of the signature that he allowed the encashment of the check. xxxx Q: Do you know if this particular person having in fact withdraw of received the proceeds of [these] particular checks, the payee? A: No sir. Q: It was all Mr. Balmaceda dealing with you? A: Yes sir. Q: In other words it would be possible that Mr. Balmaceda himself gotten the proceeds of the checks by forging the payees signature? A: Yes sir.18 (emphases ours) Mrs. Nilda Laforteza, the Commercial Account Officer of PCIBs Sta. Cruz, Manila branch at the time the events of this case occurred, confirmed Mrs. Costes testimony by stating that it was Balmaceda who forged Ramos signature on the Managers checks where Ramos was the payee, so as to encash the amounts indicated on the checks.19 Mrs. Laforteza also testified that Ramos never went to the PCIB, Sta. Cruz, Manila branch to encash the checks since Balmaceda was the one who deposited the checks into Ramos bank account. As revealed during Mrs. Lafortezas crossexamination: Q: Mrs. Laforteza, these checks that were applied for by Mr. Balmaceda, did you ever see my client go to the bank to encash these checks? A: No it is Balmaceda who is depositing in his behalf. Q: Did my client ever call up the bank concerning this amount? A: Yes he is not going to call PCIBank Sta. Cruz branch because his account is maintained at Pasig. Q: So Mr. Balmaceda was the one who just remitted or transmitted the amount that you claimed [was sent] to the account of my client? A: Yes.20 (emphases ours) Even Mrs. Rodelia Nario, presented by PCIB as its rebuttal witness to prove that Ramos encashed a Managers check for P480,000.00, could only testify that the money was deposited into Ramos

PCIB bank account. She could not attest that Ramos himself presented the Managers check for deposit in his bank account.21 These testimonies clearly dispute PCIBs theory that Ramos was instrumental in the encashment of the Managers checks. We also find no reason to doubt Ramos claim that Balmaceda deposited these large sums of money into his bank account as payment for the fighting cocks that Balmaceda purchased from him. Ramos presented two witnesses Vicente Cosculluela and Crispin Gadapan who testified that Ramos previously engaged in the business of buying and selling fighting cocks, and that Balmaceda was one of Ramos biggest clients. Quoting from the RTC decision, PCIB stresses that Ramos own witness and business partner, Cosculluela, testified that the biggest net profit he and Ramos earned from a single transaction with Balmaceda amounted to no more than P100,000.00, for the sale of approximately 45 fighting cocks.22 In PCIBs view, this testimony directly contradicts Ramos assertion that he received approximately P400,000.00 from his biggest transaction with Balmaceda. To PCIB, the testimony also renders questionable Ramos assertion that Balmaceda deposited large amounts of money into his bank account as payment for the fighting cocks. On this point, we find that PCIB misunderstood Cosculluelas testimony. A review of the testimony shows that Cosculluela specifically referred to the net profit that they earned from the sale of the fighting cocks;23 PCIB apparently did not take into account the capital, transportation and other expenses that are components of these transactions. Obviously, in sales transactions, the buyer has to pay not only for the value of the thing sold, but also for the shipping costs and other incidental costs that accompany the acquisition of the thing sold. Thus, while the biggest net profit that Ramos and Cosculluela earned in a single transaction amounted to no more thanP100,000.00,24 the inclusion of the actual acquisition costs of the fighting cocks, the transportation expenses (i.e., airplane tickets from Bacolod or Zamboanga to Manila) and other attendant expenses could account for theP400,000.00 that Balmaceda deposited into Ramos bank account. Given that PCIB failed to establish Ramos participation in Balmacedas scheme, it was not even necessary for Ramos to provide an explanation for the money he received from Balmaceda. Even if the evidence adduced by the plaintiff appears stronger than that presented by the defendant, a judgment cannot be entered in the plaintiffs favor if his evidence still does not suffice to sustain his cause of action;25 to reiterate, a preponderance of evidence as defined must be established to achieve this result. PCIB itself at fault as employer In considering this case, one point that cannot be disregarded is the significant role that PCIB played which contributed to the perpetration of the fraud. We cannot ignore that Balmaceda managed to carry out his fraudulent scheme primarily because other PCIB employees failed to carry out their assigned tasks flaws imputable to PCIB itself as the employer. Ms. Analiza Vega, an accounting clerk, teller and domestic remittance clerk working at the PCIB, Sta. Cruz, Manila branch at the time of the incident, testified that Balmaceda broke the Banks protocol when he ordered the Banks employees to fill up the application forms for the Managers checks, to be debited from the bank account of one of the banks clients, without providing the necessary Authority to Debit from the client.26 PCIB also admitted that these Managers checks were subsequently released to Balmaceda, and not to the clients representative, based solely on Balmacedas word that the client had tasked him to deliver these checks.27

Despite Balmacedas gross violations of bank procedures mainly in the processing of the applications for Managers checks and in the releasing of the Managers checks Balmacedas coemployees not only turned a blind eye to his actions, but actually complied with his instructions. In this way, PCIBs own employees wereunwitting accomplices in Balmacedas fraud. Another telling indicator of PCIBs negligence is the fact that it allowed Balmaceda to encash the Managers checks that were plainly crossed checks. A crossed check is one where two parallel lines are drawn across its face or across its corner.28 Based on jurisprudence, the crossing of a check has the following effects: (a) the check may not be encashed but only deposited in the bank; (b) the check may be negotiated only once to the one who has an account with the bank; and (c) the act of crossing the check serves as a warning to the holder that the check has been issued for a definite purpose and he must inquire if he received the check pursuant to this purpose; otherwise, he is not a holder in due course.29 In other words, the crossing of a check is a warning that the check should be deposited only in the account of the payee. When a check is crossed, it is the duty of the collecting bank to ascertain that the check is only deposited to the payees account.30 In complete disregard of this duty, PCIBs systems allowed Balmaceda to encash 26 Managers checks which were all crossed checks, or checks payable to the "payees account only." The General Banking Law of 200031 requires of banks the highest standards of integrity and performance. The banking business is impressed with public interest. Of paramount importance is the trust and confidence of the public in general in the banking industry. Consequently, the diligence required of banks is more than that of a Roman pater familias or a good father of a family.32 The highest degree of diligence is expected.33 While we appreciate that Balmaceda took advantage of his authority and position as the branch manager to commit these acts, this circumstance cannot be used to excuse the manner the Bank through its employees handled its clients bank accounts and thereby ignored established bank procedures at the branch managers mere order. This lapse is made all the more glaring by Balmacedas repetition of his modus operandi 33 more times in a period of over one year by the Banks own estimation. With this kind of record, blame must be imputed on the Bank itself and its systems, not solely on the weakness or lapses of individual employees. Principle of unjust enrichment not applicable PCIB maintains that even if Ramos did not collude with Balmaceda, it still has the right to recover the amounts unjustly received by Ramos pursuant to the principle of unjust enrichment. This principle is embodied in Article 22 of the Civil Code which provides: Article 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. To have a cause of action based on unjust enrichment, we explained in University of the Philippines v. Philab Industries, Inc.34 that: Unjust enrichment claims do not lie simply because one party benefits from the efforts or obligations of others, but instead it must be shown that a party was unjustly enriched in the sense that the term unjustly could mean illegally or unlawfully. Moreover, to substantiate a claim for unjust enrichment, the claimant must unequivocally prove that another party knowingly received something of value to which he was not entitled and that the state of affairs are such that it would be unjust for the person to keep the benefit.

Unjust enrichment is a term used to depict result or effect of failure to make remuneration of or for property or benefits received under circumstances that give rise to legal or equitable obligation to account for them; to be entitled to remuneration, one must confer benefit by mistake, fraud, coercion, or request. Unjust enrichment is not itself a theory of reconvey. Rather, it is a prerequisite for the enforcement of the doctrine of restitution.35 (emphasis ours) Ramos cannot be held liable to PCIB on account of unjust enrichment simply because he received payments out of money secured by fraud from PCIB. To hold Ramos accountable, it is necessary to prove that he received the money from Balmaceda, knowing that he (Ramos) was not entitled to it. PCIB must also prove that Ramos, at the time that he received the money from Balmaceda, knew that the money was acquired through fraud. Knowledge of the fraud is the link between Ramos and PCIB that would obligate Ramos to return the money based on the principle of unjust enrichment. However, as the evidence on record indicates, Ramos accepted the deposits that Balmaceda made directly into his bank account, believing that these deposits were payments for the fighting cocks that Balmaceda had purchased. Significantly, PCIB has not presented any evidence proving that Ramos participated in, or that he even knew of, the fraudulent sources of Balmacedas funds. PCIB illegally froze and debited Ramos assets We also find that PCIB acted illegally in freezing and debiting Ramos bank account. In BPI Family Bank v. Franco,36 we cautioned against the unilateral freezing of bank accounts by banks, noting that: More importantly, [BPI Family Bank] does not have a unilateral right to freeze the accounts of Franco based on its mere suspicion that the funds therein were proceeds of the multi-million peso scam Franco was allegedly involved in. To grant [BPI Family Bank], or any bank for that matter, the right to take whatever action it pleases on deposits which it supposes are derived from shady transactions, would open the floodgates of public distrust in the banking industry.37 We see no legal merit in PCIBs claim that legal compensation took place between it and Ramos, thereby warranting the automatic deduction from Ramos bank account. For legal compensation to take place, two persons, in their own right, must first be creditors and debtors of each other.38 While PCIB, as the depositary bank, is Ramos debtor in the amount of his deposits, Ramos is not PCIBs debtor under the evidence the PCIB adduced. PCIB thus had no basis, in fact or in law, to automatically debit from Ramos bank account. On the award of damages Although PCIBs act of freezing and debiting Ramos account is unlawful, we cannot hold PCIB liable for moral and exemplary damages. Since a contractual relationship existed between Ramos and PCIB as the depositor and the depositary bank, respectively, the award of moral damages depends on the applicability of Article 2220 of the Civil Code, which provides: Article 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith. [emphasis ours] Bad faith does not simply connote bad judgment or negligence; it imports a dishonest purpose or some moral obliquity and conscious commission of a wrong; it partakes of the nature of fraud.39

As the facts of this case bear out, PCIB did not act out of malice or bad faith when it froze Ramos bank account and subsequently debited the amount of P251,910.96 therefrom. While PCIB may have acted hastily and without regard to its primary duty to treat the accounts of its depositors with meticulous care and utmost fidelity,40 we find that its actions were propelled more by the need to protect itself, and not out of malevolence or ill will. One may err, but error alone is not a ground for granting moral damages.41 We also disallow the award of exemplary damages. Article 2234 of the Civil Code requires a party to first prove that he is entitled to moral, temperate or compensatory damages before he can be awarded exemplary damages. Since no reason exists to award moral damages, so too can there be no reason to award exemplary damages.
1wphi1

We deem it just and equitable, however, to uphold the award of attorneys fees in Ramos favor. Taking into consideration the time and efforts involved that went into this case, we increase the award of attorneys fees fromP20,000.00 to P75,000.00. WHEREFORE, the petition is PARTIALLY GRANTED. We AFFIRM the decision of the Court of Appeals dated April 29, 2003 in CA-G.R. CV No. 69955 with the MODIFICATION that the award of moral and exemplary damages in favor of Rolando N. Ramos is DELETED, while the award of attorneys fees is INCREASED to P75,000.00. Costs against the Philippine Commercial International Bank. SO ORDERED. G.R. No. 164682 September 14, 2011

JOEL GALZOTE y SORIAGA, Petitioner, vs. JONATHAN BRIONES and PEOPLE OF THE PHILIPPINES, Respondents. DECISION BRION, J.: Before this Court is the Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the twin resolutions1 of the Court of Appeals (CA) dated April 30, 2004 and July 23, 2004 in CA-G.R. SP No. 76783. The assailed April 30, 2004 resolution dismissed the petition for certiorari filed by Joel S. Galzote (petitioner), while the challenged July 23, 2004 resolution denied his motion for reconsideration. ANTECEDENT FACTS On January 23, 1997, the prosecution filed an Information for robbery in an uninhabited place against the petitioner before the Metropolitan Trial Court (MeTC), Branch 1, Manila. The accusatory portion of the Information reads: The undersigned accuses JOEL GALZOTE Y SORIAGA of the crime of Robbery in an Uninhabited Place, committed as follows: That on or about July 22, 1996, in the City of Manila, Philippines, the said accused, conspiring and confederating with one ROSENDO OQUINA Y ESMALI who is already charged with the same

offense with the Metropolitan Trial Court of Manila, docketed as Criminal Case No. 304765, did then and there willfully, unlawfully and feloniously, with intent of gain, by means of force upon things, break into and enter the Administration Office of the Prince Town Inn Corporation located at Valenzuela Street, Sta. Mesa, this City, which is an uninhabited place, by then and there destroying the Jipson board ceiling of the said establishment with the use of a fan knife and passing through the same, an opening not intended for entrance or egress, and once inside, and without the knowledge and consent of the owner thereof, took, stole and carried away cash money in the amount of P109,000.00 belonging to said Prince Town Inn Corporation, to the damage and prejudice of said owner in the aforesaid amount of P109,000.00, Philippine Currency [sic]. Contrary to law.2 The petitioner moved to quash the above information by alleging that it was patently irregular and fatally flawed in form and in substance. The MeTC denied the petitioners motion to quash in its order of September 15, 1997.3Likewise, the MeTC denied the petitioners motion for reconsideration of the order of denial.4 Via a petition for certiorari,5 the petitioner elevated the unfavorable ruling of the MeTC to the Regional Trial Court (RTC), Branch 8, Manila. The petitioner argued that the MeTC committed grave abuse of discretion in not granting his motion to quash. Respondent Jonathan Briones (respondent) moved to dismiss the petition for certiorari, arguing that: (a) the petitioner failed to prosecute the petition for an unreasonably long period of time; (b) a petition for certiorari is not the proper remedy to address the denial of a motion to quash; and (c) the MeTC did not abuse its discretion in denying the petitioners motion to quash.6 In its order7 of March 22, 2002, the RTC granted the respondents motion and dismissed the petition for certiorari. The RTC also denied the motion for reconsideration filed by the petitioner.8 The petitioner filed a petition for certiorari before the CA, docketed as CA-G.R. SP No. 76783. The CA dismissed the petition in its resolution of April 30, 2004.9 The CA held that the petitioner lost his right to appeal when he failed to appeal within the 15-day reglementary period under Rule 41 of the Revised Rules of Court. The CA explained that the petitioner should have filed an appeal, instead of a special civil action for certiorari, upon receipt of the RTCs denial of his motion for reconsideration. The CA also noted that the petitioner failed to implead the People of the Philippines as party-respondent in his petition. The CA saw no merit in the petitioners argument that the lower courts erred in denying his motion to quash. It explained that the allegation of conspiracy in his case need not be alleged with particularity since it was not charged as an offense in itself, but only as a manner of incurring criminal liability. The fact that the petitioners alleged co-conspirator had been convicted of the lesser offense of malicious mischief in another case is not a bar to the petitioners prosecution for the crime of robbery. The petitioner moved to reconsider this resolution, but the CA denied his motion in its resolution10 dated July 23, 2004. THE PETITION In the present petition for review on certiorari, the petitioner claims that his recourse to a petition for certiorari before the CA was proper. He argues that both the MeTC and the RTC committed grave

abuse of discretion when they denied his motion to quash. He alleges that the trial courts failed to see that the information filed against him was flawed both in form and in substance. The petitioner additionally claims that his failure to implead the People of the Philippines as partyrespondent was not fatal to his petition. THE COURTS RULING We deny the petition for lack of merit. Remedy from the Denial of a Motion to Quash A preliminary consideration in this case relates to the propriety of the chosen legal remedies availed of by the petitioner in the lower courts to question the denial of his motion to quash. In the usual course of procedure, a denial of a motion to quash filed by the accused results in the continuation of the trial and the determination of the guilt or innocence of the accused. If a judgment of conviction is rendered and the lower courts decision of conviction is appealed, the accused can then raise the denial of his motion to quash not only as an error committed by the trial court but as an added ground to overturn the latters ruling. In this case, the petitioner did not proceed to trial but opted to immediately question the denial of his motion to quash via a special civil action for certiorari under Rule 65 of the Rules of Court. As a rule, the denial of a motion to quash is an interlocutory order and is not appealable; an appeal from an interlocutory order is not allowed under Section 1(b), Rule 41 of the Rules of Court. Neither can it be a proper subject of a petition for certiorari which can be used only in the absence of an appeal or any other adequate, plain and speedy remedy.11 The plain and speedy remedy upon denial of an interlocutory order is to proceed to trial as discussed above. Thus, a direct resort to a special civil action for certiorari is an exception rather than the general rule, and is a recourse that must be firmly grounded on compelling reasons. In past cases, we have cited the interest of a "more enlightened and substantial justice";12 the promotion of public welfare and public policy;13 cases that "have attracted nationwide attention, making it essential to proceed with dispatch in the consideration thereof";14 or judgments on order attended by grave abuse of discretion, as compelling reasons to justify a petition for certiorari.15 In grave abuse of discretion cases, certiorari is appropriate if the petitioner can establish that the lower court issued the judgment or order without or in excess of jurisdiction or with grave abuse of discretion, and the remedy of appeal would not afford adequate and expeditious relief. The petitioner carries the burden of showing that the attendant facts and circumstances fall within any of the cited instances. At the RTC We find no compelling reason to justify a resort to a petition for certiorari against the orders of the MeTC as the petitioner failed to show that the factual circumstances of his case fall under any of the above exceptional circumstances. The MeTC in fact did not commit any grave abuse of discretion as its denial of the motion to quash was consistent with the existing rules and applicable jurisprudence. The ground used by the petitioner in his motion to quash (i.e., that his co-conspirator had been convicted of an offense lesser than the crime of robbery) is not among the exclusive grounds

enumerated under Section 3, Rule 117 of the 2000 Revised Rules of Criminal Procedure that warrant the quashal of a criminal information.16 This ground, too, is an extraneous matter that has no bearing and is irrelevant to the validity of the criminal information filed against the accused; the designated purpose of a motion to quash is to assail the validity of the criminal information (or criminal complaint) for defects or defenses apparent on the face of the information.17 A facial examination of the criminal information against the petitioner shows it to be valid and regular on its face considering its conformity with the guidelines under Section 6, Rule 110 of the 2000 Revised Rules of Criminal Procedure. This section provides: SEC. 6. Sufficiency of complaint or information. - A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. Under the circumstances, the criminal information is sufficient in form and substance for it states: (a) the name of the petitioner as the accused; (b) the offense of robbery as the designated offense committed; (c) the manner on how the offense of robbery was committed and the petitioners participation were alleged with particularity; and (d) the date and the place of the commission of the robbery were also stated therein. Thus, as the RTC correctly ruled, the petitioner can be properly tried under the allegations of the information. The CA Resolution To proceed to the merits of the CA resolution that is the main subject of this review, we find no reversible error in the CAs dismissal of the petitioners petition for certiorari assailing the RTCs order; the petition was both procedurally and substantively infirm. We find that the petition for certiorari filed with the CA was a wrong legal remedy to question the RTC order. The petition for certiorari filed by the petitioner before the RTC was an original action whose resulting decision is a final order that completely disposed of the petition;18 the assailed CA resolution was in all respect a ruling on the propriety of the petition for certiorari filed with the RTC. Hence, the petitioners remedy was to appeal the RTC order to the CA pursuant to Section 2, Rule 41 of the Rules of Court: SEC. 2. Modes of appeal. (a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. Given the plain, speedy and adequate remedy of appeal, the petitioner cannot avail of the remedy of certiorari.19
1avv phi 1

Even on the substantive aspect, the petition for certiorari filed with the CA must fail considering the petitioners failure to show any justifiable reason for his chosen mode of review. In addition, we find

no grave abuse of discretion committed by the RTC since it was merely affirming a correct ruling of denial by the MeTC of the petitioners motion to quash. As a final word, we cannot allow a party to delay litigation by filing a petition for certiorari under Rule 65 based on scant allegations of grave abuse of discretion.20 We repeat that it is only in the presence of extraordinary circumstances where a resort to a petition for certiorari is proper.21 Under the circumstances, the petitioners recourses cannot but be dilatory moves that deserve sanction from this Court. WHEREFORE, premises considered, we DENY the petition for lack of merit, and accordingly AFFIRM the challenged resolutions of the Court of Appeals dated April 30, 2004 and July 23, 2004 in CA-G.R. SP No. 76783. Treble costs against the petitioner. SO ORDERED. G.R. No. 156318 September 5, 2011

SPOUSES ANSELMO1 and PRISCILLA BULAONG, Petitioners, vs. VERONICA GONZALES, Respondent. DECISION BRION, J.: Petitioners Anselmo Bulaong and Priscilla Bulaong collectively referred to as the Bulaongs seek, through their petition for review on certiorari, the reversal of the decision2 of the Court of Appeals (CA) dated July 31, 2002 in CA-G.R. SP No. 55423 and the subsequent resolution of November 27, 20023 reiterating this decision. These CA rulings reversed and set aside the decision4 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 12, that ordered the cancellation of Transfer Certificate of Title (TCT) No. T-62002 and TCT No. T-62003. FACTUAL ANTECEDENTS This case traces its roots to the conflicting claims of two sets of parties over two parcels of land. The first parcel of land, with an area of 237 square meters and covered by TCT No. T-249639,5 was originally registered in the name of Fortunato E. Limpo, married to Bertha Limpo.6 The other parcel of land, with an area of 86 square meters and covered by TCT No. T-249641,7 was originally registered in the names of Pacifica E. Limpo, married to Nicanor C. Sincionco, and Fortunato E. Limpo, married to Bertha Limpo.8 These parcels of land were mortgaged by the daughter of Fortunato and Bertha Limpo, Regina Christi Limpo, upon the authority of her father,9 to the Bulaongs, to secure a loan in the amount of P4,300,000.00. The mortgage was evidenced by a Deed of Mortgage dated January 13, 1993.10 The Bulaongs alleged that before they executed the mortgage, Regina gave them the owners duplicates of title of the two properties. In early January 1993 (the exact date is unknown but prior to the execution of the mortgage), Anselmo Bulaong, together with his counsel, Atty. Roberto Dionisio, allegedly went to the Office of the Register of Deeds of Bulacan to check the titles of the properties to be mortgaged. According to the Bulaongs, the Register of Deeds, Atty. Elenita Corpus, assured them that TCT Nos. T-249639 and T-249641 were completely clear of any liens or encumbrances

from any party. Relying on this assurance, Anselmo Bulaong agreed to the execution of the mortgage over the two properties.11 After the execution of the mortgage, the Bulaongs once again went to the Office of the Register of Deeds of Bulacan to register and annotate the mortgage on the titles. They learned then that the Register of Deeds copies of the two titles were among the records that were burned in the fire that destroyed the entire office of the Register of Deeds of Bulacan on March 7, 1987. Atty. Elenita Corpus convinced them to cause the reconstitution of the originals of the titles, and further assured them that the mortgage over the properties would be protected since a copy of the Deed of Mortgage had already been given to her office for annotation.12 On February 4, 1993, the newly reconstituted titles were issued TCT No. RT-29488 replaced TCT No. T-249639, and TCT No. RT-22489 replaced TCT No. T-249641, still in the names of Fortunato Limpo, and of Pacifica Limpo and Fortunato Limpo, respectively. Thereafter, on February 24, 1993, new titles were again issued upon the extrajudicial settlement of the estate of Reginas parents. Thus, TCT No. RT-29488 was cancelled and TCT No. T-30395 was issued in its place, with Regina replacing her parents as the registered owner; similarly, TCT No. RT22489 was cancelled and TCT No. T-30396 was issued in the names of Pacifica Limpo and Regina Limpo, as her parents heir.13 To the Bulaongs astonishment, the new titles in Reginas name now contained the following entries: TCT No. T-30395 Entry No. 5306; Kind: Condition: The property herein described is subject to the prov. of sec. 4, rule 74 of the rules of court. date of instrument: 1-13-93; date of inscription: 2-24-93 at 10:42 a.m. (SGD.) ELENITA E. CORPUS Register of Deeds Entry No. 5484; Kind: Mortgage: Exec. In favor of: Sps. Anselmo Bulaong & Priscilla Bulaong; Condition: Covering the parcel of land herein described, for the sum of P4,300,000.00 subject to all the conditions stipulated in the deed of mortgage on file in this office. Doc. No. 428, Page 86, Book XXX, S. of 1993, N.P. Roberto Dionisio of Mal. Bul. Date of Instrument: 1-13-93; date of inscription 3-1-93 at 9:20 a.m. (SGD.) ELENITA E. CORPUS Register of Deeds /5306 (NOTE: Proceed to Entry no. 5484) Entry No. 7808: Kind: NOTICE OF LEVY ON EXECUTION: Conditions: Notice is hereby given that by virtue of the Writ of Execution, issued in Crim. Cases Nos. 9638 to 9646-M, entitled "People of the Philippines v. Reggie Christi Schaetchen Limpo and Maria Lourdes (Bong) Diaz y Gamir, et al., Accused" by the Regional Trial Court, Third Jud. Region, Branch 12, Malolos, Bulacan, under date of Dec. 29, 1992, and at the instance of the private complainant Veronica R. Gonzales, thru counsel, levy on execution is hereby made upon all the rights, shares, interests and participations of accused Reggie Christi Schaetchen14 over the real properties described in T-249641 and T-249639, by virtue

of Deeds of Absolute Sale executed by former registered owners in favor of Reggie Christi Schaetchen dated November 5, 1991, together with all the improvements existing thereon, was levied on execution preparatory to the sale of the same without prejudice to third persons having better right thereof and to any valid lien and encumbrances. Date of instrument Jan. 4, 1993; Date of inscription Jan. 4, 1993 at 11:50 a.m. (SGD.) ELENITA E. CORPUS Register of Deeds/negm15 (emphasis ours) TCT No. T-30396 Entry No. 5306; Kind: Condition: One-half (1/2) of the property herein described is subject to the prov. of sec. 4, rule 74 of the rules of court. date of instrument: 1-13-93; date of inscription: 2-24-93 at 10:42 a.m. (SGD.) ELENITA E. CORPUS Register of Deeds Entry No. 5484; Kind: Mortgage: Exec. In favor of: Sps. Anselmo Bulaong & Priscilla Bulaong; Condition: Covering the parcel of land herein described, for the sum of P4,300,000.00 subject to all the conditions stipulated in the deed of mortgage on file in this office. Doc. No. 428, Page 86, Book XXX, S. of 1993, N.P. Roberto Dionisio of Mal. Bul. Date of Instrument: 1-13-93; date of inscription 3-1-93 at 9:20 a.m. (SGD.) ELENITA E. CORPUS Register of Deeds /5306 (NOTE: Proceed to Entry No. 5484) Entry No. 7808: Kind: NOTICE OF LEVY ON EXECUTION: Conditions: Notice is hereby given that by virtue of the Writ of Execution, issued in Crim. Cases Nos. 9638 to 9646-M, entitled "People of the Philippines v. Reggie Christi Schaetchen Limpo and Maria Lourdes (Bong) Diaz y Gamir, et al., Accused" by the Regional Trial Court, Third Jud. Region, Branch 12, Malolos, Bulacan, under date of Dec. 29, 1992, and at the instance of the private complainant Veronica R. Gonzales, thru counsel, levy on execution is hereby made upon all the rights, shares, interests and participations of accused Reggie Christi Schaetchen over the real properties described in T-249641 and T-249639, by virtue of Deeds of Absolute Sale executed by former registered owners in favor of Reggie Christi Schaetchen dated Nov. 5, 1991, together with all the improvements existing thereon, was levied on execution preparatory to the sale of the same without prejudice to third persons having better right thereof and to any valid lien and encumbrances. Date of instrument Jan. 4, 1993; Date of inscription Jan. 4, 1993 at 11:50 a.m. (SGD.) ELENITA E. CORPUS Register of Deeds/negm16 (emphasis ours) It appears that a certain Veronica Gonzales had filed a criminal case for estafa against Regina with the RTC of Bulacan, Branch 12.17 On October 28, 1991, the RTC rendered a decision acquitting Regina, but at the same time ordering her to pay Veronica actual damages in the total amount of P275,000.00.18 By virtue of a writ of execution issued on December 29, 1992, the above-quoted

notice of levy was recorded in the Primary Entry Book of the Registry of Bulacan on January 4, 1993. However, this was not annotated on the titles themselves because at the time of the levy, the properties had not yet been transferred to Regina, but were still registered in the name of her parents.19 Based on the annotation referring to the notice of levy, the subject of the levy was Reginas interest in the properties which, in turn, was anchored on a Deed of Absolute Sale allegedly executed by her parents on November 5, 1991 to transfer their interest in both properties to her. Notably, Regina never registered this sale with the Register of Deeds. To satisfy Reginas judgment debt, the two lots were sold at public auction on June 8, 1993 to Veronica, the only bidder, for P640,354.14.20 The Certificate of Sale was annotated on the titles on June 8, 1993 as Entry No. 2075. Upon the lapse of the one year redemption period on June 20, 1994, Veronicas titles over the properties were consolidated. A final deed of sale was issued in Veronicas name and annotated as Entry No. 40425 on TCT Nos. T-30395 and T-30396 on June 24, 1994.21 On the other hand, the Bulaongs also had the mortgage extrajudicially foreclosed, with the sheriff conducting the auction sale on August 22, 1994. The Bulaongs were the highest bidders, buying the properties for the sum ofP4,300,000.00. They also paid the corresponding capital gains tax of P215,000.00, plus P64,500.00 for the documentary stamp tax, which were required before the titles to the lots could be transferred in their names. The Certificate of Sale in their favor was inscribed on August 23, 1994 on TCT No. T-30395 and TCT No. T-30396 as Entry No. 46739.22 Veronica thereafter filed a petition for the surrender to the Register of Deeds of the owners copies of TCT Nos. T-30395 and T-30396 with the RTC of Malolos, docketed as LRC Case No. P-292. On December 16, 1994, the RTC granted the petition and ordered Regina to surrender her owners copies of the titles; should Regina fail to comply, the RTC ordered the Register of Deeds to cancel these titles and issue new ones in Veronicas name. Complying with this order, the Register of Deeds cancelled TCT Nos. T-30395 and T-30396, and issued TCT No. T-62002 in Veronicas name, and TCT No. T-62003 in the name of Veronica and Pacifica Limpo. These new titles were "clean" and did not contain any annotations, liens or encumbrances. The Bulaongs thus filed a petition for mandamus with the RTC of Bulacan against Ramon Sampana, the incumbent Register of Deeds of Bulacan, and Veronica, praying that the court order Sampana to cancel TCT Nos. T-62002 and T-62003, and issue new titles in their names; and order the respondents therein to pay them moral and exemplary damages, and attorneys fees. On July 30, 1999, the RTC ruled in favor of the Bulaongs. According to the RTC, allowing Veronica to levy on the properties worth at least P5,000,000.00 for a judgment of P275,000.00 would result in gross unjust enrichment. The RTC thus ordered the Register of Deeds of Bulacan to issue new titles in the name of the Bulaongs, but only after the Bulaongs had reimbursed the amount of P275,000.00 to Veronica, with interest. The RTC also ordered Veronica to pay the Bulaongs P50,000.00 as attorneys fees. The dispositive portion of the RTC decision reads: WHEREFORE, conformably with all the foregoing, judgment is hereby rendered: 1. Annulling and cancelling Transfer Certificates of Title Nos. T-62002 in the name of defendant Veronica Gonzales, and T-62003 in the name of defendant Veronica Gonzales and Pacifica E. Limpo married to Nicanor C. Sincioco;

2. Ordering the Ex-Officio Sheriff of Bulacan to execute a final deed of sale in favor of petitioner spouses Anselmo Bulaong and Pr[i]scilla Bulaong on the basis of the registered Certificate of Sale executed by said court officer on August 23, 1994, in favor of said spouses-mortgagee, without the owner-mortgagors exercising the right of redemption since then; 3. Ordering the Register of Deeds of Bulacan to issue new titles, in place of Transfer Certificate of Title Nos. T-62002 and T-62003, this time in the name of petitioner spouses Anselmo Bulaong and Pr[is]cilla Bulaong, as soon as the aforesaid final deed of sale in their favor is executed by the Ex-Officio Sheriff of Bulacan and only after said spouses shall have paid and/or reimbursed Veronica Gonzales lien as judgment creditor in the amount of P275,000.00, plus interests at the legal rate computed from November 19, 1995, until fully paid and satisfied; 4. Order[ing] herein defendants Veronica R. Gonzales and the Register of Deeds of Bulacan upon notice of this judgment, not to effect any transfer, encumbrance or any disposition whatsoever of the parcels of land covered by Transfer Certificates of Title Nos. 62002 and T-62003, or any part thereof, right or interest therein, either by sale or any form of conveyance, lien or encumbrance; and 5. Ordering only defendant Veronica R. Gonzales to pay herein petitioners P50,000.00 as just and equitable attorneys fees, and the costs of suit, defendant Ramon C. Sampana as the Register of Deeds of Bulacan having merely performed his ministerial duty of following the court order of issuing titles to defendant Gonzales. No pronouncement as to moral and exemplary damages alleged in the petition but not even testified to by petitioners at the trial.23 Both parties appealed to the CA, with the case docketed as CA-G.R. SP No. 55423. THE COURT OF APPEALS D E C I S I O N In its July 31, 2002 decision, the CA upheld the validity of the Notice of Levy on Execution, noting that it created a lien in favor of the judgment creditor over the property. According to the CA, when the Bulaongs received the owners copies of TCT Nos. T-30395 and T-30396, the Notice of Levy was already annotated on the titles and, thus, should have put them on guard. As mortgagees of the lots, the Bulaongs had the option to redeem the properties within the redemption period provided by law. Since they failed to avail of this remedy, the consolidation of titles in Veronicas name was proper. THE PETITION The Bulaongs filed the present petition, raising the following issues: a) Whether Entry No. 7808 is valid; b) Whether Veronica has a superior right over the properties; and c) Assuming the notice of levy earlier annotated in favor of Veronica to be valid, whether there was a valid foreclosure sale.

THE COURTS RULING We GRANT the petition. Procedural issues Time and again, we have stated that petitions for review on certiorari shall only raise questions of law, as questions of fact are not reviewable by this Court. The main issue of who has a better right over the disputed properties is not only a question of law but one that requires a thorough review of the presented evidence, in view particularly of the Bulaongs allegation that fraud attended the annotation of Entry No. 7808 in the titles. Thus, in the usual course, we would have denied the present petition for violation of Section 1, Rule 45 of the Rules of Court, which provides: Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (emphasis ours) This rule, however, admits of several exceptions. Questions of fact may be reviewed, among others, when the lower court makes inferences that are manifestly mistaken, and when the judgment of the CA is based on a misapprehension of facts.24 As will be apparent in the discussions below, these exceptional circumstances are present in the present case. A review of the evidence, therefore, is not only allowed, but is necessary for the proper resolution of the presented issues. It has not escaped our attention that the Bulaongs appear to have erroneously filed a petition for mandamus for what is essentially an action to assail the validity of Veronicas certificates of title over the subject properties. This lapse, however, is not legally significant under the well-settled rule that the cause of action in a complaint is not the title or designation of the complaint, but the allegations in the body of the complaint. The designation or caption is not controlling as it is not even an indispensable part of the complaint; the allegations of the complaint control.25We thus proceed to resolve the case, bearing in mind that the relief the Bulaongs sought before the lower court was to nullify Veronicas certificates of title and to order the Register of Deeds to issue new titles in their name. Redemption not the proper remedy The CA faulted the Bulaongs for not redeeming the properties from Veronica when they had the option of doing so. For failing to exercise this right, the CA concluded that the consolidation of the titles to the lots in Veronicas name thus became a matter of course. We disagree. At the outset, we observe that this is not a simple case of determining which lien came first. A perusal of the Bulaongs submissions to the Court shows that they have consistently maintained that the levy and the corresponding execution sale in Veronicas favor are null and void. Had the Bulaongs merely exercised the right of redemption, they would have been barred from raising these issues in court, pursuant to our ruling in Cometa v. Intermediate Appellate Court: 26 The respondent appellate court's emphasis on the failure of the petitioner to redeem the properties within the period required by law is misplaced because redemption, in this case, is inconsistent with

the petitioner's claim of invalidity of levy and sale. Redemption is an implied admission of the regularity of the sale and would estop the petitioner from later impugning its validity on that ground.27 (emphasis ours) The Bulaongs were thus justified in their refusal to redeem the properties. Annotation is valid The Bulaongs assail the validity of Entry No. 7808 (relating to the Notice of Levy on Execution in Veronicas favor) on the two titles, asserting that it is null and void for being a fraudulent entry. In support of this contention, they note the following suspicious circumstances: (a) although Entry No. 7808 has a higher number and appears after Entry No. 5484 (corresponding to the Bulaongs mortgage) on the titles, Entry No. 7808 appeared in an earlier volume of the Book of Entries; and (b) although the Notice of Levy on Execution was purportedly presented to the Registry of Bulacan on January 4, 1993, or prior to the date when the Bulaongs deed of mortgage was presented on January 13, 1993, the Notice of Levy on Execution, Entry No. 7808, was numbered and placed after the mortgage, Entry No. 5484, on the titles. We agree that these circumstances render the Notice of Levy on Execution, annotated on the titles, highly suspicious. These circumstances, however, can be sufficiently explained when the records are examined. The records show that on January 4, 1993, Veronica went to the Registry of Bulacan with the Notice of Levy on Execution, requesting that the notice be registered. While the Register of Deeds placed the Notice of Levy on Execution in the Primary Entry Book, she did not immediately make a registration when a question arose regarding the registrability of the notice; the question necessitated the submission of a consulta to the Land Registration Authority (LRA) on January 25, 1993.28 The LRA Administrator responded to the consulta only on February 10, 1993.29 Thus, the Notice of Levy on Execution was not immediately annotated on the newly reconstituted titles, which were issued on February 4, 1993. It was only when new titles were again issued to reflect the extrajudicial settlement of the estate of Reginas parents on February 24, 1993 that the Notice of Levy on Execution appeared on the titles as Entry No. 7808. The apparent discrepancy in the numbering of the Notice of Levy on Execution and the date of inscription on the certificates of title is suitably explained by Section 56 of Presidential Decree No. 1529 whose pertinent portion states: Section 56. Primary Entry Book; fees; certified copies. Each Register of Deeds shall keep a primary entry book in which, upon payment of the entry fee, he shall enter, in the order of their reception, all instruments including copies of writs and processes filed with him relating to registered land. He shall, as a preliminary process in registration, note in such book the date, hour and minute of reception of all instruments, in the order in which they were received. They shall be regarded as registered from the time so noted, and the memorandum of each instrument, when made on the certificate of title to which it refers, shall bear the same date: Provided, that the national government as well as the provincial and city governments shall be exempt from the payment of such fees in advance in order to be entitled to entry and registration. [emphases ours] In other words, the order of entries in the Primary Entry Book determines the priority in registration. Thus, the Register of Deeds merely complied with the law when she fixed Entry No. 7808s date of

inscription as January 4, 1993, to coincide with the date when the Notice of Levy on Execution was presented and inscribed in the Primary Entry Book. The late annotation of the levy on execution on the titles did not at all lessen its effectivity. Jurisprudence has already established the rule that the entry of the notice of levy on execution in the Primary Entry Book, even without the corresponding annotation on the certificate of titles, is sufficient notice to all persons that the land is already subject to the levy.30 As we explained in Armed Forces and Police Mutual Benefit Association, Inc. v. Santiago:31 The notice of levy on attachment in favor of petitioner may be annotated on TCT No. PT94912. Levin v. Bass (91 Phil. 420 [1952]; see also Dr. Caviles, Jr. v. Bautista, 377 Phil. 25; 319 SCRA 24 [1999]; Garcia v. Court of Appeals, 184 Phil. 358; 95 SCRA 380 [19890]) provided the distinction between voluntary registration and involuntary registration. In voluntary registration, such as a sale, mortgage, lease and the like, if the owner's duplicate certificate be not surrendered and presented or if no payment of registration fees be made within fifteen (15) days, entry in the day book of the deed of sale does not operate to convey and affect the land sold. Ininvoluntary registration, such as an attachment, levy upon execution, lis pendens and the like, entry thereof in the day book is a sufficient notice to all persons of such adverse claim. The entry of the notice of levy on attachment in the primary entry book or day book of the Registry of Deeds on September 14, 1994 is sufficient notice to all persons, including the respondent, that the land is already subject to an attachment. The earlier registration of the notice of levy on attachment already binds the land insofar as third persons are concerned.32 (emphases ours) Consequently, when the Register of Deeds placed the Notice of Levy on Execution in the Primary Entry Book on January 4, 1993, this entry already bound third persons to the notice entered. Validity of the Levy i. Reginas interest in the properties is not established The levy on execution for judgment is "the act x x x by which an officer sets apart or appropriate[s,] for the purpose of satisfying the command of the writ, a part or the whole of the judgment debtors property."33 Every interest which the judgment debtor may have in the property may be subjected to levy on execution.34 As established by the Court in Reyes v. Grey:35 The term "property" as here applied to lands comprehends every species of title, inchoate or complete; legal or equitable. This statute authorizes the sale under execution of every kind of property, and every interest in property which is, or may be, the subject of private ownership and transfer. It deals with equitable rights and interests as it deals with legal, without anywhere expressly recognizing or making any distinction between them. [emphases ours] In Reyes, the Court set the standard to be applied in determining the kind of property that can be subject to attachment: We think the real test, as to whether or not property can be attached and sold upon execution is does the judgment debtor hold such a beneficial interest in such property that he can sell or otherwise dispose of it for value? If he does, then the property is subject to execution and payment of his debts.36 (emphasis and underscoring ours)

Applying the test in Reyes, the Court, in Gotauco & Co. v. Register of Deeds of Tayabas,37 recognized as valid the inscription of a notice of levy on execution on the certificates of title, even though the titles were not in the name of the judgment debtor (Rafael Vilar). According to the Court, while the certificates of title were still registered in the name of Florentino Vilar, since Rafael Vilar presented a copy of a petition filed with the lower court, from which it could be inferred that Florentino Vilar was dead and Rafael Vilar was one of his heirs, Rafael had an interest in Florentinos property that could properly be the subject of attachment, even if his participation in Florentinos property was indeterminable before the final liquidation of the estate. Similarly, in Pacific Commercial Co. v. Geaga,38 the Court held that although the Register of Deeds may properly reject an attachment where it appears that the titles involved are not registered in the name of the defendants (debtors), that rule yields to a case where there is evidence submitted to indicate that the defendants have present or future interests in the property covered by said titles, regardless of whether they still stand in the names of other persons. The fact that the present interests of the defendants are still indeterminate, and even though there was no judicial declaration of heirship yet, is of no consequence for the purpose of registering the attachment in question. This is the case since what is being attached and what may be later sold at public auction in pursuance of the attachment cannot be anything more than whatever rights, titles, interests and participations which the defendants may or might have in the property so attached. In other words, if they had actually nothing in the property, then nothing is affected and the property will remain intact.39 This rule is expressed in Section 35, Rule 39 of the old Rules of Civil Procedure, which provides: Upon the execution and delivery of said deed [of conveyance and possession], the purchaser, or redemptioner, or his assignee, shall be substituted to and acquire all the right, title, interest and claim of the judgment debtor to the property as of the time of the levy[.] [emphases ours] Although we recognize the validity of the annotation of the levy on the execution in the present case, the question of whether the levy itself is valid remains to be determined. To do this, Reginas interest in the subject properties at the time of the levy has to be ascertained. To recall, Veronicas notice of levy on execution is based on Reginas interest in the two properties, which she acquired via the Deed of Absolute Sale purportedly executed by her parents in her favor on November 5, 1991. But is this Deed of Absolute Sale a sufficient evidence of Reginas interest in the subject properties? After carefully reviewing the evidence on record, we rule in the negative. To begin with, not only were the properties subject of the attachment not registered in Reginas name, the Deed of Absolute Sale on which Regina based her interest was not even annotated on these titles. While Regina purportedly purchased her parents rights to the subject properties in 1991, she never asserted her rights over these properties by presenting the Deed of Absolute Sale to the Register of Deeds for registration and annotation on the titles. As a matter of fact, it was Veronica, and not Regina, who presented the Deed of Absolute Sale to the Register of Deeds. More importantly, from the records, it is clear that the subject properties were finally registered in Reginas name, not by virtue of the 1991 Deed of Absolute Sale, but by virtue of succession, specifically by the "Adjudication" that Regina filed with the Register of Deeds on February 24, 1993,40 pursuant to Section 1, Rule 74 of the Rules of Court.41 The procedure by which the properties were registered in Reginas name suggests that when Reginas parents died, the subject lots still formed part of Reginas parents estate, and were not, as Veronica claims, sold to Regina in 1991, thereby casting doubt to the validity of the Deed of Absolute Sale. As the Bulaongs reason in their memorandum, if the subject properties had already been sold to Regina as early as 1991, why would they still be considered a part of her parents estate in 1993?42

Another point to consider is that Regina dealt with the Bulaongs as her fathers representative when they were negotiating the mortgage over the properties.43 If she had already acquired her parents interest in these properties in 1991, she would not have needed any authority from her father to execute the mortgage with the Bulaongs; she would have done so in her own capacity. These facts, taken together, lead us to doubt that Regina had any interest in the properties at the time of the levy. Thus, unlike in the previously cited cases where the debtors, although possessing merely an inchoate interest in the properties at the time of the levy, had interests that were established with reasonable certainty and could be the subject of attachment; in the present case, the evidence on record fails to prove that Regina actually had any interest in the properties which could be the subject of levy. The spring cannot rise higher than its source.44 Since Regina had no established interest in the subject properties at the time of the levy, Veronicas levy had nothing to attach to in the subject properties. ii. Unregistered sale of land cannot bind third parties Even assuming that the Deed of Absolute Sale in Reginas favor was valid, we still cannot uphold the validity of the levy and execution sale in Veronicas favor. The general rule in dealing with registered land is set forth in Section 51 of P.D. No. 1529: Section 51. Conveyance and other dealings by registered owner. An owner of registered land may convey, mortgage, lease, charge or otherwise deal with the same in accordance with existing laws. He may use such forms of deeds, mortgages, leases or other voluntary instruments as are sufficient in law. But no deed, mortgage, lease, or other voluntary instrument, except a will purporting to convey or affect registered land shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration. The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned, and in all cases under this Decree, the registration shall be made in the office of the Register of Deeds for the province or city where the land lies. [emphases ours] From the standpoint of third parties, a property registered under the Torrens system remains, for all legal purposes, the property of the person in whose name it is registered, notwithstanding the execution of any deed of conveyance, unless the corresponding deed is registered.45 Simply put, if a sale is not registered, it is binding only between the seller and the buyer, but it does not affect innocent third persons. Undoubtedly, Veronicas claim on the properties is rooted in the unregistered Deed of Absolute Sale between Regina and her parents. The Bulaongs do not appear to have had any knowledge that this sale ever took place. To recall, Regina gave the Bulaongs the owners duplicate certificates of the properties, which showed that the properties were registered in the names of her parents, Fortunato and Bertha Limpo. It thus appears that the Bulaongs first learned about the sale between Regina and her parents when they received the newly issued titles in Reginas name which contained the annotation of the levy in Veronicas favor. One of the principal features of the Torrens system of registration is that all encumbrances on the land shall be shown, or at least intimated upon the certificate of title and a person dealing with the owner of the registered land is not bound to go behind the certificate and inquire into transactions,

the existence of which is not there intimated.46 Since the Bulaongs had no knowledge of the unregistered sale between Regina and her parents, the Bulaongs can neither be bound by it, nor can they be prejudiced by its consequences. This is but the logical corollary to the rule set forth in Section 51 of P.D. No. 1529, in keeping with the basic legal maxim that what cannot be done directly cannot be done indirectly. Execution sale in Veronicas favor was highly irregular We also find that the execution sale in favor of Veronica is invalid because Reginas interest in both lots was sold together, in violation of Sections 15 and 21, Rule 39 of the old Rules of Court. The pertinent portions of these provisions provide: Section 15. Execution of money judgments. The officer must enforce an execution of a money judgment by levying on all the property, real and personal of every name and nature whatsoever, and which may be disposed of for value, of the judgment debtor not exempt from execution, or on a sufficient amount of such property, if there be sufficient, and selling the same, and paying to the judgment creditor, or his attorney, so much of the proceeds as will satisfy the judgment. Any excess in the proceeds over the judgment and accruing costs must be delivered to the judgment debtor, unless otherwise directed by the judgment or order of the court. When there is more property of the judgment debtor than is sufficient to satisfy the judgment and accruing costs, within the view of the officer, he must levy only on such part of the property as is amply sufficient to satisfy the judgment and costs. Section 21. How property sold on execution. Who may direct manner and order of sale. All sales of property under execution must be made at public auction, to the highest bidder, between the hours of nine in the morning and five in the afternoon. After sufficient property has been sold to satisfy the execution, no more shall be sold. When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of such real property is claimed by a third person, he may require it to be sold separately. [emphases ours] Where the property to be sold consists of distinct lots, tracts or parcels, or is susceptible of division without injury, it should be offered for sale in parcels and not en masse, for the reason that a sale in that manner will generally realize the best price, and will not result in taking from the debtor any more property than is necessary to satisfy the judgment. It will also enable the defendant to redeem any one or more of the parcels without being compelled to redeem all the land sold.47 A sale of additional land or personal property after enough has been sold to satisfy the judgment is unauthorized.48 While the general policy of the law is to sustain execution sales, the sale may be set aside where there is a resulting injury based on fraud, mistake and irregularity.49 Where the properties were sold together when the sale of less than the whole would have been sufficient to satisfy the judgment debt, the sale may be set aside.50
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In Caja v. Nanquil, 51 we took judicial notice of the fact that the value of a property was usually bigger than the amount for which it could be mortgaged. Since the two properties, taken together, were mortgaged to the petitioners to secure a loan worth P4,300,000.00, we can easily assume that these properties are worth at least this amount. Even Veronica does not contest this assumption. From this premise, we can logically assume that the sale of just one of the lots would have been sufficient to satisfy the judgment debt. Yet no explanation was provided as to why the sheriff sold both parcels of land at the execution sale for the paltry sum of P640,354.14. This act

undoubtedly resulted in great prejudice to the Bulaongs. To our minds, this renders the execution sale defective, and provides sufficient ground for us to set the sale aside. For the foregoing reasons, we rule and so hold that the levy and the corresponding execution sale in Veronicas favor are invalid, and must be set aside. Veronica, however, is not without recourse, as she may still seek to enforce the judgment debt against Regina. WHEREFORE, premises considered, we GRANT the petition and REVERSE the decision of the Court of Appeals dated July 31, 2002 in CA-G.R. SP No. 55423. We REINSTATE the decision of the Regional Trial Court, Branch 12, Malolos, Bulacan, dated July 30, 1999 in Civil Case No. 170-M-95, with the MODIFICATION that petitioners Anselmo Bulaong and Priscilla Bulaong are no longer required to reimburse Veronica Gonzales for her lien in the amount of P275,000.00, plus interest. SO ORDERED. G.R. No. 176800 September 5, 2011

ELMER LOPEZ, Petitioner, vs. KEPPEL BANK PHILIPPINES, INC., MANUEL BOSANO III and STEFAN TONG WAI MUN, Respondents. DECISION BRION, J.: We resolve the present petition for review on certiorari1 seeking the nullification of the decision2 and the resolution3 of the Court of Appeals (CA), dated December 19, 2006 and February 7, 2007, respectively, rendered in CA-G.R. CEB-SP. No. 01754. The Antecedents The facts, as set out in the assailed CA decision, are summarized below. Petitioner Elmer Lopez was the Branch Manager of the respondent Keppel Bank Philippines, Inc. (bank) in Iloilo City. Allegedly, through his efforts, Hertz Exclusive Cars, Inc. (Hertz) became a client of the bank. By notice dated August 12, 2003,4 the bank asked Lopez to explain in writing why he should not be disciplined for issuing, without authority, two purchase orders (POs) for the Hertz account amounting to a total of P6,493,000.00, representing the purchase price of 13 Suzuki Bravo and two Nissan Exalta vehicles. Lopez submitted his written explanation on the same day,5 but the bank refused to give it credit. Through respondents Manuel Bosano III (Vice-President and Head of Retail Banking Division/Consumer Banking Division) and Stefan Tong Wai Mun (Vice-President/Comptroller), the bank terminated Lopezs employment effective immediately.6 Lopez asked the bank for reconsideration.7 In response, the bank, through the respondent officers, met with Lopez at its headquarters in Cubao, Quezon City on September 25, 2003. Lopez came with

his lawyer (Atty. Edmundo V. Buensuceso) and a military man (one Col. Flordeliza). After the meeting, the bank found no reason to reconsider and reiterated its decision to dismiss Lopez.8 Lopez filed a complaint for illegal dismissal and money claims against the bank, Bosano and Tong. The Compulsory Arbitration Proceedings Lopez alleged before the labor arbiter that he issued the POs as part of his strategy to enhance the banks business, in line with his duty as branch manager to promote the growth of the bank. He claimed that the bank honored the first PO for P1.8M from which the bank derived an income of P142,000.00. He added that the second PO did not materialize because Mr. James Puyat Concepcion, a Hertz incorporator and director who opened the Hertz account, stopped depositing with the bank because of the negative credit rating he received from the banks credit committee. Allegedly, the committee discovered that James Puyat Concepcion had several pending court cases. For its part, the bank denied approving the first PO, arguing that Lopez did not have the authority to issue the POs for the Hertz account as there was a standing advice that no Hertz loan application was to be approved. It stressed that Lopez committed a serious violation of company rules when he issued the POs. In a decision dated April 28, 2004,9 Labor Arbiter Cesar D. Sideo ruled that Lopez was illegally dismissed. Accordingly, the labor arbiter ordered Lopezs immediate reinstatement, and awarded him backwages ofP392,000.00, moral and exemplary damages of P8M, and P550,000.00 the purchase price of a Toyota Revo which Lopez allegedly brought over from his stint with Global Bank (now Metrobank). The labor arbiter found that contrary to the banks claim, the evidence showed that Lopez had been issuing POs which the bank had paid, including the first of the two POs that led to his dismissal.10 On appeal by the bank, the National Labor Relations Commission (NLRC) rendered a decision on October 11, 200511 reversing the labor arbiters ruling. It dismissed the complaint for lack of merit. The NLRC found merit in the banks submission that by issuing the questioned POs without authority and against the banks express orders, Lopez thereby committed a willful disobedience against his superiors a sufficient basis for the bank to lose its trust and confidence in him as branch manager. It thus found that Lopez had been dismissed for cause after the observance of due process. Lopez moved for reconsideration, but the NLRC denied the motion in its resolution of January 25, 2006.12 Lopez sought relief from the CA through a petition for certiorari, charging the NLRC with grave abuse of discretion for setting aside the labor arbiters decision. The CA Decision On December 19, 2006, the CA rendered its now assailed decision,13 denying the petition and affirming the October 11, 2005 decision of the NLRC. It fully agreed with the NLRC finding that Lopez had not been illegally dismissed. Lopez moved for, but failed to obtain, a reconsideration of the CA decision. The CA denied the motion on February 7, 2007.14 The Case for Lopez Through the present petition,15 the reply to the banks comment dated February 11, 2008,16 and the memorandum dated September 22, 2008,17 Lopez entreats the Court to nullify the CA decision,

contending that the CA erred in: (1) not ruling that the banks appeal with the NLRC should have been dismissed on the ground of non-perfection; and (2) affirming the decision of the NLRC that he was dismissed for a just cause (loss of trust and confidence) and that he was afforded due process. Lopez argues, with respect to the first assignment of error, that the bank failed to comply with Sections 4 and 6, Rule VI, of the 2002 Rules of Procedure of the NLRC.18 He points out that the bank did not file a notice of appeal together with its memorandum of appeal, which in turn was not supported by a certificate of non-forum shopping; and neither did the bank furnish him, as appellee, a certified copy of the appeal bond. On the substantive aspect of the case, Lopez posits that the bank failed to justify his dismissal on the ground of loss of trust and confidence. He insists that, as branch manager, he had the authority to issue POs as in fact he issued several of them in the past, which POs were honored and paid by the bank. The labor arbiter properly relied on the past transactions in his decision. These included, he reiterates, the first PO for the Hertz account which was paid by the bank on July 18, 2003, a transaction where the bank even earned a substantial income (P142,000.00). He maintains that the bank failed to substantiate its position that he was not authorized to issue the POs. He adds that the banks claim that his issuance of the POs exposed the bank to financial loss is a lame excuse to justify the termination of his employment. Lopez argues that his dismissal was a mere afterthought on the part of the bank management, particularly Bosano, to cover up its embarrassment when he (Lopez) made inquiries and discovered that Hertzs James Puyat Concepcion had no pending court cases and was therefore credit worthy. He adds that assuming that he did not have the authority to issue POs, still, he cannot be held guilty of willful disobedience; even if he had been guilty, dismissal was a very harsh penalty. Finally, Lopez submits that the bank failed to accord him due process because the bank did not give him the opportunity to prepare for his defense. He points out that his written explanation (dated August 12, 2003)19preceded the banks letter (of the same date)20 that required him to explain why he issued the POs in question. Lopez contends in this regard that on August 12, 2003, he went to Bosanos office in Quezon City all the way from Iloilo City and there, he was cornered by Bosano who verbally instructed him to immediately write down his explanation even before he was served with the banks August 12, 2003 letter. He maintains that Bosanos preemptive move deprived him of the opportunity to secure the services of a counsel. While Lopez believes his dismissal to be illegal, he does not seek reinstatement due to the antagonism that has developed between him, and the bank and its officers, due to the present case. He only asks for separation pay of one month pay for every year of service, full backwages, allowances and other benefits. Additionally, he prays for moral and exemplary damages, as well as attorneys fees, to compensate him for a dismissal that was attended by bad faith and effected in a wanton, oppressive and malevolent manner. The Case for the Bank and its Officers Through its comment to the petition21 and memorandum,22 the bank submits that the CA committed no reversible error in denying Lopezs petition for certiorari, and in affirming the ruling of the NLRC that Lopez was dismissed for a just cause and after due process. The bank is puzzled why Lopez is standing firm on his position that he did nothing wrong when he issued the questioned POs despite the express directive not to proceed with the Hertz loan application unless its adverse credit investigation report is explained to the banks credit committee. It posits that no bank would gamble to maintain as branch manager a person who dares to supplant

a major decision of the banks top leadership with his personal decision. It argues that in this situation, the law (Labor Code) provides protection to the employer through its management prerogative rights and the right to dismiss employees on just and valid grounds. The bank refutes Lopezs contention that there was no willful disobedience that warranted his dismissal. It points out that there was an order for him not to proceed with the Hertz loan application. The order was very reasonable as it is the standard policy of every bank to conduct an investigation on the credit worthiness of any loan applicant. Since it appeared from the investigation of its credit committee that James Puyat Concepcion of Hertz had various court cases, it was only proper for the bank to put on hold the loan application of Hertz until the adverse finding could be cleared. It insists that Lopez willfully and knowingly disobeyed this order. Further, the bank questions Lopezs submission, through a supplemental addendum to his position paper, of evidence that it honored and paid POs issued by Lopez in the past. It maintains that it was not furnished a copy of this submission; hence, it was unable to controvert this evidence. On the procedural due process issue, the bank denies Lopezs allegation that he was not given the opportunity to defend himself. It points out that both the NLRC and the CA confirmed that Lopez was not deprived the opportunity to be heard; the opportunity commenced with: (1) the notice for him to explain his side regarding his unauthorized issuance of POs; (2) the notice of his termination from employment; and (3) the hearing called in response to his motion for reconsideration where he was assisted by his lawyer and his soldier friend. The Courts Ruling The procedural issue Lopez faults the CA for not ruling that the banks appeal to the NLRC should have been dismissed for non-perfection. He argues that no notice of appeal accompanied the memorandum of appeal; neither was there a certificate of non-forum shopping nor any copy furnished to him of the certified true copy of the appeal bond. The procedural question is a non-issue. Lopez did not raise it before the CA; in fact, he challenged the NLRC decision of October 11, 200523 on its merits and not on its form. We, therefore, see no need to further discuss this argument.
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The merits of the case On the substantive aspect of the case, we note that Lopez was dismissed from the service by reason of loss of trust and confidence, a just cause for an employees dismissal under the law.24 Lopez insists though that the act which triggered the dismissal action does not justify his separation from the service. Is Lopez liable for loss of trust and confidence for issuing the two disputed POs? The right of an employer to freely select or discharge his employee is a recognized prerogative of management; an employer cannot be compelled to continue employing one who has been guilty of acts inimical to its interests. When this happens, the employer can dismiss the employee for loss of confidence.25

At the same time, loss of confidence as a just cause of dismissal was never intended to provide employers with a blank check for terminating employment. Loss of confidence should ideally apply only (1) to cases involving employees occupying positions of trust and confidence, or (2) to situations where the employee is routinely charged with the care and custody of the employers money or property. To the first class belong managerial employees, i.e., those vested with the powers and prerogatives to lay down management polices and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees, or effectively recommend such managerial actions. To the second class belong cashiers, auditors, property custodians, or those who, in the normal and routine exercise of their functions, regularly handle significant amounts of money or property.26 As branch manager, Lopez clearly occupies a "position of trust." His hold on his position and his stay in the service depend on the employers trust and confidence in him and on his managerial services.27 According to the bank, Lopez betrayed this trust and confidence when he issued the subject POs without authority and despite the express directive to put the clients application on hold. In response, Lopez insists that he had sufficient authority to act as he did, as this authority is inherent in his position as bank manager. He points to his record in the past when he issued POs which were honored and paid by the bank and which constituted the arbiters "overwhelming evidence"28 in support of the finding that "complainants dismissal from work was without just cause, hence, illegal."29 We disagree with Lopezs contention. Despite evidence of his past exercise of authority (as found by the labor arbiter), we cannot disregard evidence showing that in August 2003, the bank specifically instructed Lopez not to proceed with the Hertz loan application because of the negative credit rating issued by the banks credit committee. We find it undisputed that Lopez processed the loan despite the adverse credit rating. In fact, he admitted that he overlooked the "control aspects" of the transaction as far as the bank was concerned because of his eagerness to get a bigger share of the market.30 Lopezs good intentions, assuming them to be true, are beside the point for, ultimately, what comes out is his defiance of a direct order of the bank on a matter of business judgment. He went over the heads of the bank officers, including the credit committee, when, based on inquiries he made on his own regarding the credit worthiness of James Puyat Concepcion, he simply proceeded to act on the basis of his own judgment. Evident in his written explanation31 was his failure to inform the credit committee of his own efforts to check on the committees adverse findings against Hertz and his independent action based solely on his own authority. As a bank official, the petitioner must have been aware that it is basic in every sound management that people under ones supervision and direction are bound to follow instructions or to inform their superior of what is going on in their respective areas of concern, especially regarding matters of vital interest to the enterprise. Under these facts, we find it undisputed that Lopez disobeyed the banks directive to put the Hertz loan application on hold, and did not wait until its negative credit rating was cleared before proceeding to act. That he might have been proven right is immaterial. Neither does the submission that the bank honored and paid the first PO and even realized a profit from the transaction, mitigate the gravity of Lopezs defiance of the directive of higher authority on a business judgment. What appears clear is that the bank cannot in the future trust the petitioner as a manager who would follow directives from higher authorities on business policy and directions. The bank can be placed at risk if this kind of managerial attitude will be repeated, especially if it becomes an accepted rule among lower managers. In Nokom v. NLRC,32 we reiterated the guidelines for the application of loss of confidence as follows: (1) loss of confidence, should not be simulated; (2) it should not be used as a subterfuge for causes which are improper, illegal or unjustified; (3) it may not be arbitrarily asserted in the face of

overwhelming evidence to the contrary; and (4) it must be genuine, not a mere afterthought to justify an earlier action taken in bad faith.
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Under the circumstances of this case, we are convinced that the bank was justified in terminating Lopezs employment by reason of loss of trust and confidence. He admitted issuing the two POs, claiming merely that he had the requisite authority. He could not present any proof in this regard, however, except to say that it was part of his inherent duty as bank manager. He also claimed that the bank acquiesced to the issuance of the POs as it paid the first PO and the POs he issued in the past. This submission flies in the face of the banks directive for him not to proceed unless matters are cleared with the banks credit committee. The bank had a genuine concern over the issue as it found through its credit committee that Hertz was a credit risk. Whether the credit committee was correct or not is immaterial as the banks direct order left Lopez without any authority to clear the loan application on his own. After this defiance, we cannot blame the bank for losing its confidence in Lopez and in separating him from the service. The due process issue As the NLRC and the CA did, we find Lopez to have been afforded due process when he was dismissed. He was given the required notices. More importantly, he was actually given the opportunity to be heard; when he moved for reconsideration of the banks decision to terminate his employment, it scheduled a hearing where he appeared together with his lawyer and a military man. This was an opportunity to be heard that the law recognizes. In fine, we find no merit in the petition. WHEREFORE, premises considered, we hereby DENY the petition for lack of merit. The assailed decision and resolution of the Court of Appeals are AFFIRMED. Costs against petitioner Elmer Lopez. SO ORDERED. A.M. No. P-04-1771 September 5, 2011 (formerly OCA I.P.I. No. 03-1618-P) Atty. PACIFICO CAPUCHINO, Complainant, vs. Stenographer MARIPI A. APOLONIO, Legal Researcher CARINA C. BRETANIA, Court Stenographer ANDREALYN M. ANDRES, Court Stenographer ANA GRACIA E. SANTIAGO, Interpreter MA. ANITA G. GATCHECO, Branch Clerk of Court ROMEO B. ASPIRAS, Clerk IV FE L. ALVAREZ and Process Server EUGENIO P. TAGUBA, Municipal Trial Court in Cities, Branch 2, Santiago City, Isabela, Respondents. DECISION BRION, J.: This administrative case involves eight (8) personnel of the Municipal Trial Court in Cities (MTCC), Santiago City, Isabela, Branch 2, namely: Branch Clerk of Court Romeo B. Aspiras; Stenographers Maripi A. Apolonio, Andrealyn M. Andres and Ana Gracia E. Santiago; Legal Researcher Carina C. Bretania; Interpreter Ma. Anita G. Gatcheco; Clerk IV Fe L. Alvarez; and Process Server Eugenio P. Taguba (respondents). They were charged with Grave Misconduct and Violation of the Anti-Wire

Tapping Act (Republic Act No. 4200) in two identical complaints, both dated January 20, 2003, filed by Atty. Pacifico Capuchino with the Office of the Ombudsman1 (Ombudsman) and this Court.2 The Ombudsman, in an Order3 dated July 31, 2003, referred the complaint to the Office of the Court Administrator (OCA) for appropriate action, "considering that the respondents are court personnel"4 who are under the administrative supervision of this Court.5 It dismissed the criminal aspect of the complaint without prejudice to the outcome of the present administrative case against the respondents. THE COMPLAINT Atty. Capuchino alleged that he was the counsel of the accused in Criminal Case No. II-4066, entitled "People of the Philippines v. Marirose Valencia," for violation of Batas Pambansa Blg. 22, filed with the MTCC of Santiago City, Isabela, Branch 2. The accused, Marirose Valencia, was convicted of the offense charged and was ordered to pay private complainant Reynaldo Valmonte the amount of P120,000.00, plus interest at the rate of 12% per annum computed from the time of the filing of the criminal case. Atty. Capuchino filed a motion for reconsideration of Valencias conviction. Pending resolution of the motion for reconsideration, he tried to settle the case amicably with Valmonte. On May 9, 2001, Atty. Capuchino and Valencia met with Valmonte at the MTCC. They offered Valmonte the amount of P120,000.00, asking him to withdraw the criminal case he filed against Valencia. Valmonte refused and demanded a higher amount. As they failed to come to a settlement by lunchtime, they agreed to schedule another meeting. Apprehensive of carrying a big amount, Valencia requested Tessie Duque (who was the only personnel left in the court at that time) to hold the money for safekeeping until their next meeting with Valmonte. Duque initially refused to receive the money, but relented when Valencia insisted; she agreed to hold the money temporarily, and issued a provisional receipt for the amount. Meanwhile, the court denied Atty. Capuchinos motion for reconsideration and issued a Writ of Execution. To show her readiness to settle her obligation, Valencia presented the provisional receipt issued by Duque for theP120,000.00. The respondents, claiming that Duque was not authorized to receive money from litigants even for safekeeping purposes, brought the matter to the attention of Judge Maxwell Rosete. Judge Rosete required Duque to comment on the respondents report. Instead of filing the required comment, Duque filed a motion to set the case for hearing. On September 24, 2002, Atty. Capuchino and Valencia went to the MTCC to attend the hearing on their motion for the withdrawal of the money deposited with Duque. The hearing did not materialize because Judge Rosete was absent. Atty. Capuchino went to see Aspiras to inquire about the next scheduled hearing. Instead of attending to their request, respondents Aspiras, Apolonio and Taguba casually led them to the court sala and asked them questions about the money they entrusted to Duque. Atty. Capuchino later learned that their conversations had been tape recorded by Apolonio with the aid of the other court personnel. The tapes were then used by the respondents to report the illegal deposit to then Chief Justice Hilario G. Davide, Jr., in a letter-complaint dated October 3, 2002.6 They asked for an immediate investigation "before it is blown out of proportion."7 The respondents letter-complaint was later docketed as A.M. No. P-05-1958, entitled "Office of the Court Administrator v. Duque."8 Atty. Capuchino claimed that his and his clients conversations with Aspiras, Apolonio and Taguba were recorded by Apolonio, with the assistance of the other court personnel, without his and his

clients knowledge, in violation of the Anti-Wire Tapping Act. He further claimed that all the respondents conspired with each other to illegally record their conversations. In separate 1st Indorsements,9 all dated May 7, 2003, the OCA required the respondents to comment on the charges against them. In a Joint Comment10 dated June 16, 2003, respondents Bretania, Gatcheco, Santiago and Andres denied having instigated or influenced Judge Rosete to issue an Order directing Duque to comment on the allegation that she has no authority to receive money from court litigants, even for safekeeping purposes. They also denied involvement in the taping incident. Gatcheco and Andres further claimed that they did not report for work on the date the incident complained of transpired, as they were on leave. They submitted photocopies of their Daily Time Record in support of their contentions. Respondent Alvarez, in her Comment11 dated June 16, 2003, denied involvement in the incident. Although she intended to keep silent about the incident, she signed the administrative complaint prepared by Taguba because "she is interested to know the truth, no more, no less."12 For his part, Taguba claimed that he filed a complaint against Duque because he believed that Duques act "was improper as it is unauthorized and unlawful;" and that he was not motivated by malice in filing the complaint. Further, he argued that Atty. Capuchino has no cause to file the present complaint as the criminal case of his client had already been terminated.13 Aspiras and Apolonio, in their joint Comment14 dated June 16, 2003, asserted that "the contention that the alleged tape record[ing] is inadmissible in evidence by virtue of R. A. No. 4200 cannot hold water because[:] the matters covered are clothed with public interest the interest of the Judiciary itself to stand with unblemished integrity."15 Atty. Capuchino filed a Reply16 dated July 18, 2003 to the respondents comments, contending that violation of a law cannot be condoned, no matter how good and noble the intention of the perpetrators is. He averred that as a lawyer, it is his duty to call attention to violations of the law. He cannot see any reason why the respondents made a big fuss over the provisional receipt issued by Duque, but he can discern their sinister motives. On the respondents allegation that he has nothing at stake or interest to file the present case, he counter-argued that the respondents were the ones who have no stake or interest in the money privately entrusted to Duque and who merely pretended that they were doing a "messianic act." He referred to respondent Taguba as a "false messiah" who has a string of cases for extortion filed with this Court. He also said that seven of the respondents came to see him at this house several times to apologize, to plead for mercy, and to ask for the withdrawal of the case against them. On the recommendation of the OCA, the Court issued a Resolution,17 dated January 14, 2004, ordering the redocketing of Atty. Capuchinos complaint as a regular administrative matter; and referring the case to the Executive Judge of the MTCC, Santiago City, Isabela, for investigation, report and recommendation. Hence, the present administrative case. Judge Ruben R. Plata, (then the Executive Judge of the MTCC of Santiago City, Isabela) inhibited himself from the case on the ground that all the respondents have filed an administrative complaint against him, docketed as A.M. OCA I.P.I. No. 03-1483-MTJ, and that he filed against all the respondents a criminal case for perjury and libel with the Office of the Prosecutor of Manila.18

In a Resolution dated March 31, 2004, the case was instead referred to Judge Fe Albano Madrid, Executive Judge, Regional Trial Court, Santiago City, Isabela, for investigation, report and recommendation.19 During the scheduled hearings of the case, Atty. Capuchino could not appear as he had suffered a stroke and was under medication. All the eight (8) respondents moved to dismiss the complaint for lack of basis, and for Atty. Capuchinos failure to appear and to present evidence against them. They manifested that they have nothing more to add to their comments filed with the Court. In her undated Report,20 Judge Madrid found that the respondents were not guilty of misconduct, reporting that: The investigating judge believes that Atty. Capuchino would not care to appear and substantiate his complaint. He was not a party to the taped conversation. He was not prejudiced by the lettercomplaint of Eugenio Taguba against Tessie Duque nor about the taped conversation. I suppose that the complaint against the respondents is just a means to get back at them because of the expose they made regarding the P120,000.00. At any rate, the Investigating Judge believes that the outrage of the court employees which prompted them to bring to the attention of the Supreme Court what they believe was an illegal transaction of another court employee is definitely not a misconduct. As the matters raised in the present administrative case were related to the letter-complaint filed by Taguba and the other respondents against Duque, the OCA recommended the consolidation of the present administrative case with A.M. No. P-05-1958 (formerly A.M. OCA I.P.I. No. 03-1718P).21 However, no consolidation was effected because A.M. No. P-05-1958 had already been decided on February 7, 2005. THE OCAs REPORT & RECOMMENDATION In an Evaluation Report dated October 12, 2005,22 the OCA disagreed with the findings of Judge Madrid. It found that the act of respondents Taguba, Aspiras, Apolonio and Santiago of surreptitiously taping their conversations with Atty. Capuchino and Valencia, without the latters knowledge and consent, constitutes misconduct and/or conduct unbecoming of a court employee. The OCA also confirmed Atty. Capuchinos allegation that respondent Taguba had been charged with several administrative cases before this Court. Taguba, together with respondents Apolonio and Andres, was found guilty of gambling during office hours in A.M. No. P-01-1517, and was suspended for one (1) month and one (1) day. Taguba was also found guilty of violation of Republic Act No. 3019 and conduct unbecoming a court employee in A.M. No. P-05-1942, and was suspended for six (6) months. The OCA recommended that: 1. the criminal aspect of the case be referred back to the Ombudsman for proper disposition; 2. respondents Taguba, Apolonio and Santiago be suspended for one (1) month for misconduct; 3. respondents Gatcheco and Andres be exonerated as they were absent when the act complained of transpired;

4. the issue of Aspiras administrative liability be declared moot and academic as he has retired from the service; and 5. the instant case against Bretania be dismissed as her participation in the act complained of could not clearly be established. On December 14, 2005, the Court issued a Resolution: (1) exonerating respondents Gatcheco and Andres of the complaint against them, (2) declaring the complaint against Aspiras moot and academic, and (3) dismissing the complaint against Bretania.23 Also, on the recommendation of the OCA,24 the Court dismissed in its Resolution dated July 31, 2006,25 the complaint against Alvarez for insufficiency of evidence. Hence, the present administrative case only relates to respondents Taguba, Apolonio and Santiago. THE COURTS RULING The issue in an administrative case is not essentially about the wrong inflicted on the complainant by the respondent; the main question is whether the accused employee breached the norms and standards of service in the judiciary.26 We resolve this case based on this perspective and not on the basis of whether respondents Taguba, Apolonio and Santiago violated the Anti-Wire Tapping Act. Taguba denied that he was motivated by malice in bringing Valencias deposit of funds to Judge Rosetes attention and in filing a complaint against Duque based on the taped conversation. He believed that the taping was for the good of the service; all he wanted was to ferret out the truth. He insisted that Atty. Capuchino has no cause to file the complaint against them because the criminal case of his client had already been terminated. Santiago denied any participation in the taping, insisting that she was implicated because she was the owner of the tape recorder used. It was borrowed from her by somebody whom she could no longer remember. On her part, Apolonio, together with Aspiras, maintained that the accusation against them cannot prosper because the matters covered are matters of public interest the interest of the Judiciary itself. The Court finds the respondents contentions without merit. Their concerted acts of leading Atty. Capuchino and Valencia into the court sala, engaging them in conversation regarding the money deposited with Duque, taping their conversation without Capuchinos & Valencias knowledge, and later using the taped conversation as basis of the complaint they filed against Duque constitute misconduct. Santiagos claim that she forgot who borrowed her tape recorder and for what purpose it was borrowed is not credible. The Court observes that there exists animosity among the judges and employees of the court. When the present case was referred to Judge Plata for investigation, he inhibited himself on the ground that the respondents had filed a complaint against him and that he had also filed a criminal case against all of them. The filing of the complaint against Duque was instigated by Taguba. Initially signed only by Taguba, he prevailed upon the other respondents to co-sign his letter addressed to then Chief Justice Hilario G. Davide, Jr., which was later docketed as A.M. No. P-05-1958. He introduced as evidence in this complaint the tape recorded conversation. Although Duque was penalized for simple misconduct, the Court found that there "was no evidence that she was moved by evident bad faith, dishonesty or hatred"27 in receiving Valencias money for safekeeping. We cannot say the same of Tagubas actions in the animosity-ridden atmosphere apparently obtaining in the MTCC of Santiago City. Making false accusations and sowing intrigues are acts unbecoming of a public servant. They run against the principles of public service envisioned by the 1987 Constitution and by the Code of Conduct and Ethical Standards for Public Officials & Employees (Republic Act No. 6713). These

acts divert the attention of public employees and the courts from their more important tasks, and result in undue wastage of government resources; they cannot be tolerated if we are to demand the highest degree of excellence and professionalism among public employees, and if we are to preserve the integrity and dignity of our courts.28 Misconduct, on the other hand, is a transgression of some definite or established rule of action; more particularly, it is unlawful behavior by the public officer and refers as well to wrongful or improper behavior under applicable provisions of the Code of Ethics. The term "gross" connotes something "out of all measure; beyond allowance; flagrant; shameful such conduct as is not be excused."29 For administrative liability to attach, it must be established that the respondent was moved by bad faith, dishonesty, hatred or other similar motives.30 Clearly, substantial evidence exists in this case to hold Taguba guilty of gross misconduct punishable by dismissal from the service even for the first offense. Not only did he disregard the terms of the Anti-Wiretapping Act within court premises where the public should feel most secure about their personal liberties. He undertook the act to secure evidence against a co-employee; he obtained and used the taped conversation as basis for a complaint against Duque who was penalized for the deposit she had accepted. We cannot accept, under these circumstances, any claimed absence of bad faith after considering the devious method Taguba employed and the purpose that it served, however lofty Taguba thought his purpose had been. Unfortunately, we can no longer impose the penalty of dismissal on Taguba because he has retired from the service on disability effective September 1, 2006. Additionally, we recently found Taguba guilty of gross misconduct in another case A.M. No. MTJ-08-1727, entitled "Milagros Villaceran and Omar T. Miranda v. Judge Maxwel Rosete and Process Server Eugenio Taguba, etc."31 for soliciting P25,000.00 from the defendant in a pending case with the promise that he would work for the defendants acquittal. In lieu of the dismissal that at that point we could no longer impose because of his previous retirement, the Court "given the gravity of respondent Tagubas offense" ordered the forfeiture of Tagubas disability retirement benefits. While we therefore find Taguba administratively liable in the present case, we have run out of administrative penalties to impose on him. Nothing, however, can stop us from holding and declaring him liable for the gross misconduct that he stands charged with.
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For their participation in the illegal tape recording of the complainant and his client, the Court finds respondents Apolonio and Santiago guilty of simple misconduct. We so rule given the evidence that they merely followed the lead of Taguba. Under the Uniform Rules on Administrative Cases in the Civil Service, simple misconduct is a less grave offense punishable by suspension for one (1) month and one (1) day to six (6) months for the first offense, and dismissal for the second offense.32 Since the penalty of dismissal can no longer be imposed on respondent Taguba, we can only reiterate the directive in A.M. No. MTJ-08-172733 ordering the forfeiture of his remaining retirement benefits. Respondent Maripi A. Apolonio has previously been found guilty of simple misconduct for gambling during office hours, together with respondents Taguba and Andres, in A.M. No. P-01-1517.34 They were suspended for one (1) month and one (1) day. Since this is Maripi A. Apolonios second offense, the penalty of dismissal should be imposed. We opt, however, to merely order her SUSPENSION from the service for one (1) year effective immediately, in light of our recognition that her present act is different in nature from her first offense; the elements of perversity and impenitence that are considered in a repetition of the same offense are not necessarily present. Thus, we accord her the benefit of the doubt.

This is respondent Ana Gracia E. Santiagos first offense; thus, the Court hereby imposes on her a lighter penalty and orders her SUSPENSION from the service for only six (6) months. WHEREFORE, the Court finds respondent Eugenio P. Taguba guilty of GROSS MISCONDUCT, and respondents Maripi A. Apolonio and Ana Gracia E. Santiago guilty of SIMPLE MISCONDUCT. Maripi A. Apolonio is ordered SUSPENDED for one year effective immediately, with the warning that any similar or graver offense at any time in the future shall merit the penalty of outright dismissal.
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Ana Gracia E. Santiago is hereby ordered SUSPENDED for six (6) months effective immediately, with the warning that any similar or graver offense at any time in the future shall merit the penalty of outright dismissal. Let a copy of the records of OMB-L-C-03-0619-E be returned to the Office of the Ombudsman and a copy of this Decision be furnished the said Office, for appropriate action with respect to the criminal aspect of the case. SO ORDERED.

G.R. No. 184054

October 19, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ARNEL ZAPATA y CANILAO, Appellant. DECISION BRION, J.: We decide the appeal, filed by Arnel Zapata y Canilao (appellant), from the decision1 and the resolution2 of the Court of Appeals (CA) dated November 28, 2007 and March 6, 2008, respectively, in CA-G.R. CR-H.C. No. 02136. The CA decision affirmed in toto the October 12, 2005 decision3 of the Regional Trial Court (RTC), Branch 41, San Fernando City, finding the appellant guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. In its October 12, 2005 decision, the RTC found the appellant guilty of illegal sale of dangerous drugs under Section 5, Article II of R.A. No. 9165. The RTC held that the witnesses for the prosecution were able to prove that a buy-bust operation indeed took place; and the shabu subject of the sale was brought to, and duly identified in, court. It found no improper motive on the part of the police officers to falsely testify against the appellant. The lower court likewise disregarded the appellants claim of frame-up, as this defense can easily be concocted and is a common and standard defense ploy in prosecutions for violation of dangerous drugs. Accordingly, it ordered the appellant to suffer the penalty of life imprisonment, and to pay a P500,000.00 fine. On appeal, the CA affirmed the RTC decision in toto. It held that the poseur-buyer positively identified the appellant as the person who gave him two (2) transparent plastic sachets containing white crystalline substances in exchange for P300.00. It added that the plastic sachets were submitted to the Philippine National Police (PNP) Crime Laboratory for examination, and were found

to be positive for the presence of shabu. It likewise held that the defense failed to overcome the presumption that the police officers regularly performed their official duties. The CA further ruled that the chain of custody over the seized items was not shown to have been broken. It also took note of the admission of the appellants wife that the appellant was a "financier of drugs," as well as the positive result of the drug test conducted on the appellant. Our Ruling The appellants conviction stands. For a successful prosecution of offenses involving the illegal sale of drugs under Section 5, Article II of R.A. No. 9165, the following elements must be proven: (1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti of evidence.4 The evidence for the prosecution showed the presence of all these elements. Police Officer (PO)3 John U. Salcedo narrated in detail on how the police conducted a surveillance on the appellant for two months; and how he and PO1 Edwin Carlos conducted the buy-bust operation. PO3 Salcedo duly and positively identified the appellant as the person who sold to him two (2) transparent plastic sachets containing white crystalline substances in exchange for P300.00. The white crystalline substances contained in the two plastic sachets were later on confirmed to be methamphetamine hydrochloride or shabu, per Chemistry Report No. D-316-2004 issued by the PNP Forensic Chemist, Police Inspector (P/Insp.) Maria Luisa David. The marked money used in the entrapment operation was likewise positively identified by the arresting officers as the same one provided and used in the buy-bust operation. PO1 Carlos corroborated PO3 Salcedos testimony on all material points. Significantly, the appellant failed to produce convincing proof that the prosecution witnesses had any improper or malicious motive when they testified. Contrary to the appellants assertion, the chain of custody over the seized prohibited drugs was shown not to have been broken. The evidence shows that after PO3 Salcedo received the two plastic sachets from the appellant, PO3 Salcedo and PO1 Carlos brought the appellant and the confiscated items to the police station. There, PO3 Salcedo immediately marked the two plastic sachets with "JUS 1" and "JUS 2," respectively.5 PO3 Salcedo, thereafter, turned over the seized items to Senior Police Officer 3 Danilo Fernandez who, in turn, made the appropriate requests for the laboratory examination of the seized items and for the drug test on the appellant. On the same day, PO1 Ronwald Basa brought the plastic sachets and the appellants urine sample to the PNP Crime Laboratory, where a certain SPO1 Sales received and immediately forwarded the submitted specimens to P/Insp. David. The latter then examined the two heat-sealed transparent plastic sachets marked as "JUS 1" and "JUS 2," and found them to be positive for the presence of shabu. She likewise examined the appellants urine sample, and concluded that it tested positive for the presence of shabu. When the prosecution presented the two plastic sachets in court, PO3 Salcedo positively identified them to be the same items he seized from the appellant. The prosecution thus established the crucial link in the chain of custody of the seized items from the time they were first seized until they were brought for examination and presented in court. Clearly, the integrity and the evidentiary value of the drugs seized from the appellant were duly proven not to have been compromised.
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Finally, we stress that the appellant failed to raise the buy-bust team's alleged non-compliance with Section 21, Article II of R.A. No. 9165 during trial; this argument cannot be raised for the first time on

appeal. At any rate, whatever minor deviations there might have been is not fatal, as failure to strictly comply with Section 21, Article II of R.A. No. 9165 will not necessarily render the items confiscated from an accused inadmissible; what is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as these are the evidence critical in the determination of the guilt or innocence of the accused.6 In the present case, we find sufficient compliance by the police with the required procedure on the custody and control of the seized items. The succession of events established by evidence shows that the items seized were the same items tested, and subsequently identified and testified to in court. WHEREFORE, the decision and the resolution of the Court of Appeals dated November 28, 2007 and March 6, 2008, respectively, in CA-G.R. CR-H.C. No. 02136 are AFFIRMED. SO ORDERED. G.R. No. 183891 October 19, 2011

ROMARICO J. MENDOZA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. R E SO L U T I O N BRION, J.: We resolve the motion for reconsideration filed by petitioner Romarico J. Mendoza seeking the reversal of ourDecision dated August 3, 2010. The Decision affirmed the petitioners conviction for his failure to remit the Social Security Service (SSS) contributions of his employees. The petitioner anchors the present motion on his supposed inclusion within the coverage of Republic Act (RA) No. 9903 or the Social Security Condonation Law of 2009, whose passage the petitioner claims to be a supervening event in his case. He further invokes the equal protection clause in support of his motion. In our Decision dated August 3, 2010, we AFFIRMED, with modification, the decree of conviction issued by both the trial and appellate courts for the petitioners violation of Section 22(a) and (d), in relation to Section 28 of RA No. 8282 or the Social Security Act of 1997. To recall its highlights, our Decision emphasized that the petitioner readily admitted during trial that he did not remit the SSS premium contributions of his employees at Summa Alta Tierra Industries, Inc. from August 1998 to July 1999, in the amount of P239,756.80; inclusive of penalties, this unremitted amount totaled to P421,151.09. The petitioners explanation for his failure to remit, which the trial court disbelieved, was that during this period, Summa Alta Tierra Industries, Inc. shut down as a result of the general decline in the economy. The petitioner pleaded good faith and lack of criminal intent as his defenses. We ruled that the decree of conviction was founded on proof beyond reasonable doubt, based on the following considerations: first, the remittance of employee contributions to the SSS is mandatory under RA No. 8282; and second, the failure to comply with a special law being malum prohibitum, the defenses of good faith and lack of criminal intent are immaterial. The petitioner further argued that since he was designated in the Information as a "proprietor," he was without criminal liability since "proprietors" are not among the corporate officers specifically enumerated in Section 28(f) of RA No. 8282 to be criminally liable for the violation of its provisions. We rejected this argument based on our ruling in Garcia v. Social Security Commission Legal and

Collection.1 We ruled that to sustain the petitioners argument would be to allow the unscrupulous to conveniently escape liability merely through the creative use of managerial titles. After taking into account the Indeterminate Penalty Law and Article 315 of the Revised Penal Code, we MODIFIEDthe penalty originally imposed by the trial court2 and, instead, decreed the penalty of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum. In the present motion for reconsideration, the petitioner points out that pending his appeal with the Court of Appeals (CA), he voluntarily paid the SSS the amount of P239,756.80 to settle his delinquency.3 Note that the petitioner also gave notice of this payment to the CA via a Motion for Reconsideration and a Motion for New Trial.Although the People did not contest the fact of voluntary payment, the CA nevertheless denied the said motions. The present motion for reconsideration rests on the following points: First. On January 7, 2010, during the pendency of the petitioners case before the Court, then President Gloria Macapagal-Arroyo signed RA No. 9903 into law. RA No. 9903 mandates the effective withdrawal of all pending cases against employers who would remit their delinquent contributions to the SSS within a specified period, viz., within six months after the laws effectivity.4 The petitioner claims that in view of RA No. 9903 and its implementing rules, the settlement of his delinquent contributions in 2007 entitles him to an acquittal. He invokes the equal protection clause in support of his plea. Second. The petitioner alternatively prays that should the Court find his above argument wanting, he should still be acquitted since the prosecution failed to prove all the elements of the crime charged. Third. The petitioner prays that a fine be imposed, not imprisonment, should he be found guilty. The Solicitor General filed a Manifestation In Lieu of Comment and claims that the passage of RA No. 9903 constituted a supervening event in the petitioners case that supports the petitioners acquittal "[a]fter a conscientious review of the case."5 THE COURTS RULING The petitioners arguments supporting his prayer for acquittal fail to convince us. However, we find basis to allow waiver of the petitioners liability for accrued penalties. The petitioners liability for the crime is a settled matter Upfront, we reject the petitioners claim that the prosecution failed to prove all the elements of the crime charged. This is a matter that has been resolved in our Decision, and the petitioner did not raise anything substantial to merit the reversal of our finding of guilt. To reiterate, the petitioners conviction was based on his admission that he failed to remit his employees contribution to the SSS. The petitioner cannot benefit from the terms of RA No. 9903, which condone only employers who pay their delinquencies within six months from the laws effectivity

We note that the petitioner does not ask for the reversal of his conviction based on the authority of RA No. 9903; he avoids making a straightforward claim because this law plainly does not apply to him or to others in the same situation. The clear intent of the law is to grant condonation only to employers with delinquent contributions or pending cases for their delinquencies and who pay their delinquencies within the six (6)-month period set by the law. Mere payment of unpaid contributions does not suffice; it is payment within, and only within, the six (6)-month availment period that triggers the applicability of RA No. 9903. True, the petitioners case was pending with us when RA No. 9903 was passed. Unfortunately for him, he paid his delinquent SSS contributions in 2007. By paying outside of the availment period, the petitioner effectively placed himself outside the benevolent sphere of RA No. 9903. This is how the law is written: it condones employers and only those employers with unpaid SSS contributions or with pending cases who pay within the six (6)-month period following the laws date of effectivity. Dura lex, sed lex. The petitioners awareness that RA No. 9903 operates as discussed above is apparent in his plea for equal protection. In his motion, he [he] is entitled under the equal protection clause to the dismissal of the case against him since he had already paid the subject delinquent contributions due to the SSS which accepted the payment as borne by the official receipt it issued (please see Annex "A"). The equal protection clause requires that similar subjects, [sic] should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The petitioner is no more no less in the same situation as the employer who would enjoy freedom from criminal prosecution upon payment in full of the delinquent contributions due and payable to the SSS within six months from the effectivity of Republic Act No. 9903.6 The Court cannot amplify the scope of RA No. 9903 on the ground of equal protection, and acquit the petitioner and other delinquent employers like him; it would in essence be an amendment of RA No. 9903, an act of judicial legislation abjured by the trias politica principle.7 RA No. 9903 creates two classifications of employers delinquent in remitting the SSS contributions of their employees: (1) those delinquent employers who pay within the six (6)-month period (the former group), and (2) those delinquent employers who pay outside of this availment period (the latter group). The creation of these two classes is obvious and unavoidable when Section 2 and the last proviso of Section 48 of the law are read together. The same provisions show the laws intent to limit the benefit of condonation to the former group only; had RA No. 9903 likewise intended to benefit the latter group, which includes the petitioner, it would have expressly declared so. Laws granting condonation constitute an act of benevolence on the governments part, similar to tax amnesty laws; their terms are strictly construed against the applicants. Since the law itself excludes the class of employers to which the petitioner belongs, no ground exists to justify his acquittal. An implementing rule or regulation must conform to and be consistent with the provisions of the enabling statute; it cannot amend the law either by abridging or expanding its scope.9 For the same reason, we cannot grant the petitioners prayer to impose a fine in lieu of imprisonment; neither RA No. 8282 nor RA No. 9903 authorizes the Court to exercise this option. On the matter of equal protection, we stated in Tolentino v. Board of Accountancy, et al.10 that the guarantee simply means "that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstances." In People v. Cayat,11 we further summarized the jurisprudence on equal protection in this wise:

It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. And the classification, to be reasonable, (1) must rest on substantial distinctions; (2) must be germane to the purposes of the law; (3) must not be limited to existing conditions only; and (4) must apply equally to all members of the same class. The difference in the dates of payment of delinquent contributions provides a substantial distinction between the two classes of employers. In limiting the benefits of RA No. 9903 to delinquent employers who pay within the six (6)-month period, the legislature refused to allow a sweeping, nondiscriminatory condonation to all delinquent employers, lest the policy behind RA No. 8282 be undermined.
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The petitioner is entitled to a waiver of his accrued penalties Despite our discussion above, the petitioners move to have our Decision reconsidered is not entirely futile. The one benefit the petitioner can obtain from RA No. 9903 is the waiver of his accrued penalties, which remain unpaid in the amount of P181,394.29. This waiver is derived from the last proviso of Section 4 of RA No. 9903: Provided, further, That for reason of equity, employers who settled arrears in contributions before the effectivity of this Act shall likewise have their accrued penalties waived. This proviso is applicable to the petitioner who settled his contributions long before the passage of the law. Applied to the petitioner, therefore, RA No. 9903 only works to allow a waiver of his accrued penalties, but not the reversal of his conviction.
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Referral to the Chief Executive for possible exercise of executive clemency We realize that with the affirmation of the petitioners conviction for violation of RA No. 8282, he stands to suffer imprisonment for four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years ofreclusion temporal, as maximum, notwithstanding the payment of his delinquent contribution. Under Article 5 of the Revised Penal Code,12 the courts are bound to apply the law as it is and impose the proper penalty, no matter how harsh it might be. The same provision, however, gives the Court the discretion to recommend to the President actions it deems appropriate but are beyond its power when it considers the penalty imposed as excessive. Although the petitioner was convicted under a special penal law, the Court is not precluded from giving the Revised Penal Code suppletory application in light of Article 1013 of the same Code and our ruling in People v. Simon.14 WHEREFORE, the Court PARTIALLY GRANTS petitioner Romarico J. Mendozas motion for reconsideration. The Court AFFIRMS the petitioners conviction for violation of Section 22(a) and (d), in relation to Section 28 of Republic Act No. 8282, and the petitioner is thus sentenced to an indeterminate prison term of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum. In light of Section 4 of Republic Act No. 9903, the petitioners liability for accrued penalties is considered WAIVED. Considering the circumstances of the case, the Court transmits the case to the Chief Executive, through the Department of Justice, and RECOMMENDS the grant of executive clemency to the petitioner. SO ORDERED.

G.R. No. 196271

October 18, 2011

DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH SAUPI, Petitioners, vs. SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the President Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO TAN, Treasurer of the Philippines,Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 196305 BASARI D. MAPUPUNO, Petitioner, vs. SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections, FLORENCIO ABAD, JR. in his capacity as Secretary of the Department of Budget and Management, PACQUITO OCHOA, JR., in his capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity as Senate President, and FELICIANO BELMONTE, in his capacity as Speaker of the House of Representatives, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 197221 REP. EDCEL C. LAGMAN, Petitioner, vs. PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the COMMISSION ON ELECTIONS, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 197280 ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-LABAN), Petitioners, vs. THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO B. ABAD, JR., in his capacity as Secretary of the Department of Budget and Management, and HON. ROBERTO B. TAN, in his capacity as Treasurer of the Philippines, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 197282

ATTY. ROMULO B. MACALINTAL, Petitioner, vs. COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 197392 LUIS "BAROK" BIRAOGO, Petitioner, vs. THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 197454 JACINTO V. PARAS, Petitioner, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and the COMMISSION ON ELECTIONS, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-Intervenor. DECISION BRION, J.: On June 30, 2011, Republic Act (RA) No. 10153, entitled "An Act Providing for the Synchronization of the Elections in the Autonomous Region in Muslim Mindanao (ARMM) with the National and Local Elections and for Other Purposes" was enacted. The law reset the ARMM elections from the 8th of August 2011, to the second Monday of May 2013 and every three (3) years thereafter, to coincide with the countrys regular national and local elections. The law as well granted the President the power to "appoint officers-in-charge (OICs) for the Office of the Regional Governor, the Regional Vice-Governor, and the Members of the Regional Legislative Assembly, who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office." Even before its formal passage, the bills that became RA No. 10153 already spawned petitions against their validity; House Bill No. 4146 and Senate Bill No. 2756 were challenged in petitions filed with this Court. These petitions multiplied after RA No. 10153 was passed. Factual Antecedents The State, through Sections 15 to 22, Article X of the 1987 Constitution, mandated the creation of autonomous regions in Muslim Mindanao and the Cordilleras. Section 15 states:

Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Section 18 of the Article, on the other hand, directed Congress to enact an organic act for these autonomous regions to concretely carry into effect the granted autonomy. Section 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. On August 1, 1989 or two years after the effectivity of the 1987 Constitution, Congress acted through Republic Act (RA) No. 6734 entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao." A plebiscite was held on November 6, 1990 as required by Section 18(2), Article X of RA No. 6734, thus fully establishing the Autonomous Region of Muslim Mindanao (ARMM). The initially assenting provinces were Lanao del Sur, Maguindanao, Sulu and Tawi-tawi. RA No. 6734 scheduled the first regular elections for the regional officials of the ARMM on a date not earlier than 60 days nor later than 90 days after its ratification. RA No. 9054 (entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended") was the next legislative act passed. This law provided further refinement in the basic ARMM structure first defined in the original organic act, and reset the regular elections for the ARMM regional officials to the second Monday of September 2001. Congress passed the next law affecting ARMM RA No. 91401 - on June 22, 2001. This law reset the first regular elections originally scheduled under RA No. 9054, to November 26, 2001. It likewise set the plebiscite to ratify RA No. 9054 to not later than August 15, 2001. RA No. 9054 was ratified in a plebiscite held on August 14, 2001. The province of Basilan and Marawi City voted to join ARMM on the same date. RA No. 93332 was subsequently passed by Congress to reset the ARMM regional elections to the 2nd Monday of August 2005, and on the same date every 3 years thereafter. Unlike RA No. 6734 and RA No. 9054, RA No. 9333 was not ratified in a plebiscite. Pursuant to RA No. 9333, the next ARMM regional elections should have been held on August 8, 2011. COMELEC had begun preparations for these elections and had accepted certificates of candidacies for the various regional offices to be elected. But on June 30, 2011, RA No. 10153 was

enacted, resetting the ARMM elections to May 2013, to coincide with the regular national and local elections of the country. RA No. 10153 originated in the House of Representatives as House Bill (HB) No. 4146, seeking the postponement of the ARMM elections scheduled on August 8, 2011. On March 22, 2011, the House of Representatives passed HB No. 4146, with one hundred ninety one (191) Members voting in its favor. After the Senate received HB No. 4146, it adopted its own version, Senate Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13) Senators voted favorably for its passage. On June 7, 2011, the House of Representative concurred with the Senate amendments, and on June 30, 2011, the President signed RA No. 10153 into law. As mentioned, the early challenge to RA No. 10153 came through a petition filed with this Court G.R. No. 1962713 - assailing the constitutionality of both HB No. 4146 and SB No. 2756, and challenging the validity of RA No. 9333 as well for non-compliance with the constitutional plebiscite requirement. Thereafter, petitioner Basari Mapupuno in G.R. No. 196305 filed another petition4 also assailing the validity of RA No. 9333. With the enactment into law of RA No. 10153, the COMELEC stopped its preparations for the ARMM elections. The law gave rise as well to the filing of the following petitions against its constitutionality: a) Petition for Certiorari and Prohibition5 filed by Rep. Edcel Lagman as a member of the House of Representatives against Paquito Ochoa, Jr. (in his capacity as the Executive Secretary) and the COMELEC, docketed as G.R. No. 197221; b) Petition for Mandamus and Prohibition6 filed by Atty. Romulo Macalintal as a taxpayer against the COMELEC, docketed as G.R. No. 197282; c) Petition for Certiorari and Mandamus, Injunction and Preliminary Injunction7 filed by Louis "Barok" Biraogo against the COMELEC and Executive Secretary Paquito N. Ochoa, Jr., docketed as G.R. No. 197392; and d) Petition for Certiorari and Mandamus8 filed by Jacinto Paras as a member of the House of Representatives against Executive Secretary Paquito Ochoa, Jr. and the COMELEC, docketed as G.R. No. 197454. Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as registered voters from the ARMM, with the Partido Demokratiko Pilipino Lakas ng Bayan (a political party with candidates in the ARMM regional elections scheduled for August 8, 2011), also filed a Petition for Prohibition and Mandamus9 against the COMELEC, docketed as G.R. No. 197280, to assail the constitutionality of RA No. 9140, RA No. 9333 and RA No. 10153. Subsequently, Anak Mindanao Party-List, Minority Rights Forum Philippines, Inc. and Bangsamoro Solidarity Movement filed their own Motion for Leave to Admit their Motion for Intervention and Comment-in-Intervention dated July 18, 2011. On July 26, 2011, the Court granted the motion. In the same Resolution, the Court ordered the consolidation of all the petitions relating to the constitutionality of HB No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153. Oral arguments were held on August 9, 2011 and August 16, 2011. Thereafter, the parties were instructed to submit their respective memoranda within twenty (20) days.

On September 13, 2011, the Court issued a temporary restraining order enjoining the implementation of RA No. 10153 and ordering the incumbent elective officials of ARMM to continue to perform their functions should these cases not be decided by the end of their term on September 30, 2011. The Arguments The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that these laws amend RA No. 9054 and thus, have to comply with the supermajority vote and plebiscite requirements prescribed under Sections 1 and 3, Article XVII of RA No. 9094 in order to become effective. The petitions assailing RA No. 10153 further maintain that it is unconstitutional for its failure to comply with the three-reading requirement of Section 26(2), Article VI of the Constitution. Also cited as grounds are the alleged violations of the right of suffrage of the people of ARMM, as well as the failure to adhere to the "elective and representative" character of the executive and legislative departments of the ARMM. Lastly, the petitioners challenged the grant to the President of the power to appoint OICs to undertake the functions of the elective ARMM officials until the officials elected under the May 2013 regular elections shall have assumed office. Corrolarily, they also argue that the power of appointment also gave the President the power of control over the ARMM, in complete violation of Section 16, Article X of the Constitution. The Issues From the parties submissions, the following issues were recognized and argued by the parties in the oral arguments of August 9 and 16, 2011: I. Whether the 1987 Constitution mandates the synchronization of elections II. Whether the passage of RA No. 10153 violates Section 26(2), Article VI of the 1987 Constitution III. Whether the passage of RA No. 10153 requires a supermajority vote and plebiscite A. Does the postponement of the ARMM regular elections constitute an amendment to Section 7, Article XVIII of RA No. 9054? B. Does the requirement of a supermajority vote for amendments or revisions to RA No. 9054 violate Section 1 and Section 16(2), Article VI of the 1987 Constitution and the corollary doctrine on irrepealable laws? C. Does the requirement of a plebiscite apply only in the creation of autonomous regions under paragraph 2, Section 18, Article X of the 1987 Constitution? IV. Whether RA No. 10153 violates the autonomy granted to the ARMM V. Whether the grant of the power to appoint OICs violates: A. Section 15, Article X of the 1987 Constitution B. Section 16, Article X of the 1987 Constitution

C. Section 18, Article X of the 1987 Constitution VI. Whether the proposal to hold special elections is constitutional and legal. We shall discuss these issues in the order they are presented above. OUR RULING We resolve to DISMISS the petitions and thereby UPHOLD the constitutionality of RA No. 10153 in toto. I. Synchronization as a recognized constitutional mandate The respondent Office of the Solicitor General (OSG) argues that the Constitution mandates synchronization, and in support of this position, cites Sections 1, 2 and 5, Article XVIII (Transitory Provisions) of the 1987 Constitution, which provides: Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987. The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area. Section 2. The Senators, Members of the House of Representatives and the local officials first elected under this Constitution shall serve until noon of June 30, 1992. Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall serve for six year and the remaining twelve for three years. xxx Section 5. The six-year term of the incumbent President and Vice President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. We agree with this position. While the Constitution does not expressly state that Congress has to synchronize national and local elections, the clear intent towards this objective can be gleaned from the Transitory Provisions (Article XVIII) of the Constitution,10 which show the extent to which the Constitutional Commission, by deliberately making adjustments to the terms of the incumbent officials, sought to attain synchronization of elections.11 The objective behind setting a common termination date for all elective officials, done among others through the shortening the terms of the twelve winning senators with the least number of votes, is to synchronize the holding of all future elections whether national or local to once every three

years.12 This intention finds full support in the discussions during the Constitutional Commission deliberations.13 These Constitutional Commission exchanges, read with the provisions of the Transitory Provisions of the Constitution, all serve as patent indicators of the constitutional mandate to hold synchronized national and local elections, starting the second Monday of May, 1992 and for all the following elections. This Court was not left behind in recognizing the synchronization of the national and local elections as a constitutional mandate. In Osmea v. Commission on Elections,14 we explained: It is clear from the aforequoted provisions of the 1987 Constitution that the terms of office of Senators, Members of the House of Representatives, the local officials, the President and the VicePresident have been synchronized to end on the same hour, date and year noon of June 30, 1992. It is likewise evident from the wording of the above-mentioned Sections that the term of synchronization is used synonymously as the phrase holding simultaneously since this is the precise intent in terminating their Office Tenure on the same day or occasion. This common termination date will synchronize future elections to once every three years (Bernas, the Constitution of the Republic of the Philippines, Vol. II, p. 605). That the election for Senators, Members of the House of Representatives and the local officials (under Sec. 2, Art. XVIII) will have to be synchronized with the election for President and Vice President (under Sec. 5, Art. XVIII) is likewise evident from the x x x records of the proceedings in the Constitutional Commission. [Emphasis supplied.] Although called regional elections, the ARMM elections should be included among the elections to be synchronized as it is a "local" election based on the wording and structure of the Constitution.
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A basic rule in constitutional construction is that the words used should be understood in the sense that they have in common use and given their ordinary meaning, except when technical terms are employed, in which case the significance thus attached to them prevails.15 As this Court explained in People v. Derilo,16 "[a]s the Constitution is not primarily a lawyers document, its language should be understood in the sense that it may have in common. Its words should be given their ordinary meaning except where technical terms are employed." Understood in its ordinary sense, the word "local" refers to something that primarily serves the needs of a particular limited district, often a community or minor political subdivision.17 Regional elections in the ARMM for the positions of governor, vice-governor and regional assembly representatives obviously fall within this classification, since they pertain to the elected officials who will serve within the limited region of ARMM. From the perspective of the Constitution, autonomous regions are considered one of the forms of local governments, as evident from Article X of the Constitution entitled "Local Government." Autonomous regions are established and discussed under Sections 15 to 21 of this Article the article wholly devoted to Local Government. That an autonomous region is considered a form of local government is also reflected in Section 1, Article X of the Constitution, which provides: Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao, and the Cordilleras as hereinafter provided.

Thus, we find the contention that the synchronization mandated by the Constitution does not include the regional elections of the ARMM unmeritorious. We shall refer to synchronization in the course of our discussions below, as this concept permeates the consideration of the various issues posed in this case and must be recalled time and again for its complete resolution. II. The Presidents Certification on the Urgency of RA No. 10153 The petitioners in G.R. No. 197280 also challenge the validity of RA No. 10153 for its alleged failure to comply with Section 26(2), Article VI of the Constitution18 which provides that before bills passed by either the House or the Senate can become laws, they must pass through three readings on separate days. The exception is when the President certifies to the necessity of the bills immediate enactment. The Court, in Tolentino v. Secretary of Finance,19 explained the effect of the Presidents certification of necessity in the following manner: The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, Section 26[2] qualifies the two stated conditions before a bill can become a law: [i] the bill has passed three readings on separate days and [ii] it has been printed in its final form and distributed three days before it is finally approved. xxx That upon the certification of a bill by the President, the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No. 5440, was passed on second and third readings in the House of Representatives on the same day [May 14, 1968] after the bill had been certified by the President as urgent. In the present case, the records show that the President wrote to the Speaker of the House of Representatives to certify the necessity of the immediate enactment of a law synchronizing the ARMM elections with the national and local elections.20 Following our Tolentino ruling, the Presidents certification exempted both the House and the Senate from having to comply with the three separate readings requirement. On the follow-up contention that no necessity existed for the immediate enactment of these bills since there was no public calamity or emergency that had to be met, again we hark back to our ruling in Tolentino: The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law Art. VII, Section 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, Section 23(2) is subject to judicial review because basic rights of individuals may be of hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review. [Emphasis supplied.] The House of Representatives and the Senate in the exercise of their legislative discretion gave full recognition to the Presidents certification and promptly enacted RA No. 10153. Under the

circumstances, nothing short of grave abuse of discretion on the part of the two houses of Congress can justify our intrusion under our power of judicial review.21 The petitioners, however, failed to provide us with any cause or justification for this course of action. Hence, while the judicial department and this Court are not bound by the acceptance of the President's certification by both the House of Representatives and the Senate, prudent exercise of our powers and respect due our co-equal branches of government in matters committed to them by the Constitution, caution a stay of the judicial hand.22 In any case, despite the Presidents certification, the two-fold purpose that underlies the requirement for three readings on separate days of every bill must always be observed to enable our legislators and other parties interested in pending bills to intelligently respond to them. Specifically, the purpose with respect to Members of Congress is: (1) to inform the legislators of the matters they shall vote on and (2) to give them notice that a measure is in progress through the enactment process.23 We find, based on the records of the deliberations on the law, that both advocates and the opponents of the proposed measure had sufficient opportunities to present their views. In this light, no reason exists to nullify RA No. 10153 on the cited ground. III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No. 9054 The effectivity of RA No. 9333 and RA No. 10153 has also been challenged because they did not comply with Sections 1 and 3, Article XVII of RA No. 9054 in amending this law. These provisions require: Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately. Section 3. Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision. We find no merit in this contention. In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No. 9054. As an examination of these laws will show, RA No. 9054 only provides for the schedule of the first ARMM elections and does not fix the date of the regular elections. A need therefore existed for the Congress to fix the date of the subsequent ARMM regular elections, which it did by enacting RA No. 9333 and thereafter, RA No. 10153. Obviously, these subsequent laws RA No. 9333 and RA No. 10153 cannot be considered amendments to RA No. 9054 as they did not change or revise any provision in the latter law; they merely filled in a gap in RA No. 9054 or supplemented the law by providing the date of the subsequent regular elections. This view that Congress thought it best to leave the determination of the date of succeeding ARMM elections to legislative discretion finds support in ARMMs recent history. To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First Organic Act RA No. 6734 not only did not fix the date of the subsequent elections; it did not even fix the specific date of the first ARMM elections,24 leaving the date to be fixed in another legislative

enactment. Consequently, RA No. 7647,25 RA No. 8176,26 RA No. 8746,27 RA No. 8753,28 and RA No. 901229 were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change or modify any part or provision of RA No. 6734, they were not amendments to this latter law. Consequently, there was no need to submit them to any plebiscite for ratification. The Second Organic Act RA No. 9054 which lapsed into law on March 31, 2001, provided that the first elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No. 914030to reset the date of the ARMM elections. Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress passed RA No. 9333,31 which further reset the date of the ARMM regional elections. Again, this law was not ratified through a plebiscite. From these legislative actions, we see the clear intention of Congress to treat the laws which fix the date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted consistently with this intent when it passed RA No. 10153 without requiring compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054. III. B. Supermajority voting requirement unconstitutional for giving RA No. 9054 the character of an irrepealable law Even assuming that RA No. 9333 and RA No. 10153 did in fact amend RA No. 9054, the supermajority (2/3) voting requirement required under Section 1, Article XVII of RA No. 905432 has to be struck down for giving RA No. 9054 the character of an irrepealable law by requiring more than what the Constitution demands. Section 16(2), Article VI of the Constitution provides that a "majority of each House shall constitute a quorum to do business." In other words, as long as majority of the members of the House of Representatives or the Senate are present, these bodies have the quorum needed to conduct business and hold session. Within a quorum, a vote of majority is generally sufficient to enact laws or approve acts. In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no less than two-thirds (2/3) of the Members of the House of Representatives and of the Senate, voting separately, in order to effectively amend RA No. 9054. Clearly, this 2/3 voting requirement is higher than what the Constitution requires for the passage of bills, and served to restrain the plenary powers of Congress to amend, revise or repeal the laws it had passed. The Courts pronouncement in City of Davao v. GSIS33 on this subject best explains the basis and reason for the unconstitutionality: Moreover, it would be noxious anathema to democratic principles for a legislative body to have the ability to bind the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they do the same plenary powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience. xxx A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of

repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes.34 (Emphasis ours.) Thus, while a supermajority is not a total ban against a repeal, it is a limitation in excess of what the Constitution requires on the passage of bills and is constitutionally obnoxious because it significantly constricts the future legislators room for action and flexibility. III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the plebiscite requirement found in Section 18, Article X of the Constitution The requirements of RA No. 9054 not only required an unwarranted supermajority, but enlarged as well the plebiscite requirement, as embodied in its Section 3, Article XVII of that Act. As we did on the supermajority requirement, we find the enlargement of the plebiscite requirement required under Section 18, Article X of the Constitution to be excessive to point of absurdity and, hence, a violation of the Constitution. Section 18, Article X of the Constitution states that the plebiscite is required only for the creation of autonomous regions and for determining which provinces, cities and geographic areas will be included in the autonomous regions. While the settled rule is that amendments to the Organic Act have to comply with the plebiscite requirement in order to become effective,35 questions on the extent of the matters requiring ratification may unavoidably arise because of the seemingly general terms of the Constitution and the obvious absurdity that would result if a plebiscite were to be required for every statutory amendment. Section 18, Article X of the Constitution plainly states that "The creation of the autonomous region shall be effective when approved by the majority of the votes case by the constituent units in a plebiscite called for the purpose." With these wordings as standard, we interpret the requirement to mean that only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act require ratification through a plebiscite. These amendments to the Organic Act are those that relate to: (a) the basic structure of the regional government; (b) the regions judicial system, i.e., the special courts with personal, family, and property law jurisdiction; and, (c) the grant and extent of the legislative powers constitutionally conceded to the regional government under Section 20, Article X of the Constitution.36 The date of the ARMM elections does not fall under any of the matters that the Constitution specifically mandated Congress to provide for in the Organic Act. Therefore, even assuming that the supermajority votes and the plebiscite requirements are valid, any change in the date of elections cannot be construed as a substantial amendment of the Organic Act that would require compliance with these requirements. IV. The synchronization issue As we discussed above, synchronization of national and local elections is a constitutional mandate that Congress must provide for and this synchronization must include the ARMM elections. On this point, an existing law in fact already exists RA No. 7166 as the forerunner of the current RA No. 10153. RA No. 7166 already provides for the synchronization of local elections with the national and congressional elections. Thus, what RA No. 10153 provides is an old matter for local governments (with the exception of barangay and Sanggunian Kabataan elections where the terms are not

constitutionally provided) and is technically a reiteration of what is already reflected in the law, given that regional elections are in reality local elections by express constitutional recognition.37 To achieve synchronization, Congress necessarily has to reconcile the schedule of the ARMMs regular elections (which should have been held in August 2011 based on RA No. 9333) with the fixed schedule of the national and local elections (fixed by RA No. 7166 to be held in May 2013). During the oral arguments, the Court identified the three options open to Congress in order to resolve this problem. These options are: (1) to allow the elective officials in the ARMM to remain in office in a hold over capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until those elected in the synchronized elections assume office;38 (2) to hold special elections in the ARMM, with the terms of those elected to expire when those elected in the synchronized elections assume office; or (3) to authorize the President to appoint OICs, pursuant to Section 3 of RA No. 10153, also until those elected in the synchronized elections assume office. As will be abundantly clear in the discussion below, Congress, in choosing to grant the President the power to appoint OICs, chose the correct option and passed RA No. 10153 as a completely valid law. V. The Constitutionality of RA No. 10153 A. Basic Underlying Premises To fully appreciate the available options, certain underlying material premises must be fully understood. The first is the extent of the powers of Congress to legislate; the second is the constitutional mandate for the synchronization of elections; and the third is on the concept of autonomy as recognized and established under the 1987 Constitution. The grant of legislative power to Congress is broad, general and comprehensive.39 The legislative body possesses plenary power for all purposes of civil government.40 Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere.41 Except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to all matters of general concern or common interest.42 The constitutional limitations on legislative power are either express or implied. The express limitations are generally provided in some provisions of the Declaration of Principles and State Policies (Article 2) and in the provisions Bill of Rights (Article 3). Other constitutional provisions (such as the initiative and referendum clause of Article 6, Sections 1 and 32, and the autonomy provisions of Article X) provide their own express limitations. The implied limitations are found "in the evident purpose which was in view and the circumstances and historical events which led to the enactment of the particular provision as a part of organic law."43 The constitutional provisions on autonomy specifically, Sections 15 to 21 of Article X of the Constitution constitute express limitations on legislative power as they define autonomy, its requirements and its parameters, thus limiting what is otherwise the unlimited power of Congress to legislate on the governance of the autonomous region. Of particular relevance to the issues of the present case are the limitations posed by the prescribed basic structure of government i.e., that the government must have an executive department and a legislative assembly, both of which must be elective and representative of the constituent political units; national government, too, must not encroach on the legislative powers granted under Section

20, Article X. Conversely and as expressly reflected in Section 17, Article X, "all powers and functions not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government." The totality of Sections 15 to 21 of Article X should likewise serve as a standard that Congress must observe in dealing with legislation touching on the affairs of the autonomous regions. The terms of these sections leave no doubt on what the Constitution intends the idea of self-rule or selfgovernment, in particular, the power to legislate on a wide array of social, economic and administrative matters. But equally clear under these provisions are the permeating principles of national sovereignty and the territorial integrity of the Republic, as expressed in the above-quoted Section 17 and in Section 15.44 In other words, the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio45 in the relationship between the national and the regional governments. In relation with synchronization, both autonomy and the synchronization of national and local elections are recognized and established constitutional mandates, with one being as compelling as the other. If their compelling force differs at all, the difference is in their coverage; synchronization operates on and affects the whole country, while regional autonomy as the term suggests directly carries a narrower regional effect although its national effect cannot be discounted. These underlying basic concepts characterize the powers and limitations of Congress when it acted on RA No. 10153. To succinctly describe the legal situation that faced Congress then, its decision to synchronize the regional elections with the national, congressional and all other local elections (save for barangay and sangguniang kabataan elections) left it with the problem of how to provide the ARMM with governance in the intervening period between the expiration of the term of those elected in August 2008 and the assumption to office twenty-one (21) months away of those who will win in the synchronized elections on May 13, 2013. The problem, in other words, was for interim measures for this period, consistent with the terms of the Constitution and its established supporting jurisprudence, and with the respect due to the concept of autonomy. Interim measures, to be sure, is not a strange phenomenon in the Philippine legal landscape. The Constitutions Transitory Provisions themselves collectively provide measures for transition from the old constitution to the new46and for the introduction of new concepts.47 As previously mentioned, the adjustment of elective terms and of elections towards the goal of synchronization first transpired under the Transitory Provisions. The adjustments, however, failed to look far enough or deeply enough, particularly into the problems that synchronizing regional autonomous elections would entail; thus, the present problem is with us today. The creation of local government units also represents instances when interim measures are required. In the creation of Quezon del Sur48 and Dinagat Islands,49 the creating statutes authorized the President to appoint an interim governor, vice-governor and members of the sangguniang panlalawigan although these positions are essentially elective in character; the appointive officials were to serve until a new set of provincial officials shall have been elected and qualified.50 A similar authority to appoint is provided in the transition of a local government from a sub-province to a province.51 In all these, the need for interim measures is dictated by necessity; out-of-the-way arrangements and approaches were adopted or used in order to adjust to the goal or objective in sight in a manner that does not do violence to the Constitution and to reasonably accepted norms. Under these limitations, the choice of measures was a question of wisdom left to congressional discretion.

To return to the underlying basic concepts, these concepts shall serve as the guideposts and markers in our discussion of the options available to Congress to address the problems brought about by the synchronization of the ARMM elections, properly understood as interim measures that Congress had to provide. The proper understanding of the options as interim measures assume prime materiality as it is under these terms that the passage of RA No. 10153 should be measured, i.e., given the constitutional objective of synchronization that cannot legally be faulted, did Congress gravely abuse its discretion or violate the Constitution when it addressed through RA No. 10153 the concomitant problems that the adjustment of elections necessarily brought with it? B. Holdover Option is Unconstitutional We rule out the first option holdover for those who were elected in executive and legislative positions in the ARMM during the 2008-2011 term as an option that Congress could have chosen because a holdover violates Section 8, Article X of the Constitution. This provision states: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. [emphases ours] Since elective ARMM officials are local officials, they are covered and bound by the three-year term limit prescribed by the Constitution; they cannot extend their term through a holdover. As this Court put in Osmea v. COMELEC:52 It is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify within the time. In American Jurisprudence it has been stated as follows: "It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as limited by the Constitution." [Emphasis ours.] Independently of the Osmea ruling, the primacy of the Constitution as the supreme law of the land dictates that where the Constitution has itself made a determination or given its mandate, then the matters so determined or mandated should be respected until the Constitution itself is changed by amendment or repeal through the applicable constitutional process. A necessary corollary is that none of the three branches of government can deviate from the constitutional mandate except only as the Constitution itself may allow.53 If at all, Congress may only pass legislation filing in details to fully operationalize the constitutional command or to implement it by legislation if it is non-selfexecuting; this Court, on the other hand, may only interpret the mandate if an interpretation is appropriate and called for.54 In the case of the terms of local officials, their term has been fixed clearly and unequivocally, allowing no room for any implementing legislation with respect to the fixed term itself and no vagueness that would allow an interpretation from this Court. Thus, the term of three years for local officials should stay at three (3) years as fixed by the Constitution and cannot be extended by holdover by Congress.

If it will be claimed that the holdover period is effectively another term mandated by Congress, the net result is for Congress to create a new term and to appoint the occupant for the new term. This view like the extension of the elective term is constitutionally infirm because Congress cannot do indirectly what it cannot do directly, i.e., to act in a way that would effectively extend the term of the incumbents. Indeed, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.55 Congress cannot also create a new term and effectively appoint the occupant of the position for the new term. This is effectively an act of appointment by Congress and an unconstitutional intrusion into the constitutional appointment power of the President.56 Hence, holdover whichever way it is viewed is a constitutionally infirm option that Congress could not have undertaken. Jurisprudence, of course, is not without examples of cases where the question of holdover was brought before, and given the imprimatur of approval by, this Court. The present case though differs significantly from past cases with contrary rulings, particularly from Sambarani v. COMELEC,57 Adap v. Comelec,58 and Montesclaros v. Comelec,59 where the Court ruled that the elective officials could hold on to their positions in a hold over capacity. All these past cases refer to elective barangay or sangguniang kabataan officials whose terms of office are not explicitly provided for in the Constitution; the present case, on the other hand, refers to local elective officials the ARMM Governor, the ARMM Vice-Governor, and the members of the Regional Legislative Assembly whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution. Because of their constitutionally limited term, Congress cannot legislate an extension beyond the term for which they were originally elected. Even assuming that holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA No. 9054) in the past,60 we have to remember that the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident.61 Congress, in passing RA No. 10153, made it explicitly clear that it had the intention of suppressing the holdover rule that prevailed under RA No. 9054 by completely removing this provision. The deletion is a policy decision that is wholly within the discretion of Congress to make in the exercise of its plenary legislative powers; this Court cannot pass upon questions of wisdom, justice or expediency of legislation,62 except where an attendant unconstitutionality or grave abuse of discretion results. C. The COMELEC has no authority to order special elections Another option proposed by the petitioner in G.R. No. 197282 is for this Court to compel COMELEC to immediately conduct special elections pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881. The power to fix the date of elections is essentially legislative in nature, as evident from, and exemplified by, the following provisions of the Constitution: Section 8, Article VI, applicable to the legislature, provides: Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. [Emphasis ours] Section 4(3), Article VII, with the same tenor but applicable solely to the President and VicePresident, states:

xxxx Section 4. xxx Unless otherwise provided by law, the regular election for President and VicePresident shall be held on the second Monday of May. [Emphasis ours] while Section 3, Article X, on local government, provides: Section 3. The Congress shall enact a local government code which shall provide for xxx the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials[.] [Emphases ours] These provisions support the conclusion that no elections may be held on any other date for the positions of President, Vice President, Members of Congress and local officials, except when so provided by another Act of Congress, or upon orders of a body or officer to whom Congress may have delegated either the power or the authority to ascertain or fill in the details in the execution of that power.63 Notably, Congress has acted on the ARMM elections by postponing the scheduled August 2011 elections and setting another date May 13, 2011 for regional elections synchronized with the presidential, congressional and other local elections. By so doing, Congress itself has made a policy decision in the exercise of its legislative wisdom that it shall not call special elections as an adjustment measure in synchronizing the ARMM elections with the other elections. After Congress has so acted, neither the Executive nor the Judiciary can act to the contrary by ordering special elections instead at the call of the COMELEC. This Court, particularly, cannot make this call without thereby supplanting the legislative decision and effectively legislating. To be sure, the Court is not without the power to declare an act of Congress null and void for being unconstitutional or for having been exercised in grave abuse of discretion.64 But our power rests on very narrow ground and is merely to annul a contravening act of Congress; it is not to supplant the decision of Congress nor to mandate what Congress itself should have done in the exercise of its legislative powers. Thus, contrary to what the petition in G.R. No. 197282 urges, we cannot compel COMELEC to call for special elections. Furthermore, we have to bear in mind that the constitutional power of the COMELEC, in contrast with the power of Congress to call for, and to set the date of, elections, is limited to enforcing and administering all laws and regulations relative to the conduct of an election.65 Statutorily, COMELEC has no power to call for the holding of special elections unless pursuant to a specific statutory grant. True, Congress did grant, via Sections 5 and 6 of BP 881, COMELEC with the power to postpone elections to another date. However, this power is limited to, and can only be exercised within, the specific terms and circumstances provided for in the law. We quote: Section 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect.

Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [Emphasis ours] A close reading of Section 5 of BP 881 reveals that it is meant to address instances where elections have already been scheduled to take place but have to be postponed because of (a) violence, (b) terrorism, (c) loss or destruction of election paraphernalia or records, (d) force majeure, and (e) other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision. Under the principle of ejusdem generis, the term "analogous causes" will be restricted to those unforeseen or unexpected events that prevent the holding of the scheduled elections. These "analogous causes" are further defined by the phrase "of such nature that the holding of a free, orderly and honest election should become impossible." Similarly, Section 6 of BP 881 applies only to those situations where elections have already been scheduled but do not take place because of (a) force majeure, (b) violence, (c) terrorism, (d) fraud, or (e) other analogous causes the election in any polling place has not been held on the date fixed, or had been suspendedbefore the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect. As in Section 5 of BP 881, Section 6 addresses instances where the elections do not occur or had to be suspended because of unexpected and unforeseen circumstances. In the present case, the postponement of the ARMM elections is by law i.e., by congressional policy and is pursuant to the constitutional mandate of synchronization of national and local elections. By no stretch of the imagination can these reasons be given the same character as the circumstances contemplated by Section 5 or Section 6 of BP 881, which all pertain to extralegal causes that obstruct the holding of elections. Courts, to be sure, cannot enlarge the scope of a statute under the guise of interpretation, nor include situations not provided nor intended by the lawmakers.66 Clearly, neither Section 5 nor Section 6 of BP 881 can apply to the present case and this Court has absolutely no legal basis to compel the COMELEC to hold special elections. D. The Court has no power to shorten the terms of elective officials Even assuming that it is legally permissible for the Court to compel the COMELEC to hold special elections, no legal basis likewise exists to rule that the newly elected ARMM officials shall hold office only until the ARMM officials elected in the synchronized elections shall have assumed office. In the first place, the Court is not empowered to adjust the terms of elective officials. Based on the Constitution, the power to fix the term of office of elective officials, which can be exercised only in the case of barangay officials,67 is specifically given to Congress. Even Congress itself may be denied such power, as shown when the Constitution shortened the terms of twelve Senators obtaining the least votes,68 and extended the terms of the President and the Vice-President69 in order to synchronize elections; Congress was not granted this same power. The settled rule is that terms fixed by the Constitution cannot be changed by mere statute.70 More particularly, not even Congress

and certainly not this Court, has the authority to fix the terms of elective local officials in the ARMM for less, or more, than the constitutionally mandated three years71 as this tinkering would directly contravene Section 8, Article X of the Constitution as we ruled in Osmena. Thus, in the same way that the term of elective ARMM officials cannot be extended through a holdover, the term cannot be shortened by putting an expiration date earlier than the three (3) years that the Constitution itself commands. This is what will happen a term of less than two years if a call for special elections shall prevail. In sum, while synchronization is achieved, the result is at the cost of a violation of an express provision of the Constitution. Neither we nor Congress can opt to shorten the tenure of those officials to be elected in the ARMM elections instead of acting on their term (where the "term" means the time during which the officer may claim to hold office as of right and fixes the interval after which the several incumbents shall succeed one another, while the "tenure" represents the term during which the incumbent actually holds the office).72 As with the fixing of the elective term, neither Congress nor the Court has any legal basis to shorten the tenure of elective ARMM officials. They would commit an unconstitutional act and gravely abuse their discretion if they do so. E. The Presidents Power to Appoint OICs The above considerations leave only Congress chosen interim measure RA No. 10153 and the appointment by the President of OICs to govern the ARMM during the pre-synchronization period pursuant to Sections 3, 4 and 5 of this law as the only measure that Congress can make. This choice itself, however, should be examined for any attendant constitutional infirmity. At the outset, the power to appoint is essentially executive in nature, and the limitations on or qualifications to the exercise of this power should be strictly construed; these limitations or qualifications must be clearly stated in order to be recognized.73 The appointing power is embodied in Section 16, Article VII of the Constitution, which states: Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [emphasis ours] This provision classifies into four groups the officers that the President can appoint. These are: First, the heads of the executive departments; ambassadors; other public ministers and consuls; officers of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other officers whose appointments are vested in the President in this Constitution; Second, all other officers of the government whose appointments are not otherwise provided for by law; Third, those whom the President may be authorized by law to appoint; and

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.74 Since the Presidents authority to appoint OICs emanates from RA No. 10153, it falls under the third group of officials that the President can appoint pursuant to Section 16, Article VII of the Constitution. Thus, the assailed law facially rests on clear constitutional basis. If at all, the gravest challenge posed by the petitions to the authority to appoint OICs under Section 3 of RA No. 10153 is the assertion that the Constitution requires that the ARMM executive and legislative officials to be "elective and representative of the constituent political units." This requirement indeed is an express limitation whose non-observance in the assailed law leaves the appointment of OICs constitutionally defective. After fully examining the issue, we hold that this alleged constitutional problem is more apparent than real and becomes very real only if RA No. 10153 were to be mistakenly read as a law that changes the elective and representative character of ARMM positions. RA No. 10153, however, does not in any way amend what the organic law of the ARMM (RA No. 9054) sets outs in terms of structure of governance. What RA No. 10153 in fact only does is to "appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office." This power is far different from appointing elective ARMM officials for the abbreviated term ending on the assumption to office of the officials elected in the May 2013 elections. As we have already established in our discussion of the supermajority and plebiscite requirements, the legal reality is that RA No. 10153 did not amend RA No. 9054. RA No. 10153, in fact, provides only for synchronization of elections and for the interim measures that must in the meanwhile prevail. And this is how RA No. 10153 should be read in the manner it was written and based on its unambiguous facial terms.75 Aside from its order for synchronization, it is purely and simply an interim measure responding to the adjustments that the synchronization requires. Thus, the appropriate question to ask is whether the interim measure is an unreasonable move for Congress to adopt, given the legal situation that the synchronization unavoidably brought with it. In more concrete terms and based on the above considerations, given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the Presidents power to appoint for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution an unconstitutional or unreasonable choice for Congress to make? Admittedly, the grant of the power to the President under other situations or where the power of appointment would extend beyond the adjustment period for synchronization would be to foster a government that is not "democratic and republican." For then, the peoples right to choose the leaders to govern them may be said to be systemically withdrawn to the point of fostering an undemocratic regime. This is the grant that would frontally breach the "elective and representative" governance requirement of Section 18, Article X of the Constitution. But this conclusion would not be true under the very limited circumstances contemplated in RA No. 10153 where the period is fixed and, more importantly, the terms of governance both under Section 18, Article X of the Constitution and RA No. 9054 will not systemically be touched nor affected at all. To repeat what has previously been said, RA No. 9054 will govern unchanged and continuously, with full effect in accordance with the Constitution, save only for the interim and temporary measures that synchronization of elections requires.

Viewed from another perspective, synchronization will temporarily disrupt the election process in a local community, the ARMM, as well as the communitys choice of leaders, but this will take place under a situation of necessity and as an interim measure in the manner that interim measures have been adopted and used in the creation of local government units76 and the adjustments of subprovinces to the status of provinces.77 These measures, too, are used in light of the wider national demand for the synchronization of elections (considered vis--vis the regional interests involved). The adoption of these measures, in other words, is no different from the exercise by Congress of the inherent police power of the State, where one of the essential tests is the reasonableness of the interim measure taken in light of the given circumstances. Furthermore, the "representative" character of the chosen leaders need not necessarily be affected by the appointment of OICs as this requirement is really a function of the appointment process; only the "elective" aspect shall be supplanted by the appointment of OICs. In this regard, RA No. 10153 significantly seeks to address concerns arising from the appointments by providing, under Sections 3, 4 and 5 of the assailed law, concrete terms in the Appointment of OIC, the Manner and Procedure of Appointing OICs, and their Qualifications. Based on these considerations, we hold that RA No. 10153 viewed in its proper context is a law that is not violative of the Constitution (specifically, its autonomy provisions), and one that is reasonable as well under the circumstances. VI. Other Constitutional Concerns Outside of the above concerns, it has been argued during the oral arguments that upholding the constitutionality of RA No. 10153 would set a dangerous precedent of giving the President the power to cancel elections anywhere in the country, thus allowing him to replace elective officials with OICs. This claim apparently misunderstands that an across-the-board cancellation of elections is a matter for Congress, not for the President, to address. It is a power that falls within the powers of Congress in the exercise of its legislative powers. Even Congress, as discussed above, is limited in what it can legislatively undertake with respect to elections. If RA No. 10153 cancelled the regular August 2011 elections, it was for a very specific and limited purpose the synchronization of elections. It was a temporary means to a lasting end the synchronization of elections. Thus, RA No. 10153 and the support that the Court gives this legislation are likewise clear and specific, and cannot be transferred or applied to any other cause for the cancellation of elections. Any other localized cancellation of elections and call for special elections can occur only in accordance with the power already delegated by Congress to the COMELEC, as above discussed. Given that the incumbent ARMM elective officials cannot continue to act in a holdover capacity upon the expiration of their terms, and this Court cannot compel the COMELEC to conduct special elections, the Court now has to deal with the dilemma of a vacuum in governance in the ARMM. To emphasize the dire situation a vacuum brings, it should not be forgotten that a period of 21 months or close to 2 years intervenes from the time that the incumbent ARMM elective officials terms expired and the time the new ARMM elective officials begin their terms in 2013. As the lessons of our Mindanao history past and current teach us, many developments, some of them critical and adverse, can transpire in the countrys Muslim areas in this span of time in the way they transpired in the past.78 Thus, it would be reckless to assume that the presence of an acting ARMM Governor, an acting Vice-Governor and a fully functioning Regional Legislative Assembly can be

done away with even temporarily. To our mind, the appointment of OICs under the present circumstances is an absolute necessity. Significantly, the grant to the President of the power to appoint OICs to undertake the functions of the elective members of the Regional Legislative Assembly is neither novel nor innovative. We hark back to our earlier pronouncement in Menzon v. Petilla, etc., et al.:79 It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise. A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government. In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs is, to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing.80 (Emphasis ours.) As in Menzon, leaving the positions of ARMM Governor, Vice Governor, and members of the Regional Legislative Assembly vacant for 21 months, or almost 2 years, would clearly cause disruptions and delays in the delivery of basic services to the people, in the proper management of the affairs of the regional government, and in responding to critical developments that may arise. When viewed in this context, allowing the President in the exercise of his constitutionally-recognized appointment power to appoint OICs is, in our judgment, a reasonable measure to take. B. Autonomy in the ARMM It is further argued that while synchronization may be constitutionally mandated, it cannot be used to defeat or to impede the autonomy that the Constitution granted to the ARMM. Phrased in this manner, one would presume that there exists a conflict between two recognized Constitutional mandates synchronization and regional autonomy such that it is necessary to choose one over the other. We find this to be an erroneous approach that violates a basic principle in constitutional construction ut magis valeat quam pereat: that the Constitution is to be interpreted as a whole,81 and one mandate should not be given importance over the other except where the primacy of one over the other is clear.82 We refer to the Courts declaration in Ang-Angco v. Castillo, et al.,83 thus: A provision of the constitution should not be construed in isolation from the rest. Rather, the constitution must be interpreted as a whole, and apparently, conflicting provisions should be reconciled and harmonized in a manner that may give to all of them full force and effect. [Emphasis supplied.]

Synchronization is an interest that is as constitutionally entrenched as regional autonomy. They are interests that this Court should reconcile and give effect to, in the way that Congress did in RA No. 10153 which provides the measure to transit to synchronized regional elections with the least disturbance on the interests that must be respected. Particularly, regional autonomy will be respected instead of being sidelined, as the law does not in any way alter, change or modify its governing features, except in a very temporary manner and only as necessitated by the attendant circumstances. Elsewhere, it has also been argued that the ARMM elections should not be synchronized with the national and local elections in order to maintain the autonomy of the ARMM and insulate its own electoral processes from the rough and tumble of nationwide and local elections. This argument leaves us far from convinced of its merits. As heretofore mentioned and discussed, while autonomous regions are granted political autonomy, the framers of the Constitution never equated autonomy with independence. The ARMM as a regional entity thus continues to operate within the larger framework of the State and is still subject to the national policies set by the national government, save only for those specific areas reserved by the Constitution for regional autonomous determination. As reflected during the constitutional deliberations of the provisions on autonomous regions: Mr. Bennagen. xxx We do not see here a complete separation from the central government, but rather an efficient working relationship between the autonomous region and the central government. We see this as an effective partnership, not a separation. Mr. Romulo. Therefore, complete autonomy is not really thought of as complete independence. Mr. Ople. We define it as a measure of self-government within the larger political framework of the nation.84[Emphasis supplied.] This exchange of course is fully and expressly reflected in the above-quoted Section 17, Article X of the Constitution, and by the express reservation under Section 1 of the same Article that autonomy shall be "within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines." Interestingly, the framers of the Constitution initially proposed to remove Section 17 of Article X, believing it to be unnecessary in light of the enumeration of powers granted to autonomous regions in Section 20, Article X of the Constitution. Upon further reflection, the framers decided to reinstate the provision in order to "make it clear, once and for all, that these are the limits of the powers of the autonomous government. Those not enumerated are actually to be exercised by the national government[.]"85 Of note is the Courts pronouncement in Pimentel, Jr. v. Hon. Aguirre86 which we quote: Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress. [Emphasis ours.]

In other words, the autonomy granted to the ARMM cannot be invoked to defeat national policies and concerns. Since the synchronization of elections is not just a regional concern but a national one, the ARMM is subject to it; the regional autonomy granted to the ARMM cannot be used to exempt the region from having to act in accordance with a national policy mandated by no less than the Constitution. Conclusion Congress acted within its powers and pursuant to a constitutional mandate the synchronization of national and local elections when it enacted RA No. 10153. This Court cannot question the manner by which Congress undertook this task; the Judiciary does not and cannot pass upon questions of wisdom, justice or expediency of legislation.87 As judges, we can only interpret and apply the law and, despite our doubts about its wisdom, cannot repeal or amend it.88 Nor can the Court presume to dictate the means by which Congress should address what is essentially a legislative problem. It is not within the Courts power to enlarge or abridge laws; otherwise, the Court will be guilty of usurping the exclusive prerogative of Congress.89 The petitioners, in asking this Court to compel COMELEC to hold special elections despite its lack of authority to do so, are essentially asking us to venture into the realm of judicial legislation, which is abhorrent to one of the most basic principles of a republican and democratic government the separation of powers. The petitioners allege, too, that we should act because Congress acted with grave abuse of discretion in enacting RA No. 10153. Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of the law as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.90 We find that Congress, in passing RA No. 10153, acted strictly within its constitutional mandate. Given an array of choices, it acted within due constitutional bounds and with marked reasonableness in light of the necessary adjustments that synchronization demands. Congress, therefore, cannot be accused of any evasion of a positive duty or of a refusal to perform its duty. We thus find no reason to accord merit to the petitioners claims of grave abuse of discretion. On the general claim that RA No. 10153 is unconstitutional, we can only reiterate the established rule that every statute is presumed valid.91 Congress, thus, has in its favor the presumption of constitutionality of its acts, and the party challenging the validity of a statute has the onerous task of rebutting this presumption.92 Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality.93 As this Court declared inGarcia v. Executive Secretary:94 The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.95 [Emphasis ours.] Given the failure of the petitioners to rebut the presumption of constitutionality in favor of RA No. 10153, we must support and confirm its validity.

WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the temporary restraining order we issued in our Resolution of September 13, 2011. No costs. SO ORDERED. G.R. No. 187497 October 12, 2011

THE PEOPLE OF THE PHILIPPINES, Appellee, vs. MELANIO GALO alias "DODO" and "EDGAR," alias "ALDO," alias "YOCYOC," alias "DODO," alias "JIMMY," alias "JOSEPH," alias "DINDO," and alias "G.R.," Accused, EDWIN VILLAMOR alias "TATA," Appellant. DECISION BRION, J.: We resolve in this Decision the appeal from the November 21, 2008 decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00224-MIN. The CA sustained (with modification) the Regional Trial Court (RTC), Branch 19, Digos City, Davao del Sur, whose decision2 found Edwin Villamor alias "Tata" (appellant) guilty beyond reasonable doubt of murder, and imposed on him the penalty of reclusion perpetua. ANTECEDENT FACTS In an Information dated May 9, 2001, the prosecution charged the appellant and eight (8) other coaccused3 with the crime of murder. Out of the nine (9) accused, only the appellant was apprehended, while the others remained at large. The appellant was arraigned and pleaded not guilty to the charge.4 During the trial, the prosecution presented the following witnesses: Jose Valderama; Francisco Anuada; Demencita Matutis; Leonora Resuelo;Barangay Captain Estremos Acyo; and Rodolfo Doong. For the defense, the appellant was presented as witness. Jose, a relative of the victim Ruben Resuelo, Sr., recalled that he was outside his house in Sitio Caran-caran, Goma, Digos City, Davao del Sur, in the afternoon of October 9, 2000, when the appellant, Melanio Galo, and three (3) other men armed with Garand and M14 Armalite rifles passed by, and walked behind the "hog-tied" Resuelo, Sr.5 He went to his aunts house in Barangay Dulangan, and reported what he saw. After learning of Resuelo, Sr.s death, he concluded that the appellant and his companions were responsible for his death.6 Francisco narrated that at midnight of October 9, 2000, he was sleeping in his house in Camalig when two armed (2) men woke him up, and borrowed a "guna" (bolo) from him; they also told him that they would bury Resuelo, Sr.s body. They then warned him of the consequences if the appellants body would be discovered. While walking on his farm the next day, Francisco saw a shallow grave with a hand protruding from the soil; he also saw three (3) men near the grave. He requested them to transfer the body to another place as he might be implicated in the crime.7 On October 11, 2000, he discovered that the body had been buried at another portion of his farm. He reported the matter to Barangay Captain Acyo, and accompanied him to the place where the body had been buried. Thereafter, he assisted the barangay officials and some residents in digging out the body.8Francisco likewise testified that Resuelo, Sr.s face bore substantial damage and that his arms and feet were hog-tied.

Demencita testified that on the evening of October 3, 2000, the appellant and eight (8) other armed personswent to her house, and asked if they could stay there for the night. The appellant and Melanio stayed there until October 9, 2000, while their companions transferred from one house to another. On the evening of October 9, 2000, she learned that Resuelo, Sr. had been missing after the latters children asked her about their fathers whereabouts.9 Leonora, the victims wife, testified that at 6:00 a.m. of October 11, 2000, her son, Ruben Resuelo, Jr., arrived at her house and informed her that Resuelo, Sr. had been missing since October 9, 2000. Leonora and her two other children immediately went to Sitio Caran-caran, Goma, Digos City, to search for Resuelo, Sr. She failed to locate him, leading her to inform Barangay Captain Acyo that her husband had been missing. Barangay Captain Acyo called for a meeting, and then requested his constituents to disclose any information they might have regarding Resuelo, Sr.s whereabouts. During this meeting, Nonito Calvo acknowledged that a man had been buried at Franciscos vegetable farm. Barangay Captain Acyo and his men proceeded to Franciscos farm, dug up the body, and brought it to the barangay hall for identification. According to Leonora, her husbands body bore seven stab wounds.10 Barangay Captain Acyos testimony was aptly summarized by the RTC, as follows: He was informed that Edwin Villamor surrendered in Kiblawan in connection with the death of Resuelo. At the request of Edwins mother, he went to see Edwin Villamor when he was detained in the Provincial Rehabilitation Center (PRC). Edwin denied being involved in the killing of Resuelo stating that the perpetrators were his companions[,] namely: Aldo, Melanio Galo, Edgar, alias Yokyok, alias Jimmy or Joseph, alias Dodo and alias G.R. Edwin said he was in Kamalig when Resuelo was killed. Asked why he surrendered, Edwin told him he was tired hiding in the mountains. Edwin admitted to him of being a member of the NPA.11 In his defense, the appellant confirmed that he was once a member of the New Peoples Army (NPA) assigned in Camandag, Makilala, but left the organization in May 2001. He denied any participation in Resuelo, Sr.s death, and maintained that he was in Makilala at the time of the incident. In April 2001, he surrendered to the barangaycaptain of Balugan, who, in turn, brought him to the chief of police. The chief of police presented him to Cotabato Governor Manny Piol, who offered him and six (6) other surrendered rebels livelihood projects.12 After some time, he went to the office of Davao del Sur Governor Roger Llanos to secure a recommendation letter for a job in Makilala, but the police arrested him. He denied any participation in the death of Resuelo, Sr. when BarangayCaptain Acyo visited him in jail.13 The RTC, in its September 25, 2003 decision, found the appellant guilty beyond reasonable doubt of the crime of murder, and sentenced him to suffer the penalty of reclusion perpetua. The RTC also ordered him to pay the victims heirs P50,000.00 as civil indemnity and P50,000.00 as actual damages. It likewise ordered the case against the other accused to be archived, subject to reinstatement upon their arrest.14 On appeal, we endorsed this case to the CA for appropriate action and disposition pursuant to our ruling in People v. Mateo.15 After careful deliberations, the CA, in its November 21, 2008 decision, affirmed the RTCs decision with modification, ordering the appellant to pay the victims heirs P50,000.00 as moral damages and P25,000.00 as temperate damages in lieu of actual damages. The CA held that all the elements of circumstantial evidence have been established to uphold the appellants conviction. According to the CA, viz.:

In the present case, the prosecutions evidence constitutes an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused-appellant as the author of the crime. First, Jose Valderama saw accused-appellant and four (4) other persons together with the hog-tied victim pass by his house in Sitio Caran-caran in the afternoon of October 9, 2000. Second, Demencita Matutis testified that accused-appellant and his companions stayed at her house in Sitio Carancaran from October 3 to October 9, 2000. Third, Francisco Anuada testified that the body of Ruben was buried in his farm on the night of October 9, 2000 by several armed men. Fourth, Estremos Acyo, the Barangay Captain of Goma, testified that accused-appellant implicated his co-accused as responsible for the killing of Ruben. Lastly, accused-appellant admitted to be a member of the New Peoples Army and they were actively operating in the area of Davao del Norte and sometimes even in the area of Davao del Sur.16 (italics ours) The CA further ruled that Joses and Demencitas testimonies negated the appellants defenses of denial and alibi. In his brief,17 the appellant argues that the courts a quo erred in convicting him of the crime charged despite the prosecutions failure to prove his guilt beyond reasonable doubt. He maintains that the circumstantial evidence against him for murder was weak. THE COURTS RULING We uphold the appellants conviction for murder. The prosecution established the appellants guilt for murder beyond reasonable doubt. Preliminarily, we note that the lack of direct evidence does not ipso facto bar the finding of guilt against the appellant. As long as the prosecution establishes the appellants participation in the crime through credible and sufficient circumstantial evidence18 that leads to the inescapable conclusion that the appellant committed the imputed crime,19 the latter should be convicted. According to Section 4, Rule 133 of the Rules of Court, circumstantial evidence is sufficient for conviction if: "(a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt."20 In this regard, we give great weight to the findings of fact made by the RTC, as upheld by the CA,21 viz.: (a) the appellant and eight other armed people stayed at Demencitas house in Sitio Carancaran on October 3, 2000, but only the appellant and Melanio stayed there until the early morning of October 9, 2000; (b) the appellant, Melanio, and three (3) others, who were armed with Garand and M14 Armalite rifles, passed by Joses house in Sitio Caran-caran in the afternoon of October 9, 2000, and were walking behind the "hog-tied" Resuelo, Sr.; (c) Resuelo Sr. was never seen alive again; (d) two armed men borrowed a bolo from Francisco at midnight of October 9, 2000, and told him that they would bury Resuelo, Sr.s body;

(e) Francisco saw Resuelo, Sr.s body buried in his farm on October 10, 2000, and requested the three persons whom he saw near the shallow grave to transfer the cadaver to another place; (f) Francisco saw the victims body buried in another portion of his farm on October 11, 2000, and reported the matter to the barangay captain; (g) Resuelo, Jr. reported to Leonora on October 11, 2000 that Resuelo, Sr. had been missing since October 9, 2000; (h) Leonora informed Barangay Captain Acyo that her husband had been missing for two days; (i) Nonito told Barangay Captain Acyo during a meeting that a man was buried at Franciscos farm; and (j) Resuelo, Jr., Barangay Captain Acyo, and some barangay officials went to Franciscos farm on October 11, 2000, and exhumed the victims body. The combination of these ten (10) circumstances constitutes an unbroken chain leading to the inescapable conclusion22 that the appellant is guilty for the crime of murder.23 First, Joses testimony sufficiently establishes that Resuelo, Sr. was last seen alive with the appellant and his companions. Jose unequivocally stated that he saw the appellant and his companions with Resuelo, Sr. walk in front of his house on the day of the murder. Jose positively declared that he saw the victim hog-tied at the time. This was in the afternoon of October 9, 2000. Second, Demencitas unequivocal statements that the appellant and his co-accused Melanio stayed at her house on October 3, 2000 and left only in the morning of October 9, 2000, the day of the murder confirm the appellants presence in the locality at the time of the murder. He was next seen in the same locality by Jose, this time with the hog-tied victim, in the afternoon of the same day. Third, Franciscos testimony establishes the immediate aftermath of the murder. Not only did the armed men borrow a bolo from him at midnight of October 9, 2000, they also told him that they would bury Resuelo, Sr.s body and warned him not to dig it up from its buried site. In the morning of October 10, 2000, he confirmed the presence of the dead body on his property when he saw the shallow grave and the victims hand protruding from it. When the body was disinterred from where the armed man had transferred it (the lower portion of Franciscos property), Francisco clearly identified the victim as Resuelo, Sr. The disinterred body not only showed significant damage to its face and wounds on its armpit; the victims hands and feet were also hog-tied. Fourth, Franciscos testimony that Resuelo, Sr.s body was buried in his farm was corroborated by Nonitos testimony that he saw someone being buried in the same place where Resuelo Sr.s body was found. Thus, the evidence presented shows a sequence of events that can only lead to the conclusion that the armed men of which the appellant was one of them killed and buried the victim Resuelo, Sr.

The sufficiency of the presented evidence to prove the appellants guilt is fully supported by jurisprudence. In People v. Solangon,24 we convicted accused Ricardo Solangon on the strength of circumstantial evidence. InSolangon, even though no direct evidence was presented to prove that the accused (alleged to have been members of the NPA) actually killed the victim, we still upheld the conviction. In People v. Oliva,25 we upheld the conviction of the accused based on circumstantial evidence. In Oliva, the victim was abducted from his home, was last seen alive in the custody of the accused, and was hog-tied with coralon rope. Although no one saw the actual killing, we held that there was sufficient circumstantial evidence to find the accused guilty beyond reasonable doubt. In yet another case People v. Corfin26 we upheld the conviction of the accused based on evidence showing that: (1) the accused was the last person seen with the victim; (2) the accused and the victim were seen together near a dry creek; (3) the accused was seen leaving the place alone; and (4) the body of the victim was later found in the dry creek. All these cases show that the Court, when presented with sufficient circumstantial evidence, will not shirk from upholding an accuseds conviction for murder. There are more than enough reasons to similarly act in this case where the law and the attendant facts, considered in relation to one another, lead to the single conclusion that the appellant participated in the killing of Resuelo, Sr. The appellants alibi was clearly negated by the testimonies of Jose and Demencita The defense anchors its theory on the alibi that the appellant was not in Sitio Caran-caran at the time of the murder. However, the RTC and the CA correctly refused to give credence to this defense in light of Joses and Demencitas testimonies. We reiterate the principle that alibi, as a defense, is inherently weak and crumbles in light of positive identification by truthful witnesses.27 Further, in People of the Philippines v. Herminiano Marzan, we held that "[d]enial is negative and self-serving and cannot be given greater evidentiary weight over the testimony of a credible witness who positively testified that the appellant was at the locus criminis and was the last person seen with the victim."28 In this case, Jose unequivocally testified that he saw the appellant at the vicinity of Caran-caran on October 9, 2000, the day of the murder. More importantly, Jose testified that he saw the appellant, together with four (4) other men, walking with Resuelo, Sr. while the latter was hog-tied on the day of the murder. Joses testimony not only establishes a strong circumstance to establish the appellants culpability since the victim was last seen with the appellant and his companions but also strongly negates the appellants alibi that he was not in Caran-caran at the time of the murder. To be sure, Demencita not only saw the appellant and his companions in Caran-caran but she also allowed them to stay in her house until the morning of October 9, 2000, the day of the murder. The appellants alibi necessarily crumbles in light of these two clear and positive testimonies. In sum, we find no cogent reason not to support the decision of the CA. The appellant is guilty beyond reasonable doubt of the crime of murder and clearly merits the penalty of reclusion perpetua with all the accessory penalties provided by law. As for damages, the CA awarded the following amounts: (1) P50,000.00 as civil indemnity ex delicto; (2) P50,000.00 as moral damages; and (3) P25,000.00 as temperate damages in lieu of actual damages. To conform to recent jurisprudence,29 the amounts to be awarded are, as follows: (1) P50,000.00 as civil indemnity; (2) P50,000.00 as moral damages; (3) P30,000.00 as exemplary damages; and (4) P30,000.00 as temperate damages in lieu of actual damages.30

1avv phi 1

WHEREFORE, in light of all the foregoing, we AFFIRM the November 21, 2008 decision of the Court of Appeals in CA-G.R. CR-HC No. 00224-MIN. Appellant Edwin Villamor is hereby found GUILTY beyond reasonable doubt of the crime of murder and is sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law. In conformity with recent jurisprudence, we MODIFY the amounts to be awarded, as follows:P50,000.00 as civil indemnity; P50,000.00 as moral damages; P30,000.00 as exemplary damages; andP30,000.00 as temperate damages in lieu of actual damages. SO ORDERED. G.R. No. 169042 October 5, 2011

ERDITO QUARTO, Petitioner, vs. THE HONORABLE OMBUDSMAN SIMEON MARCELO, CHIEF SPECIAL PROSECUTOR DENNIS VILLA IGNACIO, LUISITO M. TABLAN, RAUL B. BORILLO, and LUIS A. GAYYA, Respondents. DECISION BRION, J.: Before the Court is a petition for certiorari and mandamus1 filed by Erdito Quarto (petitioner) assailing the Ombudsmans January 7, 20042 and November 4, 20043 resolutions which granted Luisito M. Tablan, Raul B. Borillo, and Luis A. Gayya (collectively, respondents) immunity from prosecution, resulting in the respondents exclusion from the criminal informations filed before the Sandiganbayan. The petitioner seeks to nullify the immunity granted to the respondents, and to compel the Ombudsman to include them as accused in the informations for estafa through falsification of public documents4 and for violation of Section 3(e), Republic Act (RA) No. 3019.5 FACTUAL ANTECEDENTS The petitioner is the Chief of the Central Equipment and Spare Parts Division (CESPD),6 Bureau of Equipment (BOE), Department of Public Works and Highways (DPWH), Port Area, Manila. As CESPD Chief, he is also the Head of the Special Inspectorate Team (SIT) of the DPWH.7 The respondents are members of the SIT.8 On January 9, 2002, DPWH Secretary Simeon Datumanong created a committee to investigate alleged anomalous transactions involving the repairs and/or purchase of spare parts of DPWH service vehicles in 2001.9 On January 17, 2002, the committee designated the DPWH Internal Audit Service (IAS) as its Technical Working Group to conduct the actual investigation.10 In the course of its investigation, the DPWH-IAS11 learned that the emergency repairs and/or purchase of spare parts of DPWH service vehicles basically undergo the following documentary process: I. Determination of repairs and/or spare parts needed a. The end-user requesting repair brings the service vehicle to the Motorpool Section, CESPD for initial inspection and preparation of Job Order; and

b. Based on the Job Order, the SIT conducts a pre-repair inspection (to determine the necessity of repair and whether the repair is emergency in nature) and prepares a PreRepair Inspection Report, with a recommendation for its approval by the CESPD Chief. II. Preparation and Approval of Requisition for Supplies and/or Equipment with accompanying documents (Job Order and Pre-Inspection Report) a. The Procurement Section, Administrative Manpower Management Service (AMMS) prepares the Requisition for Supplies and Equipment (RSE), the Canvass Quotation of three Suppliers, the Certificate of Emergency Purchase, and the Certificate of Fair Wear and Tear; b. The end-user signs the RSE with the recommending approval of the concerned head of office; and c. The AMMS Director approves the RSE. III. Repair of Vehicles a. The end-user selects the repair shop/auto supply from accredited establishments; b. The selected repair shop/auto supply repairs the service vehicle and issues the corresponding sales invoice and/or official receipt; c. The end-user accepts the repair and executes a Certificate of Acceptance; d. The SIT conducts a post-repair inspection (to check if the vehicle was repaired and whether the repair conformed to specifications) and prepares a Post-Repair Inspection Report, with a recommendation for its approval by the CESPD Chief. The Motorpool and the end-user would prepare the Report of Waste Materials also for the signature of the CESPD Chief; and e. The Assets and Supply Management and Control Division recommends payment of the expense/s incurred. The processing of the payment of claims for reimbursement follows the above process. Based on this procedure, the DPWH-IAS discovered that from March to December 2001, several emergency repairs and/or purchase of spare parts of hundreds of DPWH service vehicles, which were approved and paid by the government, did not actually take place, resulting in government losses of approximately P143 million for this ten-month period alone.12 Thus, Atty. Irene D. Ofilada of the DPWH-IAS filed before the Office of the Ombudsman13 a Complaint-Affidavit14and a Supplemental Complaint-Affidavit15 charging several high-ranking DPWH officials and employees including the petitioner, the respondents, and other private individuals who purportedly benefited from the anomalous transactions with Plunder, Money Laundering, Malversation, and violations of RA No. 3019 and the Administrative Code.16 Atty. Ofilada imputed the following acts to the petitioner: With dishonesty and grave misconduct, [the petitioner] x x x approved four (4) job orders for [the] repairs [and/or] purchase of spare parts of [the vehicle assigned to Atty. Ofilada,] noted the

certificate of urgency of said repairs [and/or] purchase[,] concurred with both the pre-repair and post repair inspection reports thereon, participated in the accomplishment of the supporting Requisition for Supplies and Equipment (RSE) x x x[,] and participated in the approval of the disbursement voucher authorizing payment of said repairs as necessary and lawful [even if said vehicle was never referred to the Motorpool Section, CESPD for repair]. The documents relating to [this vehicle] were filed within a period of one month (between September to October 2001) [and] were used to authorize the payment of said non existent ghost repairs to the damage and prejudice of the [DPWH.]17 (emphases ours) On the other hand, Atty. Ofilada charged the respondents with the following: With dishonesty and grave misconduct, [respondents] as members of the [SIT] xxx accomplished and signed Pre-Repair Inspection and Post Repair Inspection Reports in support of the four job orders [and made] it appear that the vehicle was inspected prior and after the alleged repair [although they knew that the vehicle was never turned over for inspection]. The accomplishment of the Pre-Repair and Post-Repair Inspection Report[s] led to the preparation of the Request for Supplies and Equipment which was the basis of the preparation of the disbursement vouchers ultimately authorizing the payment of the said repairs thru reimbursement scheme to the damage and prejudice of the DPWH. x x x the [P]re-[R]epair and [P]ost-[R]epair [I]nspection [R]eports of the [SIT] xxx are fictitious and falsified as no actual inspection could have transpired[.]18 (emphasis ours) The petitioner denied the allegations against him, claiming that he merely relied on his subordinates when he signed the job orders and the inspection reports.19 In contrast, the respondents admitted the existence of irregularities in the repairs and/or purchase of spare parts of DPWH service vehicles, and offered to testify and to provide evidence against the DPWH officials and employees involved in the anomaly in exchange for their immunity from prosecution. The respondents submitted: 5.2 x x x since we assumed our duties as members of the SIT xxx, we observed that [the] DPWH vehicles were being sent to the repair shop in violation of the prescribed guidelines governing the emergency repair of a service vehicle. In most instances, service vehicles are immediately brought to a car repair shop of the end-users choice without bringing it first to the [Motorpool Section, CESPD, BOE] for the preparation of the required job order by [Gayya] of the Motorpool Section and the pre-repair inspection to be conducted by the SIT. After the purported repairs are done, SIT members are made to sign a post-repair inspection report which already includes a typed-in recommendation for the payment of repairs, and the signature of the Head of the [SIT] indicating his alleged concurrence with the findings of the SIT despite the absence of an actual inspection. The post-repair inspection report is accompanied by the following attachments, to wit: a) a falsified job order signed by the head of the [SIT] and the Chief of the Motorpool Section x x x [and] e) an empty or falsified [p]re-repair inspection report[.] 5.3 Initially[,] we tried to curb the above anomalous practices being perpetrated by suppliers and officials of the DPWH x x x [by making] known [our] objections to the questionable job orders for the proposed repairs of DPWH service vehicles[,] thus: a. On July, 9, 1999, [Tablan] wrote the Head of the SIT a memorandum x x x stating that the job orders for [several identified vehicles] x x x violated the prohibition against splitting of job orders x x x. [Tablan recommended for public bidding the proposed repairs for the said vehicles].

b. In connection with the job orders involving [several identified vehicles] x x x Tablan and Borillo wrote the Head of the SIT a Memorandum x x x recommending that the whereabouts of the end-user be verified, and the service vehicle be re-inspected and/or disposed of. c. Since the July 9, 1999 Memorandum was returned to x x x Tablan without any action being undertaken by the SIT Chief, [Tablan and Borillo] reiterated the recommendation for the public bidding of the proposed repairs described therein[.] 6. In our attempts to perform our sworn duties, however, we incurred the displeasure of the suppliers, the head of [SIT] and other officials of the DPWH who threatened various administrative sanctions against us if we should not accede to their wishes. x x x 7. In addition to the foregoing, there are other factors which conspired to prevent us from properly performing our duties. For one, the DPWH processes an average of 3,000 repairs per calendar year. Given the staggering number and extent of repairs, including the volume of paperwork, it was practically impossible for [us] to implement the rules which proved too tedious under the circumstance. As such, a "short-cut" of the rules was necessary to accommodate the demands of the end-user, the suppliers, our superiors, and other executives of the DPWH. x x x 8. The anomalous practices of the DPWH executives and suppliers in the purported repair of DPWH service vehicles were indeed more widespread and rampant in the year 2001. As a precautionary measure, we took the initiative of photocopying these sets of falsified documents as they were presented to us before we affixed our respective signatures thereon. We grouped these documents into Sets A and B[.] xxxx 11. x x x That the service vehicle x x x has not been actually inspected by [Tablan and Borillo] is attested to by the pre and post repair inspection reports initially bearing the signature of the head of the SIT as concurring official without the required signatures of Borillo and Tablan. More importantly, these DPWH officials did not bother, in a majority of cases, to "cover their tracks" when they prepared and signed the pre and post repair inspection reports on the same dates. Based on proper procedure, a post repair inspection report is to be accomplished only after the preparation and approval of the Job Order, prerepair inspection report, RSE, Cash Invoice and Acceptance by the end-user. In this case, the RSE, Cash Invoice and Certificate of Acceptance are dated much later than the postrepair inspection report. Since xxx there was no actual pre-repair and post-repair inspection conducted, the foregoing sample instances paved the way for the "ghost repairs" of DPWH service vehicles, to the detriment and prejudice of the government. 12. Because of the anomalous transactions, the joke circulating around the DPWH is that we are actually the directors of the DPWH since we are the "last to sign," so to speak. That the signature[s] of the [respondent] SIT members are merely pro forma is all the more pronounced in a sample set consisting of a number of pre-repair inspection reports for a particular month in 2001. The pre-repair inspection reports of the service vehicles indicated therein are empty of any findings and bear the signature of the head of the SIT as concurring official. All the foregoing documents above detailed negate the convenient excuse proffered by DPWH executives that they sign the documents only after the SIT had inspected the service vehicle and prepared the pre and post repair inspection reports. xxxx

14.1 xxx the above examples are only a representative sampling of the extent of the anomalous transactions involving DPWH service vehicles which can be considered "ghost repairs." There are more instances wherein [we] are willing to testify to in exchange for immunity from prosecution.20 (emphases ours) After conducting preliminary investigation, the Ombudsman filed with the Sandiganbayan21 several informations charging a number of DPWH officials and employees with plunder,22 estafa through falsification of official/commercial documents and violation of Section 3(e), RA No. 3019. On the other hand, the Ombudsman granted the respondents request for immunity in exchange for their testimonies and cooperation in the prosecution of the cases filed. The petitioner initially filed a certiorari petition with the Sandiganbayan, questioning the Ombudsmans grant of immunity in the respondents favor. The Sandiganbayan, however, dismissed the petition for lack of jurisdiction and advised the petitioner to instead question the Ombudsmans actions before this Court.23 Hence, this present petition. THE PETITION The petitioner argues that the Ombudsman should have included the respondents in the informations since it was their inspection reports that actually paved the way for the commission of the alleged irregularities.24 The petitioner asserts that the respondents criminal complicity clearly appears since "no repair could have started" and "no payment for repairs, ghost or not," could have been made without the respondents pre-repair and post-repair inspection reports. By excluding the respondents in the informations, the Ombudsman is engaged in "selective prosecution" which is a clear case of grave abuse of discretion. The petitioner claims that before the Ombudsman may avail of the respondents as state witnesses, they must be included first in the informations filed with the court. Thereafter, the Ombudsman can ask the court for their discharge so that they can be utilized as state witnesses under the conditions laid down in Section 17, Rule 119 of the Rules of Court since the court has the "sole province" to determine whether these conditions exist. These conditions require, inter alia, that there should be "absolute necessity" for the testimony of the proposed witness and that he/she should not appear to be the "most guilty." The petitioner claims that the respondents failed to comply with these conditions as the Ombudsmans "evidence," which became the basis of the informations subsequently filed, shows that the respondents testimony is not absolutely necessary; in fact, the manner of the respondents participation proves that they are the "most guilty" in the premises. THE COMMENTS OF THE OMBUDSMAN AND THE RESPONDENTS The Ombudsman counters that RA No. 6770 (the Ombudsman Act of 1989) expressly grants him the power to grant immunity from prosecution to witnesses. Given this power, the Ombudsman asserts that Section 17, Rule 119 of the Rules of Court, which presupposes that the witness is originally included in the information, is inapplicable to the present case since the decision on whom to prosecute is an executive, not a judicial, prerogative.25 The Ombudsman invokes this Courts policy of non-interference in the Ombudsmans exercise of his discretion in matters involving his investigatory and prosecutorial powers.26 The petitioners claim that the respondents are the "most guilty" is a matter of defense which the petitioner may raise not in this proceeding, but in the trial proper.27

On the other hand, the respondents submit that the Ombudsman has ample discretion in determining who should be included in the information on the basis of his finding of probable cause. The courts can only interfere in the Ombudsmans exercise of his discretion in case of a clear showing of grave abuse of discretion, which the petitioner failed to establish.28 THE PETITIONERS REPLY29 While conceding that the Ombudsman has the power and the discretion to grant immunity to the respondents, the petitioner asserts that this power must be exercised within the confines of Section 17, Rule 119 of the Rules of Court which requires, inter alia, that the proposed witness must not appear to be the "most guilty." By ignoring this provision and extending immunity to the respondents whose false reports ultimately led to the payment for supposed repairs, and who are, thus, the "real culprits,"30 the Ombudsman gravely abused his discretion a fatal defect correctible by certiorari. Amplifying on the respondents "guilt," the petitioner cites the DPWHs decision in an administrative case which the Civil Service Commission affirmed, finding the respondents guilty of dishonesty and grave misconduct involving the same set of facts.31 OUR RULING We dismiss the petition on two grounds: first, the petitioner did not avail of the remedies available to him before filing this present petition; and, second, within the context of the Courts policy of noninterference with the Ombudsmans exercise of his investigatory and prosecutory powers, the petitioner failed to establish that the grant of immunity to the respondents was attended by grave abuse of discretion. I. The petitioner did not exhaust remedies available in the ordinary course of law As extraordinary writs, both Sections 1 (certiorari) and 3 (mandamus), Rule 65 of the Rules of Court require, as a pre-condition for these remedies, that there be no other plain, speedy and adequate remedy in the ordinary course of law. In the present case, the petitioner has not shown that he moved for a reconsideration of the assailed resolutions based substantially on the same grounds stated in this present petition.32 Neither did the petitioner file a motion for the inclusion of the respondents in the informations before filing the present petition.33These are adequate remedies that the petitioner chose to forego; he bypassed these remedies and proceeded to seek recourse through the present petition.34 Similarly, the petitioner has not shown that he filed the present petition with this Court within the sixty-day reglementary period35 from notice of the assailed Ombudsmans resolutions. He did not do so, of course, since he initially and erroneously filed a certiorari petition with the Sandiganbayan. We remind the petitioner that the remedy from the Ombudsmans orders or resolutions in criminal cases is to file a petition for certiorari under Rule 6536 with this Court.37 The petition likewise fails even on the merits. II. The respondents exclusion in the informations is grounded on the Ombudsmans grant of immunity Mandamus is the proper remedy to compel the performance of a ministerial duty imposed by law upon the respondent.38 In matters involving the exercise of judgment and discretion, mandamus may

only be resorted to, to compel the respondent to take action; it cannot be used to direct the manner or the particular way discretion is to be exercised.39 In the exercise of his investigatory and prosecutorial powers, the Ombudsman is generally no different from an ordinary prosecutor in determining who must be charged.40 He also enjoys the same latitude of discretion in determining what constitutes sufficient evidence to support a finding of probable cause (that must be established for the filing of an information in court)41 and the degree of participation of those involved or the lack thereof. His findings and conclusions on these matters are not ordinarily subject to review by the courts except when he gravely abuses his discretion,42 i.e., when his action amounts to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or when he acts outside the contemplation of law.43 If, on the basis of the same evidence, the Ombudsman arbitrarily excludes from an indictment some individuals while impleading all others, the remedy of mandamus lies44 since he is duty-bound, as a rule, to include in the information all persons who appear responsible for the offense involved.45 Citing the cases of Guiao v. Figueroa46 and Castro, Jr., et al. v. Castaeda and Liceralde,47 the petitioner argues for the inclusion of the respondents in the criminal informations, pointing out that the respondents accomplished the inspection reports that allegedly set in motion the documentary process in the repair of the DPWH vehicles; these reports led to the payment by the government and the consequent losses. In Guiao and Castro, we ruled that mandamus lies to compel a prosecutor who refuses (i) to include in the information certain persons, whose participation in the commission of a crime clearly appears, and (ii) to follow the proper procedure for the discharge of these persons in order that they may be utilized as prosecution witnesses. These cited cases, however, did not take place in the same setting as the present case as they were actions by the public prosecutor, not by the Ombudsman. In the present case, the Ombudsman granted the respondents immunity from prosecution pursuant to RA No. 6770 which specifically empowers the Ombudsman to grant immunity "in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives." The pertinent provision Section 17 of this law provides: Sec. 17. Immunities. x x x. Under such terms and conditions as it may determine, taking into account the pertinent provisions of theRules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office. [emphasis ours] To briefly outline the rationale for this provision, among the most important powers of the State is the power to compel testimony from its residents; this power enables the government to secure vital information necessary to carry out its myriad functions.48 This power though is not absolute. The constitutionally-enshrined right against compulsory self-incrimination is a leading exception. The states power to compel testimony and the production of a persons private books and papers run against a solid constitutional wall when the person under compulsion is himself sought to be

penalized. In balancing between state interests and individual rights in this situation, the principles of free government favor the individual to whom the state must yield.49
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A state response to the constitutional exception to its vast powers, especially in the field of ordinary criminal prosecution and in law enforcement and administration, is the use of an immunity statute.50 Immunity statutes seek a rational accommodation between the imperatives of an individuals constitutional right against self-incrimination51 (considered the fount from which all statutes granting immunity emanate52) and the legitimate governmental interest in securing testimony.53 By voluntarily offering to give information on the commission of a crime and to testify against the culprits, a person opens himself to investigation and prosecution if he himself had participated in the criminal act. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness can be given immunity from prosecution.54 In this manner, the state interest is satisfied while respecting the individuals constitutional right against self-incrimination. III. Nature of the power to grant immunity The power to grant immunity from prosecution is essentially a legislative prerogative.55 The exclusive power of Congress to define crimes and their nature and to provide for their punishment concomitantly carries the power to immunize certain persons from prosecution to facilitate the attainment of state interests, among them, the solution and prosecution of crimes with high political, social and economic impact.56 In the exercise of this power, Congress possesses broad discretion and can lay down the conditions and the extent of the immunity to be granted.57 Early on, legislations granting immunity from prosecution were few.58 However, their number escalated with the increase of the need to secure vital information in the course and for purposes of prosecution. These statutes59considered not only the importance of the testimony sought, but also the unique character of some offenses and of some situations where the criminal participants themselves are in the best position to give useful testimony.60RA No. 6770 or the Ombudsman Act of 1989 was formulated along these lines and reasoning with the vision of making the Ombudsman the protector of the people against inept, abusive and corrupt government officers and employees.61 Congress saw it fit to grant the Ombudsman the power to directly confer immunity to enable his office to effectively carry out its constitutional and statutory mandate of ensuring effective accountability in the public service.62 IV. Considerations in the grant of immunity While the legislature is the source of the power to grant immunity, the authority to implement is lodged elsewhere. The authority to choose the individual to whom immunity would be granted is a constituent part of the process and is essentially an executive function. Mapa, Jr. v. Sandiganbayan63 is instructive on this point: The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to forego prosecution of a person for government to achieve a higher objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate power should be exercised, who should be extended the privilege, the timing of its grant, are questions addressed solely to the sound judgment of the prosecution. The power to prosecute includes the right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute. In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the respondent court is limited. For the business of a court of justice is to be an

impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense. [emphasis ours] RA No. 6770 fully recognizes this prosecutory prerogative by empowering the Ombudsman to grant immunity, subject to "such terms and conditions" as he may determine. The only textual limitation imposed by law on this authority is the need to take "into account the pertinent provisions of the Rules of Court," i.e., Section 17, Rule 119 of the Rules of Court.64 This provision requires that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and (e) Said accused has not at any time been convicted of any offense involving moral turpitude. This Rule is itself unique as, without detracting from the executive nature of the power to prosecute and the power to grant immunity, it clarifies that in cases already filed with the courts,65 the prosecution merely makes a proposal and initiates the process of granting immunity to an accusedwitness in order to utilize him as a witness against his co-accused.66 As we explained in Webb v. De Leon67 in the context of the Witness Protection, Security and Benefit Act: The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. [emphasis ours] Thus, it is the trial court that determines whether the prosecutions preliminary assessment of the accused-witness qualifications to be a state witness satisfies the procedural norms.68 This relationship is in reality a symbiotic one as the trial court, by the very nature of its role in the administration of justice,69 largely exercises its prerogative based on the prosecutors findings and evaluation. On this point, the Courts pronouncement in the 1918 case of United States v. Abanzado70 is still very much relevant: A trial judge cannot be expected or required to inform himself with absolute certainty at the very outset of the trial as to everything which may be developed in the course of the trial in regard to the guilty participation of the accused in the commission of the crime charged in the complaint. If that were practicable or possible there would be little need for the formality of a trial. He must rely in large part upon the suggestions and the information furnished by the prosecuting officer in coming to his

conclusions as to the "necessity for the testimony of the accused whose discharge is requested"; as to the availability or nonavailability of other direct or corroborative evidence; as to which of the accused is "most guilty," and the like. Notably, this cited case also observes that the Rules-provided guidelines are mere express declarations of the conditions which the courts ought to have in mind in exercising their sound discretion in granting the prosecutions motion for the discharge of an accused.71 In other words, these guidelines are necessarily implied in the discretion granted to the courts. RA No. 6770 recognizes that these same principles should apply when the Ombudsman directly grants immunity to a witness. The same consideration to achieve the greater and higher purpose of securing the conviction of the most guilty and the greatest number among the accused72 is involved whether the grant is secured by the public prosecutor with active court intervention, or by the Ombudsman. If there is any distinction at all between the public prosecutor and the Ombudsman in this endeavor, it is in the specificity of and the higher priority given by law to the Ombudsmans purpose and objective to focus on offenses committed by public officers and employees to ensure accountability in the public service. This accounts for the Ombudsmans unique power to grant immunity by itself and even prior to the filing of information in court, a power that the public prosecutor himself generally does not enjoy.73 V. Extent of judicial review of a bestowed immunity An immunity statute does not, and cannot, rule out a review by this Court of the Ombudsmans exercise of discretion. Like all other officials under our constitutional scheme of government, all their acts must adhere to the Constitution.74 The parameters of our review, however, are narrow. In the first place, what we review are executive acts of a constitutionally independent Ombudsman.75 Also, we undertake the review given the underlying reality that this Court is not a trier of facts. Since the determination of the requirements under Section 17, Rule 119 of the Rules of Court is highly factual in nature, the Court must, thus, generally defer to the judgment of the Ombudsman who is in a better position (than the Sandiganbayan or the defense) to know the relative strength and/or weakness of the evidence presently in his possession and the kind, tenor and source of testimony he needs to enable him to prove his case.76 It should not be forgotten, too, that the grant of immunity effectively but conditionally results in the extinction of the criminal liability the accused-witnesses might have incurred, as defined in the terms of the grant.77 This point is no less important as the grant directly affects the individual and enforces his right against self-incrimination. These dynamics should constantly remind us that we must tread softly, but not any less critically, in our review of the Ombudsmans grant of immunity. From the point of view of the Courts own operations, we are circumscribed by the nature of the review powers granted to us under the Constitution and the Rules of Court. We rule on the basis of a petition for certiorari under Rule 65 and address mainly the Ombudsmans exercise of discretion. Our room for intervention only occurs when a clear and grave abuse of the exercise of discretion is shown. Necessarily, this limitation similarly reflects on the petitioner who comes to us on the allegation of grave abuse of discretion; the petitioner himself is bound to clearly and convincingly establish that the Ombudsman gravely abused his discretion in granting immunity in order to fully establish his case.78 As a last observation, we note the unique wording of the grant of the power of immunity to the Ombudsman. It is not without significance that the law encompassed (and appears to have pointedly not separated) the consideration of Section 17, Rule 119 of the Rules of Court within the broader context of "such terms and conditions as the Ombudsman may determine." This deliberate statutory wording, to our mind, indicates the intent to define the role of Section 17, Rule 119 in the

Ombudsmans exercise of discretion. It suggests a broad grant of discretion that allows the Ombudsmans consideration of factors other than those outlined under Section 17, Rule 119; the wording creates the opening for the invocation, when proper, of the constitutional and statutory intents behind the establishment of the Ombudsman. Based on these considerations, we shall now proceed to determine whether the petitioner has clearly and convincingly shown that the Ombudsman gravely abused his discretion in granting immunity to the respondents. Va. Absolute necessity for testimony of the respondents Under the factual and legal situation before us, we find that the petitioner miserably failed to clearly and convincingly establish that the Ombudsman gravely abused his discretion in granting immunity to the respondents. While he claims that both conditions (a) and (d) of Section 17, Rule 119 of the Rules of Court are absent, we observe his utter lack of argument addressing the "absolute necessity" of the respondents testimony. In fact, the petitioner simply concluded that the requirement of "absolute necessity" does not exist based on the Ombudsmans "evidence," without even attempting to explain how he arrived at this conclusion. We note in this regard that the respondents proposed testimony tends to counteract the petitioners personal defense of good faith (i.e., that he had no actual participation and merely relied on his subordinates) in approving the job orders and in his concurrence with the inspection reports. In their Joint Counter-Affidavit, the respondents narrated the accused DPWH officials/employees flagrant disregard of the proper procedure and the guidelines in the repair of DPWH service vehicles which culminated in losses to the government. Particularly telling is the respondents statement that a number of pre-repair inspection reports for a particular month in 2001 bear the petitioners signature despite the fact that these reports are not supported by findings from the respondents as SIT members.79 This kind of statement cannot but impact on how the Ombudsman viewed the question of "absolute necessity" of the respondents testimony since this testimony meets the defense of good faith head-on to prove the prosecutions allegations. Under these circumstances, we cannot preempt, foreclose, nor replace with our own the Ombudsmans position on this point as it is clearly not without basis. Vb. The respondents do not appear to be the "most guilty" Similarly, far from concluding that the respondents are the "most guilty," we find that the circumstances surrounding the preparation of the inspection reports can significantly lessen the degree of the respondents criminal complicity in defrauding the government. Again, this is a matter that the Ombudsman, in the exercise of his discretion, could not have avoided when he considered the grant of immunity to the respondents. We note, too, that while the petitioner incessantly harped on the respondents role in the preparation of the inspection reports, yet, as head of the SIT, he was eerily silent on the circumstances surrounding this preparation, particularly on the respondents explanation that they tried "to curb the anomalous practices"80 in the DPWH. We are aware, of course, that the present petition merely questions the immunity granted to the respondents and their consequent exclusion from the informations; it does not assail the finding of probable cause against the petitioner himself. This current reality may explain the petitioners silence on the respondents assertions; the respondents allegations, too, still have to be proven during the trial. However, these considerations are not sufficient to save the petitioner from the necessity of controverting the respondents allegations, even for the limited purpose of the present petition, since his counter-assertion on this basic ground (that the respondents bear the most guilt) is essential and critical to the viability of his petition.

In considering the respondents possible degree of guilt, we are keenly aware of their admission that they resorted to a "short-cut"81 in the procedure to be observed in the repairs and/or purchase of emergency parts of DPWH service vehicles. To our mind, however, this admission does not necessarily result in making the respondents the "most guilty" in the premises; not even a semblance of being the "most guilty" can be deduced therefrom. In sum, the character of the respondents involvement vis--vis the crimes filed against the DPWH officials/employees, coupled with the substance of the respondents disclosures, compels this Court to take a dim view of the position that the Ombudsman gravely abused his discretion in granting immunity to the respondents. The better view is that the Ombudsman simply saw the higher value of utilizing the respondents themselves as witnesses instead of prosecuting them in order to fully establish and strengthen its case against those mainly responsible for the criminal act, as indicated by the available evidence.
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VI. The respondents administrative liability has no bearing at all on the immunity granted to the respondents The fact that the respondents had previously been found administratively liable, based on the same set of facts, does not necessarily make them the "most guilty." An administrative case is altogether different from a criminal case, such that the disposition in the former does not necessarily result in the same disposition for the latter, although both may arise from the same set of facts.82 The most that we can read from the finding of liability is that the respondents have been found to be administratively guilty by substantial evidence the quantum of proof required in an administrative proceeding. The requirement of the Revised Rules of Criminal Procedure (which RA No. 6770 adopted by reference) that the proposed witness should not appear to be the "most guilty" is obviously in line with the character83 and purpose84 of a criminal proceeding, and the much stricter standards85 observed in these cases. They are standards entirely different from those applicable in administrative proceedings. VII. The policy of non-interference with the Ombudsmans investigatory and prosecutory powers cautions a stay of judicial hand The Constitution and RA No. 6770 have endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutory powers, freed, to the extent possible within our governmental system and structure, from legislative, executive, or judicial intervention, and insulated from outside pressure and improper influence.86Consistent with this purpose and subject to the command of paragraph 2, Section 1, Article VIII of the 1987 Constitution,87 the Court reiterates its policy of noninterference with the Ombudsmans exercise of his investigatory and prosecutory powers (among them, the power to grant immunity to witnesses88), and respects the initiative and independence inherent in the Ombudsman who, "beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service."89 Ocampo IV v. Ombudsman90 best explains the reason behind this policy: The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.

Following this policy, we deem it neither appropriate nor advisable to interfere with the Ombudsmans grant of immunity to the respondents, particularly in this case, where the petitioner has not clearly and convincingly shown the grave abuse of discretion that would call for our intervention. WHEREFORE, the petition is hereby DISMISSED. Costs against the petitioner. SO ORDERED. G.R. No. 182848 October 5, 2011

EMIRATE SECURITY AND MAINTENANCE SYSTEMS, INC. and ROBERTO A. YAN, Petitioners, vs. GLENDA M. MENESE, Respondent. DECISION BRION, J.: Before the Court is the petition for review on certiorari1 which assails the decision2 and the resolution3 of the Court of Appeals (CA) rendered on February 28, 2008 and May 14, 2008, respectively, in CA-G.R. SP. No. 100073.4 The Antecedents The facts of the case are summarized below. On June 5, 2001, respondent Glenda M. Menese (Menese) filed a complaint for constructive dismissal; illegal reduction of salaries and allowances; separation pay; refund of contribution to cash bond; overtime, holiday, rest day and premium pay; damages; and attorneys fees against the petitioners, Emirate Security and Maintenance Systems, Inc. (agency) and its General Manager, Robert A. Yan (Yan). Menese alleged in the compulsory arbitration proceedings that on April 1, 1999, the agency engaged her services as payroll and billing clerk. She was assigned to the agencys security detachment at the Philippine General Hospital (PGH). She was given a monthly salary of P9,200.00 and an allowance of P2,500.00, for a total ofP11,700.00 in compensation. Effective May 2001, her allowance was allegedly reduced to P1,500.00 without notice, and P100.00 was deducted from her salary every month as her contribution to a cash bond which lasted throughout her employment. She was required to work seven (7) days a week, from 8:00 a.m. to 5:00 p.m. She was also required to report for work on holidays, except on New Years Day and Christmas. She claimed that she was never given overtime, holiday, rest day and premium pay. Menese further alleged that on May 4, 2001, she started getting pressures from the agency for her to resign from her position because it had been committed to a certain Amy Claro, a protge of Mrs. Violeta G. Dapula (Dapula) the new chief of the Security Division of the University of the Philippines (UP) Manila and PGH. Menese raised the matter with Yan who told her that the agency was in the process of establishing goodwill with Dapula, so it had to sacrifice her position to accommodate Dapulas request to hire Claro.

Menese claimed that she was told not to worry because if she was still interested in working with the agency, she could still be retained as a lady guard with a salary equivalent to the minimum wage. She would then be detailed to another detachment because Dapula did not like to see her around anymore. If the offer was acceptable to her, she should report to the agencys personnel officer for the issuance of the necessary duty detail order. Menese thought about the offer and soon realized that she was actually being demoted in rank and salary. She eventually decided to decline the offer. She continued reporting to the PGH detachment and performed her usual functions as if nothing happened. Menese alleged that at this juncture, Claro reported at the agencys PGH detachment and performed the functions she was doing. She bewailed that thereafter she continuously received harassment calls and letters. She was also publicly humiliated and badly treated at the detachment. The agency, through Security Officer Alton Acab, prohibited her from using the office computer. On May 18, 2001, Jose Dante Chan, the agencys PGH detachment commander, arrogantly told her to leave PGH. Again on May 25, 2001, Chan shouted at her and told her to pack her things and to leave immediately, and not to return to the detachment anymore; otherwise, she would be physically driven out of the office. Still not satisfied with what they did, the petitioners allegedly withheld her salary for May 16-31, 2001. She claimed that the petitioners dismissed her from the service without just cause and due process. The petitioners, for their part, denied liability. They alleged that on May 8, 2001, Dapula informed the agency in writing,5 through Yan, that she had been receiving numerous complaints from security guards and other agency employees about Meneses unprofessional conduct. She told the petitioners that she was not tolerating Meneses negative work attitude despite the fact that she is the wife of Special Police Major Divino Menese who is a member of the UP Manila police force, and that as a matter of policy and out of delicadeza, she does not condone nepotism in her division. On the basis of Dapulas letter, Yan sent Menese a memorandum dated May 16, 2001,6 instructing her to report to the agencys head office and, there and then, discussed with her Dapulas letter. Yan informed Menese that upon Dapulas request, she would be transferred to another assignment which would not involve any demotion in rank or diminution in her salary and other benefits. Although Menese said that she would think about the matter, the petitioners were surprised to receive summons from the labor arbiter regarding the complaint. The Compulsory Arbitration Rulings In a decision dated March 14, 2002,7 Labor Arbiter Jovencio LL. Mayor, Jr. declared Menese to have been constructively dismissed. He found the petitioners wanting in good faith in transferring Menese to another detachment as she would be suffering a demotion in rank and a diminution in pay. Accordingly, he ordered the petitioners to immediately reinstate Menese and, solidarily, to pay her full backwages of P83,443.75 (latest computation); P66,924.00 in monetary benefits; P50,000.00 and P20,000.00 in moral and exemplary damages, respectively; and attorneys fees of P15,036.74. The petitioners appealed to the National Labor Relations Commission (NLRC). On September 30, 2003, the NLRC Second Division issued a resolution8 granting the appeal and reversing the labor arbiters decision. It ruled that Menese was not constructively dismissed but was merely transferred to another detachment. It opined that the transfer was a valid exercise of the petitioners management prerogative. However, it ruled that despite Meneses refusal to accept the transfer, she cannot be made liable for abandonment as her refusal was based on her honest belief that she was being constructively dismissed. The NLRC ordered Menese, at her option, to immediately report to

the agencys head office and the agency to accept her back to work. It absolved Yan from liability, and deleted the award of backwages, overtime pay and damages. On October 28, 2003, Menese filed a partial motion for reconsideration9 of the NLRC resolution and later (on June 17, 2005), a motion to recall the entry of judgment of October 31, 2003. On June 1, 2007, the NLRC rendered a resolution10 setting aside the entry of judgment and denying Meneses partial motion for reconsideration. The Petition for Certiorari Menese elevated her case to the CA through a petition for certiorari11 under Rule 65 of the Rules of Court. In the main, she argued that the agency was in bad faith when it issued the memoranda dated May 16, 2001,12 May 22, 200113 and May 28, 2001,14 ordering her transfer from the PGH detachment to the agencys head office. She posited that it was a ploy to create a vacancy in the detachment to accommodate the entry of Claro, Dapulas protge. She regarded the transfer as a removal from her position at PGH a constructive dismissal. The agency, in rebuttal, posited that Menese was not illegally dismissed, but was merely transferred to its head office in response to the request of the new head of the UP-PGH security division for the transfer. The action, it maintained, was a valid exercise of its management prerogative. Thus, Menese was guilty of abandoning her employment when she refused to report for work at her new posting. The CA Decision The CA granted the petition in its decision of February 28, 2008.15 It set aside the assailed resolutions of the NLRC and reinstated the March 14, 2002 decision of the labor arbiter. As the labor arbiter did, the CA found Menese to have been constructively, and therefore illegally, dismissed. It noted that the memoranda16 on Meneses transfer were prompted by Daculas letter, dated May 8, 2001,17 to Yan, which contained allegations on Meneses supposed unprofessional conduct and involvement in nepotism. It further noted that when Yan asked Dapula in writing18 to provide the agency with documents/evidence that would support her allegations, she failed to do so. The CA thus concluded that the reasons for Meneses transfer did not exist or that no substantial evidence was presented in that regard. The CA brushed aside the petitioners argument that it was their prerogative to transfer Menese from the agencys PGH detachment to its head office at Ortigas Avenue, Mandaluyong City. Relying on applicable jurisprudence, the appellate court pointed out that while it is the managements prerogative to transfer an employee from one office to another within the business establishment, it is not without limitation. It must be exercised in such a way that there is no demotion in rank or diminution in pay, benefits and other privileges. Otherwise, the transfer amounts to a constructive dismissal, as correctly pointed out by the labor arbiter in his decision of March 14, 2002.19 In this light, the CA held that the petitioners failed to prove that Menese abandoned her employment. The CA sustained all the other findings of the labor arbiter. On the whole, it ruled that the NLRC misappreciated the evidence in the case. The petitioners moved for reconsideration, but the CA denied the motion in its resolution of May 14, 2008.20 The Petitioners Case

Aside from the petition itself,21 the petitioners filed a reply to Meneses comment22 and a memorandum23 where they asked for a reversal of the assailed CA rulings on the ground that the CA gravely erred in: (1) Affirming the labor arbiters findings that Menese was constructively dismissed; (2) Holding Yan solidarily liable with the agency for damages; and (3) Sustaining the award of backwages, damages and attorneys fees, as well as overtime pay. The petitioners insist that Menese was not illegally dismissed. They argue that it was Menese who deliberately and unjustifiably refused to work despite several notices24 to her after she was validly relieved from her current work assignment due to a clients request. They maintain that since Menese chose not to return to work, she must be considered either to have resigned from or to have abandoned her employment. They further maintain that nothing on record shows any positive or overt act of the agency in dismissing Menese. Moreover, the petitioners regard Meneses continued refusal to report to the agencys head office as an act of gross insubordination constituting a just cause for termination under Article 282(a) of the Labor Code. They argue that under this law, an employer may terminate an employment for serious misconduct or willful disobedience by the employee of the lawful orders of his employer or his representative in connection with his work. The petitioners posit that she is not entitled to reinstatement and backwages since she failed to comply with the reinstatement option stated in the NLRC resolution. Neither is she entitled to overtime pay because she did not work beyond the eight (8)-hour working period; her one (1) hour time off from twelve noon to 1:00 p.m. is not compensable. Neither is Menese entitled to moral and exemplary damages because the evidence on record does not show any malice or bad faith on their part to justify the award. The petitioners likewise take exception to the award of attorneys fees as the labor arbiters decision and the NLRCs resolution failed to state the justification for the award. They further contend that the CA gravely erred in upholding the labor arbiters ruling that Yan is solidarily liable with the agency, as Yan was merely acting in his capacity as the agencys general manager, and that there is no showing that Yan acted maliciously or in bad faith when he ordered Meneses transfer. They also point out that Menese did not challenge before the CA the NLRC ruling absolving Yan from any liability. The Case for Menese By way of her comment25 and memorandum,26 Menese asks that the appeal be denied for lack of merit. She claims that at the arbitration stage, the petitioners readily admitted the fact of her removal, manifesting in open session their lack of interest to settle the case amicably as they have a strong evidence to support their defense of her dismissal for cause. She observed during the hearing that the petitioners were very confident about their case, because according to them, they had Dapulas letter asking for her immediate removal.27

Menese further claims that the petitioners realized that they did not have the necessary evidence, so Yan wrote Dapula a letter asking her for proof of the complaints or grievances of the security guards against Menese.28Dapula did not produce or present the evidence they asked for resulting in their failure to substantiate their defense of dismissal for cause. Menese contends that the petitioners then revised their theory of the case and made it appear that she was not actually dismissed but was merely transferred, purportedly in the exercise of their management prerogative. She posits that her transfer was motivated by ill will and bad faith, as it was done to facilitate the entry of a favored applicant to the PGH detachment. She intimates that the labor arbiter resolved the case correctly when he found her to have been constructively or illegally dismissed. She bewails the NLRCs surprising reversal of the labor arbiters decision, but feels vindicated when the CA set aside the NLRC ruling. Menese submits that the CA is correct in nullifying the NLRCs reversal of her illegal dismissal case because the labor tribunal closed its eyes to the fact that bad faith attended her transfer. She points out that the petitioners twin directives, vis--vis her transfer upon which the NLRC based its ruling, "were both issued for a selfish and immoral purpose;"29 the first, dated May 16, 2001,30 was issued for the purpose of creating a vacancy, and the second, dated May 22, 2001,31 was intended to cover up the wrongdoing that was earlier committed. In other words, the directives were tainted with malice and ill will. On the matter of Yans liability, Menese maintains that the NLRC committed a serious error in allowing him to get away with his wrongdoing considering the injustice done to her as a result of her unceremonious dismissal. In a different vein, Menese assails the NLRCs exclusion of the one-hour meal break as overtime work, for it erroneously assumed that her employer had been giving its employees a 60 minute timeoff for regular meals and that she was not performing work during the period. She argues that this was not the actual practice in the workplace, contending that she continued working even during the one-hour meal break. Finally, Menese maintains that the CA correctly reinstated the labor arbiters award of attorneys fees and the imposition of solidary liability on Yan and the agency. She posits that in her quest for justice because of her unceremonious dismissal, she was constrained to engage the services of a counsel to handle her case. The Courts Ruling We deny the petition for lack of merit. The evidence of Meneses unwarranted, unjustified and, in her own language, "unceremonious" dismissal is so glaring that to ignore it is to commit, as the NLRC did, grave abuse of discretion. We note as a starting point that at the time material to the case, Menese ceased to be the agencys payroll and billing clerk at its PGH detachment. The position was taken away from her as she had been transferred to the agencys main office on Ortigas Avenue, Mandaluyong City, upon the request of Dapula, the new chief of the UP-PGH Security Division. The transfer was to be carried out through a memorandum dated May 16, 200132 issued by Yan; a second memorandum dated May 22, 200133 issued by Personnel Officer Edwin J. Yabes, reminding Menese of Yans instruction for her to report to the main office; and a third memorandum dated May 28, 2001,34also issued by Yabes informing Menese that it was her second notice to assume her work detail at the main office. Yabes instructed her to report for work on May 30, 2001. Citing Mendoza v. Rural Bank of Lucban,35 the petitioners argue that the transfer was undertaken in the exercise of management prerogative in the pursuit of their legitimate interests. They submit that

Menese refused to comply with the valid transfer orders they issued, making her liable for abandonment and insubordination. They argue that nothing on record shows that she was illegally dismissed as no dismissal had been imposed on her. On a superficial consideration, the petitioners position looks unassailable as indeed an employer can regulate, generally without restraint and according to its own discretion and judgment, every aspect of its business, including work assignments and transfer of employees, subject only to limitations imposed by law.36 This submission, however, glossed over or suppressed a crucial factor in the present labor controversy. We refer to Dapulas letter to Yan in early May 2001,37 asking for Meneses transfer allegedly due to numerous complaints from security guards and co-workers regarding her unprofessionalism and because of nepotism; Menese is the wife of a member of the UP Manila police force. Had Yan inquired into Dapulas claim of Meneses alleged unprofessionalism, ideally through an administrative investigation, he could have been provided with a genuine reason assuming proof of Dapulas accusation existed for Meneses transfer or even for her dismissal, if warranted. That the agency did not get into the bottom of Dapulas letter before it implemented Meneses transfer is indicative of the sheer absence of an objective justification for the transfer. The most that the agency did was to write Dapula a letter, through Yan, asking her to provide documents/evidence in support of her request for Meneses transfer.38 Significantly, Yans request came after the labor arbiters summons to Yan regarding Meneses complaint. Dapula never responded to Yans letter and neither did she provide the evidence needed for the agencys defense in the complaint. As Menese noted, the petitioners did not submit as annex to the petition Yans letter to Dapula, and the reason appears to be obvious they were trying to avoid calling attention to the absence of proof of Meneses alleged unprofessionalism and her involvement in nepotism. Evidently, the basis for Dapulas request did not exist. We thus find credible Meneses contention that her transfer was a ploy to remove her from the PGH detachment to accommodate the entry of Dapulas protge. In short, the agency wanted to create a vacancy for Claro, the protge. Confronted with this clear intent of the petitioners, we cannot see how Meneses transfer could be considered a valid exercise of management prerogative. As Menese rightly put it, her transfer was arbitrarily done, motivated no less by ill will and bad faith. In Blue Dairy Corporation v. NLRC,39 the Court stressed as a matter of principle that the managerial prerogative to transfer personnel must be exercised without abuse of discretion, bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which that right is exercised. Thus, it should not be used as a subterfuge by the employer to get rid of "an undesirable worker." Measured against this basic precept, the petitioners undoubtedly abused their discretion or authority in transferring Menese to the agencys head office. She had become "undesirable" because she stood in the way of Claros entry into the PGH detachment. Menese had to go, thus the need for a pretext to get rid of her. The request of a client for the transfer became the overriding command that prevailed over the lack of basis for the transfer. We cannot blame Menese for refusing Yans offer to be transferred. Not only was the transfer arbitrary and done in bad faith, it would also result, as Menese feared, in a demotion in rank and a diminution in pay. Although Yan informed Menese that "based on the request of the client, she will be transferred to another assignment which however will not involve any demotion in rank nor diminution in her salaries and other benefits,"40 the offer was such as to invite reluctance and suspicion as it was couched in a very general manner. We find credible Meneses submission on this point, i.e., that under the offered transfer: (1) she would hold the position of lady guard and (2) she would be paid in accordance with the statutory minimum wage, or from P11,720.00 to P7,500.00.
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In these lights, Meneses transfer constituted a constructive dismissal as it had no justifiable basis and entailed a demotion in rank and a diminution in pay for her. For a transfer not to be considered a constructive dismissal, the employer must be able to show that the transfer is for a valid reason, entails no diminution in the terms and conditions of employment, and must be unreasonably inconvenient or prejudicial to the employee. If the employer fails to meet these standards, the employees transfer shall amount, at the very least, to constructive dismissal.41The petitioners, unfortunately for them, failed to come up to these standards. In declaring Meneses transfer to be in the valid exercise of the petitioners management prerogative, the NLRC grossly misappreciated the evidence and, therefore, gravely abused its discretion in closing its eyes to the patent injustice committed on Menese. It completely disregarded the obvious presence of bad faith in Meneses transfer. Labor justice demands that Menese be awarded moral and exemplary damages42 and, for having been constrained to litigate in order to protect her rights, attorneys fees.43 Yans solidary liability Yan had been aware all the time of the utter lack of a valid reason for Meneses transfer. He had been aware all the time that Dapulas charges against Menese the ostensible reason for the transfer were nonexistent as Dapula failed to substantiate the charges. He was very much a part of the flagrant and duplicitous move to get rid of Menese to give way to Claro, Dapulas protge. Based on the facts, Yan is as guilty as the agency in causing the transfer that was undertaken in bad faith and in a wanton and oppressive manner. Thus, he should be solidarily liable with the agency for Meneses monetary awards. The overtime pay award While the labor arbiter declared that Meneses claim for overtime pay is unrebutted44 and, indeed, nowhere in the petitioners position paper did they controvert Meneses claim, we hold that the claim must still be substantiated. In Global Incorporated v. Commissioner Atienza,45 a claim for overtime pay will not be granted for want of factual and legal basis. In this respect, the records indicate that the labor arbiter granted Meneses claim for holiday pay, rest day and premium pay on the basis of payrolls.46 There is no such proof in support of Meneses claim for overtime pay other than her contention that she worked from 8:00 a.m. up to 5:00 p.m. She presented no evidence to show that she was working during the entire one hour meal break. We thus find the NLRCs deletion of the overtime pay award in order. Also, the NLRC noted that the award of P2,600.00 for the refund of the cash bond deposit is overstated and should be adjusted to P600.00 only, as indicated by the payrolls. We likewise find the adjustment in order. All told, except for the above clarifications on the overtime pay award and the refund of the cash bond deposit, we reiterate and so declare the petition to be devoid of merit. WHEREFORE, premises considered, except for the overtime pay award and the refund of deposit for the cash bond, the petition is DENIED for lack of merit. The assailed decision and resolution of the Court of Appeals are AFFIRMED, with the following modifications: 1) The deletion of the overtime pay award; and

2) Adjustment of the refund of the cash or surety bond deposit award from P2,500.00 to P600.00. Costs against the petitioners. SO ORDERED. G.R. No. 182412 November 28, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. JOJO DELA PAZ y TABOCAN, Appellant. DECISION BRION, J.: On appeal is the decision1 dated September 28, 2007 of the Court of Appeals (CA) in CA-G.R. CRH.C. No. 02331, which affirmed and modified the decision of the Regional Trial Court (RTC), Branch 276, of Muntinlupa City.2 The RTC found Jojo dela Paz y Tabocan (appellant) guilty beyond reasonable doubt of raping a woman who has the mental age of a five-year old child. The CA modified the RTC decision by imposing reclusion perpetuainstead of life imprisonment, and by ordering the payment of moral damages. The Facts The appellant and AAA3 were neighbors whose houses were located in the same residential compound in Summitville, Putatan, Muntinlupa City. AAA, who suffers from mental retardation, lived with her mother and brothers, and was 30 years old when the rape occurred. Sometime from December 1993 to January 1994, the appellantwhenever he would take a bath would call AAA to join him in the common comfort room of the compound; he timed their entrance when no one was looking. Once inside, the appellant would kiss and embrace AAA, undress her, make her lie down on the floor, proceed to lie on top of her, insert his organ into hers, and make pumping motions with his buttocks. AAA felt pain in her vagina each time and had bleeding. In May 1994, AAAs mother (BBB) noticed AAAs swelling abdomen and began to suspect that AAA was pregnant. She confronted AAA and told her that she could be with child. Initially, AAA denied her mothers allegation, but she eventually disclosed what the appellant did to her in the communal comfort room. BBB brought AAA to a medical doctor who, after an obstetric ultrasonography, confirmed that she was indeed pregnant and was five (5) months on the family way. BBB reported the matter to their barangay officials and executed a Sinumpaang Salaysay4 before the Womens Desk of the Muntinlupa Police Station.5 This led to the appellants arrest and the filing of a criminal case against him for rape.6 BBB also brought AAA to the National Bureau of Investigation (NBI) for neuro-psychiatric evaluation. Dr. Erlinda Marfil, the neuro-psychiatrist in the team of medical doctors and psychologists who evaluated AAA, found her to be a mental retardate with the mental age of a five-year old child. Dr. Marfil also diagnosed AAA to have psychosis.7

At the trial, the prosecution presented AAA,8 BBB,9 arresting and investigating officer Estela Formales,10 and NBI medical officers Dr. Marfil11 and Dr. Antonio Vertido.12 In her testimony, AAA repeatedly declared that the appellant was the one who caused her pregnancy.13 She also testified that she had given birth to a baby boy.14 The appellant15 and his brother Eddie dela Paz16 testified for the defense. The appellant interposed the defenses of denial and alibi. He claimed that he could not have raped AAA inside the common comfort room of their compound as he was always away during daytime, working as a plumber either in Soldiers Hill which he stated was less than a kilometer away or in Intercity Subdivision in Sucat. He was at a loss as to why a rape charge was filed against him. The appellant also claimed that he was subjected to a strangling hold and a gun was poked at him by one of the arresting officers during his custodial investigation to secure his statement that although he had engaged in intimate acts with AAA, he did not insert his penis inside her. His brother, who has a store inside the compound, claimed that it was impossible for AAA to enter the compounds common comfort room without being noticed, either by him or by the other residents of the compound. The RTCs ruling The RTC found AAA to be coherent and believable. It held that AAA had no reason to falsely testify against the appellant or to falsely identify him as the father of her child. It held that it was not physically impossible for the appellant to be at the scene of the crime at the time of its commission since the distances between this scene and his places of work were short and could easily be negotiated using public transportation. The RTC also pointed out that the appellants brother could not be expected to observe the comfort room all the time since he also attended to his store. While the RTC no longer took up the matter in the decision, the transcripts show that the RTC disbelieved the appellants claim of coercion during custodial investigation since he kept changing his testimony on the matter.17 The RTC imposed the penalty of "life imprisonment, with no hope of parole,"18 and ordered the appellant to acknowledge the child as his natural child and to pay AAA the amount of P50,000.00 "by way of indemnity."19 The Court of Appeals Ruling The CA affirmed the appellants conviction but imposed reclusion perpetua to rectify the penalty of life imprisonment erroneously imposed by the RTC. It also imposed the payment of P50,000.00 as moral damages.
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The CA held that the prosecution "indubitably" established the rape and the mental retardation of the victim. The CA agreed that AAA was a credible witness for her testimony was "candid and straightforward[,] and replete with adequate details of her ravishment"20 despite her low intelligence. It upheld the RTCs reliance on the testimonies of Dr. Marfil and AAA in concluding that AAA is indeed intellectually disabled. The CA pointed out that a woman with a mental age below that of a person less than 12 years of age is effectively "deprived of reason" and that sexual intercourse with her constitutes rape under either paragraph (2) or paragraph (3), Article 335 of the Revised Penal Code. It disregarded the appellants alibi by pointing out that he could have still committed the rape either before he left for work or after coming home from work. The Courts Ruling

We affirm the judgment of the CA, with the modification that exemplary damages in the amount of P30,000.00 be awarded in addition to civil indemnity and moral damages. Our review confirms that the CA and the RTC correctly appreciated the evidence in arriving at their findings of fact. These findings are of course conclusive on this Court unless shown to have been attended by grave abuse of discretion. We found no such grave abuse of discretion and in fact found, after due consideration of the facts on record, that indeed AAA is intellectually disabled and yet was a credible witness. Her positive identification of the appellant as her comfort room lover and as the father of her child established his sexual relationship with her. By law and jurisprudence, sexual intercourse with a mentally retarded woman incapable of giving rational consent constitutes rape.21 The RTC and the CA correctly rejected the defenses of denial and alibi as these are the weakest of defenses and are easy to concoct and fabricate.22 In this case, the appellants alibi is not persuasive for his failure to demonstrate the physical impossibility of his presence at the crime scene; for instance, he himself admitted that the crime scene was only about one kilometer away from his place of work. Likewise, his denial is unpersuasive in light of AAAs positive and credible testimony on the sexual intercourse he instigated and essentially forced upon her at the communal comfort room. We affirm the RTCs award of civil indemnity in the amount of P50,000.00 and its order for the appellant to acknowledge AAAs child as his natural child. The award of P50,000.00 as civil indemnity conforms with current jurisprudence on simple rape,23 while the order is authorized under Article 345 of the Revised Penal Code.24 In this case, the order is appropriate since the records25 show the appellant to be unmarried.26 We likewise affirm the CAs award of moral damages in the amount of P50,000.00. Moral damages are awarded to rape victims without need of proof other than the fact of rape, as the victim suffered moral injuries from the experience she underwent.27 Finally, considering the intellectual disability of the private complainant in this case, we award P30,000.00 as exemplary damages. Exemplary damages are imposed as a public example in order "to protect hapless individuals from [sexual] molestation."28 WHEREFORE, in view of these considerations, we AFFIRM the September 28, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02331, subject to the MODIFICATION that exemplary damages in the amount ofP30,000.00 be imposed in addition to civil indemnity and moral damages. SO ORDERED. G.R. No. 174179 November 16, 2011

KAISAHAN AT KAPATIRAN NG MGA MANGGAGAWA AT KAWANI SA MWC-EAST ZONE UNION and EDUARDO BORELA, representing its members, Petitioners, vs. MANILA WATER COMPANY, INC., Respondent. DECISION BRION, J.:

We resolve the petition for review on certiorari1 filed by the petitioners, Kaisahan at Kapatiran ng mga Manggagawa at Kawani sa MWC-East Zone Union (Union) and Eduardo Borela, assailing the decision2 and the resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 83654.4 The Factual Antecedents The background facts are not disputed and are summarized below. The Union is the duly-recognized bargaining agent of the rank-and-file employees of the respondent Manila Water Company, Inc. (Company) while Borela is the Union President.5 On February 21, 1997, the Metropolitan Waterworks and Sewerage System (MWSS) entered into a Concession Agreement (Agreement) with the Company to privatize the operations of the MWSS.6 Article 6.1.3 of the Agreement provides that "the Concessionaire shall grant [its] employees benefits no less favorable than those granted to MWSS employees at the time of [their] separation from MWSS."7 Among the benefits enjoyed by the employees of the MWSS were the amelioration allowance (AA) and the costof-living allowance (COLA) granted in August 1979, pursuant to Letter of Implementation No. 97 issued by the Office of the President.8 The payment of the AA and the COLA was discontinued pursuant to Republic Act No. 6758, otherwise known as the "Salary Standardization Law," which integrated the allowances into the standardized salary.9 Nonetheless, in 2001, the Union demanded from the Company the payment of the AA and the COLA during the renegotiation of the parties Collective Bargaining Agreement (CBA).10 The Company initially turned down this demand, however, it subsequently agreed to an amendment of the CBA on the matter, which provides: The Company shall implement the payment of the Amelioration Allowance and Cost of Living [A]llowance retroactive August 1, 1997 should the MWSS decide to pay its employees and all its former employees or upon award of a favorable order by the MWSS Regulatory Office or upon receipt of [a] final court judgment.11 Thereafter, the Company integrated the AA into the monthly payroll of all its employees beginning August 1, 2002, payment of the AA and the COLA after an appropriation was made and approved by the MWSS Board of Trustees. The Company, however, did not subsequently include the COLA since the Commission on Audit disapproved its payment because the Company had no funds to cover this benefit.12 As a result, the Union and Borela filed on April 15, 2003 a complaint against the Company for payment of the AA, COLA, moral and exemplary damages, legal interest, and attorneys fees before the National Labor Relations Commission (NLRC).13 The Compulsory Arbitration Rulings In his decision of August 20, 2003, Labor Arbiter Aliman D. Mangandog (LA) ruled in favor of the petitioners and ordered the payment of their AA and COLA, six percent (6%) interest of the total amount awarded, and ten percent (10%) attorneys fees.14 On appeal by the Company, the NLRC affirmed with modification the LAs decision.15 It set aside the award of the COLA benefits because the claim was not proven and established, but ordered the Company to pay the petitioners their accrued AA of about P107,300,000.00 in lump sum and to continue paying the AA starting August 1, 2002. It also upheld the award of 10% attorneys fees to the petitioners.

In its Motion for Partial Reconsideration of the NLRCs December 19, 2003 decision, the Company pointed out that the award of ten percent (10%) attorneys fees to the petitioners is already provided for in their December 19, 2003 Memorandum of Agreement (MOA) which mandated that attorneys fees shall be deducted from the AA and CBA receivables.16 This compromise agreement, concluded between the parties in connection with a notice of strike filed by the Union in 2003,17 provides among others that:18 31. Attorneys fees 10% to be deducted from AA and CBA receivables. 32. All other issues are considered withdrawn.19 In their Opposition, the petitioners argued that the MOA only covered the payment of their share in the contracted attorneys fees, but did not include the attorneys fees awarded by the NLRC. To support their claim, the petitioners submitted Borelas affidavit which relevantly stated: 2. On December 19, 2003, in settlement of the notice of Strike for CBA Deadlock, Manila Water Company, Inc. and the Union entered into an Agreement settling the deadlock issued (sic) of the CBA negotiation including [the] payment of the AA and the mode of payment thereof. 3. Considering that the AA payment was included in the Agreement, the Union representation deemed it wise, for practical reason, to authorize the company to immediately deduct from the benefits that will be received by the member/employees the 10% attorneys fees in conformity with our contract with our counsel. 4. The 10% attorneys fees paid by the members/employees is separate and distinct from the obligation of the company to pay the 10% awarded attorneys fees which we also gave to our counsel as part of our contingent fee agreement. 5. There was no agreement that we are going to shoulder the entire attorneys fees as this would cost us 20% of the amount we would recover. There was also no agreement that the 10% attorneys fees in the MOA represents the entire attorneys cost because the said payment represents only our compliance of our share in the attorneys fees in conformity with our contract. Likewise, we did not waive the awarded 10% attorneys fees because the same belongs to our counsel and not to us and beyond our authority.20(emphasis ours) The NLRC subsequently denied both parties Motions for Partial Reconsideration,21 prompting the Company to elevate the case to the CA via a petition for certiorari under Rule 65 of the Rules of Court. It charged the NLRC of grave abuse of discretion in sustaining the award of attorneys fees on the grounds that: (1) it is contrary to the MOA22 concerning the payment of attorneys fees; (2) there was no finding of unlawful withholding of wages or bad faith on the part of the Company; and (3) the attorneys fees awarded are unconscionable. The CA Decision In its Decision promulgated on March 6, 2006,23 the CA modified the assailed NLRC rulings by deleting "[t]he order for respondent MWCI to pay attorneys fees equivalent to 10% of the total judgment awards." The CA recognized the binding effect of the MOA between the Company and the Union; it stressed that any further award of attorneys fees is unfounded considering that it did not find anything in the Agreement that is contrary to law, morals, good customs, public policy or public order.

In resolving the issue, the CA cited our ruling in Traders Royal Bank Employees Union-Independent v. NLRC,24where we distinguished between the two commonly accepted concepts of attorneys fees the ordinary and the extraordinary. We held in that case that under its ordinary concept, attorneys fees are the reasonable compensation paid to a lawyer by his client for legal services rendered. On the other hand, we ruled that in its extraordinary concept, attorneys fees represent an indemnity for damages ordered by the court to be paid by the losing party in a litigation based on what the law provides; it is payable to the client not to the lawyer, unless there is an agreement to the contrary. The CA noted that the fees at issue in this case fall under the extraordinary concept the NLRC having ordered the Company, as losing party, to pay the Union and its members ten percent (10%) attorneys fees. It found the award without basis under Article 111 of the Labor Code which provides that attorneys fees equivalent to ten percent (10%) of the amount of wages recovered may be assessed only in cases of unlawful withholding of wages. The CA ruled that the facts of the case do not indicate any unlawful withholding of wages or bad faith attributable to the Company. It also held that the additional grant of 10% attorneys fees violates Article 111 of the Labor Code considering that the MOA between the parties already ensured the payment of 10% attorneys fees, deductible from the AA and CBA receivables of the Unions members. The CA thus adjudged the NLRC decision awarding attorneys fees to have been rendered with grave abuse of discretion. The Union and Borela moved for reconsideration, but the CA denied the motion in its resolution of August 15, 2006.25 Hence, the present petition. The Petition The petitioners seek a reversal of the CA rulings on the sole ground that the appellate court committed a reversible error in reviewing the factual findings of the NLRC and in substituting its own findings an action that is not allowed under Rule 65 of the Rules of Court. They question the CAs re-evaluation of the evidence, particularly the MOA, and its conclusion that there was no unlawful withholding of wages or bad faith attributable to the Company, thereby contradicting the factual findings of the NLRC. They also submit that a petition for certiorariunder Rule 65 is confined only to issues of jurisdiction or grave abuse of discretion, and does not include the review of the NLRCs evaluation of the evidence and its factual findings.26 The petitioners argue that in the present case, all the parties arguments and evidence relating to the award of attorneys fees were carefully studied and weighed by the NLRC. As a result, the NLRC gave credence to Borelas affidavit claiming that the attorneys fees paid by the Unions members are separate and distinct from the attorneys fees awarded by the NLRC. The petitioners stress that whether the NLRC is correct in giving credence to Borelas affidavit is a question that the CA cannot act upon in a petition for certiorari unless grave abuse of discretion can be shown.27 The Case for the Company In its Memorandum filed on September 7, 2007,28 the Company argues that the correctness of the NLRCs interpretation of the provision of the MOA, the reasonableness of the attorneys fees in question, and the application or interpretation of a provision of the Labor Code on the matter are questions of law which the CA validly inquired into in the certiorari proceedings. It argues that the CA correctly ruled that the NLRC acted with grave abuse of discretion when it affirmed the LAs award of attorneys fees despite the absence of a finding of any unlawful withholding of wages or bad faith on the part of the Company. It finally contends that the Unions demand, together with the NLRC award, is unconscionable as it represents 20% of the amount due or about P21.4 million.

Issues The core issues posed for our resolution are: (1) whether the CA can review the factual findings of the NLRC in a Rule 65 petition; and (2) whether the NLRC gravely abused its discretion in awarding ten percent (10%) attorneys fees to the petitioners. The Courts Ruling We find the petition and its arguments meritorious. On the CAs Review of the NLRCs Factual Findings We agree with the petitioners that as a rule, the CA cannot undertake a re-assessment of the evidence presented in the case in certiorari proceedings under Rule 65 of the Rules of Court.29 However, the rule admits of exceptions. In Mercado v. AMA Computer College-Paraaque City, Inc.,30 we held that the CA may examine the factual findings of the NLRC to determine whether or not its conclusions are supported by substantial evidence, whose absence justifies a finding of grave abuse of discretion. We ruled: We agree with the petitioners that, as a rule in certiorari proceedings under Rule 65 of the Rules of Court, the CA does not assess and weigh each piece of evidence introduced in the case. The CA only examines the factual findings of the NLRC to determine whether or not the conclusions are supported by substantial evidence whose absence points to grave abuse of discretion amounting to lack or excess of jurisdiction. In the recent case ofProtacio v. Laya Mananghaya & Co., we emphasized that: As a general rule, in certiorari proceedings under Rule 65 of the Rules of Court, the appellate court does not assess and weigh the sufficiency of evidence upon which the Labor Arbiter and the NLRC based their conclusion. The query in this proceeding is limited to the determination of whether or not the NLRC acted without or in excess of its jurisdiction or with grave abuse of discretion in rendering its decision. However, as an exception, the appellate court may examine and measure the factual findings of the NLRC if the same are not supported by substantial evidence. The Court has not hesitated to affirm the appellate courts reversals of the decisions of labor tribunals if they are not supported by substantial evidence. 31(italics and emphasis supplied; citation omitted) As discussed below, our review of the records and of the CA decision shows that the CA erred in ruling that the NLRC gravely abused its discretion in awarding the petitioners ten percent (10%) attorneys fees without basis in fact and in law. Corollary to the above-cited rule is the basic approach in the Rule 45 review of Rule 65 decisions of the CA in labor cases which we articulated in Montoya v. Transmed Manila Corporation32 as a guide and reminder to the CA. We laid down that: In a Rule 45 review, we consider the correctness of the assailed CA decision, in contrast with the review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule 45 limits us to the review of questions of law raised against the assailed CA decision. In ruling for legal correctness, we have to view the CA decision in the same context that the petition for certiorari it ruled upon was presented to it; we have to examine the CA decision from the prism of whether it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision before it, not on the basis of whether the NLRC decision on the merits of the case was correct. In other words, we have to be keenly aware that the CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision challenged before it. This is the approach that should be basic in a Rule 45 review of a CA ruling in a labor case. In question form, the question to ask is:

Did the CA correctly determine whether the NLRC committed grave abuse of discretion in ruling on the case?33 (italics and emphases supplied) In the present case, we are therefore tasked to determine whether the CA correctly ruled that the NLRC committed grave abuse of discretion in awarding 10% attorneys fees to the petitioners. On the Award of Attorneys Fees Article 111 of the Labor Code, as amended, governs the grant of attorneys fees in labor cases: Art. 111. Attorneys fees.- (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorneys fees equivalent to ten percent of the amount of wages recovered. (b) It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorneys fees which exceed ten percent of the amount of wages recovered. Section 8, Rule VIII, Book III of its Implementing Rules also provides, viz.: Section 8. Attorneys fees. Attorneys fees in any judicial or administrative proceedings for the recovery of wages shall not exceed 10% of the amount awarded. The fees may be deducted from the total amount due the winning party. We explained in PCL Shipping Philippines, Inc. v. National Labor Relations Commission 34 that there are two commonly accepted concepts of attorneys fees the ordinary and extraordinary. In its ordinary concept, an attorneys fee is the reasonable compensation paid to a lawyer by his client for the legal services the former renders; compensation is paid for the cost and/or results of legal services per agreement or as may be assessed. In its extraordinary concept, attorneys fees are deemed indemnity for damages ordered by the court to be paid by the losing party to the winning party. The instances when these may be awarded are enumerated in Article 2208 of the Civil Code, specifically in its paragraph 7 on actions for recovery of wages, and is payable not to the lawyer but to the client, unless the client and his lawyer have agreed that the award shall accrue to the lawyer as additional or part of compensation.35 We also held in PCL Shipping that Article 111 of the Labor Code, as amended, contemplates the extraordinary concept of attorneys fees and that Article 111 is an exception to the declared policy of strict construction in the award of attorneys fees. Although an express finding of facts and law is still necessary to prove the merit of the award, there need not be any showing that the employer acted maliciously or in bad faith when it withheld the wages. In carrying out and interpreting the Labor Code's provisions and implementing regulations, the employee's welfare should be the primary and paramount consideration. This kind of interpretation gives meaning and substance to the liberal and compassionate spirit of the law as embodied in Article 4 of the Labor Code (which provides that "[a]ll doubts in the implementation and interpretation of the provisions of [the Labor Code], including its implementing rules and regulations, shall be resolved in favor of labor") and Article 1702 of the Civil Code (which provides that "[i]n case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer").36 We similarly so ruled in RTG Construction, Inc. v. Facto37 and in Ortiz v. San Miguel Corporation.38 In RTG Construction, we specifically stated:

Settled is the rule that in actions for recovery of wages, or where an employee was forced to litigate and, thus, incur expenses to protect his rights and interests, a monetary award by way of attorneys fees is justifiable under Article 111 of the Labor Code; Section 8, Rule VIII, Book III of its Implementing Rules; and paragraph 7, Article 2208 of the Civil Code. The award of attorneys fees is proper, and there need not be any showing that the employer acted maliciously or in bad faith when it withheld the wages. There need only be a showing that the lawful wages were not paid accordingly.39 (emphasis ours) In PCL Shipping, we found the award of attorneys fees due and appropriate since the respondent therein incurred legal expenses after he was forced to file an action for recovery of his lawful wages and other benefits to protect his rights.40 From this perspective and the above precedents, we conclude that the CA erred in ruling that a finding of the employers malice or bad faith in withholding wages must precede an award of attorneys fees under Article 111 of the Labor Code. To reiterate, a plain showing that the lawful wages were not paid without justification is sufficient. In the present case, we find it undisputed that the union members are entitled to their AA benefits and that these benefits were not paid by the Company. That the Company had no funds is not a defense as this was not an insuperable cause that was cited and properly invoked. As a consequence, the union members represented by the Union were compelled to litigate and incur legal expenses. On these bases, we find no difficulty in upholding the NLRCs award of ten percent (10%) attorneys fees. The more significant issue in this case is the effect of the MOA provision that attorneys fees shall be deducted from the AA and CBA receivables. In this regard, the CA held that the additional grant of 10% attorneys fees by the NLRC violates Article 111 of the Labor Code, considering that the MOA between the parties already ensured the payment of 10% attorneys fees deductible from the AA and CBA receivables of the Unions members. In addition, the Company also argues that the Unions demand, together with the NLRC award, is unconscionable as it represents 20% of the amount due or about P21.4 million. In Traders Royal Bank Employees Union-Independent v. NLRC,41 we expounded on the concept of attorneys fees in the context of Article 111 of the Labor Code, as follows: In the first place, the fees mentioned here are the extraordinary attorneys fees recoverable as indemnity for damages sustained by and payable to the prevailing part[y]. In the second place, the ten percent (10%) attorneys fees provided for in Article 111 of the Labor Code and Section 11, Rule VIII, Book III of the Implementing Rules is the maximum of the award that may thus be granted. Article 111 thus fixes only the limit on the amount of attorneys fees the victorious party may recover in any judicial or administrative proceedings and it does not even prevent the NLRC from fixing an amount lower than the ten percent (10%) ceiling prescribed by the article when circumstances warrant it.42 (emphases ours; citation omitted) In the present case, the ten percent (10%) attorneys fees awarded by the NLRC on the basis of Article 111 of the Labor Code accrue to the Unions members as indemnity for damages and not to the Unions counsel as compensation for his legal services, unless, they agreed that the award shall be given to their counsel as additional or part of his compensation; in this case the Union bound itself to pay 10% attorneys fees to its counsel under the MOA and also gave up the attorneys fees awarded to the Unions members in favor of their counsel. This is supported by Borelas affidavit which stated that "[t]he 10% attorneys fees paid by the members/employees is separate and distinct from the obligation of the company to pay the 10% awarded attorneys fees which we also gave to our counsel as part of our contingent fee agreement."43 The limit to this agreement is that the

indemnity for damages imposed by the NLRC on the losing party (i.e., the Company) cannot exceed ten percent (10%). Properly viewed from this perspective, the award cannot be taken to mean an additional grant of attorneys fees, in violation of the ten percent (10%) limit under Article 111 of the Labor Code since it rests on an entirely different legal obligation than the one contracted under the MOA. Simply stated, the attorneys fees contracted under the MOA do not refer to the amount of attorneys fees awarded by the NLRC; the MOA provision on attorneys fees does not have any bearing at all to the attorneys fees awarded by the NLRC under Article 111 of the Labor Code. Based on these considerations, it is clear that the CA erred in ruling that the LAs award of attorneys fees violated the maximum limit of ten percent (10%) fixed by Article 111 of the Labor Code.
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Under this interpretation, the Companys argument that the attorneys fees are unconscionable as they represent 20% of the amount due or about P21.4 million is more apparent than real. Since the attorneys fees awarded by the LA pertained to the Unions members as indemnity for damages, it was totally within their right to waive the amount and give it to their counsel as part of their contingent fee agreement. Beyond the limit fixed by Article 111 of the Labor Code, such as between the lawyer and the client, the attorneys fees may exceed ten percent (10%) on the basis of quantum meruit, as in the present case.44 WHEREFORE, premises considered, the petition is hereby GRANTED. The assailed decision dated March 6, 2006 and the resolution dated August 15, 2006 of the Court of Appeals in CA-G.R. SP No. 83654 are REVERSED and SET ASIDE. The Labor Arbiters award of attorneys fees equivalent to ten percent (10%) of the total judgment award is hereby REINSTATED. No pronouncement as to costs. SO ORDERED. A.M. No. CA-11-24-P November 16, 2011 (Formerly A.M. OCA I.P.I. No. 10-163-CA-P) COURT OF APPEALS BY: COC TERESITA R. MARIGOMEN, Complainant, vs. ENRIQUE E. MANABAT, JR., Security Guard I, Court of Appeals, Manila, Respondent. RESOLUTION BRION, J.: We resolve the present administrative complaint filed against Enrique E. Manabat, Jr. (respondent), Security Guard 1 (SG1) of the Court of Appeals (CA), Manila, for gross neglect of duty and conduct prejudicial to the best interest of the service by the accidental firing of his service pistol inside the CA guardhouse on June 8, 2009. In an Investigation Report1 dated June 15, 2009, Mr. Reynaldo V. Dianco, Chief of the CA Security Services Unit, informed Hon. Justice Normandie B. Pizarro, Chairperson of the CA Security and Safety Committee, that at around 8:00 a.m. of June 8, 2009, the respondent, who was inside the guardhouse, accidentally fired his service pistol, a 9mm FEG Hungary, while in the process of unloading it for turnover to SG1 Miguel Tamba, the guard on duty for the next shift. In the same report, Mr. Dianco recommended that the respondent be dismissed from the service for gross

neglect of duty. The matter was forwarded to the CA Clerk of Court, Atty. Teresita R. Marigomen, for investigation.2 On June 22, 2009, the CA Clerk of Court filed a formal charge3 against the respondent for gross neglect of duty and conduct prejudicial to the best interest of the service. The respondent was directed to file a written answer, under oath, within five (5) days from receipt thereof. In his verified answer,4 the respondent explained that the firing of his service pistol on June 8, 2009 was purely accidental, it was not done with evident bad faith, and it did not cause undue injury to any party; hence, his dismissal from the service for gross neglect of duty is unwarranted. He narrated that, to his surprise, the pistol went off after he removed the magazine and while emptying the chamber load; that immediately after the incident, he reported the same to the CA Clerk of Court; and that in turning over the pistol to SG1 Tamba, he observed the usual and safety procedure of pointing the guns muzzle towards the ground, particularly to the inner wall of the guardhouse, and at a safe distance from his co-officer a fact attested to by SG1 Tamba in an affidavit attached to his answer.5 As cause of the accidental discharge, the respondent intimated that his pistol may have been defective because during their recent firing course at Camp Crame, service pistols of the model 9mm FEG Hungary used in the shooting exercises malfunctioned; that the malfunctioning of the 9mm FEG Hungary pistols was made known to Justice Pizarro; and that their police instructor at Camp Crame recommended that they no longer use the 9mm FEG Hungary pistols as they may encounter problems with them in the future. The respondent reiterated these arguments in the position paper6 he subsequently filed with the CA. After the investigation, the CA Clerk of Court did not find the respondent guilty of gross neglect of duty and conduct prejudicial to the best interest of the service. However, the CA Clerk of Court found the respondent liable for simple neglect of duty, and recommended the penalty of one (1) month and one (1) day suspension without pay, with a stern warning that a repetition of the same offense would be dealt with more severely. The CA Clerk of Court forwarded the Investigation Report and Recommendation7 to CA Presiding Justice Andres B. Reyes, Jr., who adopted the recommended penalty and forwarded the records of the instant case to this Court.8 In an Indorsement9 dated March 24, 2010, the Office of the Court Administrator (OCA) required the respondent to file his comment on the formal charge against him for gross neglect of duty and conduct prejudicial to the best interest of the service. In his comment,10 the respondent stressed that the incident was purely accidental; that he had complied with the standard procedure in unloading his pistol, but despite this, the pistol still went off without his fault. For this reason, he argued that the recommended penalty of dismissal from the service is highly improper and he prayed that the charges against him be dismissed for insufficiency of evidence. Also, he related that he had been employed with the CA for eleven (11) years and that his latest performance rating for the period of January to June 2009 was very satisfactory. After a review of the records, the OCA agreed with the CAs finding that the respondent is guilty of simple neglect of duty. For one, the OCA did not find the elements of gross negligence present in the case. The OCA, however, could not absolve the respondent from liability because the latter, by accidentally firing his service pistol, still failed to exercise the diligence required in the proper discharge of his functions; that the respondent should have been extra careful in handling his firearm while turning it over to SG1 Tamba. The OCA belied the respondents claim that his service pistol was defective for there was evidence which showed that the exact same service pistol issued to him was in good condition and has never been reported for any malfunction this fact was attested to by former SG1 Marcialito Villaflor and SG1 Romeo Pimentel, to whom the same service pistol had earlier been issued.11

Also, the OCA did not find the respondent liable for the offense of conduct prejudicial to the best interest of the service because the records do not show that the respondents negligent act compromised the integrity and efficacy of the government service.12 In its Recommendation13 to this Court, the OCA enumerated the previous infractions committed by the respondent: that in March 1999, the respondent was reprimanded for discourtesy with stern warning; that in November 2001, he was sternly reprimanded for unprofessional behavior and acts prejudicial to the service; and that in June 2005, he was suspended for a month for habitual absenteeism. The OCA, however, noted that the respondents performance rating for the periods of January to June 2008 and July to December 2008 were both very satisfactory and that simple neglect of duty is not one of the offenses for which the respondent was previously found guilty. Due to these considerations, the OCA agreed with the CA and submitted that the respondent be suspended for one (1) month and one (1) day, without pay, and be sternly warned that a repetition of the same or similar offense shall be dealt with more severely. THE COURTS RULING We agree with the OCAs recommendation and find respondent Enrique E. Manabat, Jr. administratively liable for simple neglect of duty. The unexpected discharge of a firearm may occur for a variety of reasons. It can be the result of mechanical failure such as wear, faulty assembly, damage or faulty design of the firearm, but most often, undesired discharges result from "operator error" or due to the carelessness or ineptness of the person handling the firearm. It is for the latter reason that our court security personnel are taught the basic rules of firearm or gun safety in order to prevent incidents of undesired discharges. To exculpate himself from liability, the respondent contended that the discharge might have been caused by a mechanical failure; that his service pistol may have been defective because 9mm FEG Hungary pistols used during their recent firing course at Camp Crame malfunctioned. This incident at Camp Crame, however, is barely proof that the respondents pistol is defective. One cannot simply generalize, based from such incident, that all 9mm FEG Hungary pistols used by the CA security personnel are defective. To bolster his theory, the respondent should have presented evidence to show that his service pistol was, at that time, not mechanically sound, particularly in light of the evidence that the pistol is in good working condition. In ruling out mechanical causes, it can only be concluded that the undesired discharge of the respondents service pistol was the result of his own negligence; in the usual course of things, a firearm that is being unloaded should not discharge if gun safety procedures had been strictly followed. What cannot be denied is that the gun fired and the firing could not have happened unless there was a bullet in the guns chamber. Assuming that the respondent did indeed remove the magazine and did indeed cock the gun to eject whatever bullet that might have been in the chamber, obviously, he simply cocked the gun and did not visually examine if the chamber was clear. This is a basic and elementary precaution that every gun handler, more so a security guard who is provided a gun for his duties, should know. The next question to be resolved is whether the respondents negligence, in causing the undesired discharge of his service pistol, is gross in nature. We rule in the negative. Simple neglect of duty is defined as the failure of an employee to give proper attention to a required task or to discharge a duty due to carelessness or indifference.14 On the other hand, gross neglect of duty is characterized by want of even the slightest care, or by conscious indifference to the consequences, or by flagrant and palpable breach of duty.15

We cannot consider the respondents negligence as gross in nature because there is nothing in the records to show that the respondent willfully and intentionally fired his service pistol. Also, at the time of the incident, the respondent did observe most of the safety measures required in unloading his firearm. As attested to by SG1 Tamba who was the lone eyewitness to the incident, the respondent did point the pistols muzzle towards a safe direction, i.e., to the ground, at the time it was being unloaded and when it unexpectedly went off a fact evidenced by the bullet mark on the floor of the guardhouse.16
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We also agree with the OCA that the respondent is not liable for conduct prejudicial to the best interest of the service. Although the Revised Uniform Rules on Administrative Cases in the Civil Service17 does not provide for a definition or enumerate acts that constitute such an offense, we held that conduct prejudicial to the best interest of the service refers to acts or omissions that violate the norm of public accountability and diminish or tend to diminish the peoples faith in the Judiciary.18 Here, we do not find the respondents negligent act to have an adverse reflection on the Judiciarys integrity. Under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service,19 simple neglect of duty is classified as a less grave offense, punishable by suspension without pay for one (1) month and one (1) day to six (6) months for the first offense. Considering the respondents performance ratings and that this is his first offense for simple neglect of duty, we impose upon him the penalty of suspension in the minimum period. ACCORDINGLY, premises considered, respondent Enrique E. Manabat, Jr., Security Guard I of the Court of Appeals, Manila, is SUSPENDED for one (1) month and one (1) day, without pay, for simple neglect of duty. He is further DIRECTED to undergo, during his suspension, a firearm handling security course with the appropriate unit of the Philippine National Police, at his own expense, and shall be deemed to have completely served his suspension only upon submission of proof of the completion of this course. He is WARNED that a repetition of the same or similar offense shall be dealt with more severely. Let a copy of this Resolution be given to the Presiding Justice, Court of Appeals, Manila, with the suggestion that the firearms and ammunition issued to the CA security force be technically examined for their mechanical safety and working order. SO ORDERED. A.C. No. 6899 November 16, 2011

ROGELIO F. ESTAVILLO, Complainant, vs. ATTYS. GEMMO G. GUILLERMO and ERME S. LABAYOG, Respondents. DECISION BRION, J.: We review Resolution No. XIX-2011-503,1 passed on June 26, 2011 by the Board of Governors of the Integrated Bar of the Philippines (IBP), granting the motion for reconsideration of Attys. Gemmo G. Guillermo and Erme S. Labayog (respondents), thereby lowering the penalty of suspension from the practice of law for three (3) months against the two lawyers (imposed in Resolution No. XVIII2009-072 ) to REPRIMAND. The respondents were penalized for violation of Rule 18.03 of the Code of Professional Responsibility.

The Case On September 6, 2005, Rogelio F. Estavillo (complainant) filed an affidavit-complaint3 with the Office of the Bar Confidant, charging the respondents with gross negligence. The complainant and his son, Dexter, engaged the services of the respondents in Civil Case No. 31834 for Forcible Entry and Damages, filed against them by Teresita A. Guerrero with the Municipal Trial Court in Cities (MTCC), Laoag City. In particular, the complainant charged the respondents for their failure to file an answer in the civil case within the period fixed by the Rules of Court, as required by the summons dated March 18, 20055 which commanded: You are hereby required to enter your appearance in the above-entitled case within ten (10) days after the service of the summons upon you, exclusive of the day of such service, and to answer the complaint served upon you within the period fixed by the Rules of Court. If you fail to appear within the aforesaid period, the plaintiff will take judgment against you by default and demand from this Court the relief prayed for in said complaint. The MTCC noted that the summons was served on the Estavillos on March 18, 2005, leaving them until March 28, 2005 within which to file their answer to the complaint. The respondents filed the answer only on April 4, 2005, or seven (7) days beyond the ten (10)-day period under the Rules. For this reason, the court, upon Guerreros motion, issued an order striking the answer from the records.6 The complainant further claimed that the respondents did not inform him or his son of scheduled hearings and incidents related to the civil case, notably the following: 1) the April 15, 2005 hearing on Guerreros motion to strike out the pleading (answer) filed by the respondents, as well as the motion to cite them for indirect contempt; 2) the Order dated March 28, 20057 with a writ of preliminary prohibitory and mandatory injunction, ordering them; to demolish the fence they built on the disputed property; to refrain from demolishing or continuing with the demolition of Guerreros house; and to refrain from continuing with the construction of the fence on the property in dispute; 3) the Motion to Allow Plaintiff to Adduce Evidence in Support of her Prayer for Damages, with notice of hearing on May 20, 2005;8 the hearing was held without the appearance of either of the respondents; and 4) the Order dated May 31, 2005,9 directing the complainant and his son to solidarily pay GuerreroP20,000.00 as actual damages, P50,000.00 as moral damages, P20,000.00 as exemplary damages,P30,000.00 as attorneys fee, and P3,060.00 as cost of suit. Still further, the complainant bewailed that at 5:00 p.m. on June 24, 2005, as he and his son were waiting at the respondents law office, Atty. Guillermo finally arrived; they told the lawyer about their discovery of the May 31, 2005 order; when they asked him why they were not advised of the judgment, Atty. Guillermo just answered, "We have plenty of work."10 Taken aback by Atty. Guillermos response and attitude, they left the law office enraged and confused. The same indifferent treatment was shown to them by Atty. Labayog who undertook to show them the draft of the notice of appeal of the May 31, 2005 order. Instead of Atty. Labayog, a new member of the law firm, a certain Atty. Janapin, came and could only say that she was sorry for what had happened.

As required by the Court,11 the respondents submitted their Comment to the complaint12 where they vehemently denied the complainants allegations that they had been grossly negligent. They alleged that the complainant conferred with Atty. Guillermo regarding the civil case. They learned that Guerrero, the plaintiff, is the former owner of the property in dispute and is residing at a house built on the property. The Estavillos acquired the property and they wanted to get rid of Guerrero. One way of doing it, they thought, was to build a fence on the lot, thereby substantially reducing Guerreros passageway and destroying Guerreros house. Thus, Guerrero prayed for a temporary restraining order and a writ of preliminary and/or prohibitory injunction. To the respondents mind, Guerreros case was actually for possession despite its title for Forcible Entry based on the allegations of the complainant. They, therefore, waited for the order of the court, before they filed the answer to the complaint. They relied on Section 4, par. 2 of the 1991 Revised Rule on Summary Procedure which provides that if no ground for dismissal is found by the court, it shall forthwith issue summons stating that the summary procedure under the Rule shall apply. Unfortunately, the court did not issue any order so they presumed that the regular rules apply and that the time to file an answer is fifteen (15) days. This notwithstanding, they vehemently opposed Guerreros motion to strike out the answer, but the court ruled in Guerreros favor and struck out the answer they filed in behalf of the Estavillos. The respondents further maintained that contrary to the complainants allegations, they represented the complainant and his son in all stages of the proceedings, except at one hearing when Guillermo had an emergency meeting in connection with a different case. They also denied that they were not providing updates on the case; the complainants son, Dexter, had been regularly going to the law office to get feedbacks on the progress of the case. The respondents took exception to the complainants claim that Atty. Guillermo said "We have plenty of work"13 in justifying the loss of the civil case, for what he told the complainant on one occasion was "not all cases are won, and our only remedy left is appeal."14 They indeed filed the appeal which adequately and exhaustively discussed the complainants position in the case. It just so happened that the court decided in Guerreros favor. The IBP Proceedings On February 22, 2006,15 the Court referred the complaint to the IBP for investigation, report and recommendation. In a Report and Recommendation dated November 11, 2008,16 Commissioner Pedro A. Magpayo, Jr. of the IBP Commission on Bar Discipline recommended that the respondents be suspended from the practice of law for three (3) months for violation of Rule 18.03 of the Code of Professional Responsibility. The relevant portions of Commissioner Magpayos report state: After a judicious study of the records, it appears to the undersigned that the respondents composing the law office of Guillermo & Labayog did not meet the standard of diligence required by the situation relative to the civil complaint and the summons received by their client. When they accepted the complainants case, the clients presented to them the copy of the summons issued by the Clerk of Court. The summons dated 18 March 2005 specifically states: "You are hereby required to enter your appearance in the above-entitled case within ten (10) days after the service of the summons upon

you, exclusive of the day of such service, and to answer the complaint served upon you within the period fixed by the Rules of Court." (Exh. "3") The complaint docketed as Civil Case No. 3183 is for: Forcible Entry and damages with prayer of the issuance of a temporary restraining order and writ of preliminary mandatory and/or prohibitory injunction." It behooves or is incumbent upon respondent[s] to be knowledgeable of the periods within which to file a pleading. In this particular [instance], Rule 70, governing forcible entry and unlawful detainer cases which is incorporated in the 1997 Rules of Civil Procedure[,] has been in effect for almost eight (8) years when this complaint was instituted by plaintiff Guerrero against respondents clients. It is the bounden duty of counsel in the active practice to keep abreast of decisions of the Supreme Court and changes in the law (De Roy v. Court of Appeals, 157 SCRA 757). It was the finding of the MTCC that "as appearing in the record, the defendants filed their Answer only on April 4, 2005 or 7 days beyond the ten (10) day period given (order dated April 28, 2005)." Thus, it is plain that respondents who argued that the reglementary period is fifteen days, and not ten days, were still late in submitting the defendants answer within fifteen days.17 Commissioner Magpayo, however, found no solid evidence to support the complainants other accusations. He cited as a case in point the hearing of May 20, 2005 permitting Guerrero, the plaintiff, to present ex-parte evidence. As the term of the courts directive implies, the hearing was supposed to be attended by the plaintiff alone, without the defendants presence, for the purpose of adducing evidence to prove damages. The absence of an answer (the Estavillos answer having been stricken off the record) facilitated the allowance of the ex-parte evidence of Guerrero. Commissioner Magpayo opined that to the credit of the respondents, they put up a fight, however futile, in defense of the complainants case, as shown in the TSN of the hearings of March 22,18 April 1519 and May 6, 2005.20Unfortunately, it was really a losing case because the answer to the complaint was filed late or beyond the reglementary period of 10 days prescribed under the Rules of Court.21 The IBP Board of Governors Ruling and Related Incidents On February 19, 2009, the IBP Board of Governors passed a Resolution22 adopting and approving Commissioner Magpayos recommendation. On July 9, 2009, the respondents moved for reconsideration of the IBP resolution, insisting that they were not liable for gross negligence. They argued that they filed all the required pleadings for the Estavillos the answer, oppositions, appeals and memoranda. Except for one oral argument where Atty. Guillermo had a previous commitment elsewhere (which happened to be the time of the plaintiffs ex-parte presentation of evidence), they religiously attended to all the hearings. They maintained that if there had been negligence at all, it was not gross as it was brought about by the difficult appreciation of the Rules. They further argued that the penalty of suspension for their negligence, if any, is not in accord with jurisprudence. On August 26, 2009, Guerrero filed a comment on the motion for reconsideration, asking for its denial, contending that "[t]he hackneyed reasoning of respondents that the trial court should have issued an order fixing the period to file an answer is a subterfuge, if not a lame excuse, for their gross negligence and lack of fidelity in handling their clients case."23

On June 26, 2011, the IBP Board of Governors passed the Resolution under review, Resolution No. XIX-2011-503.24 To reiterate, it modified its Resolution No. XVIII-2009-07 dated February 19, 2009, lowering the recommended penalty of suspension for three (3) months against the respondents to REPRIMAND. The Courts Ruling The original sanction recommended by Commissioner Magpayo against the respondents, principally for their failure to file an answer for the Estavillos in the civil case, was a three-month suspension from the practice of law. The recommendation already took into account the presence of mitigating circumstances, although Commissioner Magpayo failed to elaborate on what these mitigating circumstances were. In asking for a penalty lighter than the three-month suspension imposed, the respondents contend that they did everything required by their clients defense, except for the answer to the complaint which was filed beyond the reglementary period. Nonetheless, they submit that if there had been any negligence at all, it was not gross as it was due to a difficult appreciation of the Rules. In any event, they submit that their clients really had a losing case and there was nothing they could do about it. They further argue that the recommended penalty is not in accord with jurisprudence. Under Canon 18 of the Code of Professional Responsibility, "A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE." Pursuant to Rule 18.03 cited by the complainant, "A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable." After a review of the facts, we find no reason to reduce the originally recommended penalty of suspension for three months against the respondents for their mishandling of the Estavillos civil case. Although they filed the answer, it could no longer serve its purpose as it was filed late (i.e., seven days beyond the required ten [10]-day period), as found by the court.25 As a consequence, the answer was stricken off the record26 to the detriment of the complainant and his son. The respondents attempted to justify the late filing of the answer by claiming that, to their mind, the civil case was actually for possession, notwithstanding that its title is for forcible entry. They thus waited for an order from the court pursuant to Section 4 of the 1991 Revised Rule on Summary Procedure which provides that "If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply." They did not receive a court order so they presumed that the regular rules apply, under which, the answer shall be filed within fifteen (15) days. We do not find the respondents stance acceptable as it betrays a lack of the necessary competence and diligence required by the Code of Professional Responsibility in responding to the courts summons for the Estavillos to make an appearance in the case and to file an answer to the complaint. The respondents, especially Atty. Guillermo who was supposed to be the lead counsel for the Estavillos, misappreciated the urgency and the importance of the courts summons. They mistakenly assumed that the court would issue an order of dismissal. They waited and when no order issued from the court, they again incorrectly assumed that the regular rules apply without seeking a clarification from the court or ascertaining exactly when the answer should be filed. With this rationalization, they then shifted the blame for their failure to file the answer on time to the court. We cannot allow this kind of response in the handling of cases as the terms of the Rules of Court are sufficiently clear in their requirements to the average lawyer. The terms of the summons were also clear; as the court aptly stated:

In the summons issued, specific instruction was given to the defendants that within ten (10) days after service, they are required to enter their appearance and to answer the complaint within the period fixed by the Rules of Court. The period fixed by the Rules of Court is ten (10) days and not fifteen (15) days as averred by the defendants. The defendants, however, failed.27 Thus, the respondents had in fact been negligent, or worse, had failed to exercise the required competence and diligence in filing the Estavillos answer to the complaint. Under the circumstances of the case, the respondents penalty cannot be further mitigated without committing an unfairness against the complainant and his son. We remind the respondents and the IBP Board of Governors of what we said in Fil-Garcia, Inc. v. Hernandez:28
1w phi1

Rule 18.03 of the Code of Professional Responsibility enjoins a lawyer not to "neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable." Every case a lawyer accepts deserves his full attention, skill and competence, regardless of its importance and whether he accepts it for a fee or for free. He must constantly keep in mind that his actions or omissions or nonfeasance would be binding upon his client. Thus, he is expected to be acquainted with the rudiments of law and legal procedure, and a client who deals with him has the right to expect not just a good amount of professional learning and competence but also a whole-hearted fealty to the clients cause. WHEREFORE, premises considered, the Integrated Bar of the Philippines Board of Governors Resolution No. XIX-2011-503 of June 26, 2011 is SET ASIDE, and its Resolution No. XVIII-2009-07 dated February 19, 2009 is REINSTATED. SO ORDERED. G.R. No. 184808 November 14, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ASMAD BARA y ASMAD, Appellant. DECISION BRION, J.: We review the decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01529, which affirmed the decision2of the Regional Trial Court (RTC), Branch 2, Manila, finding Asmad Bara y Asmad (appellant) guilty beyond reasonable doubt of illegal sale of shabu under Section 5, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002). BACKGROUND FACTS After receipt of information that the appellant was selling drugs on M. Adriatico Street, Malate, Manila, Senior Police Officer (SPO) 1 Rodolfo Ramos informed the members of the Western Police District, District Anti-Illegal Drugs-Special Operations Group (DAID-SOG), United Nations Avenue, Ermita, Manila, of a planned surveillance and "narcotics operation." SPO1 Ramos prepared the preoperation report and the buy-bust money consisting of two P100.00 bills; he also designated Police Officer (PO)1 Alexander delos Santos as the poseur-buyer.3

After these preparations, the police went to M. Adriatico Street to conduct their entrapment operation. On arrival, PO1 Delos Santos and the informant alighted from their car; the other members of the entrapment team remained inside the vehicle. When the informant saw the appellant, he identified the latter to PO1 Delos Santos as the target person. The appellant, on seeing the informant, approached the latter and talked to him. At this point, the informant introduced PO1 Delos Santos to the appellant as a buyer of shabu. Queried by the appellant on how much he would buy, PO1 Delos Santos replied: "Two hundred pesos."4 The appellant asked PO1 Delos Santos to wait as he would get his "stuff" from an alley 15 meters away. On his return, the appellant handed PO1 Delos Santos one (1) transparent plastic sachet containing crystalline substances. PO1 Delos Santos, in turn, gave the appellant the marked money which the appellant placed in his pocket.5 Immediately, PO1 Delos Santos grabbed the appellants hand and introduced himself as a police officer. The other members of the buy-bust team rushed to the scene and assisted in arresting the appellant. PO1 Delos Santos then handed the plastic sachet to their team leader, SPO1 Ramos. The police informed the appellant of his constitutional rights, and brought him and the seized item to the police station.6 At the police station, SPO1 Ramos handed the confiscated item to the desk investigator, who marked it with the initials "AAB."7 Police Superintendent (P/Supt.) Marcelino Pedrozo, Jr. prepared a covering request for laboratory examination and forwarded the confiscated item to the Philippine National Police (PNP) Crime Laboratory for qualitative analysis.8 Police Inspector (P/Insp.) Maritess Mariano, the PNP Forensic Chemical Officer, examined the submitted specimen and found it positive for shabu.9 The prosecution charged the appellant before the RTC with violation of Section 5, Article II of R.A. No. 9165.10The appellant denied the charge and claimed that he was resting in his house when the police arrested him.11 In its decision dated September 5, 2005, the RTC convicted the appellant of the crime charged, and sentenced him to suffer the penalty of life imprisonment. The RTC likewise ordered him to pay a P500,000.00 fine.12 The appellant appealed to the CA; the appeal was docketed as CA-G.R. CR-H.C. No. 01529. In its decision of January 31, 2008, the CA fully affirmed the RTC decision. The CA ruled that all the elements of illegal sale of dangerous drugs had been proven. The CA gave credence to the testimony of PO1 Delos Santos that a buy-bust operation had been conducted; it found no improper motive on his part to falsely testify against the appellant. The appellate court likewise ruled that the presentation of the informant is not essential for conviction. It added that coordination with the Philippine Drug Enforcement Agency is not an indispensable requirement in the prosecution of drug cases.13 The appellant appealed the CA decision to this Court pursuant to Section 13, par. c, Rule 124 of the Rules of Court, as amended by A.M. No. 00-5-03-SC. THE ISSUE In the present appeal with us, the appellant poses the issue of whether his guilt for violation of Section 5, Article II of R.A. No. 9165 has been proven beyond reasonable doubt. THE COURTS RULING

After due consideration, we resolve to deny the appeal for lack of merit. In a prosecution for illegal sale of dangerous drugs, the following elements must be duly established: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. The delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money successfully consummate the buy-bust transaction. What is material, therefore, is the proof that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti.14 Our examination of the records confirms the presence of all the required elements. The witness for the prosecution successfully proved that a buy-bust operation indeed took place, and the shabu subject of the sale was brought to, and duly identified in, court. PO1 Delos Santos positively identified the appellant as the person who sold to him one plastic sachet containing white crystalline substances in exchange for P200.00. The white crystalline substances contained in the seized plastic sachet were examined and confirmed to be shabu, per Chemistry Report No. D-653-04 issued by the PNP Forensic Chemical Officer, P/Insp. Mariano. P/Insp. Marianos finding was approved by the Chief of the PNPs Chemical Section, Police Senior Inspector Judycel Macapagal. Significantly, the appellant did not impute any ill motive on the part of PO1 Delos Santos that would lead the latter to falsely testify. We also find that the totality of the presented evidence leads to an unbroken chain of custody of the confiscated item from the appellant. The records bear out that after PO1 Delos Santos received the plastic sachet from the appellant, the former handed it to SPO1 Ramos. Thereafter, the buy-bust team brought the appellant and the seized item to the police station on United Nations Avenue, Ermita, Manila, for investigation. Upon arrival, SPO1 Ramos immediately handed the seized item over to the investigator, who marked it with the appellants initials "AAB." P/Supt. Pedrozo, the Chief of DAID-SOG, on the same day, prepared a request for laboratory examination and, together with this request, forwarded the seized item to the PNP Crime Laboratory for qualitative analysis. PNP Forensic Chemical Officer P/Insp. Mariano examined the contents of the plastic sachet marked "AAB" and found it positive for the presence of shabu. PO1 Delos Santos identified the plastic sachet in court to be the same item he confiscated from the appellant. Plainly, the prosecution established the crucial links in the chain of custody of the sold and seized sachet ofshabu, from the time it was first seized from the appellant, until it was brought for examination and presented in court. We note in this regard that the parties stipulated during pre-trial that the heat-sealed transparent plastic sachet with marking "AAB" and containing white crystalline substances was examined by P/Insp. Mariano, and the examination yielded positive results for the presence of methylamphetamine hydrochloride (shabu). In sum, we find that the integrity and the evidentiary value of the drugs seized from the appellant have not been compromised. If a flaw exists at all in the prosecutions case, such flaw is in the failure of the apprehending team to strictly comply with the requirements of Section 21, Article II of R.A. No. 9165. We note, however, that at no time during trial and even on appeal did the defense question the entrapment teams alleged non-compliance with Section 21. At any rate, non-compliance by the police with the directive of Section 21, Article 11 of R.A. No. 9165 is not necessarily fatal to a prosecutions case, in light of the last sentence of its implementing rules expressly stating that "non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items[.]" Simply put, mere lapses in procedures need not invalidate a seizure if the integrity and evidentiary value of the seized items can be shown to have been properly preserved and

safeguarded.15 The procedures are there to ensure the integrity and evidentiary value of seized items, and can liberally be viewed if the attainment of these objectives is not in doubt. Jurisprudence teems with pronouncements that failure to strictly comply with Section 21, Article II of R.A. No. 9165 does not necessarily render an accused's arrest illegal or the items seized or confiscated from him inadmissible. To reiterate, what assumes utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as these are the critical pieces of evidence in the determination of the guilt or innocence of the accused.16 In this case, as discussed, the integrity and the evidentiary value of the dangerous drug seized from the appellant were duly proven to have been properly preserved; its identity, quantity and quality remained untarnished. We thus see sufficient compliance by the police with the required procedure in the custody and control of the confiscated items. In the similar case of People v. Campomanes,17 we held: Although Section 21(1) of R.A. No. 9165 mandates that the apprehending team must immediately conduct a physical inventory of the seized items and photograph them, non-compliance with said section 21 is not fatal as long as there is a justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items are properly preserved by the apprehending team. Thus, the prosecution must demonstrate that the integrity and evidentiary value of the evidence seized have been preserved. We note that nowhere in the prosecution evidence does it show the "justifiable ground" which may excuse the police operatives involved in the buy-bust operation in the case at bar from complying with Section 21 of Republic Act No. 9165, particularly the making of the inventory and the photographing of the drugs and drug paraphernalia confiscated and/or seized. However, such omission shall not render accused-appellant's arrest illegal or the items seized/confiscated from him as inadmissible in evidence. In People v. Naelga [G.R. No. 171018, September 11, 2009, 599 SCRA 477], We have explained that what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items because the same will be utilized in ascertaining the guilt or innocence of the accused. It must be stressed that said "justifiable ground" will remain unknown in the light of the apparent failure of the accused-appellant to challenge the custody and safekeeping or the issue of disposition and preservation of the subject drugs and drug paraphernalia before the RTC. Finally, we find the penalty imposed to be within the range provided by law,18 and was, therefore, correctly imposed by the RTC and affirmed by the CA. WHEREFORE, premises considered, we hereby AFFIRM the January 31, 2008 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01529. SO ORDERED. G.R. No. 152375 December 16, 2011

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

DECISION BRION, J.: Before us is the petition for certiorari1 filed by the Republic of the Philippines (petitioner) to set aside the February 7, 2002 resolution (2002 resolution)2 of the Sandiganbayan3 denying the petitioners Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice V. Bane) (3rd motion). THE ANTECEDENTS On July 22, 1987, the petitioner Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), filed a complaint (docketed as Civil Case No. 0009) against Jose L. Africa, Manuel H. Nieto, Jr., Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Juan Ponce Enrile, and Potenciano Ilusorio (collectively, the respondents) for reconveyance, reversion, accounting, restitution, and damages before the Sandiganbayan. The petitioner alleged, inter alia, that the respondents illegally manipulated the purchase of the major shareholdings of Cable and Wireless Limited in Eastern Telecommunications Philippines, Inc. (ETPI), which shareholdings respondents Jose Africa and Manuel Nieto, Jr. held for themselves and, through their holdings and the corporations they organized, beneficially for respondents Ferdinand E. Marcos and Imelda R. Marcos.4 Civil Case No. 0009 is the main case subject of the present petition. Victor Africa (Africa), son of the late Jose L. Africa, was not impleaded in and so is plainly not a party to Civil Case No. 0009.5 Civil Case No. 0009 spawned numerous incidental cases,6 among them, Civil Case No. 0130.7 The present respondents were not made parties either in Civil Case No. 0130. I. Civil Case No. 0130 In the August 7, 1991 PCGG-conducted ETPI stockholders meeting, a PCGG-controlled board of directors was elected. Later, the registered ETPI stockholders convened a special stockholders meeting wherein another set of board of directors was elected. As a result, two sets of ETPI board and officers were elected.8 Thereafter, Africa, as an ETPI stockholder, filed a petition for certiorari, with prayer for a temporary restraining order/preliminary injunction with the Sandiganbayan (docketed as Civil Case No. 0130), seeking to nullify the August 5, 1991 and August 9, 1991 Orders of the PCGG. These Orders directed Africa: [T]o account for his sequestered shares in ETPI and to cease and desist from exercising voting rights on the sequestered shares in the special stockholders meeting to be held on August 12, 1991, from representing himself as a director, officer, employee or agent of ETPI, and from participating, directly or indirectly[,] in the management of ETPI.9 During the pendency of Africas petition, Civil Case No. 0130, Africa filed a motion with the Sandiganbayan, alleging that since January 29, 1988 the PCGG had been "illegally exercising the rights of stockholders of ETPI,"10 especially in the election of the members of the board of directors. Africa prayed for the issuance of an order for the "calling and holding of [ETPI] annual stockholders meeting for 1992 under the [c]ourts control and supervision and prescribed guidelines."11

In its November 13, 1992 resolution, the Sandiganbayan favored Africas motion in this wise: WHEREFORE, it is ordered that an annual stockholders meeting of the [ETPI], for 1992 be held on Friday, November 27, 1992, at 2:00 oclock in the afternoon, at the ETPI Board Room, Telecoms Plaza, 7th Floor, 316 Gil J. Puyat Avenue, Makati, Metro Manila. x x x The stockholders meeting shall be conducted under the supervision and control of this Court, through Mr. Justice Sabino R. de Leon, Jr. [O]nly the registered owners, their duly authorized representatives or their proxies may vote their corresponding shares. The following minimum safeguards must be set in place and carefully maintained until final judicial resolution of the question of whether or not the sequestered shares of stock (or in a proper case the underlying assets of the corporation concerned) constitute ill-gotten wealth[.]12 The PCGG assailed this resolution before this Court via a petition for certiorari docketed as G.R. No. 10778913(PCGGs petition), imputing grave abuse of discretion on the Sandiganbayan for holding, inter alia, that the registered stockholders of ETPI had the right to vote.14 In our November 26, 1992 Resolution, we enjoined the Sandiganbayan from implementing its assailed resolution. In the meantime, in an April 12, 1993 resolution, the Sandiganbayan ordered the consolidation of Civil Case No. 0130, among others, with Civil Case No. 0009, with the latter as the main case and the former merely an incident.15 During the pendency of PCGGs petition (G.R. No. 107789), the PCGG filed with this Court a "Very Urgent Petition for Authority to Hold Special Stockholders Meeting for [the] Sole Purpose of Increasing [ETPIs] Authorized Capital Stock" (Urgent Petition). In our May 7, 1996 Resolution, we referred this Urgent Petition to the Sandiganbayan for reception of evidence and immediate resolution.16 The Sandiganbayan included the Urgent Petition in Civil Case No. 0130.17 In the proceedings to resolve the Urgent Petition, the testimony of Mr. Maurice V. Bane (former director and treasurer-in-trust of ETPI) was taken at the petitioners instance and after serving notice of the deposition-taking on the respondents18 on October 23 and 24, 1996 by way of deposition upon oral examination (Bane deposition) before Consul General Ernesto Castro of the Philippine Embassy in London, England. Invoking Section 1, Rule 24 (of the old Rules of Court), purportedly allowing the petitioner to depose Bane without leave of court, i.e., as a matter of right after the defendants have filed their answer, the notice stated that "[t]he purpose of the deposition is for [Bane] to identify and testify on the facts set forth in his affidavit19 x x x so as to prove the ownership issue in favor of [the petitioner] and/or establish the prima facie factual foundation for sequestration of [ETPIs] Class A stock in support of the [Urgent Petition]."20 The notice also states that the petitioner shall use the Bane deposition "in evidence in the main case of Civil Case No. 0009."21 On the scheduled deposition date, only Africa was present and he cross-examined Bane. On December 13, 1996, the Sandiganbayan resolved the Urgent Petition by granting authority to the PCGG (i) "to cause the holding of a special stockholders meeting of ETPI for the sole purpose of increasing ETPIs authorized capital stock" and (ii) "to vote therein the sequestered Class A shares of stock."22 Thus, a special stockholders meeting was held, as previously scheduled, on March 17, 1997 and the increase in ETPIs authorized capital stock was "unanimously approved."23 From this ruling, Africa went to this Court via a petition for certiorari24 docketed as G.R. No. 147214 (Africas petition). We jointly resolved the PCGGs and Africas petitions, and ruled:

This Court notes that, like in Africas motion to hold a stockholders meeting (to elect a board of directors), the Sandiganbayan, in the PCGGs petition to hold a stockholders meeting (to amend the articles of incorporation to increase the authorized capital stock), again failed to apply the two-tiered test. On such determination hinges the validity of the votes cast by the PCGG in the stockholders meeting of March 17, 1997. This lapse by the Sandiganbayan leaves this Court with no other choice but to remand these questions to it for proper determination. xxxx WHEREFORE, this Court Resolved to REFER the petitions at bar to the Sandiganbayan for reception of evidence to determine whether there is a prima facie evidence showing that the sequestered shares in question are ill-gotten and there is an imminent danger of dissipation to entitle the PCGG to vote them in a stockholders meeting to elect the ETPI Board of Directors and to amend the ETPI Articles of Incorporation for the sole purpose of increasing the authorized capital stock of ETPI. The Sandiganbayan shall render a decision thereon within sixty (60) days from receipt of this Resolution and in conformity herewith. II. Civil Case No. 0009 Although Civil Case No. 0009 was filed on July 22, 1987, it was only on November 29, 1996 and March 17, 1997 that the first pre-trial conference was scheduled and concluded.25 In its Pre-Trial Brief26 dated August 30, 1996, the petitioner offered to present the following witnesses: WITNESSES TO BE PRESENTED AND A BRIEF DESCRIPTION OF THEIR TESTIMONIES (1) Maurice V. Bane representative of Cable and Wireless Limited (C & W) at the time ETPI was organized. xxxx (2) Mr. Manuel H. Nieto x x x (3) Ms. Evelyn Singson x x x (4) Mr. Severino P. Buan, Jr. x x x (5) Mr. Apolinario K. Medina - x x x (6) Mr. Potenciano A. Roque x x x (7) Caesar Parlade - x x x IIa. Motion to Admit the Bane Deposition At the trial of Civil Case No. 0009, the petitioner filed a Motion27 (1st motion), stating that

1. In the hearings of the incidents of [Civil Case No. 0009], i.e., Civil Case Nos. 0048, 0050, 0130, 014628the following witnesses were presented therein: a. Cesar O.V. Parlade b. Maurice Bane c. Evelyn Singson d. Leonorio Martinez e. Ricardo Castro; and f. Rolando Gapud 2. [The petitioner] wishes to adopt in [Civil Case No. 0009] their testimonies and the documentary exhibits presented and identified by them, since their testimonies and the said documentary exhibits are very relevant to prove the case of the [petitioner] in [Civil Case No. 0009]. 3. The adverse parties in the aforementioned incidents had the opportunity to cross-examine them. The respondents filed their respective Oppositions to the 1st motion;29 in turn, the petitioner filed a Common Reply30 to these Oppositions. On April 1, 1998, the Sandiganbayan31 promulgated a resolution32 (1998 resolution) denying the petitioners 1st motion, as follows: Wherefore, the [petitioners] Motion x x x is 1. partly denied insofar as [the petitioner] prays therein to adopt the testimonies on oral deposition of Maurice V. Bane and Rolando Gapud as part of its evidence in Civil Case No. 0009 for the reason that said deponents according to the [petitioner] are not available for cross-examination in this Court by the [respondents]. (emphasis added) 2. partly Granted, in the interest of speedy disposition of this long pending case, insofar as plaintiff prays therein to adopt certain/particular testimonies of Cesar O. Parlade, Evelyn Singson, Leoncio Martinez, and Ricardo Castro and documentary exhibits which said witnesses have identified in incident Civil Case Nos. xxx 0130 xxx, subject to the following conditions : 1. xxx 2. xxx 3. That the said witnesses be presented in this Court so that they can be crossexamined on their particular testimonies in incident Civil Cases xxx [by the respondents].

IIb. Urgent Motion and/or Request for Judicial Notice The petitioner did not in any way question the 1998 resolution, and instead made its Formal Offer of Evidence on December 14, 1999.33 Significantly, the Bane deposition was not included as part of its offered exhibits. Rectifying the omission, the petitioner filed an Urgent Motion and/or Request for Judicial Notice34 (2nd motion) dated February 21, 2000, with the alternative prayer that: 1. An order forthwith be issued re-opening the plaintiffs case and setting the same for trial any day in April 2000 for the sole purpose of introducing additional evidence and limited only to the marking and offering of the [Bane deposition] which already forms part of the records and used in Civil Case No. 0130 x x x; 2. In the alternative, x x x the [Sandiganbayan] to take judicial notice of the facts established by the [Bane deposition], together with the marked exhibits appended thereto. [emphasis ours] On August 21, 2000, the Sandiganbayan promulgated a resolution35 (2000 resolution) denying the petitioners 2nd motion: Judicial notice is found under Rule 129 which is titled "What Need Not Be Proved." Apparently, this provision refers to the Courts duty to consider admissions made by the parties in the pleadings, or in the course of the trial or other proceedings in resolving cases before it. The duty of the Court is mandatory and in those cases where it is discretionary, the initiative is upon the Court. Such being the case, the Court finds the Urgent Motion and/or Request for Judicial Notice as something which need not be acted upon as the same is considered redundant. On the matter of the [Bane deposition], [its] admission is done through the ordinary formal offer of exhibits wherein the defendant is given ample opportunity to raise objection on grounds provided by law. Definitely, it is not under Article (sic) 129 on judicial notice. [Emphasis ours] On November 6, 2000 and on several dates thereafter, the respondents separately filed their respective demurrers to evidence.36 On the other hand, the petitioner moved for the reconsideration of the 2000 resolution, but was rebuffed by the Sandiganbayan in its April 3, 2001 resolution37 (2001 resolution). IIc. Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice Bane) On November 16, 2001, the petitioner filed its 3rd Motion, seeking once more the admission of the Bane deposition.38 On February 7, 2002 (pending resolution of the respondents demurrers to evidence),39 the Sandiganbayan promulgated the assailed 2002 resolution,40 denying the petitioners 3rd motion. The Sandiganbayan ruled: But in the courts view, it is not really a question of whether or not plaintiff has already rested its case as to obviate the further presentation of evidence. It is not even a question of whether the nonappearing defendants are deemed to have waived their right to cross-examine Bane as to qualify the admission of the deposition sans such cross-examination. Indeed, We do not see any need to dwell on these matters in view of this Courts Resolution rendered on April 1, 1998 which already denied the introduction in evidence of Banes deposition and which has become final in view of plaintiffs failure to file any motion for reconsideration or appeal within the 15-day reglementary period. Rightly or wrongly, the resolution stands and for this court to grant plaintiffs motion at this point in time would in effect sanction plaintiffs disregard for the rules of procedure. Plaintiff has slept on its

rights for almost two years and it was only in February of 2000 that it sought to rectify its ineptitude by filing a motion to reopen its case as to enable it to introduce and offer Banes deposition as additional evidence, or in the alternative for the court to take judicial notice of the allegations of the deposition. But how can such a motion be granted when it has been resolved as early as 1998 that the deposition is inadmissible. Without plaintiff having moved for reconsideration within the reglementary period, the resolution has attained finality and its effect cannot be undone by the simple expedient of filing a motion, which though purporting to be a novel motion, is in reality a motion for reconsideration of this courts 1998 ruling. [emphases ours] The resolution triggered the filing of the present petition. THE PETITION The petitioner filed the present petition claiming that the Sandiganbayan committed grave abuse of discretion: I. x x x IN HOLDING THAT ITS INTERLOCUTORY ORDER IN 1998 HAD BECOME FINAL. II. x x x IN x x x REFUSING TO ADMIT THE BANE DEPOSITION WHICH WAS ALREADY ADMITTED AS EVIDENCE IN AN INCIDENT CASE (CIVIL CASE NO. 0130) AS PART OF PETITIONERS EVIDENCE IN THE MAIN x x x CASE (CIVIL CASE NO. 0009). III. x x x IN REFUSING TO ADMIT A HIGHLY RELEVANT AND IMPORTANT PIECE OF EVIDENCE FOR THE PETITIONER ON THE BASIS OF FLIMSY AND TENUOUS TECHNICAL GROUNDS. The petitioner41 argues that the 1998 resolution of the Sandiganbayan is merely an interlocutory order; thus, the petitioners failure to question this 1998 resolution could not have given it a character of "finality" so long as the main case remains pending.42 On this basis, the petitioner concludes that the Sandiganbayans denial of its 3rd motion was plainly tainted with grave abuse of discretion. On the issue of the Sandiganbayans refusal (in its 2002 resolution) either to take judicial notice of or to admit the Bane deposition as part of its evidence, the petitioner asserts that Civil Case No. 0130 (where the Bane deposition was originally taken, introduced and admitted in evidence) is but a "child" of the "parent" case, Civil Case No. 0009; under this relationship, evidence offered and admitted in any of the "children" cases should be considered as evidence in the "parent" case. Lastly, the petitioner claims that given the crucial importance of the Bane deposition, the Sandiganbayan should not have denied its admission on "flimsy grounds," considering that: 1. It was also already stated in the notice (of the taking of the Bane deposition) that it would be used as evidence in Civil Case No. 0009. Notices having been duly served on all the parties concerned, they must accordingly be deemed to have waived their right to crossexamine the witness when they failed to show up.

2. The Bane deposition was a very vital cog in the case of the petitioner relative to its allegation that the respondents interest in ETPI and related firms properly belongs to the government. 3. The non-inclusion of the Bane deposition in the petitioners formal offer of evidence was obviouslyexcusable considering the period that had lapsed from the time the case was filed and the voluminous records that the present case has generated.43 THE RESPONDENTS COMMENTS and THE PETITIONERS REPLY In the respondents Comments44 (filed in compliance with our Resolution of April 10, 200245 ), they claim that the present petition was filed out of time - i.e., beyond the 60-day reglementary period prescribed under Section 4, Rule 65 of the Rules of Court.46 This assertion proceeds from the view that the petitioners 3rd motion, being a mere rehash of similar motions earlier filed by the petitioner, likewise simply assails the Sandiganbayans 1998 resolution. Along the same line, they posit that the petitioners 3rd motion actually partakes of a proscribed third motion for reconsideration of the Sandiganbayans 1998 resolution.47 They likewise assert, on the assumption that the 1998 resolution is interlocutory in character, that the petitioners failure to contest the resolution by way ofcertiorari within the proper period gave the 1998 resolution a character of "finality." The respondents further claim that after a party has rested its case, the admission of a supplemental offer of evidence requires the reopening of the case at the discretion of the trial court; the Sandiganbayan simply exercised its sound discretion in refusing to reopen the case since the evidence sought to be admitted was "within the knowledge of the [petitioner] and available to [it] before [it] rested its case."48 The respondents also advert to the belated filing of the petitioners 3rd motion i.e., after the respondents had filed their respective demurrers to evidence. On the petitioners claim of waiver, the respondents assert that they have not waived their right to cross-examine the deponent; the Sandiganbayan recognized this right in its 1998 resolution and the petitioner never questioned this recognition. They also assert that the allegations in the Bane deposition cannot be a proper subject of judicial notice under Rule 129 of the Rules of Court. The respondents lastly submit that the Bane deposition is inadmissible in evidence because the petitioner failed to comply with the requisites for admission under Section 47, Rule 130 of the Rules of Court. In its Reply,49 the petitioner defends the timeliness of the present petition by arguing that a party may opt to wait out and collect a pattern of questionable acts before resorting to the extraordinary remedy of certiorari. The petitioner stresses that it filed the 3rd motion precisely because of the Sandiganbayans 2000 resolution, which held that the admission of the Bane deposition should be done through the ordinary formal offer of evidence. Thus, the Sandiganbayan seriously erred in considering the petitioners 3rd motion as a proscribed motion for reconsideration. The petitioner generally submits that the dictates of substantial justice should have guided the Sandiganbayan to rule otherwise. The petitioner also clarifies that it has not yet rested its case although it has filed a formal offer of evidence. A party normally rests his case only after the admission of the pieces of evidence he formally offered; before then, he still has the opportunity to present further evidence to substantiate his theory of the case should the court reject any piece of the offered evidence.50 The petitioner further maintains that the mere reasonable opportunity to cross-examine the deponent is sufficient for the admission of the Bane deposition considering that the deponent is not an ordinary

witness who can be easily summoned by our courts in light of his foreign residence, his citizenship, and his advanced age. The petitioner asserts that Rule 24 (now Rule 23), and not Section 47, Rule 130, of the Rules of Court should apply to the present case, as explicitly stated in the notice of the deposition-taking. To date, respondents Imelda Marcos and the heirs of Potenciano Ilusorio have yet to file their respective comments on the petition. Given the time that had lapsed since we required their comments, we resolve to dispense with the filing of these comments and to consider this petition submitted for decision. THE ISSUES On the basis of the pleadings, we summarize the pivotal issues for our resolution, as follows: 1. Whether the petition was filed within the required period. 2. Whether the Sandiganbayan committed grave abuse of discretion i. In holding that the 1998 resolution has already attained finality; ii. In holding that the petitioners 3rd motion partakes of a prohibited motion for reconsideration; iii. In refusing to re-open the case given the critical importance of the Bane deposition to the petitioners cause; and iv. In refusing to admit the Bane deposition notwithstanding the prior consolidation of Civil Case No. 0009 and Civil Case No. 0130. 3. Whether the Bane deposition is admissible under i. Rule 23, Section 4, par. (c) alone or in relation to Section 47, Rule 130 of the Rules of Court; and ii. The principle of judicial notice. THE COURTS RULING We deny the petition for lack of merit. I. Preliminary Considerations I (a). The interlocutory nature of the Sandiganbayans 1998 resolution. In determining the appropriate remedy or remedies available, a party aggrieved by a court order, resolution or decision must first correctly identify the nature of the order, resolution or decision he intends to assail.51 In this case, we must preliminarily determine whether the 1998 resolution is "final" or "interlocutory" in nature.

Case law has conveniently demarcated the line between a final judgment or order and an interlocutory one on the basis of the disposition made.52 A judgment or order is considered final if the order disposes of the action or proceeding completely, or terminates a particular stage of the same action; in such case, the remedy available to an aggrieved party is appeal. If the order or resolution, however, merely resolves incidental matters and leaves something more to be done to resolve the merits of the case, the order is interlocutory53 and the aggrieved partys remedy is a petition for certiorari under Rule 65. Jurisprudence pointedly holds that: As distinguished from a final order which disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court, an interlocutory order does not dispose of a case completely, but leaves something more to be adjudicated upon. The term "final" judgment or order signifies a judgment or an order which disposes of the case as to all the parties, reserving no further questions or directions for future determination. On the other hand, a court order is merely interlocutory in character if it leaves substantial proceedings yet to be had in connection with the controversy. It does not end the task of the court in adjudicating the parties contentions and determining their rights and liabilities as against each other. In this sense, it is basically provisional in its application.54 (emphasis supplied) Under these guidelines, we agree with the petitioner that the 1998 resolution is interlocutory. The Sandiganbayans denial of the petitioners 1st motion through the 1998 Resolution came at a time when the petitioner had not even concluded the presentation of its evidence. Plainly, the denial of the motion did not resolve the merits of the case, as something still had to be done to achieve this end. We clarify, too, that an interlocutory order remains under the control of the court until the case is finally resolved on the merits. The court may therefore modify or rescind the order upon sufficient grounds shown at any time before final judgment.55 In this light, the Sandiganbayans 1998 resolution which merely denied the adoption of the Bane deposition as part of the evidence in Civil Case No. 0009 could not have attained finality (in the manner that a decision or final order resolving the case on the merits does) despite the petitioners failure to move for its reconsideration or to appeal.56 I (b). The 3rd motion was not prohibited by the Rules. We also agree with the petitioner that its 3rd motion cannot be considered as a proscribed third (actually second) motion for reconsideration of the Sandiganbayans 1998 resolution. As Section 5, Rule 37 of the Rules of Court clearly provides, the proscription against a second motion for reconsideration is directed against "a judgment orfinal order." Although a second motion for reconsideration of an interlocutory order can be denied on the ground that it is a mere "rehash" of the arguments already passed upon and resolved by the court, it cannot be rejected on the ground that it is forbidden by the law or by the rules as a prohibited motion.57 I (c). The 1998 resolution was not ripe for a petition for certiorari. Under Section 1, Rule 41 of the Rules of Court, an aggrieved party may appeal from a judgment or final order which completely disposes of a case or from an order that the Rules of Court declares to be appealable. While this provision prohibits an appeal from an interlocutory order, the aggrieved party is afforded the chance to question an interlocutory order through a special civil action of certiorari under Rule 65; the petition must be filed within sixty days from notice of the assailed judgment, order, resolution, or denial of a motion for reconsideration.

On the premise that the 1998 resolution is interlocutory in nature, the respondents insist that the 60day period for filing a petition for certiorari should be reckoned from the petitioners notice of the Sandiganbayans 1998 resolution. They argue that since this ruling had long been rendered by the court, the petitioners subsequent filing of similar motions was actually a devious attempt to resuscitate the long-denied admission of the Bane deposition. We do not find the respondents submission meritorious. While the 1998 resolution is an interlocutory order, as correctly argued by the petitioner and impliedly conceded by the respondents, the claim that the 1998 resolution should have been immediately questioned by the petitioner on certiorari is not totally correct as a petition forcertiorari is not grounded solely on the issuance of a disputed interlocutory ruling.58 For a petition for certiorari to prosper, Section 1, Rule 65 of the Rules of Court requires, among others, that neither an appeal nor any plain, speedy and adequate remedy in the ordinary course of law is available to the aggrieved party. As a matter of exception, the writ of certiorari may issue notwithstanding the existence of an available alternative remedy, if such remedy is inadequate or insufficient in relieving the aggrieved party of the injurious effects of the order complained of.59 We note that at the time of its 1st motion in Civil Case No. 0009, the petitioner had not yet concluded the presentation of its evidence, much less made any formal offer of evidence. At this stage of the case, the prematurity of using the extraordinary remedy of certiorari to question the admission of the Bane deposition is obvious. After the denial of the 1st motion, the plain remedy available to the petitioner was to move for a reconsideration to assert and even clarify its position on the admission of the Bane deposition. The petitioner could introduce60 anew the Bane deposition and include this as evidence in its formal offer61 as the petitioner presumably did in Civil Case No. 0130. Thus, at that point, the case was not yet ripe for the filing of a petition for certiorari, and the denial of the 1st motion could not have been the reckoning point for the period of filing such a petition. II. The Sandiganbayans ruling on the finality of its 1998 resolution was legally erroneous but did not constitute grave abuse of discretion In light of the above discussions and conclusions, the Sandiganbayan undoubtedly erred on a question of lawin its ruling, but this legal error did not necessarily amount to a grave abuse of discretion in the absence of a clear showing that its action was a capricious and whimsical exercise of judgment affecting its exercise of jurisdiction.62Without this showing, the Sandiganbayans erroneous legal conclusion was only an error of judgment, or, at best, an abuse of discretion but not a grave one. For this reason alone, the petition should be dismissed. Despite this conclusion, however, we opt not to immediately dismiss the petition in light of the unique circumstances of this case where the petitioner cannot entirely be faulted for not availing of the remedy at the opportune time, and where the case, by its nature, is undoubtedly endowed with public interest and has become a matter of public concern.63 In other words, we opt to resolve the petition on the merits to lay the issues raised to rest and to avoid their recurrence in the course of completely resolving the merits of Civil Case No. 0009. Although the word "rested" nowhere appears in the Rules of Court, ordinary court procedure has inferred it from an overview of trial sequence under Section 5, Rule 30 (which capsulizes the order of presentation of a partys evidence during trial), read in relation to Rule 18 on Pre-Trial,64 both of the Rules of Court. Under Section 5, Rule 30, after a party has adduced his direct evidence in the course of discharging the burden of proof,65 he is considered to have rested his case, and is thereafter allowed to offer

rebutting evidence only.66 Whether a party has rested his case in some measure depends on his manifestation in court on whether he has concluded his presentation of evidence.67 In its second and third motions, respectively, the petitioner expressly admitted that "due to oversight, [the petitioner] closed and rested its case";68 and that it "had terminated the presentation of its evidence in x x x Civil Case No. 0009."69 In the face of these categorical judicial admissions,70 the petitioner cannot suddenly make an about-face and insist on the introduction of evidence out of the usual order. Contrary to the petitioners assertion, the resting of its case could not have been conditioned on the admission of the evidence it formally offered. To begin with, the Bane deposition, which is the lone piece of evidence subject of this present petition, was not among the pieces of evidence included in its formal offer of evidence and thus could not have been admitted or rejected by the trial court. The Court observes with interest that it was only in this present petition for certiorari that the petitioner had firmly denied having rested its case.71 Before then, the petitioner never found it appropriate to question on certiorari the Sandiganbayans denial of its 2nd motion which prayed, inter alia, for the reopening of the case. This is a fatal defect in the petitioners case. Although the denial of the petitioners first motion did not necessitate an immediate recourse to the corrective writ of certiorari, the denial of the 2nd motion dictated a different course of action. The petitioners non-observance of the proper procedure for the admission of the Bane deposition, while seemingly innocuous, carried fatal implications for its case. Having been rebuffed on its first attempt to have the Bane deposition adopted in Civil Case No. 0009, and without seeking reconsideration of the denial, the petitioner presented its other pieces of evidence and eventually rested its case. This time, the petitioner forgot about the Bane deposition and so failed to include that piece of evidence in its formal offer of evidence. More than two years later, the petitioner again tried to squeeze in the Bane deposition into its case. In resolving the petitioners motion for reconsideration of the Sandiganbayans 2000 resolution, the Sandiganbayan held that the Bane deposition has "become part and parcel" of Civil Case No. 0009. This pronouncement has obscured the real status of the Bane deposition as evidence (considering that, earlier, the Sandiganbayan already denied the petitioners attempt to adopt the Bane deposition as evidence in Civil Case No. 0009 for the deponent cannot be cross-examined in court). Nevertheless, the Sandiganbayan ultimately denied the petitioners motion to reopen the case. Having judicially admitted the resting of its case, the petitioner should have already questioned the denial of its 2nd motion by way of certiorari, since the denial of its attempt to reopen the case effectively foreclosed all avenues available to it for the consideration of the Bane deposition. Instead of doing so, however, the petitioner allowed the 60-day reglementary period, under Section 4, Rule 65 of the Rules of Court, to lapse, and proceeded to file its 3rd motion. Significantly, the petitioner changed its legal position in its 3rd motion by denying having rested its case and insisting on the introduction of the Bane deposition. Rebuffed once more, the petitioner filed the present petition, inviting our attention to the Sandiganbayans resolutions,72 which allegedly gave it "mixed signals."73 By pointing to these resolutions, ironically, even the petitioner impliedly recognized that they were then already ripe for review on certiorari. What the petitioner should have realized was that its 2nd motion unequivocally aimed to reopen the case for the introduction of further evidence consisting of the Bane deposition. Having been ultimately denied by the court, the petitioner could not have been prevented from taking the proper remedy notwithstanding any perceived ambiguity in the resolutions. On the other end, though, there was nothing intrinsically objectionable in the petitioners motion to reopen its case before the court ruled on its formal offer of evidence. The Rules of Court does not

prohibit a party from requesting the court to allow it to present additional evidence even after it has rested its case. Any such opportunity, however, for the ultimate purpose of the admission of additional evidence is already addressed to the sound discretion of the court. It is from the prism of the exercise of this discretion that the Sandiganbayans refusal to reopen the case (for the purpose of introducing, "marking and offering" additional evidence) should be viewed. We can declare this Sandiganbayan action invalid if it had acted with grave abuse of discretion. III. The Sandiganbayan gravely abused its discretion in ultimately refusing to reopen the case for the purpose of introducing and admitting in evidence the Bane deposition The basis for a motion to reopen a case to introduce further evidence is Section 5, Rule 30 of the Rules of Court, which reads: Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows: xxxx (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case[.] [emphases ours] Under this rule, a party who has the burden of proof must introduce, at the first instance, all the evidence he relies upon74 and such evidence cannot be given piecemeal.75 The obvious rationale of the requirement is to avoid injurious surprises to the other party and the consequent delay in the administration of justice.76 A partys declaration of the completion of the presentation of his evidence prevents him from introducing further evidence;77 but where the evidence is rebuttal in character, whose necessity, for instance, arose from the shifting of the burden of evidence from one party to the other;78 or where the evidence sought to be presented is in the nature of newly discovered evidence,79 the partys right to introduce further evidence must be recognized. Otherwise, the aggrieved party may avail of the remedy of certiorari. Largely, the exercise of the courts discretion80 under the exception of Section 5(f), Rule 30 of the Rules of Court depends on the attendant facts i.e., on whether the evidence would qualify as a "good reason" and be in furtherance of "the interest of justice." For a reviewing court to properly interfere with the lower courts exercise of discretion, the petitioner must show that the lower courts action was attended by grave abuse of discretion. Settled jurisprudence has defined this term as the capricious and whimsical exercise of judgment, equivalent to lack of jurisdiction; or, the exercise of power in an arbitrary manner by reason of passion, prejudice, or personal hostility, so patent or so gross as to amount to an evasion of a positive duty, to a virtual refusal to perform the mandated duty, or to act at all in contemplation of the law.81 Grave abuse of discretion goes beyond the bare and unsupported imputation of caprice, whimsicality or arbitrariness, and beyond allegations that merely constitute errors of judgment82 or mere abuse of discretion.83 In Lopez v. Liboro,84 we had occasion to make the following pronouncement: After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the

appellate court where no abuse of discretion appears. So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered. The omission to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a misapprehension or oversight. (citations omitted; emphases ours) Likewise, in Director of Lands v. Roman Archbishop of Manila,85 we ruled: The strict rule is that the plaintiff must try his case out when he commences. Nevertheless, a relaxation of the rule is permitted in the sound discretion of the court. "The proper rule for the exercise of this discretion," it has been said by an eminent author, "is, that material testimony should not be excluded because offered by the plaintiff after the defendant has rested, although not in rebuttal, unless it has been kept back by a trick, and for the purpose of deceiving the defendant and affecting his case injuriously." These principles find their echo in Philippine remedial law. While the general rule is rightly recognized, the Code of Civil Procedure authorizes the judge "for special reasons," to change the order of the trial, and "for good reason, in the furtherance of justice," to permit the parties "to offer evidence upon their original case." These exceptions are made stronger when one considers the character of registration proceedings and the fact that where so many parties are involved, and action is taken quickly and abruptly, conformity with precise legal rules should not always be expected. Even at the risk of violating legal formul, an opportunity should be given to parties to submit additional corroborative evidence in support of their claims of title, if the ends of justice so require. (emphases ours) In his commentaries, Chief Justice Moran had this to say: However, the court for good reasons, may, in the furtherance of justice, permit the parties to offer evidence upon their original case, and its ruling will not be disturbed where no abuse of discretion appears, Generally, additional evidence is allowed when x x x; but it may be properly disallowed where it was withheld deliberately and without justification.86 The weight of the exception is also recognized in foreign jurisprudence.87 Under these guidelines, we hold that the Sandiganbayan gravely abused its discretion in refusing to reopen the case. Instead of squarely ruling on the petitioners 2nd motion to avoid any uncertainty on the evidentiary status of the Bane deposition, the Sandiganbayans action actually left the petitioners concern in limbo by considering the petitioners motion "redundant." This is tantamount to a refusal to undertake a positive duty as mandated by the circumstances and is equivalent to an act outside the contemplation of law. It has not escaped our notice that at the time the petitioner moved to re-open its case, the respondents had not yet even presented their evidence in chief. The respondents, therefore, would not have been prejudiced by allowing the petitioners introduction of the Bane deposition, which was concededly omitted "through oversight."88The higher interest of substantial justice, of course, is another consideration that cannot be taken lightly.89 In light of these circumstances, the Sandiganbayan should not have perfunctorily applied Section 5, Rule 30 of the Rules of Court on the petitioners request to reopen the case for the submission of the Bane deposition.

On the basis of this conclusion, a remand of this case should follow as a matter of course. The state of the parties submissions and the delay that has already attended this aspect of Civil Case No. 0009, however, dictate against this obvious course of action. At this point, the parties have more than extensively argued for or against the admission of the Bane deposition. Civil Case No. 0009 is a 25-year old sequestration case that is now crying out for complete resolution. Admissibility, too, is an issue that would have again been raised on remand and would surely stare us in the face after remand.90 We are thus left with no choice but to resolve the issue of admissibility of the Bane deposition here and now. IV. The admissibility of the Bane deposition IV (a). The consolidation of Civil Case No. 0009 and Civil Case No. 0130 did not dispense with the usual requisites of admissibility In support of its 3rd motion, the petitioner argues that the Bane deposition can be admitted in evidence without observing the provisions of Section 47, Rule 130 of the Rules of Court.91 The petitioner claims that in light of the prior consolidation of Civil Case No. 0009 and Civil Case No. 0130, among others,92 the "former case or proceeding" that Section 47, Rule 130 speaks of no longer exists. Rule 31 of the old Rules of Court93 the rule in effect at the time Civil Case Nos. 0009 and 0130 were consolidated provided that: Rule 31 Consolidation or Severance Section 1. Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.94 (emphases ours) Consolidation is a procedural device granted to the court as an aid in deciding how cases in its docket are to be tried so that the business of the court may be dispatched expeditiously and with economy while providing justice to the parties. To promote this end, the rule permits the consolidation and a single trial of several cases in the courts docket, or the consolidation of issues within those cases.95 A reading of Rule 31 of the Rules of Court easily lends itself to two observations. First, Rule 31 is completely silent on the effect/s of consolidation on the cases consolidated; on the parties and the causes of action involved; and on the evidence presented in the consolidated cases. Second, while Rule 31 gives the court the discretion either to order a joint hearing or trial, or to order the actions consolidated, jurisprudence will show that the term "consolidation" is used generically and even synonymously with joint hearing or trial of several causes.96 In fact, the title "consolidation" of Rule 31 covers all the different senses of consolidation, as discussed below. These observations are not without practical reason. Considering that consolidation is basically a function given to the court, the latter is in the best position to determine for itself (given the nature of the cases, the complexity of the issues involved, the parties affected, and the courts capability and resources vis--vis all the official business pending before it, among other things) what "consolidation" will bring, bearing in mind the rights of the parties appearing before it.

To disregard the kind of consolidation effected by the Sandiganbayan on the simple and convenient premise that the deposition-taking took place after the Sandiganbayan ordered the consolidation is to beg the question. It is precisely the silence of our Rules of Procedure and the dearth of applicable case law on the effect of "consolidation" that strongly compel this Court to determine the kind of "consolidation" effected to directly resolve the very issue of admissibility in this case. In the context of legal procedure, the term "consolidation" is used in three different senses:97 (1) Where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. (quasi-consolidation)98 (2) Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. (actual consolidation)99 (3) Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (consolidation for trial)100 Considering that the Sandiganbayans order101 to consolidate several incident cases does not at all provide a hint on the extent of the courts exercise of its discretion as to the effects of the consolidation it ordered in view of the function of this procedural device to principally aid the court itself in dealing with its official business we are compelled to look deeper into the voluminous records of the proceedings conducted below. We note that there is nothing that would even suggest that the Sandiganbayan in fact intended a merger of causes of action, parties and evidence.102 To be sure, there would have been no need for a motion to adopt (which did not remain unopposed) the testimonies in the incident cases had a merger actually resulted from the order of consolidation, for in that case, the Sandiganbayan can already take judicial notice of the same. Significantly, even the petitioner itself viewed consolidation, at most, to be merely a consolidation for trial.103Accordingly, despite the consolidation in 1993, the petitioner acceded to the Sandiganbayans 1998 Resolution (which denied the petitioners 1st Motion on the ground that the witnesses, whose testimony in the incident cases is sought to be adopted, "are not available for cross-examination in" the Sandiganbayan) by presenting these other witnesses again in the main case, so that the respondents can cross-examine them. These considerations run counter to the conclusion that the Sandiganbayans order of consolidation had actually resulted in the complete merger of the incident cases with the main case, in the sense of actual consolidation, and that the parties in these consolidated cases had (at least constructively) been aware of and had allowed actual consolidation without objection.104 Considering, too, that the consolidated actions were originally independent of one another and the fact that in the present case the party respondents to Civil Case No. 0009 (an action for reconveyance, accounting, restitution and damages) are not parties to Civil Case No. 0130 (a special civil action filed by an ETPI stockholder involving a corporate squabble within ETPI), the conclusion that the Sandiganbayan in fact intended an actual consolidationand, together with the parties affected,105 acted towards that end - where the actions become fused and unidentifiable from one another and where the evidence appreciated in one action is also appreciated in another action must find support in the proceedings held below. This is particularly true in a case with the

magnitude and complexity of the present case. Otherwise, to impose upon the respondents the effects of an actual consolidation (which find no clear support in the provisions of the Rules of Court, jurisprudence,106 and even in the proceedings before the Sandiganbayan itself and despite the aforementioned considerations) results in an outright deprivation of the petitioners right to due process. We reach this conclusion especially where the evidence sought to be admitted is not simply a testimony taken in one of the several cases, but a deposition upon oral examination taken in another jurisdiction and whose admission is governed by specific provisions on our rules on evidence. We stress on this point, too, that while the Sandiganbayan ordered the consolidation in 1993 (that is, before the deposition was taken), neither does the Pre-Trial Order107 issued by the Sandiganbayan in 1997 in Civil Case No. 0009 contain any reference, formal or substantive, to Civil Case No. 0130.108 Interestingly, in its Pre-Trial Brief dated August 30, 1996,109 the petitioner even made a representation to present Bane as one of its witnesses. IV (b). Use of deposition under Section 4, Rule 23 and as a former testimony under Section 47, Rule 130 Since the present consolidation did not affect Civil Case No. 0130 as an original, albeit incidental, case, the admissibility of the Bane deposition cannot avoid being measured against the requirements of Section 47, Rule 130 of the Rules of Court the rule on the admissibility of testimonies or deposition taken in a different proceeding. In this regard, the petitioner argues that Section 4, Rule 23 of the Rules of Court (then Rule 24)110must, at any rate, prevail over Section 47, Rule 130111 of the same Rules. At the outset, we note that when the petitioners motion to adopt the testimonies taken in the incident cases drew individual oppositions from the respondents, the petitioner represented to the Sandiganbayan its willingness to comply with the provisions of Section 47, Rule 130 of the Rules of Court,112 and, in fact, again presented some of the witnesses. The petitioners about-face two years thereafter even contributed to the Sandiganbayans own inconsistency on how to treat the Bane deposition, in particular, as evidence. Section 4, Rule 23 of the Rules of Court on "Deposition Pending Action" (deposition de bene esse) provides for the circumstances when depositions may be used in the trial, or at the hearing of a motion or an interlocutory proceeding. SEC. 4. Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: xxxx (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used[.] [emphasis ours]

On the other hand, Section 47, Rule 130 of the Rules of Court provides: SEC. 47. Testimony or deposition at a former proceeding. The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. A plain reading of Rule 23 of the Rules of Court readily rejects the petitioners position that the Bane deposition can be admitted into evidence without observing the requirements of Section 47, Rule 130 of the Rules of Court. Before a party can make use of the deposition taken at the trial of a pending action, Section 4, Rule 23 of the Rules of Court does not only require due observance of its sub-paragraphs (a) to (d); it also requires, as a condition for admissibility, compliance with "the rules on evidence." Thus, even Section 4, Rule 23 of the Rules of Court makes an implied reference to Section 47, Rule 130 of the Rules of Court before the deposition may beused in evidence. By reading Rule 23 in isolation, the petitioner failed to recognize that the principle conceding admissibility to a deposition under Rule 23 should be consistent with the rules on evidence under Section 47, Rule 130.113 In determining the admissibility of the Bane deposition, therefore, reliance cannot be given on one provision to the exclusion of the other; both provisions must be considered. This is particularly true in this case where the evidence in the prior proceeding does not simply refer to a witness testimony in open court but to a deposition taken under another and farther jurisdiction. A common thread that runs from Section 4, Rule 23 of the Rules of Court and Section 47, Rule 130 of the same Rules is their mutual reference to depositions. A deposition is chiefly a mode of discovery whose primary function is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial.114 Since depositions are principally made available to the parties as a means of informing themselves of all the relevant facts, depositions are not meant as substitute for the actual testimony in open court of a party or witness. Generally, the deponent must be presented for oral examination in open court at the trial or hearing. This is a requirement of the rules on evidence under Section 1, Rule 132 of the Rules of Court.115 Examination to be done in open court. The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. Indeed, any deposition offered to prove the facts set forth therein, in lieu of the actual oral testimony of the deponent in open court, may be opposed by the adverse party and excluded under the hearsay rule i.e., that the adverse party had or has no opportunity to cross-examine the deponent at the time that his testimony is offered. That opportunity for cross-examination was afforded during the taking of the deposition alone is no argument, as the opportunity for cross-examination must normally be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing of a case.116 However, under certain conditions and for certain limited purposes laid down in Section 4, Rule 23 of the Rules of Court, the deposition may be used without the deponent being actually called to the witness stand.117 Section 47, Rule 130 of the Rules of Court is an entirely different provision. While a former testimony or depositionappears under the Exceptions to the Hearsay Rule, the classification of former testimony or deposition as an admissible hearsay is not universally conceded.118 A fundamental

characteristic of hearsay evidence is the adverse partys lack of opportunity to cross-examine the out-of-court declarant. However, Section 47, Rule 130 explicitly requires, inter alia, for the admissibility of a former testimony or deposition that the adverse party must have had an opportunity to cross-examine the witness or the deponent in the prior proceeding. This opportunity to cross-examine though is not the ordinary cross-examination119 afforded an adverse party in usual trials regarding "matters stated in the direct examination or connected therewith." Section 47, Rule 130 of the Rules of Court contemplates a different kind of crossexamination, whether actual or a mere opportunity, whose adequacy depends on the requisite identity of issues in the former case or proceeding and in the present case where the former testimony or deposition is sought to be introduced. Section 47, Rule 130 requires that the issues involved in both cases must, at least, be substantially the same; otherwise, there is no basis in saying that the former statement was - or would have been - sufficiently tested by cross-examination or by an opportunity to do so.120 (The requirement of similarity though does not mean that all the issues in the two proceedings should be the same.121 Although some issues may not be the same in the two actions, the admissibility of a former testimony on an issue which is similar in both actions cannot be questioned.122 ) These considerations, among others, make Section 47, Rule 130 a distinct rule on evidence and therefore should not be confused with the general provisions on deposition under Rule 23 of the Rules of Court. In other words, even if the petitioner complies with Rule 23 of the Rules of Court on the use of depositions, the observance of Section 47, Rule 130 of the Rules of Court cannot simply be avoided or disregarded. Undisputably, the Sandiganbayan relied on the Bane deposition, taken in Civil Case No. 0130, for purposes of this very same case. Thus, what the petitioner established and what the Sandiganbayan found, for purposes of using the Bane deposition, refer only to the circumstances laid down under Section 4(c), Rule 23 of the Rules of Court, not necessarily to those of Section 47, Rule 130 of the Rules of Court, as a distinct rule on evidence that imposes further requirements in the use of depositions in a different case or proceeding. In other words, the prior use of the deposition under Section 4(c), Rule 23 cannot be taken as compliance with Section 47, Rule 130 which considers the same deposition as hearsay, unless the requisites for its admission under this rule are observed. The aching question is whether the petitioner complied with the latter rule. Section 47, Rule 130 of the Rules of Court lays down the following requisites for the admission of a testimony or deposition given at a former case or proceeding. 1. The testimony or deposition of a witness deceased or otherwise unable to testify; 2. The testimony was given in a former case or proceeding, judicial or administrative; 3. Involving the same parties; 4. Relating to the same matter; 5. The adverse party having had the opportunity to cross-examine him.123 The reasons for the admissibility of testimony or deposition taken at a former trial or proceeding are the necessity for the testimony and its trustworthiness.124 However, before the former testimony or deposition can be introduced in evidence, the proponent must first lay the proper

predicate therefor,125 i.e., the party must establish the basis for the admission of the Bane deposition in the realm of admissible evidence. This basis is the prior issue that we must now examine and resolve. IV (c). Unavailability of witness For the admission of a former testimony or deposition, Section 47, Rule 130 of the Rules of Court simply requires,inter alia, that the witness or deponent be "deceased or unable to testify." On the other hand, in using a deposition that was taken during the pendency of an action, Section 4, Rule 23 of the Rules of Court provides several grounds that will justify dispensing with the actual testimony of the deponent in open court and specifies, inter alia, the circumstances of the deponents inability to attend or testify, as follows: (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment[.] [emphases ours]126 The phrase "unable to testify" appearing in both Rule 23 and Rule 130 of the Rules of Court refers to a physical inability to appear at the witness stand and to give a testimony.127 Hence notwithstanding the deletion of the phrase "out of the Philippines," which previously appeared in Section 47, Rule 130 of the Rules of Court, absence from jurisdiction128 - the petitioners excuse for the nonpresentation of Bane in open court - may still constitute inability to testify under the same rule. This is not to say, however, that resort to deposition on this instance of unavailability will always be upheld. Where the deposition is taken not for discovery purposes, but to accommodate the deponent, then the deposition should be rejected in evidence.129 Although the testimony of a witness has been given in the course of a former proceeding between the parties to a case on trial, this testimony alone is not a ground for its admission in evidence. The witness himself, if available, must be produced in court as if he were testifying de novo since his testimony given at the former trial is mere hearsay.130 The deposition of a witness, otherwise available, is also inadmissible for the same reason. Indeed, the Sandiganbayans reliance on the Bane deposition in the other case (Civil Case No. 0130) is an argument in favor of the requisite unavailability of the witness. For purposes of the present case (Civil Case No. 0009), however, the Sandiganbayan would have no basis to presume, and neither can or should we, that the previous condition, which previously allowed the use of the deposition, remains and would thereby justify the use of the same deposition in another case or proceeding, even if the other case or proceeding is before the same court. Since the basis for the admission of the Bane deposition, in principle, being necessity,131 the burden of establishing its existence rests on the party who seeks the admission of the evidence. This burden cannot be supplanted by assuming the continuity of the previous condition or conditions in light of the general rule against the non-presentation of the deponent in court.132 IV (d). The requirement of opportunity of the adverse party to cross-examine; identity of parties; and identity of subject matter The function of cross-examination is to test the truthfulness of the statements of a witness made on direct examination.133 The opportunity of cross-examination has been regarded as an essential safeguard of the accuracy and completeness of a testimony. In civil cases, the right of crossexamination is absolute, and is not a mere privilege of the party against whom a witness may be called.134 This right is available, of course, at the taking of depositions, as well as on the examination of witnesses at the trial. The principal justification for the general exclusion of hearsay statements and for the admission, as an exception to the hearsay rule, of reported testimony taken at a former

hearing where the present adversary was afforded the opportunity to cross-examine, is based on the premise that the opportunity of cross-examination is an essential safeguard135 against falsehoods and frauds. In resolving the question of whether the requirement of opportunity to cross-examine has been satisfied, we have to consider first the required identity of parties as the present opponent to the admission of the Bane deposition to whom the opportunity to cross-examine the deponent is imputed may not after all be the same "adverse party" who actually had such opportunity. To render the testimony of a witness admissible at a later trial or action, the parties to the first proceeding must be the same as the parties to the later proceeding. Physical identity, however, is not required; substantial identity136or identity of interests137 suffices, as where the subsequent proceeding is between persons who represent the parties to the prior proceeding by privity in law, in blood, or in estate. The term "privity" denotes mutual or successive relationships to the same rights of property.138 In the present case, the petitioner failed to impute, much less establish, the identity of interest or privity between the then opponent, Africa, and the present opponents, the respondents. While Africa is the son of the late respondent Jose Africa, at most, the deposition should be admissible only against him as an ETPI stockholder who filed the certiorari petition docketed as Civil Case No. 0130 (and, unavoidably, as successor-in-interest of the late respondent Jose Africa). While Africa and the respondents are all ETPI stockholders, this commonality does not establish at all any privity between them for purposes of binding the latter to the acts or omissions of the former respecting the crossexamination of the deponent. The sequestration of their shares does not result in the integration of their rights and obligations as stockholders which remain distinct and personal to them, vis-avisother stockholders.139 IV (d1). The respondents notice of taking of Bane deposition is insufficient evidence of waiver The petitioner staunchly asserts that the respondents have waived their right to cross-examine the deponent for their failure to appear at the deposition-taking despite individual notices previously sent to them.140 In its first Notice to Take Oral Deposition of Mr. Maurice V. Bane dated August 30, 1996,141 the petitioner originally intended to depose Mr. Bane on September 25-26 1996. Because it failed to specify in the notice the purpose for taking Mr. Banes deposition, the petitioner sent a Second Amended Notice to Take Deposition of Mr. Maurice V. Bane Upon Oral Examination where it likewise moved the scheduled deposition-taking to October 23-26, 1996. The records show that Africa moved several times for protective orders against the intended deposition of Maurice Bane.142 On the other hand, among the respondents, only respondent Enrile appears to have filed an Opposition143 to the petitioners first notice, where he squarely raised the issue of reasonability of the petitioners nineteen-day first notice. While the Sandiganbayan denied Africas motion for protective orders,144 it strikes us that no ruling was ever handed down on respondent Enriles Opposition.145 It must be emphasized that even under Rule 23, the admission of the deposition upon oral examination is not simply based on the fact of prior notice on the individual sought to be bound thereby. In Northwest Airlines v. Cruz,146 we ruled that The provision explicitly vesting in the court the power to order that the deposition shall not be taken connotes the authority to exercise discretion on the matter. However, the discretion conferred by law

is not unlimited. It must be exercised, not arbitrarily or oppressively, but in a reasonable manner and in consonance with the spirit of he law. The courts should always see to it that the safeguards for the protection of the parties and deponents are firmly maintained. As aptly stated by Chief Justice Moran: . . . . (T)his provision affords the adverse party, as well as the deponent, sufficient protection against abuses that may be committed by a party in the exercise of his unlimited right to discovery. As a writer said: "Any discovery involves a prying into another person's affairs prying that is quite justified if it is to be a legitimate aid to litigation, but not justified if it is not to be such an aid." For this reason, courts are given ample powers to forbid discovery which is intended not as an aid to litigation, but merely to annoy, embarrass or oppress either the deponent or the adverse party, or both. (emphasis ours) In the present case, not only did the Sandiganbayan fail to rule on respondent Enriles Opposition (which is equally applicable to his co-respondents), it also failed to provide even the bare minimum "safeguards for the protection of," (more so) non-parties,147 and to ensure that these safeguards are firmly maintained. Instead, the Sandiganbayan simply bought the petitioners assertion (that the taking of Bane deposition is a matter of right) and treated the lingering concerns e.g., reasonability of the notice; and the non-party status of the respondents in Civil Case No. 0130 - at whose incident (docketed as G.R. No. 107789) the Bane deposition was taken - rather perfunctorily to the prejudice of the respondents. In conjunction with the order of consolidation, the petitioners reliance on the prior notice on the respondents, as adequate opportunity for cross-examination, cannot override the non-party status of the respondents in Civil Case No. 0130 the effect of consolidation being merely for trial. As nonparties, they cannot be bound by proceedings in that case. Specifically, they cannot be bound by the taking of the Bane deposition without the consequent impairment of their right of crossexamination.148 Opportunity for cross-examination, too, even assuming its presence, cannot be singled out as basis for the admissibility of a former testimony or deposition since such admissibility is also anchored on the requisite identity of parties. To reiterate, although the Sandiganbayan considered the Bane deposition in resolving Civil Case No. 0130, its action was premised on Africas status as a party in that case where the Bane deposition was taken. Corollarily, the idea of privity also permeates Rule 23 of the Rules of Court through its Section 5 which provides: Effect of substitution of parties. Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. [italics and underscoring ours] In light of these considerations, we reject the petitioners claim that the respondents waived their right to cross-examination when they failed to attend the taking of the Bane deposition. Incidentally, the respondents vigorous insistence on their right to cross-examine the deponent speaks loudly that they never intended any waiver of this right. Interestingly, the petitioners notice of the deposition-taking relied on Rule 23 of the Rules of Court. Section 15 of this rule reads: Deposition upon oral examination; notice; time and place. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every

other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. Under this provision, we do not believe that the petitioner could reasonably expect that the individual notices it sent to the respondents would be sufficient to bind them to the conduct of the then opponents (Africas) cross-examination since, to begin with, they were not even parties to the action. Additionally, we observe that in the notice of the deposition taking, conspicuously absent was any indication sufficient to forewarn the notified persons that their inexcusable failure to appear at the deposition taking would amount to a waiver of their right of cross-examination, without prejudice to the right of the respondents to raise their objections at the appropriate time.149We would be treading on dangerous grounds indeed were we to hold that one not a party to an action, and neither in privity nor in substantial identity of interest with any of the parties in the same action, can be bound by the action or omission of the latter, by the mere expedient of a notice. Thus, we cannot simply deduce a resultant waiver from the respondents mere failure to attend the deposition-taking despite notice sent by the petitioner. Lastly, we see no reason why the Bane deposition could not have been taken earlier in Civil Case No. 0009 theprincipal action where it was sought to be introduced while Bane was still here in the Philippines. We note in this regard that the Philippines was no longer under the Marcos administration and had returned to normal democratic processes when Civil Case No. 0009 was filed. In fact, the petitioners notice itself states that the "purpose of the deposition is for Mr. Maurice Bane to identify and testify on the facts set forth in his Affidavit," which Mr. Bane had long executed in 1991 in Makati, Metro Manila.150 Clearly, a deposition could then have been taken - without compromising the respondents right to cross-examine a witness against them - considering that the principal purpose of the deposition is chiefly a mode of discovery. These, to our mind, are avoidable omissions that, when added to the deficient handling of the present matter, add up to the gross deficiencies of the petitioner in the handling of Civil Case No. 0009. After failing to take Banes deposition in 1991 and in view of the peculiar circumstances of this case, the least that the petitioner could have done was to move for the taking of the Bane deposition and proceed with the deposition immediately upon securing a favorable ruling thereon. On that occasion, where the respondents would have a chance to be heard, the respondents cannot avoid a resultant waiver of their right of cross-examination if they still fail to appear at the deposition-taking. Fundamental fairness dictates this course of action. It must be stressed that not only were the respondents non-parties to Civil Case No. 0130, they likewise have no interest in Africas certiorari petition asserting his right as an ETPI stockholder. Setting aside the petitioners flip-flopping on its own representations,151 this Court can only express dismay on why the petitioner had to let Bane leave the Philippines before taking his deposition despite having knowledge already of the substance of what he would testify on. Considering that the testimony of Bane is allegedly a "vital cog" in the petitioners case against the respondents, the Court is left to wonder why the petitioner had to take the deposition in an incident case (instead of the main case) at a time when it became the technical right of the petitioner to do so. V. The petitioner cannot rely on principle of judicial notice The petitioner also claims that since the Bane deposition had already been previously introduced and admitted in Civil Case No. 0130, then the Sandiganbayan should have taken judicial notice of the Bane deposition as part of its evidence.

Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof because these facts are already known to them.152 Put differently, it is the assumption by a court of a fact without need of further traditional evidentiary support. The principle is based on convenience and expediency in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed.153 The foundation for judicial notice may be traced to the civil and canon law maxim, manifesta (or notoria) non indigent probatione.154 The taking of judicial notice means that the court will dispense with the traditional form of presentation of evidence. In so doing, the court assumes that the matter is so notorious that it would not be disputed. The concept of judicial notice is embodied in Rule 129 of the Revised Rules on Evidence. Rule 129 either requires the court to take judicial notice, inter alia, of "the official acts of the x x x judicial departments of the Philippines,"155or gives the court the discretion to take judicial notice of matters "ought to be known to judges because of their judicial functions."156 On the other hand, a partylitigant may ask the court to take judicial notice of any matter and the court may allow the parties to be heard on the propriety of taking judicial notice of the matter involved.157 In the present case, after the petitioner filed its Urgent Motion and/or Request for Judicial Notice, the respondents were also heard through their corresponding oppositions. In adjudicating a case on trial, generally, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding that both cases may have been tried or are actually pending before the same judge.158 This rule though admits of exceptions. As a matter of convenience to all the parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when, with the knowledge of, andabsent an objection from, the adverse party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or when the original record of the former case or any part of it, is actually withdrawn from the archives at the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending.159 Courts must also take judicial notice of the records of another case or cases, where sufficient basis exists in the records of the case before it, warranting the dismissal of the latter case.160 The issue before us does not involve the applicability of the rule on mandatory taking of judicial notice; neither is the applicability of the rule on discretionary taking of judicial notice seriously pursued. Rather, the petitioner approaches the concept of judicial notice from a genealogical perspective of treating whatever evidence offered in any of the "children" cases Civil Case 0130 as evidence in the "parent" case Civil Case 0009 - or "of the whole family of cases."161 To the petitioner, the supposed relationship of these cases warrants the taking of judicial notice. We strongly disagree. First, the supporting cases162 the petitioner cited are inapplicable either because these cases involve only a single proceeding or an exception to the rule, which proscribes the courts from taking judicial notice of the contents of the records of other cases.163 Second, the petitioners proposition is obviously obnoxious to a system of orderly procedure. The petitioner itself admits that the present case has generated a lot of cases, which, in all likelihood, involve issues of varying complexity. If we follow the logic of the petitioners argument, we would be espousing judicial confusion by indiscriminately allowing the admission of evidence in one case, which was presumably found competent and relevant in another case, simply based on the supposed lineage of the cases. It is the duty of the petitioner, as a party-litigant, to properly lay before the court the evidence it relies

upon in support of the relief it seeks, instead of imposing that same duty on the court. We invite the petitioners attention to our prefatory pronouncement in Lopez v. Sandiganbayan:164 Down the oft-trodden path in our judicial system, by common sense, tradition and the law, the Judge in trying a case sees only with judicial eyes as he ought to know nothing about the facts of the case, except those which have been adduced judicially in evidence. Thus, when the case is up for trial, the judicial head is empty as to facts involved and it is incumbent upon the litigants to the action to establish by evidence the facts upon which they rely. (emphasis ours) We therefore refuse, in the strongest terms, to entertain the petitioners argument that we should take judicial notice of the Bane deposition. VI. Summation To recapitulate, we hold that: (1) the Sandiganbayans denial of the petitioners 3rd motion the Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice Bane) was a legal error that did not amount to grave abuse of discretion; (2) the Sandiganbayans refusal to reopen the case at the petitioners instance was tainted with grave abuse of discretion; and (3) notwithstanding the grave abuse of discretion, the petition must ultimately fail as the Bane deposition is not admissible under the rules of evidence.165 VII. Refutation of Justice Carpios Last Minute Modified Dissent At the last minute, Justice Carpio circulated a modified dissent, quoting the Bane deposition. His covering note states: I have revised my dissenting opinion to include the Bane deposition so that the Court and the public will understand what the Bane deposition is all about. (underlining added) In light of this thrust, a discussion refuting the modified dissent is in order. First: Contents of the Bane deposition not an Issue. The dissent perfectly identified what is at issue in this case i.e., the admissibility of the Bane deposition. Admissibility is concerned with the competence and relevance166 of the evidence, whose admission is sought. While the dissent quoted at length the Bane deposition, it may not be amiss to point out that the relevance of the Bane deposition (or, to adopt the dissents characterization, whether "Maurice V. Bane is a vital witness") is not an issue here unless it can be established first that the Bane deposition is a competent evidence. Second: Misrepresentation of Cited Authority. The dissent insists that "in Philippine Jurisprudence, the consolidation of cases merges the different actions into one and the rights of the parties are adjudicated in a single judgment," citing Vicente J. Francisco. In our discussion on consolidation, we footnoted the following in response to the dissents position, which we will restate here for emphasis: In the 1966 edition of Vicente J. Franciscos Revised Rules of Court, Francisco wrote: The effect of consolidation of actions is to unite and merge all of the different actions consolidated into a single action, in the same manner as if the different causes of actions involved had originally been joined in a single action, and the order of consolidation, if made by a court of competent jurisdiction, is binding upon all the parties to the different actions until it is vacated or set aside. After the consolidation there can be no further proceedings in the separate actions, which are by virtue of

the consolidation discontinued and superseded by a single action, which should be entitled in such manner as the court may direct, and all subsequent proceedings therein be conducted and the rights of the parties adjudicated in a single action (1 C.J.S., 113, pp. 1371-1372). At the very beginning of the discussion on consolidation of actions in the Corpus Juris Secundum, the following caveat appears: The term consolidation is used in three different senses. First, where several actions are combined into one and lose their separate identity and become a single action in which a single judgment is rendered; second, where all except one of several actions are stayed until one is tried, in which case the judgment in the one is conclusive as to the others; third, where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. The failure to distinguish between these methods of procedure, which are entirely distinct, the two latter, strictly speaking, not being consolidation, a fact which has not always been noted, has caused some confusion and conflict in the cases. (1 C.J.S., 107, pp. 1341-1342) (Emphasis added). In defining the term "consolidation of actions," Francisco provided a colatilla that the term "consolidation" is used in three different senses, citing 1 C.J.S. 1341 and 1 Am. Jur. 477 (Francisco, Revised Rules of Court, p. 348). From the foregoing, it is clear that the dissent appears to have quoted Franciscos statement out of context. As it is, the issue of the effect of consolidation on evidence is at most an unsettled matter that requires the approach we did in the majoritys discussion on consolidation.167 Third: Misappreciation of the Purpose of Consolidation. The dissent then turns to the purpose of consolidation to "expeditiously settle the interwoven issues involved in the consolidated cases" and "the simplification of the proceedings." It argues that this can only be achieved if the repetition of the same evidence is dispensed with. It is unfortunate that the dissent refuses to recognize the fact that since consolidation is primarily addressed to the court concerned to aid it in dispatching its official business, it would be in keeping with the orderly trial procedure if the court should have a say on what consolidation would actually bring168 (especially where several cases are involved which have become relatively complex). In the present case, there is nothing in the proceedings below that would suggest that the Sandiganbayan or the parties themselves (the petitioner and the respondents) had in mind a consolidation beyond joint hearing or trial. Why should this Court which is not a trial court impose a purported effect that has no factual or legal grounds? Fourth: The Due Process Consideration. The dissent argues that even if the consolidation only resulted in a joint hearing or trial, the "respondents are still bound by the Bane deposition considering that they were given notice of the deposition-taking." The issue here boils down to one of due process the fundamental reason why a hearsay statement (not subjected to the rigor of cross-examination) is generally excluded in the realm of admissible evidence especially when read in light of the general rule that depositions are not meant as substitute for the actual testimony, in open court, of a party or witness. Respondent Enrile had a pending Opposition to the notice of deposition-taking (questioning the reasonableness thereof an issue applicable to the rest of the respondents) which the Sandiganbayan failed to rule on. To make the Sandiganbayans omission worse, the Sandiganbayan blindly relied on the petitioners assertion that the deposition-taking was a matter of right and, thus, failed to address the consequences and/or issues that may arise from the apparently innocuous statement of the petitioner (that it intends to use the Bane deposition in Civil Case No. 0009, where

only the respondents, and not Africa, are the parties).169 There is simply the absence of "due" in due process. Fifth: Misstatement of the Sandiganbayans Action. The dissent repeatedly misstates that the Sandiganbayan "granted" the request for the deposition-taking. For emphasis, the Sandiganbayan did not "grant" the request since the petitioner staunchly asserted that the deposition-taking was a matter of right. No one can deny the complexity of the issues that these consolidated cases have reached. Considering the consolidation of cases of this nature, the most minimum of fairness demands upon the petitioner to move for the taking of the Bane deposition and for the Sandiganbayan to make a ruling thereon (including the opposition filed by respondent Enrile which equally applies to his co-respondents). The burgeoning omission and failures that have prevailed in this case cannot be cured by this Court without itself being guilty of violating the constitutional guarantee of due process. Sixth: Issues Posed and Resolved Go Beyond Technicalities. The above conclusions, contrary to the petitioners claim, are not only matters of technicality. Admittedly, rules of procedure involve technicality, to which we have applied the liberality that technical rules deserve. But the resolution of the issues raised goes beyond pure or mere technicalities as the preceding discussions show. They involve issues of due process and basic unfairness to the respondents, particularly to respondent Enrile, who is portrayed in the Bane deposition to be acting in behalf of the Marcoses so that these shares should be deemed to be those of the Marcoses. They involved, too, principles upon which our rules of procedure are founded and which we cannot disregard without flirting with the violation of guaranteed substantive rights and without risking the disorder that these rules have sought to avert in the course of their evolution. In the Court En Banc deliberations of December 6, 2011, the Court failed to arrive at a conclusive decision because of a tie vote (7-7, with one Justice taking no part). The same vote resulted in the re-voting of December 13, 2011. In this light, the ponencia is deemed sustained. WHEREFORE, premises considered, we DISMISS the petition for lack of merit. No costs. SO ORDERED.