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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 80508 January 30, 1990 EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA, QUERUBIN BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG, LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA RESTORAN, VERIDIAN FLORA, ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO, ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA ESTARES, BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL, ERIBERTO MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO, LOSENDO GARBO, VIRGINIA LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO, ELENIETA BANOSA, ALEXANDER LABADO, ANDREW GO, WYNEFREDO REYES, ROSARIO SESPENE, ROSA MARTIN and JAIME BONGAT, petitioners, vs. MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS GARCIA, respondents.

GUTIERREZ, JR., J.: This is a petition for prohibition with preliminary injunction to prohibit the military and police officers represented by public respondents from conducting "Areal Target Zonings" or "Saturation Drives" in Metro Manila. The forty one (41) petitioners state that they are all of legal age, bona fide residents of Metro Manila and taxpayers and leaders in their respective communities. They maintain that they have a common or general interest in the preservation of the rule of law, protection of their human rights and the reign of peace and order in their communities. They claim to represent "the citizens of Metro Manila who have similar interests and are so numerous that it is impracticable to bring them all before this Court." The public respondents, represented by the Solicitor General, oppose the petition contending inter alia that petitioners lack standing to file the instant petition for they are not the proper parties to institute the action. According to the petitioners, the following "saturation drives" were conducted in Metro Manila:

1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo, Manila. 2. June l9, 1987 at about l0:00 PM in Mata Street, Panday Pira Extension and San Sebastian Street, Tondo, Manila. 3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila. 4. August 11 to l3, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach up to Happy Land, Magsaysay Village, Tondo, Manila. 5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street, Tondo, Manila. 6. August 28, 1987 at l0:30 PM, in Block 34, Dagat-dagatan Navotas, Metro Manila. 7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila. 8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City. 9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila. 10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay City. 11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila. 12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila. According to the petitioners, the "areal target zonings" or saturation drives" are in critical areas pinpointed by the military and police as places where the subversives are hiding. The arrests range from seven (7) persons during the July 20 saturation drive in Bangkusay, Tondo to one thousand five hundred (1,500) allegedly apprehended on November 3 during the drive at Lower Maricaban, Pasay City. The petitioners claim that the saturation drives follow a common pattern of human rights abuses. In all these drives, it is alleged that the following were committed: 1. Having no specific target house in mind, in the dead of the night or early morning hours, police and military units without any search warrant or warrant of arrest cordon an area of more than one residence and sometimes whole barangay or areas of barangay in Metro Manila. Most of them are in civilian clothes and without nameplates or identification cards. 2. These raiders rudely rouse residents from their sleep by banging on the walls and windows of their homes, shouting, kicking their doors open (destroying some in the process), and then ordering the residents within to come out of their respective residences. 3. The residents at the point of high-powered guns are herded like cows, the men are ordered to strip down to their briefs and examined for tattoo marks and other imagined marks. 4. While the examination of the bodies of the men are being conducted by the raiders, some of the members of the raiding team force their way into each and every house within the cordoned off area and then proceed to conduct search of the said houses without civilian witnesses from the neighborhood.

5. In many instances, many residents have complained that the raiders ransack their homes, tossing about the residents' belongings without total regard for their value. In several instances, walls are destroyed, ceilings are damaged in the raiders' illegal effort to 'fish' for incriminating evidence. 6. Some victims of these illegal operations have complained with increasing frequency that their money and valuables have disappeared after the said operations. 7. All men and some women who respond to these illegal and unwelcome intrusions are arrested on the spot and hauled off to waiting vehicles that take them to detention centers where they are interrogated and 'verified.' These arrests are all conducted without any warrants of arrest duly issued by a judge, nor under the conditions that will authorize warrantless arrest. Some hooded men are used to fingerpoint suspected subversives. 8. In some instances, arrested persons are released after the expiration of the period wherein they can be legally detained without any charge at all. In other instances, some arrested persons are released without charge after a few days of arbitrary detention. 9. The raiders almost always brandish their weapons and point them at the residents during these illegal operations. 10. Many have also reported incidents of on-the-spotbeatings, maulings and maltreatment. 11. Those who are detained for further 'verification' by the raiders are subjected to mental and physical torture to extract confessions and tactical information. (Rollo, pp. 2-4) The public respondents stress two points in their Comment which was also adopted as their Memorandum after the petition was given due course. First, the respondents have legal authority to conduct saturation drives. And second, they allege that the accusations of the petitioners about a deliberate disregard for human rights are total lies. Insofar as the legal basis for saturation drives is concerned, the respondents cite Article VII, Section 17 of the Constitution which provides: The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied ) They also cite Section 18 of the same Article which provides: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. ... There can be no question that under ordinary circumstances, the police action of the nature described by the petitioners would be illegal and blantantly violative of the express guarantees of the Bill of Rights. If the military and the police must conduct concerted campaigns to flush out and catch criminal elements, such drives must be

consistent with the constitutional and statutory rights of all the people affected by such actions. There is, of course, nothing in the Constitution which denies the authority of the Chief Executive, invoked by the Solicitor General, to order police actions to stop unabated criminality, rising lawlessness, and alarming communist activities. The Constitution grants to Government the power to seek and cripple subversive movements which would bring down constituted authority and substitute a regime where individual liberties are suppressed as a matter of policy in the name of security of the State. However, all police actions are governed by the limitations of the Bill of Rights. The Government cannot adopt the same reprehensible methods of authoritarian systems both of the right and of the left, the enlargement of whose spheres of influence it is trying hard to suppress. Our democratic institutions may still be fragile but they are not in the least bit strengthened through violations of the constitutional protections which are their distinguishing features. In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court stated: One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown. That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son returning. That right is guaranteed in the following provisions of Article IV of the 1973 Constitution: SEC. 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. xxx xxx xxx Only last year, the Court again issued this reminder in 20th Century Fox Film Corporation v. Court of Appeals (164 SCRA 655; 660- 661 [1988]): This constitutional right protects a citizen against wanton and unreasonable invasion of his privacy and liberty as to his person, papers and effects. We have explained in the case of People vs. Burgos (144 SCRA 1) citing Villanueva v. Querubin (48 SCRA 345) why the right is so important: It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In

that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Cf. Schmerber v. California, 384 US 757 [1966], Brennan J. and Boyd v. United States, 11 6 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966]), could fitly characterize constitutional right as the embodiment of a spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards. (ibid, p. 74.) The decision of the United States Supreme Court in Rochin v. California, (342 US 165; 96 L. Ed. 183 [1952]) emphasizes clearly that police actions should not be characterized by methods that offend a sense of justice. The court ruled: Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation. It is significant that it is not the police action perse which is impermissible and which should be prohibited. Rather, it is the procedure used or in the words of the court, methods which "offend even hardened sensibilities." In Breithaupt v. Abram (352 US 432, 1 L. Ed. 2nd 448 [1957]), the same court validated the use of evidence, in this case blood samples involuntarily taken from the petitioner, where there was nothing brutal or offensive in the taking. The Court stated: Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive' in the taking of a sample of blood when done, as in this case, under the protective eye of a physician. To be sure, the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional light; and certainly the rest was administered here would not be considered offensive by even the most delicate. Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of 'decency and fairness that has been woven by common experience into the fabric of acceptable conduct.... The individual's right to immunity from such invasion of his body was considered as "far outweighed by the value of its deterrent effect" on the evil sought to be avoided by the police action. It is clear, therefore, that the nature of the affirmative relief hinges closely on the determination of the exact facts

surrounding a particular case. The violations of human rights alleged by the petitioners are serious. If an orderly procedure ascertains their truth, not only a writ of prohibition but criminal prosecutions would immediately issue as a matter of course. A persistent pattern of wholesale and gross abuse of civil liberties, as alleged in the petition, has no place in civilized society. On the other hand, according to the respondents, the statements made by the petitioners are a complete lie. The Solicitor General argues: This a complete lie. Just the contrary, they had been conducted with due regard to human rights. Not only that, they were intelligently and carefully planned months ahead of the actual operation. They were executed in coordination with barangay officials who pleaded with their constituents to submit themselves voluntarily for character and personal verification. Local and foreign correspondents, who had joined these operations, witnessed and recorded the events that transpired relative thereto. (After Operation Reports: November 5, 1987, Annex 12; November 20, 1987, Annex 13; November 24, 1987, Annex 14). That is why in all the drives so far conducted, the alleged victims who numbered thousands had not themselves complained. In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo, President Aquino branded all accusations of deliberate disregard for human rights as 'total lies'. Here are excerpts from her strongest speech yet in support of the military: All accusations of a deliberate disregard for human rights have been shown- up to be total lies. ...To our soldiers, let me say go out and fight, fight with every assurance that I will stand by you through thick and thin to share the blame, defend your actions, mourn the losses and enjoy with you the final victory that I am certain will be ours. You and I will see this through together. I've sworn to defend and uphold the Constitution. We have wasted enough time answering their barkings for it is still a long way to lasting peace. . . . The dangers and hardships to our men in the field are great enough as it is without having them distracted by tills worthless carping at their backs. Our counter-insurgency policy remains the same: economic development to pull out the rootsand military operations to slash the growth of the insurgency. The answer to terror is force now. Only feats of arms can buy us the time needed to make our economic and social initiatives bear fruit. . . Now that the extreme Right has been defeated, I expect greater vigor in the prosecution of the war against the communist insurgency, even as we continue to watch our backs against

attacks from the Right. (Philippine Star, January 27, 1988, p. 1, Annex 15; emphasis supplied) Viewed in the light of President Aquino's observation on the matter, it can be said that petitioners misrepresent as human rights violations the military and police's zealous vigilance over the people's right to live in peace and safety. (Rollo, pp. 36-38) Herein lies the problem of the Court. We can only guess the truth. Everything before us consists of allegations. According to the petitioners, more than 3,407 persons were arrested in the saturation drives covered by the petition. No estimates are given for the drives in Block 34, Dagat-dagatan, Navotas; Apelo Cruz Compound, Pasig; and Sun Valley Drive near the Manila International Airport area. Not one of the several thousand persons treated in the illegal and inhuman manner described by the petitioners appears as a petitioner or has come before a trial court to present the kind of evidence admissible in courts of justice. Moreover, there must have been tens of thousands of nearby residents who were inconvenienced in addition to the several thousand allegedly arrested. None of those arrested has apparently been charged and none of those affected has apparently complained. A particularly intriguing aspect of the Solicitor General's comments is the statement that local and foreign corespondents actually joined the saturation drives and witnessed and recorded the events. In other words, the activities sought to be completely proscribed were in full view of media. The sight of hooded men allegedly being used to fingerpoint suspected subversives would have been good television copy. If true, this was probably effected away from the ubiquitous eye of the TV cameras or, as the Solicitor General contends, the allegation is a "complete lie." The latest attempt to stage a coup d'etat where several thousand members of the Armed Forces of the Philippines sought to overthrow the present Government introduces another aspect of the problem and illustrates quite clearly why those directly affected by human rights violations should be the ones to institute court actions and why evidence of what actually transpired should first be developed before petitions are filed with this Court. Where there is large scale mutiny or actual rebellion, the police or military may go in force to the combat areas, enter affected residences or buildings, round up suspected rebels and otherwise quell the mutiny or rebellion without having to secure search warrants and without violating the Bill of Rights. This is exactly what happened in the White Plains Subdivision and the commercial center of Makati during the first week of December, 1989. The areal target zonings in this petition were intended to flush out subversives and criminal elements particularly because of the blatant assassinations of public officers and police officials by elements supposedly coddled by the communities where the "drives" were conducted. It is clear from the pleadings of both petitioners and respondents, however, that there was no rebellion or criminal activity similar to that of the attempted coup d' etats. There appears to have been no impediment to securing search warrants or warrants of arrest before any houses were searched or individuals roused from sleep were arrested. There is no strong showing that the objectives sought to be attained by the "areal zoning" could not be achieved even as the rights of squatter and low income families are fully protected. Where a violation of human rights specifically guaranteed by the Constitution is involved, it is the duty of the court to stop the transgression and state where even the awesome power of the state may not encroach upon the rights of the individual. It is the duty of the court to take remedial action even in cases such as the present petition where the petitioners do not complain that they were victims of the police actions, where no names of any of the thousands of alleged victims are given, and where the prayer is a general one to stop all police "saturation drives," as long as the Court is convinced that the event actually happened.

The Court believes it highly probable that some violations were actually committed. This is so inspite of the alleged pleas of barangay officials for the thousands of residents "to submit themselves voluntarily for character and personal verification." We cannot imagine police actions of the magnitude described in the petitions and admitted by the respondents, being undertaken without some undisciplined soldiers and policemen committing certain abuses. However, the remedy is not to stop all police actions, including the essential and legitimate ones. We see nothing wrong in police making their presence visibly felt in troubled areas. Police cannot respond to riots or violent demonstrations if they do not move in sufficient numbers. A show of force is sometimes necessary as long as the rights of people are protected and not violated. A blanket prohibition such as that sought by the petitioners would limit all police actions to one on one confrontations where search warrants and warrants of arrests against specific individuals are easily procured. Anarchy may reign if the military and the police decide to sit down in their offices because all concerted drives where a show of force is present are totally prohibited. The remedy is not an original action for prohibition brought through a taxpayers' suit . Where not one victim complains and not one violator is properly charged, the problem is not initially for the Supreme Court. It is basically one for the executive departments and for trial courts. Well meaning citizens with only second hand knowledge of the events cannot keep on indiscriminately tossing problems of the executive, the military, and the police to the Supreme Court as if we are the repository of all remedies for all evils. The rules of constitutional litigation have been evolved for an orderly procedure in the vindication of rights. They should be followed. If our policy makers sustain the contention of the military and the police that occasional saturation drives are essential to maintain the stability of government and to insure peace and order, clear policy guidelines on the behavior of soldiers and policemen must not only be evolved, they should also be enforced. A method of pinpointing human rights abuses and identifying violators is necessary. The problem is appropriate for the Commission on Human Rights. A high level conference should bring together the heads of the Department of Justice, Department of National Defense and the operating heads of affected agencies and institutions to devise procedures for the prevention of abuses. Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom we can order prosecuted. In the absence of clear facts ascertained through an orderly procedure, no permanent relief can be given at this time. Further investigation of the petitioners' charges and a hard look by administration officials at the policy implications of the prayed for blanket prohibition are also warranted. In the meantime and in the face of a prima facie showing that some abuses were probably committed and could be committed during future police actions, we have to temporarily restrain the alleged banging on walls, the kicking in of doors, the herding of half-naked men to assembly areas for examination of tattoo marks, the violation of residences even if these are humble shanties of squatters, and the other alleged acts which are shocking to the conscience. WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila, Malabon, and Pasay City where the petitioners may present evidence supporting their allegations and where specific erring parties may be pinpointed and prosecuted. Copies of this decision are likewise forwarded to the Commission on Human Rights, the Secretary of Justice, the Secretary of National Defense, and the Commanding General PC-INP for the drawing up and enforcement of clear guidelines to govern police actions intended to abate riots and civil disturbances, flush out criminal elements, and subdue terrorist activities. In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police actions

are ENJOINED until such time as permanent rules to govern such actions are promulgated. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes, Medialdea and Regalado, JJ., concur. Grio-Aquino, J., I join JJ. Cruz, Padilla and Sarmiento's dissents.

Separate Opinions

CRUZ, J., dissenting: Mr. Justice Gutierrez and I are kindred spirits and usually find ourselves together on the side of liberty. It saddens me that in the case at bar he is on the side of authority. This is not to say that liberty and authority are irreconcilable enemies. The two must in fact co-exist, for only in a wellordered society can rights be properly enjoyed. Implicit in that theory, however, is the other imperative: that the highest function of authority is to insure liberty. While acknowledging that the military is conducting the saturation drives, the majority practically blinks them away on mere technicalities. First, there are no proper parties. Second, there is no proof. Therefore, the petition is dismissed. The approach is to me too much simplification. We do not choose to see the woods for the trees. The brutal fact is staring us in the face but we look the other way in search of excuses. The majority says it cannot act against the drives because no one directly affected has complained. Such silence, if I understand the ponencia correctly, has in effect purged the drives of all oppressiveness and washed them clean. (The reason for the silence is fear. These raids are conducted not in the enclaves of the rich but in the deprived communities, where the residents have no power or influence. The parties directly aggrieved are afraid. They are the little people. They cannot protest lest they provoke retaliation for their temerity. Their only hope is in this Court, and we should not deny them that hope.) The ruling that the petitioners are not proper parties is a specious pretext for inaction. We have held that technical objections may be brushed aside where there are constitutional questions that must be met. There are many decisions applying this doctrine. (Rodriguez v. Gella, 92 Phil. 603; Tolentino v. Commission on Elections, 41 SCRA 702; Philconsa v. Jimenez, 65 SCRA 479; Edu v. Ericta, 35 SCRA 481; Gonzales v. Commission on Elections, 27 SCRA 835; Lagunsad v. Court of Appeals; 154 SCRA 199; Demetria v. Alba, 148 SCRA 208). Lozada was in fact an aberration. I believe that where liberty is involved, every person is a proper party even if he may not be directly injured.

Each of us has a duty to protect liberty and that alone makes him a proper party. It is not only the owner of the burning house who has the right to call the firemen. Every one has the right and responsibility to prevent the fire from spreading even if he lives in the other block. The majority seems to be willing to just accept the Solicitor General's assertion that the claimed abuses are "complete lies" and leave it at that. But a blanket denial is not enough. The evidence is there on media, in the papers and on radio and television, That kind of evidence cannot be cavalierly dismissed as "complete lies." The saturation drive is not unfamiliar to us. It is like the "zona" of the Japanese Occupation. An area was surrounded by soldiers and all residents were flushed out of their houses and lined up, to be looked over by a person with a bag over his head. This man pointed to suspected guerrillas, who were immediately arrested and eventually if not instantly executed. To be sure, there are some variations now. The most important difference is that it is no longer 1943 and the belligerent occupation is over. There is no more war. It is now 1990, when we are supposed to be under a free Republic and safeguarded by the Bill of Rights. Article III, Section 2, clearly provides: Sec. 2 The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied.) The provision is intended to protect the individual from official (and officious) intrusions, no matter how humble his abode and however lowly his station in life. Against the mighty forces of the government, the person's house is his castle, his inviolate refuge and exclusive domain where he is the monarch of all he surveys. Yet in the dead of night, armed soldiers may knock on one's door and command him at gunpoint to come out so he and his neighbors, who have also been rounded up, can all be placed on public examination, as in a slave market. This is followed by the arrest and detention of those suspected of villainy, usually on the basis only of the tattoos on their bodies or the informer's accusing finger. Where is the search warrant or the warrant of arrest required by the Bill of Rights? Where is the probable cause that must be determined personally by the judge, and by no other, to justify the warrant? Where is the examination under oath or affirmation of the complainant and the witnesses he may produce to establish the probable cause? Where is the particular description that must be stated in the warrant, of the places to be searched and the persons or things to be seized? And where, assuming all these may be dispensed with, is the admissible exception to the rule? Saturation drives are not among the accepted instances when a search or an arrest may be made without warrant. They come under the concept of the fishing expeditions stigmatized by law and doctrine. At any rate, if the majority is really introducing the "zona" as another exception to the rule, it must not equivocate. It must state that intention in forthright language and not in vague generalizations that concede the wrong but deny the right. To justify the "zona" on the basis of the recent coup attempt is, in my view, to becloud the issue. The "zonas" complained of happened before the failed coup and had nothing whatsoever to do with that disturbance. There was

no "large scale mutiny or actual rebellion' when the saturation drives were conducted and there were no "combat areas" either in the places where the violations were committed. The failed coup cannot validate the invalid "zonas' retroactively. The ponencia says that "we cannot take judicial notice of the facts and figures given by the petitioners regarding these saturation drives conducted by the military and police authorities." Maybe so. But we can and should take judicial notice of the saturation drives themselves which are not and cannot be denied by the government. I urge my brethren to accept the fact that those drives are per se unconstitutional. I urge them to accept that even without proof of the hooded figure and the personal indignities and the loss and destruction of properties and the other excesses allegedly committed, the mere waging of the saturation drives alone is enough to make this Court react with outraged concern. Confronted with this clear case of oppression, we should not simply throw up our hands and proclaim our helplessness. I submit that this Court should instead declare categorically and emphatically that these saturation drives are violative of human rights and individual liberty and so should be stopped immediately. While they may be allowed in the actual theater of military operations against the insurgents, the Court should also make it clear that Metro Manila is not such a battleground. The danger to our free institutions lies not only in those who openly defy the authority of the government and violate its laws. The greater menace is in those who, in the name of democracy, destroy the very things it stands for as in this case and so undermine democracy itself. Where liberty is debased into a cruel illusion, all of us are degraded and diminished. Liberty is indivisible; it belongs to every one. We should realize that when the bell tolls the death of liberty for one of us, "it tolls for thee" and for all of us. PADILLA, J., separate opinion: This case is another classic instance of state power colliding with individual rights. That the State, acting through the government and its forces, has the authority to suppress lawless violence in all its forms cannot be denied. The exercise of that authority is justified when viewed from the standpoint of the general welfare, because the State has the elementary and indispensable duty to insure a peaceful life and existence for its citizens. A government that loses its capability to insure peace and order for its citizens loses the very right to remain in power. But, in the exercise of such authority, i.e., in the choice of the means and methods to suppress lawless violence, the right of the individual citizen to the dignity of his person and the sanctity of his home cannot and should not be violated, unless there is, in a particular case, a clear and present danger of a substantive evil that the State has a compelling duty to suppress or abate. Petitioners' vivid description of the "areal target zoning" or "saturation drives" allegedly conducted by police and military units in Metro Manila, obviously intended to ferret out criminals or suspected criminals in certain cordoned areas, while vigorously denied by respondents, deserves an effective and immediate response from this Court. I submit that since this Court is not a trier of facts and this case involves certainty of facts alleged by petitioners and denied by respondents this case should be referred to a proper trial court where the petitioners can present evidence to support and prove the allegations they make of such brutal and inhuman conduct on the part of military

and police units. More than the military and police checkpoints sustained by this Court as a general proposition during abnormal times,** and which involve the right of military and police forces to check on vehicles and pedestrians passing through certain fixed points for the purpose of apprehending criminals and/or confiscating prohibited articles like unlicensed firearms, the "areal target zoning" and "saturation drives", as described in petitioners' allegations, are actual raids on private homes in selected areas, and are thus positive assaults against the individual person and his dignity. The individual is, as described, yanked out of his home, without any arrest warrant, to face investigation as to his connections with lawless elements. In short, the sanctity of the home is pulverized by military and police action. Thus, while the checkpoint is a defensive device, on the part of government, the "areal target zoning" or "saturation drive" is a direct assault against, an intrusion into individual rights and liberties. Respondents, fortunately, have branded petitioners' allegations of such brutality, as total lies. It is indeed difficult to even contemplate that such methods reminiscent of a "police state" can exist in a society built on a republican and constitutional system. Respondents Must be given a chance to face their accusers and prove that they are indeed fabricating falsehoods. But the stakes I submit, are too high for this Court, as the guardian of individual liberties, to avoid a judicial confrontation with the issue. I vote, therefore, to refer this case (dispensing with normal venue requirements) to the Executive Judge, RTC of Manila, for him 1. to receive the evidences of all the parties, in support and in refutation of the petitioners' allegations; 2. to decide the case expeditiously on the bases of the evidence, subject to review by this Court; 3. to report to this Court on action taken. SARMIENTO, J., dissenting: There is only one question here: Whether or not the police actions (saturation drives) complained of constitute a valid exercise of police power. The fact that on twelve occasions between March and November, 1987 the military conducted the saturation drives in question is a fact open to no question. The Solicitor General admits that they, the saturation drives, had been done, except that they had been done "with due regard to human rights." "Not only that," so he states: ... they were intelligently and carefully planned months ahead of the actual operation. They were executed in coordination with barangay officials who pleaded with their constituents to submit themselves voluntarily for character and personal verification. Local and foreign correspondents, who had joined these operations, witnessed, and reported the events that transpired relative thereto. (After Operation Reports: November 5, 1987, Annex 12; November 20, 1987, Annex 13; November 24, 1987, Annex 14). That is why in all the drives so far conducted, the alleged victims who numbered thousands had not themselves complained. The question, then, is purely one of law: Are the saturation drives in question lawful and legitimate? It is also a question that is nothing novel: No, because the arrests were not accompanied by a judicial warrant. 1 Therefore, the fact that they had been carefully planned, executed in coordination with Tondo's barangay officials, and

undertaken with due courtesy and politeness (which I doubt), will not validate them. The lack of a warrant makes them, per se illegal. According to the majority, "the remedy is not to stop all police actions, including the essential and legitimate ones . . . [w]e see nothing wrong in police making their presence visibly felt in troubled areas . . . " 2 But the petitioners have not come to court to "stop all police actions" but rather, the saturation drives, which are, undoubtedly, beyond police power. That "[a] show of force is sometimes necessary as long as the rights of people are protected and not violated 3 is a contradiction in terms. A "show of force" (by way of saturation drives) is a violation of human rights because it is not covered by a judicial warrant. In all candor, I can not swallow what I find is a complete exaggeration of the issues: ...A show of force is sometimes necessary as long as the rights of people are protected and not violated. A blanket prohibition such as that sought by the petitioners would limit all police actions to one on one confrontations where search warrants and warrants of arrests against specific individuals are easily procured. Anarchy may reign if the military and the police decide to sit down in their offices because all concerted drives where a show of force is present are totally prohibited. 4 As a general rule, a peace officer can not act unless he is possessed of the proper arrest or search warrant. The exception is when a criminal offense is unfolding before him, in which case, action is justified and necessary. The majority would have the exception to be simply, the general rule. The fact of the matter is that we are not here confronted by police officers on the beat or prowl cars on patrol. What we have and I suppose that everybody is agreed on it- are lightning raids of homes, arbitrary confiscation of effects, and summary arrests of persons, the very acts proscribed by the Constitution. If this is a "show of force", it certainly has no place in a constitutional democracy. I find allusions to the last aborted coup d'etat inapt. In that case, our men in uniform had all the right to act amidst crimes being committed in flagrante. The instant case is quite different. There are no offenses being committed, but rather, police officers fishing for evidence of offenses that may have been committed, As I said, in that event, a court warrant is indispensable. That "the problem is not initially for the Supreme Court 5 is to me, an abdication of judicial duty. As I indicated, the controversy is purely one of law the facts being undisputed. Law, needless to say, is the problem of the Supreme Court, not the Executive. Worse, it is passing the buck. The petitioners, precisely, have a grievance to raise, arising from abuses they pinpoint to the lower offices of the Executive (which presumably has its imprimatur). To make it an executive problem, so I hold, is to make the Executive judge and jury of its own acts, and hardly, a neutral arbiter. I am also taken aback by references to "[w]ell meaning citizens with only second hand knowledge of the events ... keep[ing] on indiscriminately tossing problems -of the Executive, the military, and the police to the Supreme Court as if we are the repository of all remedies for all evils." 6 First, the facts are not "second-hand", they are undisputed: Ther had been saturation drives. Second, the petitioners have trooped to the highest court with a legitimate grievance

against the Executive (and military). The fact that the majority would "remand" the case to the lower courts and the various echelons of the Executive for investigation is to admit that walls have indeed been banged, doors kicked in, and half-naked men herded. I do not see therefore why we can not issue a writ of prohibition as prayed for, in the midst of these facts.

Separate Opinions CRUZ, J., dissenting: Mr. Justice Gutierrez and I are kindred spirits and usually find ourselves together on the side of liberty. It saddens me that in the case at bar he is on the side of authority. This is not to say that liberty and authority are irreconcilable enemies. The two must in fact co-exist, for only in a wellordered society can rights be properly enjoyed. Implicit in that theory, however, is the other imperative: that the highest function of authority is to insure liberty. While acknowledging that the military is conducting the saturation drives, the majority practically blinks them away on mere technicalities. First, there are no proper parties. Second, there is no proof Therefore, the petition is dismissed. The approach is to me too much simplification. We do not choose to see the woods for the trees. The brutal fact is staring us in the face but we look the other way in search of excuses. The majority says it cannot act against the drives because no one directly affected has complained. Such silence, if I understand the ponencia correctly, has in effect purged the drives of all oppressiveness and washed them clean. (The reason for the silence is fear. These raids are conducted not in the enclaves of the rich but in the deprived communities, where the residents have no power or influence. The parties directly aggrieved are afraid. They are the little people. They cannot protest lest they provoke retaliation for their temerity. Their only hope is in this Court, and we should not deny them that hope.) The ruling that the petitioners are not proper parties is a specious pretext for inaction. We have held that technical objections may be brushed aside where there are constitutional questions that must be met. There are many decisions applying this doctrine. (Rodriguez v. Gella, 92 Phil. 603; Tolentino v. Commission on Elections, 41 SCRA 702; Philconsa v. Jimenez, 65 SCRA 479; Edu v. Ericta, 35 SCRA 481; Gonzales v. Commission on Elections, 27 SCRA 835; Lagunsad v. Court of Appeals; 154 SCRA 199; Demetria v. Alba, 148 SCRA 208). Lozada was in fact an aberration. I believe that where liberty is involved, every person is a proper party even if he may not be directly injured. Each of us has a duty to protect liberty and that alone makes him a proper party. It is not only the owner of the burning house who has the right to call the firemen. Every one has the right and responsibility to prevent the fire from spreading even if he lives in the other block. The majority seems to be willing to just accept the Solicitor General's assertion that the claimed abuses are "complete lies" and leave it at that. But a blanket denial is not enough. The evidence is there on media, in the papers and on

radio and television, That kind of evidence cannot be cavalierly dismissed as "complete lies." The saturation drive is not unfamiliar to us. It is like the "zona" of the Japanese Occupation. An area was surrounded by soldiers and all residents were flushed out of their houses and lined up, to be looked over by a person with a bag over his head. This man pointed to suspected guerrillas, who were immediately arrested and eventually if not instantly executed. To be sure, there are some variations now. The most important difference is that it is no longer 1943 and the belligerent occupation is over. There is no more war. It is now 1990, when we are supposed to be under a free Republic and safeguarded by the Bill of Rights. Article III, Section 2, clearly provides: Sec. 2 The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied.) The provision is intended to protect the individual from official (and officious) intrusions, no matter how humble his abode and however lowly his station in life. Against the mighty forces of the government, the person's house is his castle, his inviolate refuge and exclusive domain where he is the monarch of all he surveys. Yet in the dead of night, armed soldiers may knock on one's door and command him at gunpoint to come out so he and his neighbors, who have also been rounded up, can all be placed on public examination, as in a slave market. This is followed by the arrest and detention of those suspected of villainy, usually on the basis only of the tattoos on their bodies or the informer's accusing finger. Where is the search warrant or the warrant of arrest required by the Bill of Rights? Where is the probable cause that must be determined personally by the judge, and by no other, to justify the warrant? Where is the examination under oath or affirmation of the complainant and the witnesses he may produce to establish the probable cause? Where is the particular description that must be stated in the warrant, of the places to be searched and the persons or things to be seized? And where, assuming all these may be dispensed with, is the admissible exception to the rule? Saturation drives are not among the accepted instances when a search or an arrest may be made without warrant. They come under the concept of the fishing expeditions stigmatized by law and doctrine. At any rate, if the majority is really introducing the "zona' as another exception to the rule, it must not equivocate. It must state that intention in forthright language and not in vague generalizations that concede the wrong but deny the right. To justify the "zona" on the basis of the recent coup attempt is, in my view, to becloud the issue. The "zonas' complained of happened before the failed coup and had nothing whatsoever to do with that disturbance. There was no "large scale mutiny or actual rebellion' when the saturation drives were conducted and there were no "combat areas" either in the places where the violations were committed. The failed coup cannot validate the invalid "zonas' retroactively. The ponencia says that "we cannot take judicial notice of the facts and figures given by the petitioners regarding these saturation drives conducted by the military and police authorities." Maybe so. But we can and should take judicial

notice of the saturation drives themselves which are not and cannot be denied by the government. I urge my brethren to accept the fact that those drives are per se unconstitutional. I urge them to accept that even without proof of the hooded figure and the personal indignities and the loss and destruction of properties and the other excesses allegedly committed, the mere waging of the saturation drives alone is enough to make this Court react with outraged concern. Confronted with this clear case of oppression, we should not simply throw up our hands and proclaim our helplessness. I submit that this Court should instead declare categorically and emphatically that these saturation drives are violative of human rights and individual liberty and so should be stopped immediately. While they may be allowed in the actual theater of military operations against the insurgents, the Court should also make it clear that Metro Manila is not such a battleground. The danger to our free institutions lies not only in those who openly defy the authority of the government and violate its laws. The greater menace is in those who, in the name of democracy, destroy the very things it stands for as in this case and so undermine democracy itself. Where liberty is debased into a cruel illusion, all of us are degraded and diminished. Liberty is indivisible; it belongs to every one. We should realize that when the bell tolls the death of liberty for one of us, "it tolls for thee" and for all of us. PADILLA, J., separate opinion: This case is another classic instance of state power colliding with individual rights. That the State, acting through the government and its forces, has the authority to suppress lawless violence in all its forms cannot be denied. The exercise of that authority is justified when viewed from the standpoint of the general welfare, because the State has the elementary and indispensable duty to insure a peaceful life and existence for its citizens. A government that loses its capability to insure peace and order for its citizens loses the very right to remain in power. But, in the exercise of such authority, i.e., in the choice of the means and methods to suppress lawless violence, the right of the individual citizen to the dignity of his person and the sanctity of his home cannot and should not be violated, unless there is, in a particular case, a clear and present danger of a substantive evil that the State has a compelling duty to suppress or abate. Petitioners' vivid description of the "areal target zoning" or "saturation drives" allegedly conducted by police and military units in Metro Manila, obviously intended to ferret out criminals or suspected criminals in certain cordoned areas, while vigorously denied by respondents, deserves an effective and immediate response from this Court. I submit that since this Court is not a trier of facts and this case involves certainty of facts alleged by petitioners and denied by respondents-this case should be referred to a proper trial court where the petitioners can present evidence to support and prove the allegations they make of such brutal and inhuman conduct on the part of military and police units. More than the military and police checkpoints sustained by this Court as a general proposition during abnormal times,** and which involve the right of military and police forces to check on vehicles and pedestrians passing through certain fixed points for the purpose of apprehending criminals and/or confiscating prohibited articles like unlicensed firearms, the "areal target zoning" and "saturation drives", as described in petitioners' allegations, are actual raids on private homes in selected areas, and are thus positive assaults against the individual person and his dignity. The

individual is, as described, yanked out of his home, without any arrest warrant, to face investigation as to his connections with lawless elements. In short, the sanctity of the home is pulverized by military and police action. Thus, while the checkpoint is a defensive device, on the part of government, the "areal target zoning" or "saturation drive" is a direct assault against, an intrusion into individual rights and liberties. Respondents, fortunately, have branded petitioners' allegations of such brutality, as total lies. It is indeed difficult to even contemplate that such methods reminiscent of a "police state" can exist in a society built on a republican and constitutional system. Respondents Must be given a chance to face their accusers and prove that they are indeed fabricating falsehoods. But the stakes I submit, are too high for this Court, as the guardian of individual liberties, to avoid a judicial confrontation with the issue. I vote, therefore, to refer this case (dispensing with normal venue requirements) to the Executive Judge, RTC of Manila, for him1. to receive the evidences of all the parties, in support and in refutation of the petitioners' allegations; 2. to decide the case expeditiously on the bases of the evidence, subject to review by this Court; 3. to report to this Court on action taken. SARMIENTO, J., dissenting: There is only one question here: Whether or not the police actions (saturation drives) complained of constitute a valid exercise of police power. The fact that on twelve occasions between March and November, 1987 the military conducted the saturation drives in question is a fact open to no question. The Solicitor General admits that they, the saturation drives, had been done, except that they had been done "with due regard to human rights." "Not only that," so he states: ... they were intelligently and carefully planned months ahead of the actual operation. They were executed in coordination with barangay officials who pleaded with their constituents to submit themselves voluntarily for character and personal verification. Local and foreign correspondents, who had joined these operations, witnessed, and reported the events that transpired relative thereto. (After Operation Reports: November 5, 1987, Annex 12; November 20, 1987, Annex 13; November 24, 1987, Annex 14). That is why in all the drives so far conducted, the alleged victims who numbered thousands had not themselves complained. The question, then, is purely one of law: Are the saturation drives in question lawful and legitimate? It is also a question that is nothing novel: No, because the arrests were not accompanied by a judicial warrant. 1 Therefore, the fact that they had been carefully planned, executed in coordination with Tondo's barangay officials, and undertaken with due courtesy and politeness (which I doubt), will not validate them. The lack of a warrant makes them, per se illegal. According to the majority, "the remedy is not to stop all police actions, including the essential and legitimate ones . . . [w]e see nothing wrong in police making their presence visibly felt in troubled areas . . . " 2 But the petitioners have not come to court to "stop all police actions" but rather, the saturation drives, which are, undoubtedly, beyond police

power. That "[a] show of force is sometimes necessary as long as the rights of people are protected and not violated 3 is a contradiction in terms. A "show of force" (by way of saturation drives) is a violation of human rights because it is not covered by a judicial warrant. In all candor, I can not swallow what I find is a complete exaggeration of the issues: ...A show of force is sometimes necessary as long as the rights of people are protected and not violated. A blanket prohibition such as that sought by the petitioners would limit all police actions to one on one confrontations where search warrants and warrants of arrests against specific individuals are easily procured. Anarchy may reign if the military and the police decide to sit down in their offices because all concerted drives where a show of force is present are totally prohibited. 4 As a general rule, a peace officer can not act unless he is possessed of the proper arrest or search warrant. The exception is when a criminal offense is unfolding before him, in which case, action is justified and necessary. The majority would have the exception to be simply, the general rule. The fact of the matter is that we are not here confronted by police officers on the beat or prowl cars on patrol. What we have and I suppose that everybody is agreed on it- are lightning raids of homes, arbitrary confiscation of effects, and summary arrests of persons, the very acts proscribed by the Constitution. If this is a "show of force", it certainly has no place in a constitutional democracy. I find allusions to the last aborted coup d'etat inapt. In that case, our men in uniform had all the right to act amidst crimes being committed in flagrante. The instant case is quite different. There are no offenses being committed, but rather, police officers fishing for evidence of offenses that may have been committed, As I said, in that event, a court warrant is indispensable. That "the problem is not initially for the Supreme Court 5 is to me, an abdication of judicial duty. As I indicated, the controversy is purely one of law the facts being undisputed. Law, needless to say, is the problem of the Supreme Court, not the Executive. Worse, it is passing the buck. The petitioners, precisely, have a grievance to raise, arising from abuses they pinpoint to the lower offices of the Executive (which presumably has its imprimatur). To make it an executive problem, so I hold, is to make the Executive judge and jury of its own acts, and hardly, a neutral arbiter. I am also taken aback by references to "[w]ell meaning citizens with only second hand knowledge of the events ... keep[ing] on indiscriminately tossing problems -of the Executive, the military, and the police to the Supreme Court as if we are the repository of all remedies for all evils." 6 First, the facts are not "second-hand", they are undisputed: Ther had been saturation drives. Second, the petitioners have trooped to the highest court with a legitimate grievance against the Executive (and military). The fact that the majority would "remand" the case to the lower courts and the various echelons of the Executive for investigation is to admit that walls have indeed been banged, doors kicked in, and half-naked men herded. I do not see therefore why we can not issue a writ of prohibition as prayed for, in the midst of these facts.

Footnotes Padilla, J. ** Valmonte vs. Gen. de Villa, et al., G.R. No. 83988, 29 September 1989. Sarmiento, J. 1 CONST., art III, sec. 21; People v. Burgos, No. 68955, September 4, 1986, 144 SCRA 1. 2 Decision, 15; emphasis supplied. 3 Supra; emphasis supplied. 4 Supra. 5 Supra; emphasis supplied. 6 Supra. $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}75909_2_5_90_footnotes>mainG.R. No. 75909 February 5, 1990 RAMON FRANCISCO vs. INTERMEDIATE APPELLATE COURT Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 75909 February 5, 1990 RAMON FRANCISCO and CRISTINA MANALO, petitioners, vs. INTERMEDIATE APPELLATE COURT, HON. BERNARDO P. PARDO, Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch XLIII, and SPS. BENJAMIN BANGAYAN and EMILIANA BANGAYAN, respondents. Manuel B. Dulay for petitioners. Natalio M. Panganiban for private respondents.

FERNAN, C.J.: Petitioners spouses Ramon Francisco and Cristina Manalo seek a review of the decision dated August 29, 1986 of the then Intermediate Appellate Court (IAC), now Court of Appeals, in CA-G.R. SP No. 06866, entitled "Ramon Francisco, et al., Petitioners vs. Hon. Bernardo Pardo, etc., et al., Respondents", denying due course to their petition, thereby affirming their ejectment from the subject premises as decreed by both the Metropolitan Trial Court (MTC) and the Regional Trial Court (RTC) of Manila. The facts as found by the RTC and adopted by the IAC are as follows: The premises in question located at 1512 Antipolo St., Sta. Cruz, Manila, consist of a lot and a two-storey building owned by Antonio Chua. Defendant (herein petitioner) Ramon Francisco leased the ground floor and a room in the second floor of the said building since 1961, (and) used (the same) as an auto spare parts store and residence. . . . (T)he latest rental as of June, 1982 was Pl,500.00 duly paid to Antonio Chua. In 1978, the plaintiffs (herein private respondents) acquired the ownership of the premises by purchase from the former owner Antonio Chua but it was agreed between the plaintiffs and the former owner that the tenant defendant Ramon Francisco would continue to pay to the former owner the monthly rental of P1,000.00 until the end of 1978 and that thereafter the rentals shall accrue to the plaintiffs. Nonetheless, starting January, 1979, plaintiffs received the monthly rentals not from defendants but from the former owner Antonio Chua who agreed to assume responsibility in paying the rental on behalf of Ramon Francisco. Because Antonio Chua failed to remit the rental to the plaintiffs, since September, 1979 and effective January, 1981 at the increased rate of Pl,500.00 a month, on February 3, 1982, plaintiffs wrote former owner Antonio Chua to pay the unpaid rentals then amounting to P35,000.00. Parenthetically on July 3, 1982, plaintiffs counsel sent a letter of demand to the defendant Ramon Francisco by registered mail but the latter was returned unclaimed. Another letter dated January 24, 1983 was addressed to defendant Cristina Manalo but was also returned unclaimed. In fact, however, defendants were paid up to the month of June, 1982 and defendants stopped paying rentals when they received a copy of the letter of plaintiffs to the former owner Antonio Chua. 1 On March 7, 1983, private respondents Benjamin and Emiliana Bangayan filed before the MTC of Manila a complaint for ejectment against the petitioners on the following grounds: a) non-payment of the agreed monthly rental of P2,000.00; and b) subleasing of the premises in violation of the condition of the lease. Petitioners denied the existence of the grounds for ejectment. They asserted that Antonio Chua, the previous owner of the leased property assumed the responsibility of paying the rentals. They further stated that there was no existing sublease but only a change of name of their auto parts business from Impala Auto Supply to Starlet Supply Center. They likewise denied knowledge of the transfer of ownership of the property involved from Antonio Chua, the previous owner, to the private respondents. The MTC, after due hearing, rendered judgment declaring petitioners to have defaulted in the payment of the

rent. The dispositive portion of the decision reads: Accordingly, judgment is hereby rendered ordering the defendants Ramon Francisco and Cristina Manalo and all persons claiming rights under them to immediately vacate the premises . . . and to restore possession thereof to plaintiffs; and for the said defendants to pay jointly and severally the herein plaintiffs the amount of Pl,500.00 as monthly rentals of the premises from August 1982 and every month thereafter (less any amount they have paid to the plaintiffs) until they have actually vacated the premises and the costs of the suit. 2 On appeal to the RTC, the lower court's decision was affirmed with modification. The RTC pronounced: WHEREFORE, the court affirms the decision subject of the appeal with modification so as to make the decision definite and certain because in the appealed decision, the lower court authorized deduction of any amount they have paid the plaintiffs which being undetermined, makes the decision uncertain and void ( Cf. del Rosario vs. Villegas, 49 Phil. 634). Defendants and all persons claiming rights under them are ordered to immediately vacate the premises . . . and to restore possession thereof to plaintiffs, to pay plaintiffs the sum of Pl,500.00 a month as rental for the premises from July, 1982 and every month thereafter until they actually vacate the premises, and costs. SO ORDERED. 3 As earlier intimated, the Court of Appeals also denied due course to petitioners' petition for review. Hence, this recourse, petitioners contending that the appellate court committed the following errors in its decision: I PUBLIC RESPONDENT ERRED IN NOT HOLDING THAT THERE WAS NO CONTRACT OF LEASE BETWEEN THE PARTIES; II RESPONDENT COURT ERRED IN HOLDING THAT PRIVATE RESPONDENTS MERELY STEPPED INTO THE SHOES OF THE PREVIOUS OWNER; III RESPONDENT COURT ERRED IN HOLDING THAT THE NON-PAYMENT OF RENTALS FROM JULY, 1982 UP TO JANUARY, 1983 WAS SUFFICIENT GROUND TO EJECT PETITIONERS; IV RESPONDENT COURT ERRED IN HOLDING THAT THE DEMAND ALLEGEDLY GIVEN BY THE PRIVATE RESPONDENTS PRODUCED THE EFFECT OF NOTIFICATION

V RESPONDENT COURT ERRED IN HOLDING THAT THE LOWER COURT DID NOT EXERCISE ABUSE OF DISCRETION IN NOT FIXING A LONGER PERIOD OF LEASE.
4

Petitioners allege that when private respondents finally disclosed to them in July, 1982 that they, private respondents, were the new owners and lessors of the leased premises, a confrontation occurred because of the disagreement regarding the rate of rental. Since no agreement as to the rate of rental was arrived at, no contract of lease was created. This being the case, petitioners aver that they could not have violated the lease contract as there was no contract to speak of in the first place. Such contention is clearly fallacious. The property subject of the controversy was sold by the former owner Antonio Chua to private respondents while the lease was subsisting. Under Article 1676 of the New Civil Code, The purchaser of a piece of land which is under a lease that is not recorded in the Registry of Property may terminate the lease, save when there is a stipulation to the contrary in the contract of sale, or when the purchaser knows of the existence of the lease. In the case at bar, private respondents chose to allow the lease to continue. Despite the change of ownership then, the contract of lease subsisted. As aptly held by the appellate court: As buyers of the premises, private respondents merely stepped into the shoes of the previous owner. The change of ownership did not affect the contract of lease between the petitioners and previous owner. Petitioners still had the same obligations, including the payment of rentals, under the contract without the necessity of entering into another agreement with the new owners. 5 Having shown the existence of the lease, all the other issues can be easily resolved. No error was committed by the appellate court in ruling that the failure of petitioners to pay the rentals from July, 1982 to January, 1983 was sufficient ground to eject them. It is a basic tenet that if the lessor raises the rent at the expiration of the lease, the tenant has to leave if he does not pay the new rental. 6 As held in the case of Vda. de Roxas vs. Court of Appeals, 63 SCRA 302, it is the owner's prerogative to fix the rental for which he wishes to lease his property and the occupant has the option of accepting the rent as fixed or negotiating with the owner and in the event of failure to come to an agreement, to leave the property so as not to be liable for the rental fixed and demanded by the owner. The rent in this case was being paid monthly. The lease was therefore on a month-to-month basis, which expires at the end of each month and at which time, either party may opt to terminate or continue the lease under the same or under new terms and conditions. Private respondents having opted to increase the rate of rentals, petitioners either have to accept the new rate or leave the premises if no agreement is reached. But they cannot excuse themselves from paying rentals altogether just because the negotiation as to such increase failed to materialize. For the fact is that

they still occupy the leased property. They derive benefit from such occupation. NEMO CUM ALTERIUS DETRIMENTO LOCUPLETARI PROTEST. No one shall enrich himself at the expense of another. Petitioners' argument that no demand to vacate was given them deserves scant consideration. As found by the Court of Appeals, private respondents' counsel sent petitioners two (2) letters of demand, one addressed to Ramon Francisco and the other to Cristina Manalo. These letters were returned unclaimed despite the fact that they were properly addressed to the petitioners and despite notice given to the addressees of the letters. In the case of Gaspay vs. Hon. Sangco, et al., L-27826, December 18, 1967, we held that therein petitioners' claim that they were not served with notice is belied by proof that they had refused to receive the same. No person is entitled to profit from his wrong act of commission or omission. As to the issue of whether the appellate court erred in not fixing a longer period of lease, we find no cogent reason to depart from the aforesaid court ruling. Article 1687 of the New Civil Code empowers the courts to fix the period of lease. Such prerogative is addressed to the court's sound judgment. 7 And such discretion was certainly judiciously exercised in the case at bar for, again, as observed by the appellate court: . . . Certainly, the default of petitioners in the payment of the rentals could not have inspired the court to extend any further their stay in the premises as this would have imposed more unjustifiable burden on the part of the owners. 8 WHEREFORE, the petition is DENIED. Costs against petitioners. SO ORDERED. Gutierrez, Jr., Feliciano, Bidin and Corts, JJ., concur.

Footnotes 1 pp. 20-21, Rollo. 2 p. 25, Rollo. 3 pp. 21-22, Rollo. 4 p. 5, Petition, p. 7, Rollo. 5 p. 28, Rollo. 6 46 Phil. 184. 7 F.S. Divinagracia Agro Commercial, Inc. vs. Court of Appeals, 104 SCRA 180. 8 p. 29. Rollo $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}77867_2_6_90_footnotes>mainG.R. No. 77867 February 6, 1990

ISABEL DE LA PUERTA vs. COURT OF APPEALS Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 77867 February 6, 1990 ISABEL DE LA PUERTA, petitioner, vs. THE HONORABLE COURT OF APPEALS and CARMELITA DE LA PUERTA, respondents. Isabel de la Puerta for and in her own behalf. Gilbert D. Camaligan for private respondent.

CRUZ, J.: The basic issue involved in this case is the filiation of private respondent Carmelita de la Puerta, who claims successional lights to the estate of her alleged grandmother. Dominga Revuelta died on July 3, 1966, at the age of 92, with a will leaving her properties to her three surviving children, namely, Alfredo, Vicente and Isabel, all surnamed de la Puerta. Isabel was given the free portion in addition to her legitime and was appointed executrix of the will. 1 The petition for the probate of the will filed by Isabel was opposed by her brothers, who averred that their mother was already senile at the time of the execution of the will and did not fully comprehend its meaning. Moreover, some of the properties listed in the inventory of her estate belonged to them exclusively. 2 Meantime, Isabel was appointed special administratrix by the probate court. 3 Alfredo subsequently died, leaving Vicente the lone oppositor. 4 On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance of Quezon a petition to adopt Carmelita de la Puerta. After hearing, the petition was granted. 5 However, the decision was appealed by Isabel to the Court of Appeals. During the pendency of the appeal, Vicente died, prompting her to move for the dismissal of the case 6 On November 20, 1981, Carmelita, having been allowed to intervene in the probate proceedings, filed a motion for the payment to her of a monthly allowance as the acknowledged natural child of Vicente de la Puerta. 7 At the hearing on her motion, Carmelita presented evidence to prove her claimed status to which

Isabel was allowed to submit counter-evidence. On November 12,1982, the probate court granted the motion, declaring that it was satisfied from the evidence at hand that Carmelita was a natural child of Vicente de la Puerta and was entitled to the amounts claimed for her support. The court added that "the evidence presented by the petitioner against it (was) too weak to discredit the same. 8 On appeal, the order of the lower court was affirmed by the respondent court, 9 which is now in turn being challenged in this petition before us. The petitioner's main argument is that Carmelita was not the natural child of Vicente de la Puerta, who was married to Genoveva de la Puerta in 1938 and remained his wife until his death in 1978. Carmelita's real parents are Juanita Austrial and Gloria Jordan. Invoking the presumption of legitimacy, she argues that Carmelita was the legitimate child of Juanita Austrial and Gloria Jordan, who were legally or presumably married. Moreover, Carmelita could not have been a natural child of Vicente de la Puerta because he was already married at the time of her birth in 1962. To prove her point, Isabel presented Amado Magpantay, who testified that he was a neighbor of Austrial and Jordan. According to him, the two were living as husband and wife and had three children, including a girl named "Puti," presumably Carmelita. He said though that he was not sure if the couple was legally married. 10 Another witness, Genoveva de la Puerta, Identified herself as Vicente de la Puerta's wife but said they separated two years after their marriage in 1938 and were never reconciled. In 1962, Gloria Jordan started living with Vicente de la Puerta in his house, which was only five or six houses away from where she herself was staying. Genoveva said that the relationship between her husband and Gloria was well known in the community. 11 In finding for Carmelita, the lower court declared that: . . . By her evidence, it was shown to the satisfaction of the Court that she was born on December 18, 1962 per her birth certificate (Exh. A); that her father was Vicente de la Puerta and her mother is Gloria Jordan who were living as common law husband and wife until his death on June 14, 1978; that Vicente de la Puerta was married to, but was separated from, his legal wife Genoveva de la Puerta; that upon the death of Vicente de la Puerta on June 14, 1978 without leaving a last will and testament, she was the only child who survived him together with his spouse Genoveva de la Puerta with whom he did not beget any child; that she was treated by Vicente de la Puerta as a true child from the time of her birth until his father died; that the fact that she was treated as a child of Vicente de la Puerta is shown by the family pictures showing movant with Vicente de la Puerta (Exhs. D, D-1 and D-2) and school records wherein he signed the report cards as her parent (Exh. E and E-1); that during the hearing of her adoption case in Special Proceeding No. 0041 in Branch V of this Court at Mauban, Quezon, Vicente de la Puerta categorically stated in court that Carmelita de la Puerta is his daughter with Gloria Jordan (Exhs. B and B-1); that it was Vicente de la Puerta during his lifetime who spent for her subsistence, support and education; . . . 12 This is a factual finding that we do not see fit to disturb, absent any of those circumstances we have laid

down in a long line of decisions that will justify reversal. 13 Among these circumstances are: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of facts are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. The petitioner insists on the application of the following provisions of the Civil Code to support her thesis that Carmelita is not the natural child of Vicente de la Puerta but the legitimate child of Juanito Austrial and Gloria Jordan: Art. 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: (1) By the impotence of the husband; (2) By the fact that the husband and wife were living separately in such a way that access was not possible; (3) By the serious illness of the husband. Art. 256. The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. These rules are in turn based on the presumption that Juanito and Gloria were married at the time of Carmelita's birth in 1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of Court, providing that: Sec. 5. Disputable presumptions.The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx (bb) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; But this last-quoted presumption is merely disputable and may be refuted with evidence to the contrary. As

the Court sees it, such evidence has been sufficiently established in the case at bar. The cases 14 cited by the petitioner are not exactly in point because they involve situations where the couples lived continuously as husband and wife and so could be reasonably presumed to be married. In the case before us, there was testimony from Vicente's own wife that her husband and Gloria lived together as a married couple, thereby rebutting the presumption that Gloria was herself the lawful wife of Juanita Austrial. Such testimony would for one thing show that Juanito and Gloria did not continuously live together as a married couple. Moreover, it is not explained why, if he was really married to her, Juanito did not object when Gloria left the conjugal home and started openly consorting with Vicente, and in the same neighborhood at that. That was unnatural, to say the least. It was different with Genoveva for she herself swore that she had separated from Vicente two years after their marriage and had long lost interest in her husband. In fact, she even renounced in open court any claim to Vicente's estate. 15 The presumption of marriage between Juanito and Gloria having been destroyed, it became necessary for the petitioner to submit additional proof to show that the two were legally married. She did not. Turning now to the evidence required to prove the private respondent's filiation, we reject the petitioner's contention that Article 278 of the Civil Code is not available to Carmelita. It is error to contend that as she is not a natural child but a spurious child (if at all) she cannot prove her status by the record of birth, a will, a statement before a court of record, or any authentic writing. On the contrary, it has long been settled that: The so-called spurious children or illegitimate children other than natural children, commonly known as bastards, include adulterous children or those born out of wedlock to a married woman cohabiting with a man other than her husband or to a married man cohabiting with a woman other than his wife. They are entitled to support and successional rights (Art. 287, CC). But their filiation must be duly proven.( Ibid, Art. 887) How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the paternity or maternity of spurious children under the circumstances specified in Articles 283 and 284 of the Civil Code. The implication is that the rules on compulsory recognition of natural children are applicable to spurious children. Spurious children should not be in a better position than natural children. The rules on proof of filiation of natural children or the rule on voluntary and compulsory acknowledgment for natural children may be applied to spurious children. 16 This being so, we need not rule now on the admissibility of the private respondent's certificate of birth as proof of her filiation. That status was sufficiently established by the sworn testimony of Vicente de la Puerta at the hearing of the petition for adoption on September 6, 1976, where he categorically declared as follows: Q What relation if any do you have with Carmelita de la Puerta? A She is my daughter. 17 Finally, we move to the most crucial question, to wit: May Carmelita de la Puerta claim support and successional rights to the estate of Dominga Revuelta?

According to Article 970 of the Civil Code: Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. The answer to the question posed must be in the negative. The first reason is that Vicente de la Puerta did not predecease his mother; and the second is that Carmelita is a spurious child. It is settled that In testamentary succession, the right of representation can take place only in the following cases: first, when the person represented dies before the testator; second, when the person represented is incapable of succeeding the testator; and third, when the person represented is disinherited by the testator. In all of these cases, since there is a vacancy in the inheritance, the law calls the children or descendants of the person represented to succeed by right of representation. 18 xxx xxx xxx The law is clear that there is representation only when relatives of a deceased person try to succeed him in his rights which he would have had if still living. In the present case, however, said deceased had already succeeded his aunt, the testatrix herein. . . . It is a fact that at the time of the death of the testatrix, Reynaldo Cuison was still alive. He died two months after her (testatrix's) death. And upon his death, he transmitted to his heirs, the petitioners herein Elisa Cuison et al., the legacy or the right to succeed to the legacy. . . . In other words, the herein petitioners-appellants are not trying to succeed to the right to the property of the testatrix, but rather to the right of the legatee Reynaldo Cuison in said property. 19 Not having predeceased Dominga Revuelta, her son Vicente had the right to inherit from her directly or in his own right. No right of representation was involved, nor could it be invoked by Carmelita upon her father's death, which came after his own mother's death. It would have been different if Vicente was already dead when Dominga Revuelta died. Carmelita could then have inherited from her in representation of her father Vicente, assuming the private respondent was a lawful heir. But herein lies the crux, for she is not. As a spurious child of Vicente, Carmelita is barred from inheriting from Dominga because of Article 992 of the Civil Code, which lays down the barrier between the legitimate and illegitimate families. This article provides quite clearly: Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. Applying this rule in Leonardo v. Court of Appeals, 20 this Court declared: . . . even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right

of representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as found again by the Court of Appeals, he was born outside wedlock as shown by the fact that when he was born, his alleged putative father and mother were not yet married, and what is more, his alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes. The reason for this rule was explained in the recent case of Diaz v. Intermediate Appellate Court, 21 thus: Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law for the purpose of Article 992. Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; the family is in turn, hated by the illegitimate child the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former in turn sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further ground of resentment. 22 Indeed, even as an adopted child, Carmelita would still be barred from inheriting from Dominga Revuelta for there would be no natural kindred ties between them and consequently, no legal ties to bind them either. As aptly pointed out by Dr. Arturo M. Tolentino: If the adopting parent should die before the adopted child, the latter cannot represent the former in the inheritance from the parents or ascendants of the adopter. The adopted child is not related to the deceased in that case, because the filiation created by fiction of law is exclusively between the adopter and the adopted. "By adoption, the adopters can make for themselves an heir, but they cannot thus make one for their kindred. 23 The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the intestate estate of her father but not to the estate of Dominga Revuelta. Her claims for support and inheritance should therefore be filed in the proceedings for the settlement of her own father's estate 24 and cannot be considered in the probate of Dominga Revuelta's Will. WHEREFORE, the petition is GRANTED and the appealed decision is hereby REVERSED and SET ASIDE, with costs against the private respondent. It is so ordered. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes 1 Original records, p. 1, Ibid., pp. 43-44.

2 Ibid., pp. 6-7. 3 Ibid., p. 31. 4 Ibid., p. 108. 5 Annex "E" 6 Ibid. 7 Original records, p. 7. 8 Annex "F". 9 Rollo, p. 48. Penned by Francisco, J. with Lombos de la Fuente and Benipayo, JJ., concurring. 10 TSN, March 5, 1982, p. 6; Ibid., p. 9; Ibid., p. 13. 11 TSN January 21, 1982, pp. 3, 7; Ibid., p. 13. 12 Rollo, p. 49. 13 Malaysian Airline System Bernad vs, Court of Appeals, 156 SCRA 321; Baliwag Transit, Inc. vs. Court of Appeals, 147 SCRA 82; Sacay vs. Sandiganbayan, 142 SCRA 593. 14 Umingan vs. Umingan, CA-G.R. No. 8193-R, December 16, 1952; Bell vs. Territory, 56 P 853, 8 Okl. 75; Estrada vs. Reyes, CA-G.R. No. 4835-R, February 24, 1951; Andal vs. Macaraeg, L-2474, May 30, 1951, 89 Phil. 465; Sudario vs. Acro Taxi Cab Co., Inc., CA-G.R. No. 3677-R, August 2, 1951. 15 TSN January 21, 1982, pp. 23-24. 16 Pactor vs. Pestano 107 Phil. 685; Reyes vs. Zuzuarregui, 102 Phil. 346, 354; Paulino and Nieto vs. Paulino, 113 Phil. 697, 700. 17 Exhibit "B-I," TSN, Vicente de la Puerta, Sept. 6, 1974, p. 7. 18 Jurado, Comments and Jurisprudence on Succession, 7th edition, p. 424. 19 Cuison, et al. vs. Villanueva, et al., 90 Phil. 850. 20 120 SCRA 890. 21 150 SCRA 645.

22 7 Manresa 110 cited in Grey v. Fabie, 40 OG [First S] No. 3, p. 196. 23 Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, volume three, 1979, p. 464. 24 Gutierrez, Jr. vs. Macandog, 150 SCRA 442. $ + GRSI Copyrightregno N94-027 A.M. No. RTJ-88-272 February 6, 1990 RAUL H. SESBREO vs. JUDGE PEDRO T. GARCIA Republic of the Philippines SUPREME COURT Manila EN BANC

A.M. No. RTJ-88-272 February 6, 1990 RAUL H. SESBREO, complainant, vs. JUDGE PEDRO T. GARCIA, respondent.

GRINO-AQUINO, J.: This administrative complaint against respondent Judge Pedro Garcia is the culmination of the complainant's frustrations with Branch 20 of the Regional Trial Court of Cebu where in 1985 or five years ago, he filed a criminal case for estafa against millionaire Ricardo Silverio, Sr. and Hermilo Rodis of the notorious Philfinance caper. Up to this time, Silverio has not been arraigned allegedly because his heart condition will not permit him to fly to Cebu to be arraigned, although he has flown in and out of the country and is still out now. For some cause not shown in the records of this administrative case, even before the defendant was arraigned, Criminal Case No. CU-10568 reached the Court of Appeals (CA-G. R. SP No. 04445) which rendered a decision on October 14, 1986 directing the Presiding Judge of Branch 20 (then Judge Exaltacion A. Navarro) to set the arraignment and trial of Silverio, Sr. "as soon as possible" (p.145, Rollo). Instead of complying with the Appellate Court's directive, Judge Navarro dismissed the case. On January 30, 1988, complainant filed a motion for reconsideration of the court's order, and numerous other pleadings. However, on April 16,1988, Judge Navarro retired without acting on his motion for reconsideration. On June 6, 1988, respondent Judge Pedro T. Garcia was appointed to the position vacated by Judge Navarro. According to complainant, respondent Judge Garcia also refused to act on his motion for reconsideration

and on his other pleadings in the Silverio case praying for the immediate arraignment and trial of Silverio. Finally on August 15, 1988, Judge Garcia issued an order for the arrest of Silverio and set his arraignment on October 18, 1988. The accused filed a motion for postponement which the complainant opposed. Nevertheless, Judge Garcia granted Silverio's motion, and made it appear in his order that there had been no objection by the complainant. The latter filed two manifestations and memoranda objecting to the judge's statement in the order of October 18, 1988. On November 29, 1988, respondent Judge issued an order chastising Attorney Sesbreo for the insolent, disrespectful, and contemptuous language of his pleadings and for imputing that he (respondent Judge) granted Silverio's motion for postponement without his (Atty. Sesbreo's) knowledge and consent. Attorney Raul H. Sesbreo has charged respondent Judge Pedro T. Garcia with the following misfeasances: 1. Neglect of duty for delay in acting on the complainant's pleadings praying for the arrest and arraignment of Silverio; 2. Dishonesty or serious misconduct if the respondent Judge misrepresented in his Certificates of Service for the months of May or June, 1988 that there were no motions pending resolution in his sala, so he could collect his salary for that period; 3. Oppression for warning the complainant in his Order of November 29, 1988 that the complainant would be declared in contempt of court if he repeats the allegedly offensive language he used in his two Manifestations/Memoranda dated October 19,1988, without giving complainant an opportunity to explain that the language in his pleadings was not insolent, disrespectful, nor contemptuous; and 4. Acts of impropriety or intemperance for accusing the complainant, without factual basis, of making a veiled threat that he would file administrative charges against Judge Garcia should the latter decide Criminal Case No. CU-10568 in favor of Silverio. Complainant explained that he opposed the accused's motion for postponement of the October 18, 1988 hearing because four (4) long years have already elapsed since Criminal Case No. CU-10568 was filed in 1985, but due to the many postponements granted by the court to the accused, the latter has yet to be arraigned. While he was agreeable to the postponement of the October 18, 1988 hearing, complainant wanted the court to limit the delay to only one month, or not later than November 18, 1988. However, respondent Judge reset Silverio's arraignment on December 7, 1988 although the accused was also scheduled to appear in Branch 9 on that date, and that respondent Judge would by then have gone on leave of absence. As it happened later, Silverio did not appear in both salas of the court. In his comment on the verified complaint, respondent Judge explained that when he assumed the position of Presiding Judge of Branch 20 on June 6, 1988, his predecessor had previously issued an Order on March 30, 1988, deferring action on all motions and pleadings in the case "pending on whatever action the Court of Appeals may take on the Motion for Reconsideration filed by the private respondent." (p. 30, Rollo.) On June 20, 1988, he called complainant's attention to that order of Judge Navarro. He explained that the delay in resolving complainant's motions could not be helped because "the entire records of the above-entitled case

is still with the Court of Appeals in Manila" (Annex A of Respondent's Answer). In his order dated June 27, 1988, respondent Judge remarked that the complainant's Urgent Motion dated June 26, 1988 was "highly litigious" meaning hostile and provocative (p. 54, Rollo). Upon receipt of the records from the Court of Appeals, Judge Garcia issued on August 15, 1988 a warrant for the arrest of Silverio and his co-defendant (Exh. E, Respondent's Answer). Silverio posted bail. The case was set for arraignment on October 18, 1988. Instead of appearing in court on the scheduled date, Silverio, through his counsel, Atty. Reyes, asked for postponement on account of his heart condition. The transcript of the stenographic notes of the hearing on October 18, 1988 records the following exchanges on the defendant's motion for postponement: ATTY. REYES: We pray that the arraignment be postponed to another date, your Honor. ATTY. SESBREO The prosecution, your Honor, has filed the opposition to that motion today, October 18, and in that opposition, we aver that up to today, I have not been furnished with a copy of said motion, so that the 3-day prior notice as required in Rule 15 of the Rules of Court has not been complied, and therefore, that motion is just a mere scrap of paper, and should be denied for failure to comply with the requirements. It is very clear in the medical certificate that accused Silverio is not confined in a hospital, and he is a walking patient. Considering that he is a walking patient, there is no reason, no valid reason, for him why he cannot attend to this arraignment, your Honor. He can come to court just to listen to the reading of the information, which activity is not strenuous. It will not strain him physically. There is no record that he is hospitalized. He can walk and can move around, and there is no impossibility to attend the arraignment. As stated in our opposition, your honor, accused Silverio has filed cases against the PNB for the recovery of his Delta Motors Corporation and also against the Securities and Exchange Commission and a bank for the rehabilitation of Philfinance. In all these cases, he never complained that he is sick. Only in this case, your Honor, that he complained that he is sick, and this case has been filed in 1985 yet, or more than three (3) years ago, and he has not been arraigned yet. So, this is another dilatory tactic, your Honor. COURT: (to Atty. Reyes) By the way, the doctor who issued the medical certificate, is he a government physician? ATTY. REYES: Your Honor, please. He is a very prominent heart specialist at the Philippine Heart Center. And there is no reason, your Honor, to doubt his professional competence. I would not like to take responsibility of advising my client to come to Cebu at the risk of exposing

him to a heart attack. His heart condition is not an ordinary illness, your Honor. COURT: In the interest of justice, at least to give the accused reasonable time to come, only for purposes of arraignment. ATTY. REYES: Yes, your Honor, if he gets clearance from his doctor. COURT: If he gets clearance? If that is the condition, we have no way of knowing when will that be? ATTY. REYES: Well, at any rate, we can have the next setting on another date, your Honor. ATTY. SESBREO: If that is the condition that the accused can only come if he gets clearance from his doctor, then there is no assurance, your Honor, that we can have the arraignment. COURT: Yes, but in the meanwhile, we give the benefit of the doubt for the sickness of the accused in this case. In the sense of fairness and good judgment, we will give him the chance to recuperate at least, if he is really sick. It will be unchristian to order him to come here if he is really sick. He might die on the way. xxx xxx xxx ATTY. SESBREO: May I suggest, your Honor, that during the next setting, if it is possible, just to have the arraignment of this case. Anyway, we could have the trial ex-parte later on without the presence of accused. The accused, your Honor, is a wailing patient and he should be required to attend even in the company of his physician so that if he is really having a heart ailment, as what was said he had a heart attack, a physician should attend to him, because if the accused says that he will attend the arraignment only if he gets clearance from his doctor (unfinished) COURT: (butted in) The image of the Court will be placed in a predicament, as it will appear that this is a oneway traffic affair, if we allow that condition. It is a matter of public knowledge that the

accused here is a multi- millionaire. He might think his is an exceptional case. That is why I am asking the cooperation of Atty. Reyes. For purposes of the arraignment, to satisfy also Atty. Sesbreo because this is his personal case. He is the plaintiff himself, and you know, Atty. Sesbreo is very brave. He is one of the fightingest lawyer here in Cebu. He fights for his right, even to the extent of filing cases after cases against Judges. In other words, the Court would decide this case on the level and would be impartial and fair in handling this case, in accordance with law, as his conscience may dictate. ATTY. SESBREO: I would like to make it of record, that if only the medical certificate shows that the accused Silverio is confined in a hospital, I could not have interposed my objection, but he is not confined and he is a walking patient. COURT: Millionaires, usually do not want to be confined in a hospital. They dislike that. They just want to stay in their luxurious homes, and they can afford to call any specialist they want. They can have the best services of any specialist if they want to. So, I think that the accused in this case do the same. I know the old man, the late Durano, He avoided staying in hospitals if possible. He even sent his personal physician to the United States to fetch the best doctor when he had the coronary ailment, the heart attack. The Court do not look with favor to the accused in this case, but because according to the words of Atty. Reyes that he is not taking responsibility of advising his client to come for the arraignment, so we will just give him at least the chance to appear for the arraignment. So, when shall be the most reasonable time? Will it be next month? For purposes of arraignment. ATTY. SESBREO: I suggest within one (1) month, your Honor. COURT: Yes, within one month. We will do that. xxx xxx xxx ATTY. REYES: May I suggest, your Honor, because we have another case, an arraignment on December 7, 1988, May I suggest that date? COURT:

Here? ATTY. REYES: In Branch 9, your Honor, before Judge Gaviola. ATTY. SESBREO: I think there might be some hitches, because the accused there in that case has not been arrested, your Honor. COURT: Who? ATTY. SESBREO: Accused Silverio has not been arrested in that case. COURT: Oh, Atty. Reyes? ATTY. REYES: He is bonded, your Honor. ATTY. SESBREO: But the bond has expired. The 30-day period has expired and the bonding company was ordered to produce the accused and to explain why the bond should not be confiscated. COURT: The problem of the Court now is whether on December 7 he can be here. Well, inasmuch as the accused has another case in another sala on December 7, we might as well set the arraignment here on said date, to coincide with the date of the arraignment of the accused in Branch 9, so that the accused will travel only in one instance. ATTY. SESBREO: May I suggest within one month, your Honor, the arraignment be set within one month, to conform with the rules. COURT: Make it one month, but due to the exceptional predicament of the accused, we will just

reset this to December 7, 1988 at 8:30 in the morning, to give the accused the chance. ATTY. SESBREO: In view of the suggestion of the Court, I may accede. (pp. 3-12, t.s.n., October 18, 1988; pp. 74-83, Rollo; italics supplied.) The order of the Court dated October 18, 1988 reads as follows: On the suggestion of Atty. Edwin Reyes, counsel for the accused Ricardo Silverio, to reset the arraignment and pre-trial to December 7, 1988 at 8:30 in the morning, considering that the accused Silverio is also appearing in Branch 9 of this Court on said date and without objection on the part of Atty. Raul Sesbreo the court is constrained to defer the arraignment of the accused on said date and time. On suggestion also of Atty. Sesbreo Atty. Reyes is hereby directed to handcarry the subpoena for his client and also the bondsmen to appear before this Court on December 7, 1988 at 8:30 in the morning. (p. 61, Rollo.) Postponements are left to the sound discretion of the court. The fact that the postponement exceeded one month from October 18, 1988 was not such a grave abuse of discretion as to call for disciplinary action against respondent Judge, it appearing that there was a good reason for resetting the arraignment of the accused on December 7, 1988 because he (Silverio) would be appearing in another sala on that date. He would have to make only one trip to Cebu for the two cases. The postponement of less than two months was a reasonable period. Complainant's allegation that respondent Judge neglected to resolve with reasonable dispatch complainant's pleadings, urging the immediate arrest and arraignment of Silverio, Sr. is not supported by the records of the case. Indeed, more than four (4) long years have elapsed since Criminal Case No. CU-10568 was filed in 1985, but that delay may not be laid at respondent Judge's doorstep for he assumed office as Presiding Judge of Branch 20 on June 6, 1988 only. However, respondent Judge erroneously believed that the records of the case were still in the Court of Appeals. The fact is that the records were returned by the Court of Appeals to the lower court on January 9, 1987 yet. On August 15, 1988, or two months after Judge Garcia took over from Judge Navarro, he issued a warrant for the arrest of Silverio. He clearly acted with reasonable promptitude, but since the accused has not been arraigned up to this time, there is reason for Attorney Sesbreo's complaint that the court has not acted with determination and resourcefulness to foil the dilatory maneuvers of the accused and his lawyers. The charge of dishonesty or serious misconduct against Judge Garcia is not worth considering as it is hypothetical, i.e., if respondent Judge stated in his certificates of service for the months of May and/or June, 1988 that no motions were pending resolution in his sala. Complainant did not even attempt to present a shred of evidence to prove this charge. Complainant's charges of oppression and acts of impropriety or intemperance refer to respondent Judge's Order of November 29, 1988 which reads in part as follows: A cursory reading of the above-mentioned facts will ineluctably show that the court had traversed on the middle ground of the road in order to satisfy both parties. As to why

Atty. Raul Sesbreo filed two (2) manifestations/memoranda using insolent, disrespectful and contemptuous language impressing the court that the latter opted in favor of the postponement of this case, without his knowledge and consent and that he was just compelled to accept because the Court, in effect, handled the postponement in arbitrary manner is beyond the comprehension of the Court. Parenthetically, the offended party made mentioned to place on records his reaction to postpone the arraignment, which was not reflected in the transcript of the stenographic notes, especially his veiled threat, which is covertly contumacious when he said in the two (2) manifestations/memoranda that the same are filed for: (1) for record purposes; and (2) for reference use in the future in the appropriate opportuned time. The Court is not naive to understand that should this case be adversed to him, he would use this incident as a means to vindicate or retaliate against the Presiding Judge. It is already a matter of public knowledge that movant counsel is in the habit of filing cases against any government official before whom the investigation or hearing are conducted whenever the orders or decisions are adverse to him. Let it be known that it either pressure nor threat/influence of any material considerations whatsoever can dissuade the court from properly exercising and dispensing the administration of justice. To think that one has the absolute monopoly of legal knowledge and virtue is downright officious and a pretension of the highest magnitude. They say, in heaven one can not find a saint who was never humble here on earth. xxx xxx xxx Without further digging into the intricacies and insolent words, which are self-evident and self-explanatory, the Court hereby warns him not to repeat using words of the same import and meaning, otherwise the Court will be constrained to cite him for contempt of court in order to protect and enforce its dignity and honor as well as the majesty of the law. (pp. 23 & 23-A, Rollo.) We have read the two manifestations/memoranda (Annexes C & D) of Attorney Sesbreo and find nothing therein which can be described as "insolent, disrespectful and contemptuous" or "covertly contumacious" or resembling a "veiled threat" against respondent Judge to warrant a warning that he may be cited for contempt of court if he should repeat words of the same import. More than once in the past, we had occasion to admonish judges not to be onion-skinned when confronted by dissatisfied lawyers or litigants. Their power to punish for contempt is not a bludgeon to be used for the purpose of exacting silent submission to their rulings and orders however questionable or unjust they may be. It should be used only to protect and vindicate the dignity and authority of the court (Slade Perkins vs. Director of Prisons, 58 Phil. 271). Courts should exercise their power to punish for contempt on the preservative and not on the vindictive principle, on the corrective and not on the retaliatory idea of punishment (Villavicencio vs. Lukban, 39 Phil. 778; People vs. Alarcon, 69 Phil. 265; Gamboa vs. Teodoro, L4893, May 13, 1952; People vs. Rivera, L-364, May 26, 1952; In re Lozano, 54 Phil. 801). WHEREFORE, respondent Judge Pedro Garcia is admonished to abstain from intemperate and abrasive

language in his orders. He is further urged to be decisive and resourceful in implementing the processes and orders of his court. He should dispose of his cases with equal dispatch, whether the parties be menials or millionaires, so that the aggrieved party will have no reason to complain that justice is only for the rich and influential and that the poor must await the rich man's pleasure. SO ORDERED. Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Corts, Medialdea and Regalado, JJ., concur. Fernan, C.J., took no part. $ + GRSI Copyrightregno N94-027 G.R. No. 77756 March 26, 1990 PEOPLE OF THE PHIL. vs. RENATO M. JAVIER Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 77756 March 26, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. RENATO MENDOZA JAVIER y TORRES, accused-appellant. The Office of the Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for accused-appellant.

GUTIERREZ, JR., J.: Defendant-appellant Renato Mendoza Javier y Torres was convicted by the Regional Trial Court of Makati, Branch 133, in Criminal Case No. 19359 of violation of Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972 and was sentenced to suffer the penalty of life imprisonment and a fine of P20,000.00. He now seeks a reversal of the judgment of conviction by the court a quo assigning as errors, to wit: I THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE PROSECUTION'S WITNESSES WHICH WERE TAINTED WITH INCONSISTENCIES AND

IMPROBABILITIES. II THE COURT A QUO ERRED IN COMPLETELY DISREGARDING THE TESTIMONY OF THE ACCUSED-APPELLANT. III THE COURT A QUO ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT CONSIDERING THAT HIS GUILT WAS NOT ESTABLISHED BEYOND REASONABLE DOUBT. (Appellant's Brief, p. 1; Rollo, p.41) Hence, this appeal presents the issue of whether or not the quantum of evidence sufficient to render a judgment of guilt beyond reasonable doubt has been met. The information filed on September 25,1985 on the basis of a buy-bust operation conducted by the Narcotics Command (NARCOM) headed by Police Lieutenant Leonardo Lavares reads: That on or about the 11th day of September 1985, in the municipality of Las Pinas, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously sell and/or deliver dried marijuana fruiting tops, a prohibited drug. (Rollo, p. 6) The facts for the prosecution are stated by the Solicitor General in his Brief for the Appellee as follows: At about 3:00 o'clock in the afternoon of September 11, 1985, the Narcotics Command Unit (NARCOM) of the Philippine Constabulary in Camp Crame, Quezon City, received a report that a certain Ray was selling marijuana to out-of-school youth in Pulang-Lupa, Las Pias (p. 7, tsn, Jan. 6,1986). The NARCOM Commanding Officer, Lt. Manuel Raval, ordered Lt. Lavares to form a team for the 'buy-bust' operation and to arrest the suspect. The team was composed of Lt. Lavares as team leader, Sgt. Aladano buyer-poseur, Sgt. Lagos, Pfc. Labucay and PulangLupa, Las Pinas Brgy. Capt. De La Cruz who was the informant. The team immediately proceeded to Tramo, Pulang-Lupa of Las Pias. Upon arriving at the designated place, Lt. Lavares gave Sgt. Aladano four 5 peso bills which were previously dusted with ultraviolet powder to use as purchase money (pp. 2-3, tsn, Dec. 2, 1985). Sgt. Aladano and Brgy. Capt. De La Cruz found appellant at around 4:45 o'clock that afternoon and approached him De La Cruz, who was appellant's cousin, introduced Sgt. Aladano to appellant. Sgt. Aladano intimated his desire to buy marijuana. For marijuana in two (1) aluminum foils, Sgt. Aladano gave appellant the marked money. Thereafter, appellant left. After some time, appellant returned. He handed over to Sgt. Aladano something wrapped in a piece of paper. When Sgt. Aladano opened the package, he found the two small packages of marijuana. Immediately, he signaled his companions who were more or less

7 to 10 meters away from them (p. 7, tsn, January 6, 1986). Appellant tried to escape, but Sgt. Aladano held him by his waist. The team swooped down on appellant. They introduced themselves as members of the NARCOM. The team brought appellant and the marijuana to their headquarters. Lt. Tita Advincula, a forensic chemist of the PC-INP Crime Laboratory, examined the contents of the package (Exhibit "H") seized from appellant. She reported that the contents were indeed marijuana. Appellant himself was examined at the PC Crime Laboratory. In her report (Exh. E ), Engr. Isidra de Guzman stated that she found appellant positive of ultra-violet flourescent powder on both hands, arms and face. (Rollo, pp. 55-58) On the other hand, the defendant-appellant has a different version of the facts as follows: ... [O]n September 11, 1985 between the hours of five and six in the evening, defendantappellant was having a snack in a store near their house when all of the sudden, a group of men, introducing themselves as NARCOM agents, arrested him for allegedly selling marijuana fruit tops. After he was handcuffed, he saw a red car with three men on board which suddenly stopped behind him. Two men alighted from the car and approached him. One of them, whom he later identified as Lt. Lavares, placed dried marijuana leaves on his pocket, while a policeman from Las Pias, a certain Pat. Antonio, demanded money from him in exchange for his release. Since accused-appellant failed to produce any money, he was then brought to Camp Crame in Quezon City, At Camp Crame, he was brought to the Office of the NARCOM and led into a room where he was interrogated by an investigator in civilian clothes. Inside said room was a table, on top of which were marijuana leaves wrapped in an empty pack of Philip Morris cigarettes (Exhs. "H" and "H-1"). The said marijuana leaves were not the same one (sic) which was placed on his pocket earlier that day. He was then forced to admit ownership of such marijuana leaves and was made to affix his signature on the wrapper. Although very much against his will, he nevertheless reluctantly affixed his signature on said wrapper because he was afraid that more punishment would be inflicted upon his person if he will refuse to do what was told of him. Before he was actually led inside said room, he asked permission from his escorts for him to use the comfort room. While he was then relieving himself, a NARCOM agent in civilian clothes started kicking him. With said NARCOM agent was another man who held his hands and rubbed powder on it. Accused-appellant attempted to wash-off said powder but was prevented from doing so by the two men. It was then after he was maltreated by the NARCOM agent and his companion, when accused-appellant was brought to the room for investigation. Two days after he was arrested, he was brought before a forensic chemist of the PC-INP Crime Laboratory who examined his hands for possible presence of ultra-violet powder. He narrated to said chemist how said powder got into his hands, but the latter just

laughed-off his claim. (Brief for the Accused-Appellant, pp. 5-6) At the arraignment, a plea of not guilty was entered by the defendant-appellant. During the trial, the witnesses for the prosecution included Lt. Leonardo Lavares, head of the buy-bust operation, Sgt. Aladano the poseur-buyer, Chemical Engineer Isidra de Guzman of the PC Crime Laboratory who conducted the physical examination of the defendant-appellant to determine the presence of ultra-violet powder on his person and Lt. Tita Advincula, Forensic Chemist of the PC-INP Crime Laboratory who examined the specimen submitted to her, in connection with this case containing two foils of dried leaves. The report submitted by Isidra de Guzman shows the following findings: xxxxxxxxx Findings: Examination conducted under the ultra-violet radiation revealed the following results: A. Renato Mendoza POSITIVE for the presence of a bright yellow ultra-violet, flourescent powder on both hands, arms and on his face. B. The above-mentioned money bills POSITIVE for the presence of a bright yellow ultra-violet flourescent powder. (Exh. E ) (Rollo, p. 21) The pertinent portion of the report filed by Lt. Tita Advincula reads: xxx xxx xxx Findings: Qualitative examination conducted on the above-mentioned specimen gave POSITIVE result to the tests for marijuana, a prohibited drug. (Exh. 1) (Rollo, p. 21) The witnesses presented by the defense were the defendant-appellant himself and his mother in support of the claim that the former was plainly a victim of an incriminatory machination perpetrated by the members of the alleged buy-bust operation team of Lt. Lavares. On rebuttal, the prosecution presented Cpl. Antonio B. Antonio to disprove the extortion charges against him by the defendant-appellant who averred that the said police officer demanded money in exchange for the latter's release after his arrest. On sur-rebuttal, the defendant-appellant's father Eleuterio Javier was called to the witness stand to bolster the claim that Cpl. Antonio was guilty of extortion. After trial, the defendant-appellant was adjudged guilty beyond reasonable doubt as charged. In resolving the issue of whether or not the degree of proof required in criminal cases has been met, the credibility of witnesses who appeared in court becomes a foremost matter. On credibility, it is an oft-repeated

rule that this Court will not disturb the findings of the trial judge unless he has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case (see People v. Jose Pirreras, G.R. No. 63462, November 6, 1989 and People v. Eduardo Paco y Tamayo, G.R. No. 76893, February 27,1989) The defendant-appellant alleges that the testimonies of the prosecution witnesses are tainted with inconsistencies and improbabilities, namely: (a) that in Sgt. Aladano's testimony, it took the accused twenty minutes to get the marijuana leaves after the deal to sell them to the poseur-buyer was made while according to Lt. Lavares, almost an hour transpired before the defendant-appellant came back and handed something to Sgt. Aladano; (b) that the buy-bust operation team of Lt. Lavares was planned, executed and successfully carried out within a matter of two hours without any preliminary surveillance on the defendant-appellant; and (c) that if the defendant-appellant was indeed a drug pusher, the fact that he trusted his cousin, Barangay Captain Dela Cruz, the alleged informer as to the poseur-buyer's identity would mean that the latter had acted as "middleman" in previous transactions otherwise the defendant-appellant would not allow the said informer to be involved in his illegal activity. We find the above allegation devoid of merit. The inconsistencies pointed out by the defendant-appellant are too minor to affect the credibility of the prosecution witnesses who are law enforcers presumed to have regularly performed their duties in the absence of convincing proof to the contrary. (People v. Lamberto Borja y Martinez, G.R. No. 71838, February 26, 1990, citing People v. Patog, 144 SCRA 429 [1986]; People v. Said Sariol y Muhamading, G.R. No. 83809, June 22, 1989 citing People v. Capulong, 160 SCRA 533 [1988]; People v. Boholst 152 SCRA 263 [1987] citing People v. Gamayon, 121 SCRA 642 [1983]; People v. Campana, 124 SCRA 271 [1983]; People v. Rosas, 149 SCRA 464 [1987]) With respect to the alleged improbabilities, they are grounded on fanciful conjectures and speculations which cannot topple the evidence adduced by the prosecution. Thus, we are constrained to give credence to the witnesses of the prosecution who had proven beyond reasonable doubt every essential element of the crime of which defendant- appellant was charged. After all, "proof beyond reasonable doubt" is defined under Rule 133, section 2 of the Rules of Court as follows: ... Proof beyond a reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced and mind. In the instant case, there is clear proof that the defendant-appellant was caught in flagrante delicto, i.e., in the very act of selling and delivering dried marijuana fruiting tops, a prohibited drug under Article I, section 2, subsections (e) and (i) of the Dangerous Drugs Act, as amended by Batas Pambansa Blg. 179. Prosecution witnesses Sgt. Aladano and Lt. Lavares competently narrated the pertinent details attendant to the crime of which the trial court convicted the defendant-appellant who was positively identified as the perpetrator by the said witnesses. Furthermore, corroborative evidence was offered by the prosecution through the testimonies of the chemical engineer and forensic chemist of the PC Crime Laboratory. The defense of having been framed-up was not satisfactorily proved by convincing evidence. Like alibi, it is a weak defense that is easy to concoct but difficult to prove (See People v. Sergio Nabinat y Asag, G.R. No. 84392, February 7, 1990). It is difficult to believe that the NARCOM agents who did not know the appellant and whom the appellant did not know would suddenly pounce upon a completely unknown and innocent person taking a merienda and not only plant marijuana in his clothes but also forcibly rub ultraviolet powder on his hands while he was relieving himself in the toilet at Camp Crame. During the cross-examination of the

defendant-appellant, he made the following declarations: xxx xxx xxx FISCAL: xxx xxx xxx Q. You were present when Sgt. Aladano testified here in Court and pointed to you? A. Yes sir. COURT: Was he the one who planted the marijuana? A. No Your Honor, it was Lt. Lavares. FISCAL: Q. Prior to September 11, 1985, did you know already Sgt. Salvador Aladano? A. No sir. Q. In the same manner that you do not know also Lt. Lavares prior to September 11, 1985? A. Yes sir. Q. As a matter of fact, not knowing anyone of them, you did not have any misunderstanding with anyone of them prior to September 11, 1985, is it not? A. I do not have sir. Q. Who was the one who placed this powder in your hands? A. A man, but I think he was not a Narcom agent. Q. According to you, Lt. Lavares this marijuana in your pocket against you and did you file any case against this Lt. Lavares? A. I cannot file any case or complaint because I was handcuffed and they brought me to Camp Crame. Q. You did not file any complaint against the man who put this powder

which according to you is against your will A. No sir, because I was brought upstairs and I was instructed to wait for my parents. Q. Were you not presented by the arresting officers to the investigators in Camp Crame? A. I was presented sir. Q. They wanted to get your statement but you refused to give ant statement? COURT: Q. Why did you refuse to give your statement? A. Because I have not committed any offense. I was just taking my snack or 'meryenda' (Original Records, pp. 123-124). The extortion theory advanced by defense was not also substantiated as can be gleaned from the evidence on record. During the direct examination of the defendant-appellant's father, the defense failed to lay the basis of the extortion charges, thus: xxx xxx xxx ATTY. GARIN: xxx xxx xxx Q. Pat. Antonio likewise testified he denies the allegations of your son that he was extracting money from you, what can you say about this? FISCAL: Objection. No basis because according to the witness, while he admitted he met this Antonio and conversation was pondered on asking why he was arresting his son. ATTY. GARIN: The basis is the testimony of this witness Antonio. Now I am asking to confirm or deny the same. FISCAL: But basis should be laid.

ATTY. GARIN: I will reform the question your Honor. Q. This Pat. Antonio testified here in Court denying that he never asked money from you, did you have any conversation regarding that extraction of money? FISCAL: The question has no basis. ATTY. GARIN: We thought that would be the proper subject of this examination. FISCAL: This is a direct testimony of the witness and proper basis should be laid. COURT: Sustain. Reform. ATTY. GARIN: Q. Were you able to talk to your son while he was in prison? A. No sir. Q. Your wife? A. I do not know whether my wife was able to talk to my son while in prison. Q. On or before the ll th day of September 1985, do you remember this Antonio talking to your wife? A. No sir. ATTY. GARIN: That will he all for the witness. (Original Records, pp. 130-131) In the absence of any motive shown on the part of the NARCOM agents to implicate the defendant-appellant and considering the foregoing evidence for the prosecution, we agree with the trial court's assessment that the presumption of innocence in favor of the defendant-appellant has been overcome.

The argument that the Narcotics Command cannot organize a team and send it from Camp Crame to Las Pias in a period of two hours has no merit. The NARCOM's main function is to stem the traffic in prohibited drugs and catch and prosecute violators of the Dangerous Drugs Act. By the very nature of its work, NARCOM should have agents on duty all the time and ready to rush wherever they are needed. Two hours is not too short for this purpose. According to the appellant, the fact that he trusted the barangay captain who introduced the buyers to him shows that the captain must have acted as middleman in other drug transactions. Assuming this to be true, we fail to see how it proves that the appellant is innocent. In truth, familiarity and trust do not arise solely from joint participation in illegal acts. Mr. dela Cruz was not only a leading member of the Pulang-lupa community but he was also the appellant's relative. It simply did not occur to the appellant that dela Cruz was against his drug dealing activities to the extent of turning him in to the authorities; WHEREFORE, premises considered, the judgment appealed from is hereby AFFIRMED IN TOTO. SO ORDERED. Fernan, C.J. (Chairman), Feliciano, Bidin and Cortes, JJ., concur. $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}_78583_84_3_26_90_footnotes>mainG.R. Nos. 78583 March 26, 1990 BENIGNO TODA, JR. vs. COURT OF APPEALS Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. 78583-4 March 26, 1990 BENIGNO TODA, JR., petitioner, vs. COURT OF APPEALS and ROSE MARIE TUASON-TODA, respondents. G.R. Nos.78696-7 March 26,1990 ROSE MARIE TUASON-TODA, petitioner, vs. BENIGNO TODA, JR., respondent. Bautista, Picazo, Buyco, Tan & Fider for Benigno Toda, Jr. Belo, Abiera & Associates for petitioner Rose Marie Tuason Toda.

REGALADO, J.: These consolidated cases seek a review of the decision of the Court of Appeals promulgated on January 29,1987 1 in CA-G.R. CV Nos. 06675 and 07936, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered: 1. Ordering the payment of the cash dividends declared on July 1, 1981 amounting to P2,191.62 and those declared on July 25, 1981 amounting to P40,196.12 to Rose Marie Toda as her separate property. The cash dividends declared on April 25, 1981 amounting to P37,196.30 (sic) are hereby adjudicated to Benigno Toda, Jr. as his share in the conjugal partnership assets; the portion of the order dated November 2, 1981 with respect to the payment of the amount of P360,095.12 to Rose Marie T. Toda is set aside; 2. Ordering the payment of the amount of P4,1623,982.24 to Rose Marie Toda representing the balance of P15, 749,135.32 obligated to be paid as estate taxes by Benigno Toda, Jr.; 3. Setting aside the order of the lower court dated June 2, 1982 directing Benigno Toda, Jr. to pay interest and non-payment penalty of 18% and 5%, respectively; and 4. Setting aside the order of the lower court directing the annotation of lien on the property of Benigno Toda, Jr. SO ORDERED. Benigno Toda, Jr. (Benigno for brevity) and Rose Marie Tuason-Toda (Rose Marie for brevity) were married on June 9, 1951 and were blessed with two children. Individual differences and the alleged infidelity of Benigno, however, marred the conjugal union thereby prompting Rose Marie to file on December 18, 1979 in the former Court of First Instance of Rizal, 2 as Civil Case No. 35566, a petition for termination of conjugal partnership for alleged mismanagement and dissipation of conjugal funds against Benigno. After hearings were held, the parties in order to avoid further "disagreeable proceedings," filed on April 1, 1981 a joint petition forjudicial approval of dissolution of conjugal partnership under Article 191 of the Civil Code, docketed as Special Proceeding No. 9478, 3 which was consolidated with the aforesaid civil case. This petition which was signed by the parties on March 30, 1981, embodied a compromise agreement allocating to the spouses their respective shares in the conjugal partnership assets and dismissing with prejudice the said Civil Case No. 35566, CA-G.R. No. 11123-SP of the Court of Appeals and G.R. No. 56121 of this Court. The said petition and the compromise agreement therein were approved by the trial court in its order of June 9, 1981. 4 Thereafter, several orders were issued by the lower court pertaining to the interpretation and implementation of the compromise agreement, as follows: 1. Order, dated November 20, 1981, ordering Benigno, inter alia, to pay Rose Marie the cash dividends on the shares declared on April 25, 1981 amounting to P37,126.30; that declared on July 25, 1981 amounting to P40,196.12; that declared on July 1, 1981, given on September 25, 1981 amounting to P2,191.62; and the payment of P360,095.12 to Rose

Marie which is the balance of P2 million paid on April 4, 1981; 5 2. Order, dated June 2, 1982, ordering Benigno to pay Rose Marie interest at 18% per annum on the amounts required to be paid in the order of November 20,1981, as well as 5% non-payment penalty should the said order of November 20,1981 be sustained on appeal; 6 3. Order, dated December 9, 1982, denying Benigno's motion to inhibit Judge Rizalina Bonifacio Vera from hearing the case; 7 4. Order, dated March 1, 1983, ordering the annotation of a lien on certain properties of Benigno as security for any and all amounts that he may finally be ordered to pay to Rose Marie under the compromise agreement; 8 and 5. Order, dated March 14, 1983, ordering Benigno to pay Rose Marie the amount of P4,623,929.24, with interest and penalties thereon at the rates stipulated in the compromise agreement from date of at the rates stipulated in the compromise agreement from date of demand by Rose Marie. 9 The compromise agreement which, as earlier stated, was incorporated in the petition for dissolution of the conjugal partnership and was approved by the court below, contains the following stipulaitons: xxx xxx xxx 4. For the best interest of each of them, petitioners have agreed to dissolve their conjugal partnership and to partition the assets thereof, under the following terms and conditions this document, a pleading, being intended by them to embody and evidence their agreement; (a) Petitioners as the parties hereto agree upon the dissolution of their conjugal partnership during the marriage and further agree to obtain judicial approval of their said agreement as provided by Article 191 of the Civil Code. (b) The following shall be adjudicated to petitioner Rose Marie Tuason-Toda: (1) Forty Million Peson (P40,000,000.00) to be paid as follows: (a) Petitioner Benigno Toda, Jr. shall assume the payment of the estate taxes, interest and penalties thereon, pertaining to the estate of petitioner Rose Marie Tuason Toda's late brother Manuel Tuason, Jr. in the sum of P15,749,135.32 as of March 31, 1981 all interest and penalty charges after March 31, 1981 to be the responsibility of petitioner Benigno Toda, Jr. (b) P2,000,000.00 to be paid within 30 days after signing of this agreement.

(c) The balance shall be paid within six (6) months after date of signing of this agreement. If not paid when due, the balance shall bear interest at 18% per annum until paid and there shall be a 5% non-payment penalty. The proceeds from any sale of or loss with respect to, Rubicon's shares in Philippine Air Lines, Inc., shares of Cibeles Insurance Corporation or Hermana Mayor shall be applied when received against the aforesaid balance, except to the extent such proceeds are used to satisfy any other obligation under this agreement. (2) All shares of stock in San Nguel Corporation registered solely in the name of petitioner Rose Marie Tuason Toda whether stock dividends or stocks acquired on pre-emptive rights including those acquired in the names of both petitioners Benigno Toda, Jr. and Rose Marie Tuason Toda (whetherjointly or alternately 'and/or'), free from all liens and encumbrances. (3) All shares of stock in San Miguel Corporation acquired whether as stock dividends of or on pre-emptive zighta pertaining to the shares of stock in said corporation of petitioner Rose Marie Tuason Toda's brother the late Manuel Tuason, Jr. (of course, the original shares of the latter pertain to petitioner Rose Marie Tuason Toda also), free from all liens and encumbrances except for the estate tax lien. Petitioner Rose Marie Tuason Toda hereby grants petitioner Benigno Toda, Jr. an irrevocable proxy, for three years through the 1983 stockholders' meeting whether annual or special to elect directors for all shares of stock she owns directly or indirectly including those from the late Manuel Tuason, Jr. in San Miguel Corporation. (4) The Banaba Forbes Park conjugal dwelling and its contents free from all liens and encumbrances except that petitioner Benigno Toda, Jr. shall remove therefrom his personal effects including furniture and appliances in his study room and T.V. room and, from the family rooin, all antiques, rugs, paintings of Old Fort Manila, books and mementos. Petitioner Benigno Toda, Jr. commits that no servant now living in the Tolentino street apartments shall be evicted. (5) The San Francisco apartment at Apartment 905, No. 1750 Taylor Street, San Francisco, California, U.SA., and its contents, free from all liens and encumbrances, except that petitioner Benigno Toda, Jr. shall remove therefrom his personal effects. (6) The artifacts already removed by petitioner Rose Marie Tuason Toda from the Madrid Apartment at No. 4 San Pedro de Valdivia. She shall return to it its silver ware, china ware, paintings and etchings. She may retain the three fans encased in glass and may remove her clothes, perfumes and toiletries, the Sansa painting ofa shell dedicated to her, the painting of the Madonna and tapestry hanging in her bedroom, 5 Persian rugs, 1 writing desk and chair and the 2 lamps thereon and 1 lamp on the night table, and

the statuette given her by Hagedorn. (7) Jewelry. (8) Motor vehicles registered in her name. (9) Within forty-five (45) days from signing of this agreement, One Million Pesos (Pl,000,000.00) as attorneys' fees petitioner Rose Marie Tuason Toda agreeing to hold petitioner Benigno Toda, Jr. harmless from any claim fo attorneys' fees and expenses that may be filed against the conjugal partnership or herself for services rendered to her in the prosecution of her claims against said conjugal partnership or against petitioner Benigno Toda, Jr. or to secure her paraphernal estate. (10) Two shares with two lots in Valley Golf & Country Club. (11) One share in Club Puerta de Hierro in Madrid, Spain if there is one registered in petitioner Rose Marie Tuason Toda's name. (12) Share in Montemar Beach Club in Bagac, Bataan petitioner Rose Marie Tuason Toda agreeing to assume the balance of the acquisition cost thereof. (c) All other properties of the conjugal partnership of whatever and wherever located shall be adjudicated to petitioner Benigno Toda, Jr. even though acquired in the name of petitioner Rose Marie Tuason Toda or both of them she undertaking to execute the corresponding deeds of conveyances. (d) Petitioner Benigno Toda, Jr. shall assume the payment of all conjugal obligations, petitioner Rose Marie Tuason Toda representing and warranting that she has no pending obligation or incurred no obligation chargeable to the conjugal partnership except those listed in Annex 'A' hereof. If the Rosaria Apartment is subject to a mortgage loan and such loan is a conjugal debt, petitioner Benigno Toda, Jr. shall assume such loan and shall obtain the discharge of the mortgage. (e) After the signing of this document: (1) Each of them shall own, dispose of, possess, administer and enjoy his or her separate estate, present and future, without the consent of the other; (2) All earnings from any profession business or industry shall likewise belong to each of them respectively; (3) All expenses and obligations incurred by each of them shall be their respective and separate responsibilities.

(f) With the signing of this document, Civil Case No. 35566 of this same Court, CA-G.R. No. 11123-SP and SC-G.R. No. L-56121 shall be deemed dismissed with prejudice as between the parties hereto. 10 The parties then prayed that judgment be rendered: (a) Approving the agreement for voluntary dissolution and partition of the conjugal partnership; (b) declaring the conjugal partnership of petitioners dissolved and adjudicating to each of them his or her share in the properties and assets of said conjugal partnership in accordance with the agreement embodied in paragraph 4 hereof; and (c) enjoining the parties to comply with the terms and conditions of the aforesaid agreement. 11 Ironically, the said agreement failed to fully subserve the intended amicable settlement of all the disputes of the spouses. Instead, as lamented by the counsel of one of them, the compromise agreement which was designed to terminate a litigation spawned two new petitions, with each party initiating one against the other. Thus, illustrative of the saying that a solution which creates another problem is no solution, the contradictory interpretations placed by the parties on some provisions of the agreement resulted in appeals to respondent court and, eventually, the present recourse to us. Benigno appealed from the aforestated orders of the trial court of November 20, 1981, June 2, 1982, December 9, 1982, March 1, 1983 and March 14, 1983 containing the directives hereinbefore respectively set out. The same were disposed of by the Court of Appeals as explained at the start of this decision. Rose Marie now submits that the Court of Appeals erred: 1. In holding that the compromise agreement of the parties herein became effective only after its judicial approval on June 9, 1981 and not upon its execution on March 30,1981; 2. In setting aside the order of the lower court dated June 2, 1981 directing Benigno to pay interest of eighteen percent and non-payment penalty of five percent; and 3. In setting aside the order of the lower court directing the annotation of Rose Marie's lien on Benigno's property. 12 On the other hand, Benigno contends in his present petition before us that: 1. The Court of Appeals erred on a question of law when it affirmed the lower court's award of P4,623,929.24 without trial and evidence-taking and overruled petitioner's claim of violation of his due process right; 2. The Court of Appeals erred on a question of law and due process when it upheld the lower court's denial of petitioner's motion for her inhibition/disqualification; 3. Since the document (the parties' compromise agreement) explicitly provided for

assumption of liability rather than agency to pay and since there was no evidence-taking, the Court of Appeals finding of an agency to pay is reviewable as a question of law; and 4. The Court of Appeals on a question of law involving the parol evidence rule.
13

The award of cash dividends basically depends on the date of effectivity of the compromise agreement as this will determine whether the same is conjugal property or separate property of the spouses. We are in agreement with the holding of the Court of Appeals that the compromise agreement became effective only on June 9, 1981, the date when it was approved by the trial court, and not on March 30,1981 when it was signed by the parties. Under Article 190 of the Civil Code, 14 "(i)n the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place save in virtue of a judicial order." Hence, the separation of property is not effected by the mere execution of the contract or agreement of the parties, but by the decree of the court approving the same. It, therefore, becomes effective on y upon judicial approval, without which it is void. 15 Furthermore, Article 192 of said Code explicitly provides that the conjugal partnership is dissolved only upon the issuance of a decree of separation of property. Consequently, the conjugal partnership of Benigno and Rose Marie should be considered dissolved only on June 9, 1981 when the trial court approved their joint petition for voluntary dissolution of their conjugal partnership. Conformably thereto, the cash dividends declared on July 1, 1981 and July 25,1981 in the amount of P2,191.62 and P40,196.12, respectively, should pertain to Rose Marie; and that declared on April 2,5, 1981 in the amount of P37,126.30 ought to be paid to Benigno, pursuant to Paragraph 4 (c) of the compromise agreement which awards to Benigno the conjugal assets not otherwise specifically assigned to Rose Marie. With respect to the amount of P360,095.12 which Benigrio deducted from the P2 million supposed to be paid to Rose Marie, it is not clear from the records where said amount came from. The Court of Appeals, in holding that it is conjugal and therefore belongs to Benigno, presumed it to be in the nature of cash dividends declared prior to the approval of the compromise agreement by reason of the fact that the amount was deducted by Benigno from the P2 million which he paid on April 14,1981. While no sufficient proof was adduced to conclusively explain such deduction, there exists the legal presumption that all property of the marriage belongs to the conjugal partnership absent any proof that it is the exclusive property of either spouse. 16 Since Rose Marie failed to prove that the amount forms part of her paraphernal property, it is presumed to be conjugal property. Consequently, Benigno is entitled to the said amount of P360,095.12, hence he rightfully deducted the same from the amount due to Rose Marie. The issue regarding the annotation of the lien on Benigno's properties has been mooted by our resolution dated Aprjl 3, 1989 wherein, at his instance, we ordered the cancellation thereof upon his posting of the corresponding bond. In our resolution of February 26, 1990, we noted Benigno's comphance, approved the bond he filed, and ordered the cancellation of the hens annotated on the certificates of title of the propertiesinvolved. Likewise, the order denying the motion to inhibit Judge Rizalina Bonifacio Vera has become academic considering that she no longer presides over the court where the case was filed. Besides, as correctly explained by respondent court, the groundfor inhibition raised by Benigno is not valid it being merely on the basis of the judge having acquired knowledge of the facts surrounding the agreement of the parties, hence she would be a material witness to the issue of the true agreement which is contested by the parties.

However, those facts came to the knowledge of the judge in the course of her efforts to effect a compromise between parties and are also known to the parties.This is not a ground for disqualification; on the contrary, said, acts of the judge were in accord with the rule encouraging compromises in litigations, especially between members of the same family. Anent the tax savings of P4,623,982.24 obtained by Benigno, we hold that this forms part of the P40 million allocated to Rose Marie under paragraph 4 (b) (1) of the compromise agreement.We give credit to the ratiocination thereon of the trial court as quoted with approval by respondent court: The records show that petitioner Benigno Toda, Jr. paid only Pl,125,152.48 in estate taxes, although the amount stated in the m Compromise Agreement was P15,749,135.32. The balance of P4,623,929.24 is now being claimed by both parties as aforestated. In the opinion of this court, the pertinent terms of the Agreement as quoted, are clear and do not require any interpretation. In brief, under, the Agreement, petitioner Rose Marie T. Toda is adjudicated the fixed sum of P40 million, to be paid as follows: (a) Payment by petitioner Benigno Toda, Jr. of the estate taxes, interests and penalties thereon, pertaining to the estate of the late Manuel Tuason, Jr. in the amount of Pl5,749,135.32 as of March 31, 1982; (b) P2 million within 30 days after signing of the Agreement; (c) the balance within six months after date of signing of the Agreement. This Court notes that the amount of taxes, interests and penalties is fixed at P15,749,135.32 and this figure was provided by Benigno Toda, Jr. There is no provision as contended by petitioner Benigno Toda, Jr. that the amount was only an assumed liability and that he could attempt to reduce it by suit or compromise. It is clear that if the amount of P4,623,929.24 is to be credited to Benigno Toda, Jr. then the P40 million which petitioner Rose Marie T. Toda is to receive would be short by that amount. This Court is also of the opinion that under the Agreement, petitioner Benigno Toda, Jr. was constituted as agent to pay to the government the liability of the estate of the late Manuel Tuason, Jr. in the fixed amount of P15,749,135.32 and if he was able to secure a reduction thereof, then he should deliver to his principal such reduction... 17 We do not believe that Benigno was denied due process when the trial court resolved the motion of Rose Marie for the payment of P4,623,982.24 without the benefit of a hearing. The records disclose that the hearing thereon was postponed twice at the instance of Benigno, which prompted the court to thereafter consider the motion submitted for resolution on the basis of the allegations therein and the answer filed by counsel for both parties. Benigno cannot now be heard to claim that he was deprived of his day in court. Furthermore, respondent court correctly held that the issue involved was more of a question of interpretation of a contract rather than a determination of facts. Benigno failed to make a plausible showing that the supposed evidence he had intended to present, if any, would not be merely collateral matters. Considering that the amount of P4,623,982.24 actually forms an integral part of the P40 million (minus the lawful and authorized deductions that may be made therefrom) which Benigno categorically undertook to pay to Rose Marie, the same must earn interest at the rate of 18% per annum and 5% non-payment penalty, the same being included in and within the contemplation of Paragraph 4 (b) (1) (c) of the compromise agreement. Said provision of the agrdement provides for the payment of the interest and penalty upon non-payment of the balance of the P40 million after the specific authorized deductions therefrom. Since the amount of P4,623,982.24 was not to be lawfully deducted by Benigno, as hereinbefore explained, it constitutes part of the contemplated contingent balance which might tum out to be due to Rose Marie and, therefore, subject to

the imposition of said increments on Benigno's liability. WHEREFORE, the judgment appealed from is hereby AFFIRMED, with the modification that Benigno Toda, Jr. is hereby ordered to pay Rose Marie Tuason Toda interest at the rate of a 18% per annum and 5% nonpayment penalty on the tax savings of P4,623,982.24 from date of formal demand until the same is fully paid. SO ORDERED. Melencio-Herrrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.

Footnotes 1 Justice Jose A.R. Melo, ponente, with Justices Ricardo P. Tensuan and Jaime M. Lantin, concurring; Rollo, G. R. Nos. 78583-84, 29-45. 2 Presided over by then Judge Rizalina Bonifacio Vera. 3 Rollo, G.R. Nos. 78696-97,69-74. 4 Ibid., 75-84. 5 Ibid., 85-98. 6 Ibid., 102-105. 7 Ibid., 62. 8 Ibid., 122-125. 9 Ibid.,110-115. 10 Ibid., 69-73. 11 Ibid., 73. 12 Ibid., 22. 13 Ibid., G.R. Nos. 78583-84,13-26. 14 Now Art. 134 of the Family Code. 15 Lacson vs. Lacson, et al., 24 SCRA 837 (1968); see also Tolentino, Civil Code, Vol. 1, 1987 Ed., 487.

16 Article 160, Civil Code. 17 Rollo. G.R. Nos. 78696-61-62. $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}62603_3_27_90_footnotes>mainG.R. No. L-62603 March 27, 1990 UNITED REALTY CORPORATION vs. COURT OF APPEALS, ET AL. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-62603 March 27, 1990 UNITED REALTY CORPORATION, petitioner, vs. HON. COURT OF APPEALS and REVEREND FATHER JOSE TORRALBA SY, respondents.

GANCAYCO, J.: Whether the contract of lease is for a definite or indefinite period of time and the applicability of the provisions of Presidential Decree No. 20 and Batas Pambansa Bilang 25 are the issues in this case. The facts are undisputed. In March 1964 and December 1964 petitioner and private respondent Rev. Father Jose Torralba Sy, entered into separate contracts of lease over two apartments located at 913-E and 193-F Josefina Street, Sampaloc, Manila, with the common provision covering its duration as follows: To hold the same for one month from the (15th day of March, 1964 for Apt. No. 913-E and lst day of January, 1964 for Apt. No. 913- F) and so on from month to month at a rent of TWO HUNDRED PESOS (P200.00), Philippine Currency, per month, payable in advance on the first TEN (10) days of each calendar month, until the lease shall terminate, which termination shall be determined by either party giving FIVE (5) days notice in writing. 1 It was further stipulated in the two contracts that "in case the lessee shall continuously withhold possession of the apartments after he or she has been properly notified of the termination of his or her right to occupy the same, the lessor shall be entitled to collect P400.00 every month or fraction thereof, as reasonable compensation for the use of the place and as damages." Private respondent removed the portion separating the two apartments and converted the same principally

for use as a Buddhist chapel. On August 1, 1970, petitioner leased to private respondent the apartment at 937-E Josefina Street, Sampaloc, Manila, effective August 1, 1970 for the monthly rental of P300.00, 2 payable in advance within the first ten (10) days of the month for his use as residence only. It was also stipulated in said contract that "in case the lessee shall continuously withhold possession of the apartments after he/she has been notified of the termination of his/her right to occupy the same, the lessor shall be entitled to collect P500.00 every month or fraction thereof, as reasonable compensation for the use of the place and as damages. On September 24, 1975, petitioner sent a letter to private respondent that effective November 1, 1975 the new rental for the two apartments will be P500.00 per door or P1,000.00 for the two doors, likewise payable in advance within the first ten (10) days of the calendar month, with the request that petitioner be informed of private respondent's decision as to the new rate not later than October 25, 1976 so that it may be guided accordingly. 3 Instead private respondent complained to the Department of Public Information, Malacanang, Manila. In the confrontation between the parties, the Presidential Complaint and Action Committee found that there was no violation of P.D. No. 20 as the subject premises are being principally as a Buddhist Temple and therefore are not covered. Private respondent then sent a letter-complaint thru counsel dated November 13, 1975 to them Asst. Executive Secretary Ronaldo E. Zamora who in response issued Opinion No. 480, Series of 1975 dated November 20, 1975 signed by Deputy Executive Secretary Roberto V. Reyes. 4 Therein it was held that the increase in rental demanded was in violation of P.D. No. 20 and that as 1/4 of the two-door apartments is being used likewise as a chapel incidental to the calling of the private respondent as a monk it cannot be called as a commercial or public establishment or as a place for the exercise of one's profession because the same is not for profit. However, on November 16, 1976, in response to the letter of petitioner, Secretary Ronaldo E. Zamora, as Presidential Assistant for Legal Affairs, issued Opinion No. 629, Series of 1976, as follows: While it may be conceded arguendo that for being used as a place for worship, the premises may not necessarily be considered as commercial for purposes of ruling out the applicability of Presidential Decree No. 20 dated October 12, 1972, which freezes rates of rentals of dwelling unit at their present levels when the same do not exceed P300.00 per month, it is equally true that the same will, as it does, not fall within the protective mantle of the decree. It is to be noted that the decreed prohibition against rental increase applies only to dwelling units or lots used for residential purposes, the monthly rent of which does not exceed P300.00. On this point Republic Act No. 6359 defines 'dwelling unit as follows: "A dwelling unit refers to a house and lot used for residential purposes and shall include not only buildings, dwelling places, except motels, hotels, or hotel rooms; but also those used for home industries or retail store if the owner thereof and his family actually live therein and use it principally for residential purpose; Provided, That in case of a retail store the capital thereof does not exceed five thousand pesos." (Emphasis supplied.) Thus if the leased apartment units are used principally for purposes of religious worship, the incidental fact that Father Sy and/or his family live therein will not include them in that class of tenants favored by the emergency law on housing (Morales vs. Zamora, 31 Phil.

204). In such case, the matter of regulating the monthly rentals become conventional between him and the URC. This should not be understood to mean, however, that the latter is free to demand an arbitrary amount. Equity and justice require that both parties observe reasonable terms and conditions in bringing about a mutual covenant. Under the circumstances, therefore, this Office, on equitable considerations and for reasons of public policy, believes that rental increases should be raised to reasonable levels only. 5 On January 3, 1977, petitioner through counsel furnished private respondent through counsel a xerox copy of said Opinion No. 629, Series of 1976 and demanded that the private respondent vacate and surrender the two premises within five (5) days from receipt of the same and to pay his rental indebtedness minus the deposit made. Nevertheless, private respondent failed to vacate the premises. Hence, petitioner filed a complaint for unlawful detainer in the City Court of Manila on March 7, 1977. After the issues were joined and the trial on the merits, a decision was rendered on February 16, 1981 dismissing the complaint and counter-claim without pronouncement as to costs. Both parties asked for a reconsideration of the decision but the same was denied. Hence, both parties appealed to the Court of First Instance of Manila, wherein in due course a decision was rendered on December 28, 1981 affirming the judgment of the City Court with the modification finding private respondent entitled to moral damages in the amount of P4,000.00, exemplary damage ages in the amount of P2,000.00 and attorney's fees of P2,000.00 and the costs of the suit. A motion for reconsideration filed by petitioner was denied by the trial court in an order of February 25, 1982. Hence, a petition for review was filed by petitioner with the Court of Appeals, wherein after the issues were joined, a decision was rendered on October 7, 1982 dismissing the petition with costs against petitioner. 6 A motion for reconsideration filed by petitioner of the decision was denied in a resolution of November 17, 1982. Thus, this petition. A reading of the two contracts of lease entered into between petitioner and private respondent hereinabove reproduced show that its period is from month to month and that the lease may be terminated when either party gives a 5 days notice in writing. No doubt such a stipulation between the parties demonstrates that the agreement of lease is for a definite period and not for an indefinite period as held by the appellate court. In Rantael vs. CA, 7 involving a similar contract of lease between the parties this Court found that a lease on a month to month basis expires after the last day of the 30th day period repeating the same cycle of the 30-day period until either party express their prerogative under their agreement to terminate the same. The only difference between Rantael and the present case is that in the former the parties may terminate the agreement upon 30 days notice while in this case, the agreement is that the termination by either party may be upon 5 days notice. Such difference is of no moment. And such agreement is binding and is the law between the parties. Since the lease agreement in question is for a definite period it follows that petitioner has a right to judicially eject private respondent from the premises as an exception to the general rule provided for in Section 4 of

P.D. No. 20 which provides as follows: Except when the lease is for a definite period, the provisions of paragraph (1) of Article 1673 of the Civil Code of the Philippines insofar as they refer to dwelling unit or land on which another's dwelling is located shall be suspended until otherwise provided; but other provisions of the Civil Code and the Rules of Court of the Philippines on lease contracts insofar as they are not in conflict with the provisions of this Act, shall apply. (Emphasis supplied.) Moreover, under Section of 5(f) of B.P. Blg. 25 one of the grounds for ejectment is the expiration of the period of a written lease contract. In this case, because of the failure of the private respondent to pay the increased rental demanded by petitioner, petitioner elected to terminate the contract and asked the private respondent to vacate the premises. A lease contract may be terminated at the end of any month, which shall be deemed terminated upon the refusal to pay the increased monthly rental demanded by the petitioner, provided the same is not exhorbitant. 8 Further, there is no question in this case that the two apartments subject of litigation if not a greater portion thereof is not used by private respondent as his residence but for a Buddhist Temple. Thus, it is with more reason that this lease agreement does not fall within the protective mantle of the provision of P.D. No. 20 and B.P. No. 25 which covers only dwelling units. Lastly, considering that during the pendency of this appeal, the private respondent died on August 23, 1987, thus the said lease agreements were effectively terminated by the death of private respondent who is the lessee of the premises in question. WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated October 7, 1982 and its Resolution dated November 17, 1982 are hereby reversed and set aside and another judgment is hereby rendered ordering private respondent and/or his heirs or successors-in-interest to immediately vacate the premises of the property in question and to pay the unpaid rentals thereof of P1,000.00 a month for the two apartments until they vacate the premises, with costs against private respondent. SO ORDERED. Narvasa (Chairman), Cruz and Medialdea, JJ., concur. Grio-Aquino, J., took no part.

Footnotes 1 Exhibits A and A-1; page 6, Rollo. 2 Exhibit A-2. 3 Exhibit B.

4 Exhibits D and D-2 5 Exhibit E-1; pages 44-45, Rollo. 6 Madame Justice Milagros A. German was the ponente, concurred in by Justices Carolina C. Grio-Aquino and Vicente V. Mendoza. 7 97 SCRA 453 (1980). 8 Vda. de Kraut vs. Lontok, 7 SCRA 281 (1963). $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}87585_3_27_90_footnotes>mainG.R. No. 87585 March 27, 1990 BLUE MANILA, INC. vs. NATIONAL LABOR RELATIONS COMMISSION, ET AL. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 87585 March 27, 1990 BLUE MANILA, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION and EMMANUEL E. ABELLANEDA, respondents. Capuyan & Quimpo Law Office for petitioner. Manuel L. Montilla for private respondents.

GRIO-AQUINO, J.: The petition for certiorari alleges a single ground for the allowance of the writ, to wit:

THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN AFFIRMING IN TOTO THE DECISION OF THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION DESPITE CLEAR AND PATENT CONFLICT BETWEEN THE FINDINGS

OF FACT AND LAW AND THE DISPOSITIVE PORTION OF THE DECISION. (p. 11, Rollo.) The petitioner is the recruitment agent that shipped the private respondent, Emmanuel Abellaneda, to the Middle East to serve for a period of six (6) months as a seaman on the vessel of its foreign principal, the Seatrans Offshore Ltd. After his contract was preterminated, he sued for his unpaid wages. The facts, as alleged in the pleadings and summarized in the decision of the POEA, are as follows: The complainant in his complaint-affidavit alleged that sometime in May, 1986, he applied for overseas work with respondent Blue Manila, Inc. On September 16, 1986, he was sent to Bahrain to board the vessel 'GRAY-VANGUARD' as AB/Oiler at the agreed basic salary of US$335 per month for a period of six (6) months with a further understanding that he will receive a war zone bonus at 100% of his basic salary plus overtime pay. On October 3, 1986, the vessel actually entered the war zone until November 10, 1986. On said date, the principal SEATRANS OFFSHORE LTD. informed the crew that its lease over the vessel had expired, hence, the crewmembers disembarked at Kharg Island, Iran where complainant was offered the same job to work with the vessel MV 'SEATRANS 23' leased by the same principal. Complainant accepted the offer and on November 11, 1986, he embarked and commenced working thereon with the sole purpose of completing the remaining portion of his contract. However, from the time he started working, he was not paid his salary and other benefits due him. This prompted him to get cash advances for his family's sustenance in the Philippines allegedly amounting to $512.48. For the same reason, complainant voluntarily decided to disembark on January 28, 1987 at Bahrain. While therein, he demanded from the Operations Manager of Seatrans, Mr. Horst Jager, his long overdue salaries and other benefits covering the period from November 11, 1986 to January 28, 1987. However, instead of giving in to complainant's just and valid claims, Mr. Jager charged him for simulated offenses for which complainant was incarcerated from 8:00 P.M. of January 28, 1987 until 10:00 A.M. of the next day. After representation with the Immigration Office in Bahrain, Mr. Jager promised that complainant shall receive his entire salary in Manila giving him a letter dated January 29, 1987 (attached as Annex 'A' of the complaint) addressed to Capt. Mangabat to evidence said promise. However, in Manila, Capt. Mangabat refused to pay said claim for alleging that the money has not been remitted yet. Despite repeated demands for payment Capt. Mangabat still refused to pay complainant's claim saying that the latter was no longer entitled to receive his claim considering that respondent has paid for his plane fare and his replacement. xxx xxx xxx On the other hand, respondent in its answer specifically denied the money claims of complainant asserting that complainant had obtained substantial cash advances and that it had paid the airfare ticket of complainant and his replacement which consequently compensated, satisfied and/or extinguished the same. Respondent, further claimed that if ever there is any balance due the complainant, the same has not been remitted by its foreign principal Seatrans Offshore Co., Ltd. (pp. 46-48, Rollo.) The POEA ascertained that the amount of $1,451.22 was the cost of airfare for both complainant and his replacement. Hence, it concluded that complainant's airfare was half of that amount, or $725.64 (p. 50, Rollo.) After computing the unpaid wages due Abellaneda as well as the cash advances he had received from his

employer, the POEA rendered judgment ordering respondent to pay to complainant the following amounts, to wit: 1. THREE THOUSAND SEVENTEEN and 54/l00 US DOLLARS (US$3,017.54) or its equivalent in Philippine Currency at the time of payment, representing the balance of unpaid salaries, less cash advances in the total amount of P23,500.00; 2. SEVEN HUNDRED TWENTY FIVE and 64/100 US DOLLARS (US$725.64) or its equivalent in Philippine Currency at the time of payment, representing airfare ticket of complainant's replacement; 3. TEN PERCENT (10%) of the total award as and by way of attorney's fees. There is no other pronouncement. (p. 51, Rollo.) It may be observed that in computing the amount due Abellaneda, the POEA failed to deduct the airfare of US$725.64 which his employer paid for his return trip to Manila. Instead, the POEA erroneously ordered the petitioner to pay him the airfare (US$725.64) of his replacement, as if Abellaneda (instead of the petitioner) had advanced the cost of said airline ticket. In its appeal to the NLRC, the petitioner failed to notice this error in the decision (p. 46, Rollo). It assailed only that part of the decision holding it solidarily liable with its foreign principal for the money judgment in favor of Abellaneda. It argued that: 1. Respondent Blue Manila, Inc. [now petitioner] is merely an agent of a disclosed principal and it has not waived its right to non-liability nor acted beyond its authority; and 2. It is error to state that the joint and solidary liability of the local agent and the foreign principal is well-settled in this jurisdiction. (p. 53, Rollo.) Upon the affirmance in toto of the POEA decision by the NLRC (p. 65, Rollo), the petitioner filed this petition for certiorari pointing out the inconsistency between paragraph 2 of the dispositive portion of the POEA decision and the finding in the body of the decision that since "complainant (Abellaneda *) out of his volition unilaterally preterminated his contract of employment, ..., it is only equitable that respondent (now petitioner *) deduct the repatriation expenses from the complainant's salary. However, it is unfounded to deduct the airfare ticket of complainant's replacement from his salary" in accordance with Sec. H (4), Part II of the Standard Format which provides that "the seaman when discharged shall not be liable for the transportation cost of his replacement." (pp. 48-49, Rollo.) The Solicitor General in his comment on the petition admits an error in the dispositive portion of the POEA's decision. He says: ... petitioner should not have been ordered to pay private respondent the sum of US$725.64 since the latter did not spend for the transportation of his replacement nor was the amount reflected as a deduction from his gross salary receivable. In the same manner, the cost of the ticket for private respondent himself was not reflected as a deduction from his salary receivable. Since petitioner spent for the return ticket of private respondent, the amount must be allowed as additional deduction from private

respondent's unpaid salary so that petitioner may be refunded of the amount spent for the return ticket of private respondent as ruled by the POEA. (pp. 97-98, Rollo.) He argues, however, that since the error was not raised by the petitioner in its appeal to the NLRC, the error is deemed waived. Errors of judgment may not be reviewed in a petition for certiorari under Rule 65 (Hermogenes vs. Amores, 111 SCRA 658). Appeal is the proper remedy. While the rule is that "No error which does not affect the jurisdiction over the subject matter will be considered unless stated in the assignment of errors and properly argued in the brief," the exception to the rule is: "save as the court, at its option, may notice plain errors not specified, and also clerical errors" (Sec. 7, Rule 51, Rules of Court). The mathematical error in the POEA decision is a plain error which this Court may correct (Sec. 7, Rule 51, Rules of Court). To overlook it would be inconsistent with substantial justice, for it would permit a party to unjustly profit from a mistake or inadvertence of another or others, the POEA and the petitioner in this case. It would also put a premium on a technicality contrary to the spirit and purpose of the Labor Code (Art. 221, Labor Code). WHEREFORE, the petition for certiorari is granted. The dispositive part of the decision of the POEA and the NLRC in Case No. M-87-06-525 is hereby modified as follows: WHEREFORE, premises considered, judgment is hereby rendered ordering respondent Blue Manila, Inc. to pay to complainant Emmanuel E. Abellaneda the following amounts, to wit: 1. THREE THOUSAND SEVENTEEN and 54/100 US DOLLARS (US$3,017.54) or its equivalent in Philippine Currency at the time of payment, representing the balance of unpaid salaries, less cash advances in the total of P23,500.00 and the sum of SEVEN HUNDRED TWENTY FIVE and 64/100 US DOLLARS (US$725.64) or its equivalent in Philippine Currency at the time of payment, representing the airfare ticket for the repatriation of the complainant; and 2. TEN PERCENT (10%) of the total award as and by way of attorney's fees. SO ORDERED. Narvasa (Chairman), Cruz, Gancayco and Medialdea, JJ., concur.

Footnotes * Words in parenthesis supplied. $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}79329_3_28_90_footnotes>mainG.R. No. 79329. March 28, 1990. MOBIL EMPLOYEES ASSOCIATION, ET AL. vs. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 79329 March 28, 1990 MOBIL EMPLOYEES ASSOCIATION (MEA) and INTER-ISLAND LABOR ORGANIZATION-IBMEWA (ILO), petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION; MOBIL OIL PHILIPPINES, INC. (MOPI), MOBIL PHILIPPINES, INC. (MPI), MOBIL PETROLIUM COMPANY, INC. (MOBILPET), J.P. BAILLEAUX, E.G. JAVELOSA, V.S. TINTOC and F.U. UMALI; CALTEX (PHILIPPINES), INC. (CPI) and A.R. GUTIERREZ and OTHER MEMBERS OF THE BOARD OF DIRECTORS, respondents. Bayani V. Faylona for petitioners. Siguion Reyna, Montecillo & Ongsiako for private respondents.

FELICIANO, J.: In 1983, Mobil Oil Philippines, Inc. ("MOPI"), a domestic corporation engaged in the marketing of petroleum products, was the subject of sale negotiations between Mobil Petroleum Company of New York ("Mobil Pet") and Caltex Petroleum Company, New York, U.S.A., ("Caltex Pet"). The negotiations covered, among other things, the sale of (a) Mobil Pet's one hundred percent (100%) interest in MOPI to Caltex Pet and (b) Mobil Pet's forty percent (40%) interest in the Bataan Refining Company ("BRC").

To protect its interests, Mobil Employees Association ("MEA"), with whom MOPI-Luzon had an existing Collective Bargaining Agreement ("CBA") covering the period from 1 May 1982 to 30 April 1985, inquired about the impending sale in talking to officials of MOPI. The latter were then non-commital as no definite agreement had as yet been reached. The negotiations on the proposed sale were taking place off-shore, i.e., between two (2) foreign corporations, Mobil Pet and Caltex Pet, outside the Philippines. The sale of Mobil Pet's 40% interest in BRC was made one of the conditions precedent to the perfection of the sale of MOPI. Finally, approval by Philippine government agencies such as the Board of Investments and the Central Bank of the projected sale had yet to be obtained. On 3 August 1983, the Philippine National Oil Company ("PNOC"), owner of sixty percent (60%) interest in BRC signified its intention to buy all of Mobil Pet's interest in BRC. Thus, on the same date, officials of MOPI issued a memorandum circular addressed to all their employees regarding the conclusion of the sale negotiations and eventually, the cessation of MOPI's business operation on 31 August 1983.

In a letter dated 5 August 1983, MOPI's President, J.P. Bailleaux informed all the employees that on 31 August 1983 their employment with the company would cease as a result of MOPI's withdrawal from business. Mr. Bailleaux however, assured them that they would be paid compensation up to or until 5 September 1983; that they would be given separation pay equivalent to 2.25 months basic salary as of 31 August 1983 for every year of service; and that their unused vacation leave for the current year would be paid in cash. Simultaneously, notices of MOPI's withdrawal from business were also sent to the then Ministry of Labor and Employment ("MOLE") and its regional offices in places where MOPI had branches. In a letter dated 12 August 1983, MOPI employees requested Mr. Bailleaux to improve their termination package. On 18 August 1983, MOPI, thru Mr. Bailleaux, improved the employees' termination package considerably: (1) repayment of all personal loans of employees, except those obtained under the company car policy, was waived by the company; (2) for purposes of computation of their termination pay, CBA increases due to union-represented employees in October, November and December 1983 on one hand were incorporated in their basic salary, while the budgeted merit increase from September to December, 1983 for non-bargainable employees on the other hand was added to their basic salary; (3) employees who were not previously scheduled to receive merit increases in 1983 were granted an adjustment to their basic salary; (4) the monthly cost of living allowance was included in the calculation of the encashment of outstanding and unused vacation leave for separating employees; (5) the ten (10) working days sick leave encashment privilege under company policy was granted to separating employees in Salary Groups 1 to 15 pro-rated on the basis of 8/12 of one year privilege; (6) the actual unused sick leave carry-over as of December 31, 1975, maximum of 15 working days, was encashed irrespective of salary grouping of the affected separating employees; and (7) the 1983 year-end bonus was paid to separating employees pro-rated on the basis of 8/12 of one year's privilege. Upon conclusion of the contract of sale between Mobil Pet and Caltex Pet, on 31 August 1983, 1 the latter caused MOPI's dissolution by appropriate filings with the Securities and Exchange Commission ("SEC") in Manila. All the employees separated from the service, 467 of them, were paid a total of P5,646,817.73 including loans waived, pursuant to the revised termination package. Some of these employees were hired, on a contractual basis, to wind up MOPI's affairs, by a newly formed subsidiary of Mobil Pet, Mobil Philippines, Inc. ("MPI"). On 31 August 1983, MEA filed a complaint for unfair labor practice ("ULP"), illegal lay-off and separation benefits against MOPI with the National Labor Relations Commission ("NLRC"), National Capital Region. The complaint was later on amended to include Mobil Philippines, Inc. ("MPI"), Mobil Pet, Caltex Pet and all the members of their respective Boards of Directors as respondents. Still later, another amendment to the complaint was filed to include as additional petitioner Inter-Island Labor Organization ("ILO"), with whom MOPI-Iloilo had a CBA for the period from 1 May 1982 to 31 May 1985. Finally, a supplementary mental complaint was filed charging respondents with another count of ULP, i.e., failure of the latter to check-off and pay petitioners' union dues for September, 1983. In a decision in NLRC Case No. NCR-8-3929-83 dated 12 December 1984, 2 the Labor Arbiter dismissed the complaint for failure of petitioner to prove that MOPI was guilty of ULP and illegal dismissal. The Labor Arbiter found that the termination of all MOPI employees was caused by cessation of MOPI's business operations in the country; that in respect of this kind of termination, MOPI's only task pursuant to the Labor Code was to serve notice of termination on its employees and on the then MOLE and its regional offices at least thirty (30) days before its effectivity date and to pay separation pay to affected employees in accordance

with law; 3 that MOPI did comply with these requirements; that the dissolution was done in good faith, no proof having been presented to establish that the dissolution was carried out to circumvent the CBAs between MOPI and the petitioner unions; that the newly created subsidiary of Mobil Pet, MPI, could not be categorized as a successor-in-interest of MOPI because MOPI's main line of business was the marketing of petroleum products while MPI was engaged in the marketing of Mobil Pet's chemicals and international business like high octane aviation fuels, marine fuels and exports; that Caltex Pet, upon acquiring the shares of stock of MOPI caused the latter's dissolution at the SEC; that MPI's hiring of some of MOPI's employees was merely for the purpose of liquidating and winding up the affairs of MOPI; that MOPI had not restricted exercise of the right to self-organization of members of MEA, who had free access to the use of the conference room of MOPI in Makati, which access had not been availed of by MEA; that MEA had not proved that its counsel, who was not an employee of MOPI, was refused entrance to MOPI's Makati-based conference room; and that, finally, check-off was no longer available considering that MOPI's relationship with the employees had ceased by 31 August 1983. In a resolution of the NLRC Second Division dated 6 April 1987, petitioners' appeal from the decision of the Labor Arbiter was dismissed for lack of merit. In the present Petition for Certiorari, petitioners claim that private respondents committed acts constituting unfair labor practices. These acts, in their allegations, were: (a) the termination of the employment of MOPI's employees without notice to the petitioner unions, in violation of relevant provisions of their CBAS; (b) the failure of private respondents to check off and pay to petitioner unions their dues for September 1983; (c) the dissolution of MOPI and the creation of MPI were done to circumvent the CBA agreements between MOPI and petitioner MEA on the one hand and MOPI and petitioner ILO on the other hand; and (d) the interference with petitioner unions' members in the exercise of their right to selforganization by refusing a non-MOPI employee the use of the company conference room. Petitioners supplementarily argue, apparently in relation to (c) above, that MPI is a successor-in-interest of MOPI, considering that MPI is a wholly owned subsidiary of Mobil Pet in the same manner that MOPI was; that the members of MPI's Board of Directors are the same persons who had served as Directors of MOPI; and that MPI had hired some of MOPI's former employees. We do not find the contentions of petitioners persuasive. The relevant provisions in the CBAs invoked by petitioners are identical and read as follows: EFFECTIVITY Section 1. This agreement shall be effective from the l st day of May l982 to 30th April 1985, subject to automatic extension for yearly periods unless terminated at the end of the original period or any subsequent year thereafter upon sixty (60) days prior written notice by either party to the other of its intention to terminate, modify, amend or

supplement this agreement. (Art. XVIII MEA-MOPI CBA, Annex 'A'; Art. XIX, Annex 'LL' for ILO CBA, emphasis supplied). 4 Art. II Management Clause Section 1. The union recognizes the following as the rights of the company. xxx xxx xxx In cases of termination, dismissal, lay-off and shut down, the company may effect such actions, subject to the provisions of the New Labor Code and its implementing Rules and Regulations. In the exercise of its above rights, time and circumstances permitting the management whenever possible shall enlist the support of the union in actions affecting the vital interests of the bargainable employees. Art II, MEA CBA; Art. II, ILO CBA. 5 Examination of the CBA provisions entitled "Effectivity " shows that the written notice to terminate that is required to be given by either party to the other relates to notice to terminate the CBA at the end of the original three-year period or any subsequent year thereafter, in the absence of which written notice, the duration of the CBA would be automatically extended for one (1) year periods. What is involved in the instant Petition is not, however, the termination of the CBA itself, considering that the sale by Mobil Pet of its wholly owned subsidiary MOPI to Caltex Pet took place in 1983, in the middle of original period of the CBAs. It appears to the Court that the applicable provision is Article II, Section 1, quoted above. Under Article II, Section 1, in cases of termination of services of employees, the company is required to comply with the provisions of the Labor Code and its implementing Rules and Regulations and, "time and circumstances permitting" and "whenever possible," management should enlist the support of the unions in actions affecting the vital interests of the bargainable (i.e., member) employees. It may be well to add that, since actual notice was given to all of MOPI's employees, including, of course, the employees who were members of petitioner unions, such notice may also be regarded as effectively the notice to the unions contemplated by the CBA provision on "Effectivity." Article 284 of the Labor Code as it existed in 1983 provided as follows: Art. 284. Closure of establishment and reduction of personnel . The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking, unless the closing is for the purpose of circumventing the provisions of this title by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. (Emphasis

supplied.) Under Article 284 above, three (3) requirements may be seen to be established in respect of cessation of business operations of an employer company not due to business reverses, namely: (a) service of a written notice to the employees and to the MOLE at least one (1) month before the intended date thereof; (b) the cessation of or withdrawal from business operation petitions must be bona fide in character; and (c) payment to the employees of termination pay amounting to at least one-half (1/2) month pay for each year of service, or one (1) month pay, whichever is higher. As noted earlier, MOPI's employees and the MOLE were notified in writing on 5 August 1983 that the employees' services would cease on 31 August 1983, but that employees would nonetheless be paid their salaries and other benefits until or as of 5 September 1983. We believe that is more than substantial compliance with the notice requirements of the Labor Code. In respect of requirement (c) above relating to payment of termination pay to the employees, we also noted earlier that the termination pay package given by MOPI to all its employees far exceeded the minimum requirement of one-half (1/2) month pay for every year of service laid down in Article 284 of the Labor Code. The very generosity of the termination pay package thus given to the employees argues strongly that the cessation of business operations by MOPI was a bona fide one. It is very difficult for this Court to believe that MOPI would be dissolved and all its employees separated with generous separation pay benefits, for the sole purpose of circumventing the requirements of MOPI's CBA with petitioner unions. Indeed, petitioners have not suggested any reason why MOPI should have undertaken such a fundamental and non-reversible business reorganization merely to evade its obligations under the CBA. The establishment of MPI with the same Directors who had served as such in MOPI and the hiring of some former MOPI employees for the purpose of settling and winding up the affairs of MOPI, does not detract from the bona fide character of MOPI's dissolution and withdrawal from business. MPI's residual business consisting of the marketing of chemicals, aviation and marine fuels as well as exports, all of which constituted a fraction of the prior business of MOPI, similarly does not argue against the bona fide character of the corporate reorganization which here took place. The net effect of the reorganization was the liquidation by Mobil Pet of the great bulk of its former business in the Philippines, the dissolution of the corporate entity of MOPI and the transfer of its physical assets and business to some other Philippine entity owned and controlled by Caltex Pet, presumably Caltex Philippines, without any impact upon the foreign exchange reserves of the Philippines. The final argument of petitioner unions need not detain us for long. Having validly ceased to operate as of 31 August 1983, the duty of MOPI to cheek off and turn over to petitioners union dues from their members for September 1983, or until the expiration of the CBA in accordance with its terms, also ceased. In respect of alleged interference by MOPI with the rights of petitioners' members to self-organization, petitioners have not adduced any compelling reason for overturning the findings of the Labor Arbiter and the NLRC that MOPI had not interferred or encroached upon such right. Petitioner MEA admitted that it had not been denied the use of the company conference room. Indeed, this matter appears to us to be a de minimis affair. We conclude that petitioners have failed to show any grave abuse of discretion or any act without or in excess of jurisdiction on the part of the NLRC in rendering its decision dated 6 April 1987.

WHEREFORE, the Petition for Certiorari is DISMISSED for lack of merit. Costs against petitioners. SO ORDERED. Fernan, C.J. (Chairman), Gutierrez, Jr., Bidin and Cortes, JJ., concur.

Footnotes 1 Comment, p. 12; Rollo, p. 74. 2 Rollo, p. 107. 3 See Article 284 (now Article 283) of the Labor Code dealing with closing or cessation of operation of the company not due to serious business losses. 4 Petition, pp. 8-9; Rollo, pp. 10-11; Comment, p. 6; Rollo, p. 175; underscoring supplied. 5 Petition, p. 13; Rollo, p. 15; underscoring supplied. $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}80042_3_28_90_footnotes>mainG.R. No. 80042 March 28, 1990. PEOPLE OF THE PHILIPPINES vs. ADOLFO QUIONES, ET AL. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 80042 March 28, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADOLFO QUIONES, RONILO CANABA, AMADO CONDA, JR., ZALDY CIVICO and ALFREDO ABAN, accusedappellants. The Office of the Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for accused-appellants.

CRUZ, J.: On June 30, 1986, the bodies of three men were found in a wooded area in barangay Tuaco, Basud, Camarines Norte. The corpses were in a state of decomposition and bore various contusions, stab and bullet wounds, and other injuries indicating foul play. The victims were later positively identified as Alexander Sy, Augusto Gabo and Frisco Marcellana.

In due time, an information for robbery with multiple homicide was filed against Adolfo Quiones, Alfredo Aban, Zaldy Civico, Ronilo Canaba, Amado Conda, Jr., Santiago Solarte, Armando Buitre and one John Doe. On their arraignment on November 13, 1986, Quiones, Canaba, Aban, Civico and Conda pleaded not guilty. On November 20, 1986, Conda, Canaba, and Quiones withdrew their plea of not guilty and entered a plea of guilty. 2 On April 1, 1986, Conda was allowed to withdraw his former plea of guilty and substitute the same With not guilty. 3 Solarte escaped and is presently at large while Buitre was killed in an encounter with the Manila police. 4 Judge Luis D. Dictado of the Regional Trial Court of Daet, Camarines Norte directed the prosecution to present evidence also against Quiones and Canaba despite their plea of guilty, which they maintained even after being informed of its possible consequences, including the death penalty. After trial, judgment was rendered convicting all the accused (except Solarte, who had not yet been arrested, and Buitre). 5

The evidence for the prosecution established that the three victims were riding in a dark blue Mitsubishi car at about seven o'clock in the evening of June 27 or 28, 1986, when they were intercepted along the Maharlika Highway in the above-named barangay by the accused, who had placed sacks on the road to block the way. The three were taken to the nearby woods where they were killed. 6 According to his brother, Napoleon, Alexander Sy was at that time carrying P300,000.00, representing the weekly collections of his business, a necklace with pendant worth P20,000.00, a P10,000.00 diamond ring, and a licensed .22 caliber handgun. 7 All this, together with the other articles belonging to the victims, were taken by the accused, who also used the car in fleeing to Sapang Palay, where it was recovered without the stereo and the spare tire. 8 The first to be picked up for questioning was Conda, who implicated the other accused and led a police team to the house of Sonny Tabalan, where Solarte was hiding, Inexplicably, Conda and Solarte both escaped. However, the police found in Tabalan's house one live grenade, one .38 caliber pistol, a defective air rifle with magazine, and a wooden rifle which he said had been brought there by Solarte and Quiones. In separate extra-judicial statements, 9 both Quiones and Canaba identified these weapons as the ones used in the commission of the crime. 10 Testifying for the prosecution, Francisco Bariuan declared that on July 7, 1986, Solarte came to his house and asked him to pawn a watch for P300.00. Solarte returned the following day with Canaba and Conda. They were carrying guns and a grenade. Solarte informed him that they were the ones who, together with Buitre, Quiones and Aban, had killed Sy and his companions. He and Solarte left later to hire jeep and Canaba and Conda stayed behind, warning him that they would blow up his house if he squealed on them. 11 But the case for the prosecution really depended on the statements of the accused themselves, principally Quiones and Canaba. Both were informed of their constitutional rights before their investigation and were actually assisted by Atty. Santiago Ceneta when they gave their separate confessions. 12 Both confessed to

the crime charged and narrated in detail their participation in its commission. Quiones later testified that he had been subjected to torture to force him to admit the killing and robbery, 13 but as the trial judge noted, no proof of such coercion was ever presented in court. Moreover, the witness' narration of the commission of the offense substantially jibed with the testimony of the other accused, thus negating the suspicion that it had been merely concocted. Understandably, Quiones sought to minimize his participation in this crime by claiming that he stayed in the car when the three victims were forcibly taken to the woods where they were robbed and slain. 14 This is another indication that the had not been manhandled into signing the confession. lt is important to note that when asked at the trial if he was affirming his extra-judicial statement, he categorically said he was, 15 thus in effect reiterating his detailed account of the conduct of the several accused, including their escape to Manila in the stolen car and their distribution of the loot among themselves. This was now a judicial confession. Interestingly, Quiones also admitted to two other hold-ups and his membership in another gang of robbers headed by one Kapitan Mitra, an unnecessary embellishment that lent further credence to his confession. 16 Canaba's own statement corroborated Quiones' confession and provided more elaboration. Like Quiones, he admitted that they had placed sacks on the load and forced the three victims to go with them to the parke where they were unclothed and killed, two by Buitre and the third by Solarte. Quiones remained in the car. Afterwards, the accused distributed the cash among themselves, each receiving P10,000.00, with Solarte and Buitre getting the weapons also. Using Sy's car, they proceeded to Sapang Palay after leaving the weapons with Sonny Tabalan in his house in Tigbinan. 17 Conda also gave an extra-judicial confession, but this was not made with the assistance of counsel and so must be rejected. It is totally worthless and inadmissible against him. Such a confession is anathema in a free society. It was not recognized even during the era of martial law under the 1973 Constitution as interpreted by the Court in People v. Galit. 18 And it is also scorned under the present Constitution, which is more deeply committed to the protection of the rights of the accused. Civico also gave an extra-judicial confession, likewise without the assistance of counsel. 19 But testifying on his behalf, he purged it of invalidity when he freely affirmed it on the stand in the presence of the judge himself and with the assistance of defense counsel. 20 By so testifying, he in effect reiterated but validly this time his earlier narration, replete with all the damming details, of the commission of the crime. The Court is satisfied that the evidence against the accused is sufficient to justify their conviction. The declarations of the prosecution witnesses and more so of defendants Quiones and Canaba, both of whom had pleaded guilty are telling enough to toll their guilt. The seized weapons and the other exhibits offer strong corroboration that has not been refuted. The state of the cadavers of the swollen scrotums and the protruding tongues tell a tale of their own of the defendants' perverted ruthlessness. By contrast, the defense was practically one of mere denial. Even the claimed maltreatment of Quiones has not been established. It is clear from the evidence on record that there was a conspiracy among the perpetrators of the crime to rob and slay. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. This need not be established by direct evidence but may be proven

through the series of acts done by each of the accused in pursuance of the common unlawful purpose.

21

Proof of conspiracy in the case at bar was supplied, paradoxically enough, mainly by defendants Quiones and Canaba themselves. From the time they blocked the road to waylay their prey to the killing and robbing in the woods, to the distribution of the loot and their escape in the stolen car, all the accused were acting in concert and in accordance with their common plan. It is argued that Civico and Aban were not part of the conspiracy and that Quiones himself categorically said so in answer to a question from the prosecution. Interpreting this merely as a gesture of loyalty or perhaps goodwill or charity toward his fellow criminals, we dismiss it as a falsity. On the other hand, Civico himself admitted his own participation in the offense, and in his sworn confession (which he affirmed in court) also implicated Aban. And there is also Bariuan's testimony that Aban was one of the armed group, including the other accused, that went to his house on July 8, 1986, and talked of their commission of the crime. These declarations are enough to place the two defendants within the conspiracy together with the other defendants. In a conspiracy, the act of one is the act of all and every one of the conspirators is guilty with the others in equal degree. Hence, every member of the group that perpetrated the killing and robbery of the three victims must suffer the same penalty prescribed by law even if they had different modes of participation in the commission of the crime. 22 The trial judge found all the accused guilty as charged and sentenced each of them to serve the triple penalty of reclusion perpetua and to pay actual and compensatory damages in the amount of P380,000.00 to the heirs of Alexander Sy, P50,000.00 to the heirs of Augusta Gabo, and P50,000.00 to the heirs of Frisco Marcellana. The firearms were also confiscated in favor of the State. The Court finds that the accused were incorrectly charged with robbery with multiple homicide and so were also incorrectly sentenced by the trial court. The reason is that there is no crime of robbery with multiple homicide under the Revised Penal Code. The charge should have been for robbery with homicide only regardless of the fact that three persons were killed in the commission of the robbery. In this special complex crime, the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294 of the said Code. As held in People v. Cabuena: 23 But it was error to sentence the appellants to three life imprisonments each as if 3 separate crimes had been committed. The complex crime of robbery with homicide is not to be multiplied with the number of persons killed. As was said by this Court in People vs. Madrid (88 Phil. 1), "the general concept of this crime does not limit the taking of human life to one single victim making the slaying of human being in excess of that number punishable as separate individual offense or offenses. All the homicides or murders are merged in the composite, integrated whole that is robbery with homicide so long as the killings were perpetrated by reason or on the occasion of the robbery. The penalty prescribed for the crime of robbery with homicide is reclusion perpetua, to be imposed only once even if multiple killings accompanied the robbery. Furthermore, the discussion by the trial court of the attendant circumstances was unnecessary because Article 63 of the Code provides that when the law prescribes a single indivisible penalty, it shall be applied without regard to the mitigating or aggravating circumstances that may have attended the commission of the crime.

The civil indemnity for each of the three victims is reduced to P30,000.00, to be paid to their respective heirs. The heirs of Alexander Sy are also awarded the additional sum P330,000.00, representing the value of the articles taken from him by the accused. WHEREFORE, the conviction of all the accused-appellants is AFFIRMED, but each of them is sentenced to only one term of reclusion perpetua for the crime of robbery with homicide. The monetary awards are also modified in accordance with the preceding paragraph. It is so ordered. Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea JJ., concur.

Footnotes 1 Rollo, p. 6. 2 Records, pp. 54, 60, 65. 3 Ibid., p. 178. 4 Rollo, p. 53. 5 Ibid., p. 18. 6 Records, p. 39. 7 TSN, January 28, 1987, p. 5. 8 TSN, March 19, 1987, p. 7. 9 Records, pp. 28, 36. 10 TSN, November 27, 1986, pp. 47-48. 11 TSN, March 24, 1987, pp. 6-12. 12 Records, pp. 28, 36. 13 TSN, April 1, 1987, pp. 21-23. 14 Records, p. 29. 15 TSN, April 1, 1987 p. 54. 16 Records, pp. 32-34.

17 Ibid., pp. 37-38. 18 135 SCRA 465. 19 Records, p. 9. 20 TSN, April 8, 1987, pp. 11-13. 21 People v. Pineda, 157 SCRA 71. 22 People vs. Salvador, 163 SC RA 574. 23 98 Phil. 919. $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}82027_3_29_90_footnotes>mainG.R. No. 82027 March 29, 1990 ROMARICO G. VITUG vs. COURT OF APPEALS Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 82027 March 29, 1990 ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents. Rufino B. Javier Law Office for petitioner. Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J.: This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate. On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell

certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus interests, which he claimed were personal funds. As found by the Court of Appeals, 2 the alleged advances consisted of P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati, Metro Manila. On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate." 4 Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement provides: We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime, and after the death of either or any of us shall belong to and be the sole property of the survivor or survivors, and shall be payable to and collectible or withdrawable by such survivor or survivors. We further agree with each other and the BANK that the receipt or check of either, any or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any payment or withdrawal made for our above-mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal. 5 The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7 On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code. 9 The dispositive portion of the decision of the Court of Appeals states: WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is hereby set aside insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged advances to the estate, but the same order is sustained in all other respects. In addition, respondent Judge is directed to include provisionally the deposits in Savings Account No. 35342-038 with the Bank of America, Makati, in the inventory of actual properties possessed by the spouses at the time of the decedent's death. With costs against private

respondent. 10 In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our decisions in Rivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts. 13 The petition is meritorious. The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death." 14 In other words, the bequest or device must pertain to the testator. 15 In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied on, Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other, but simply, their joint holdings: xxx xxx xxx ... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased." But it not infrequently happens that a person deposits money in the bank in the name of another; and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of master and servant, nullifies the assumption that Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof to the contrary, we must give full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that either of them could withdraw any part or the whole of said account during the lifetime of both, and the balance, if any, upon the death of either, belonged to the survivor. 17 xxx xxx xxx In Macam v. Gatmaitan, 18 it was held: xxx xxx xxx This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. As already stated, Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the house in case Leonarda died first, and Leonarda would become the owner of

the automobile and the furniture if Juana were to die first. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first, the time of death determining the event upon which the acquisition of such right by the one or the other depended. This contract, as any other contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon acquired the ownership of the house, in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first.
19

xxx xxx xxx There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marita. relations. 20 Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouse's own properties to the other. It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool. The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code. 24 Under Article 2010 of the Code: ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time. Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and insurance have been held to fall under the first category, while a contract for life annuity or pension under Article 2021, et sequentia, has been categorized under the second. 25 In either case, the element of risk is present. In the case at bar, the risk was the death of one party and survivorship of the other. However, as we have warned:

xxx xxx xxx But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and established against the agreement involved in this case. 26 xxx xxx xxx There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and conjugal partnership. The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no more part of the estate of the deceased. WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE. No costs. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Regalado JJ., concur.

Footnotes 1 Corona v. Court of Appeals, No. 59821, August 30, 1982, 116 SCRA 316. 2 Kapunan, Santiago, M., J., ponente; Puno Reynato S. and Marigomen Alfredo, JJ., concurring. 3 Rollo, 21. 4 Id., 22. 5 Id. 6 Judge (now Justice of the Court of Appeals) Asaali S. Isnani presiding.

7 Rollo, 23. 8 Id., 26. 9 Now, Article 87 of the Family Code. 10 Rollo, 28-29. 11 73 Phil. 546 (1942). 12 64 Phil. 187 (1937). 13 CIVIL CODE, Art. 2010. 14 III TOLENTINO, CIVIL CODE OF THE PHILIPPINES 26 (1973 ed.), citing 1 GOMEZ 53. 15 See CIVIL CODE, supra., arts. 793, 794, 930. 16 Supra. 17 Supra., 547. 18 Supra. 19 Supra., 190-191. 20 CIVIL CODE, supra, art. 160. 21 In the words of the Appellate Court: "Since private respondent and his late wife did not enter into a marriage settlement before marriage, their property relationship was that of conjugal partnership governed by the Civil Code. The system of conjugal partnership prohibits, as already mentioned, donation between the spouses during the marriage, except that which takes effect after the death of the donor, in which case, the donation shall comply with the formalities of a will (Arts. 133, 728, 805). To allow the prohibited donation by giving it a cloak of aleatory contract would sanction a (modification) of a marriage settlement during marriage by a mere stipulation. As mandated by Art. 52, the nature, consequences and incidents of marriage, which is not a mere contract but an inviolable social institution are governed by law, and not subject to stipulation." 22 Id. 23 Id. 24 CIVIL CODE, supra., art. 1193. 25 V PARAS, CIVIL CODE OF THE PHILIPPINES, 782 (1986 ed.)

26 Rivera, supra, 548. $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}83798_3_29_90_footnotes>mainG.R. No. 83798 March 29, 1990 PEOPLE OF THE PHILIPPINES vs. DANILO R. DE LA CRUZ Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 83798 March 29, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO DE LA CRUZ y RUADO, ROMEO SALVADOR y MENDOZA, DANTES BELOSO y DE CASTRO, defendants-Appellants. The Office of the Solicitor General for plaintiff-appellee. Natalio M. Panganiban for appellant Dantes Beloso. Malinis & Associates for appellant Salvador. Sycip, Salazar, Hernandez & Gatmaitan for appellant Danilo Dela Cruz.

MELENCIO-HERRERA, J.: A case of Carnapping with Homicide, as defined and penalized under Section 14 of Republic Act No. 6539, also known as the Anti-Carnapping Act of 1972. There is no question that on 5 December 1984, a Ford Telstar automobile, TX5 bearing Plate No. N-PDW-382, was carnapped, and that ANTHONY Banzon, the registered owner of said car, was shot and killed. The Trial Court decided * that the three accused, Danilo DE LA CRUZ y Ruado, Romeo SALVADOR y Mendoza, and Dantes BELOSO y de Castro, had "conspired to steal away as they in fact stole and carried away the TELSTAR of ANTHONY Banzon"; held them "liable as principals by direct participation" for the crime of Carnapping with Homicide; and sentenced them as follows: WHEREFORE, finding accused Danilo de la Cruz y Ruado, Romeo Salvador y Mendoza and Dantes Beloso y de Castro, guilty beyond reasonable doubt of the crime of carnapping with homicide, penalized under section 14 of R.A. 6539, the Court hereby sentences each of them to suffer the penalty of reclusion perpetua, instead of the

supreme penalty of death, inasmuch as the latter penalty has been deleted under the new constitution; for each accused to jointly and severally indemnify the heirs of the deceased Anthony Banzon in the amount of P30,000.00; also to pay, jointly and severally, P200,000.00 for moral damages; P200,000.00 for lost earnings; P6,002.50 for food expenses during the wake; P8,000.00 for coffin and memorial services; P2,530.00 for interment fees; P800.00 for transportation expenses; and P2,947.00 for the hospitalization expenses of Dionisia Alvarez Banzon, the mother of the deceased. Challenging their conviction, the three accused interposed the present appeal. However, during the pendency hereof, Danilo DE LA CRUZ withdrew his appeal on 1 December 1989. This appeal is thus confined to Dantes BELOSO and Romeo SALVADOR. By piecing together the voluminous testimonial evidence and documentary exhibits, the factual background from the viewpoint of the prosecution may be narrated thus: Danilo DE LA CRUZ, Dantes BELOSO and Romeo SALVADOR were acquaintances. DE LA CRUZ, 31, claimed to be a 1st Lieutenant of the Philippine Army as well as a customs broker. BELOSO, 29, single was a jobless individual. SALVADOR, 36, married, was also unemployed. SALVADOR had known DE LA CRUZ since 16 November 1984 when they first met at Hot City Disco Restaurant. They then met again on 4 December 1984 (pp. 5-6, TSN, 5 March 1986). BELOSO, for his part, had known DE LA CRUZ since April of 1984 and had met with him for about 4 or 5 times thereafter (p. 6, TSN, 9 October 1985). BELOSO stayed with DE LA CRUZ in the latter's house for several months. BELOSO also met SALVADOR once sometime in November 1984 at a night club somewhere in Roxas Boulevard. Evidence further shows that on the eve of 4 December 1984, DE LA CRUZ, BELOSO and SALVADOR met at the Kool King Restaurant along Pasong Tamo Street on Makati to discuss a certain "car deal" that would take place the following day 5 December 1984 (p. 13, TSN, 6 January 1986). On 29 November 1984, BELOSO caused the placing of an advertisement in the Bulletin Today, page 29, column 3, reading: Wanted to Buy Car Balikbayan 82-83 Silver Edition or Lancer Call 8164865 8164866 Mr. Garcia 9-5 (Exhibit "DD-l" p. 673-B, Records) The victim, ANTHONY Banzon, a 23-year ld student of aeronautical engineering, was among those who responded to the advertisement and signified his interest to sell his 1983 model Telstar. On 5 December 1984, at around 9:00 A.M., Dionisia Alvarez Banzon, mother of ANTHONY, received a telephone call from a certain Mike Garcia who informed her that he was the buyer of her son's car. ANTHONY, arriving home a little later, was informed by his mother of the telephone call. The victim, together with his mother, then left for Garcia's office located at the Centrum Condominium, Makati, Metro Manila, on board the Telstar. They arrived at their destination a little after 11:00 A.M. Once there, a man just across the street where their car was parked was pointed to by ANTHONY as Mr. Garcia, the person interested in buying the car. In the identification made by Dionisia Alvarez Banzon during the trial, that man turned out to be accused Dantes BELOSO. Dionisia then proceeded to Shoemart on a taxi, leaving ANTHONY at the Centrum (pp. 5358, TSN, 29 May 1985), little suspecting that it would be the last time that she would see her son.

Inside the Centrum office ANTHONY and BELOSO discussed the price of the car, which ANTHONY fixed at P188,000.00. BELOSO then advised ANTHONY to wait for Danilo DE LA CRUZ to arrive as he would be the one to decide whether or not to buy the car. After a while, DE LA CRUZ arrived and BELOSO introduced ANTHONY to the former. At around 1:00 P.M., DE LA CRUZ and ANTHONY left the office to go to the former's house. ANTHONY brought with him an envelope containing the certificate of registration, official receipt, and other papers pertaining to the car (pp. 9-12, TSN, 9 October 1985). When they arrived at the house, SALVADOR was already there. SALVADOR recounted in his Sworn Statement (Exhibit "B ") that DE LA CRUZ had told him to have some snacks at a nearby "lugawan" while he and ANTHONY talked. When SALVADOR returned, he saw DE LA CRUZ and ANTHONY seated near the dining table. SALVADOR then went to the comfort room and while inside, he heard a shot. When he got out, he found ANTHONY sprawled on the floor, the latter's head bathed in his own blood, and saw DE LA CRUZ holding a gun (pp. 640-641, Records). Strangely enough, the dyphenylamine paraffin tests done on DE LA CRUZ on 6 December 1984 showed negative results (Exhibit N") while those on BELOSO and SALVADOR proved positive (Exhibits "O" and P The paraffin casts on the latter two were taken on 7 December, which were then sealed and preserved until the actual testing on 11 December 1984. Continuing with the facts at around 3:00 P.M., Dantes BELOSO, who was at the Centrum office, received a call from DE LA CRUZ, who instructed him to proceed to his (DE LA CRUZ) house at Obrero Street, Makati, Metro Manila. On BELOSO called for DE LA CRUZ, who came out and handed to him the key of the Telstar. DE LA CRUZ instructed BELOSO to drive for SALVADOR who did not know how to drive. BELOSO then boarded the car and waited for SALVADOR who came out of the house some 15 to 20 minutes later. In his Affidavit (Exhibit "C-11 "), BELOSO recounted that SALVADOR related to him that he had seen a dead man in the house of DE LA CRUZ but that they were to keep it to themselves because he (SALVADOR) was seared of DE LA CRUZ. SALVADOR then showed to BELOSO a phone number of a certain Mr. Hernandez who was interested in buying the car. After driving a short distance, BELOSO stopped at a telephone booth to call Hernandez to ask for the latter's address. They then started to look for the place but failed to locate it. Since BELOSO was already hungry, he parked the car at the Brunch Restaurant in front of UERM and took his snack thereat while SALVADOR took a taxi and proceeded to Hernandez (p. 13-16, TSN, 9 October 1985). SALVADOR was able to reach Hernandez' place at about 4:00 P.M. Rodolfo Hernandez recalled during the trial that SALVADOR introduced himself as ANTHONY Banzon and offered to sell a car, which was parked at a nearby Caltex station. They proceeded to the station to look at the car. Hernandez then looked at the certificate of registration of the car in the name of ANTHONY Banzon and the residence certificate presented to him by SALVADOR, which was also in the name of ANTHONY Banzon. Believing that SALVADOR was really ANTHONY Banzon, Hernandez then suggested that they go to the actual buyer at the Metropolitan Pawnshop at P. Campa Street, Sampaloc, Metro Manila, leaving BELOSO at the UERM. At the pawnshop, they met Hernandez' contact, Patrolman Rosauro de la Rosa, who is the brother of the owner of the pawnshop. Again, SALVADOR introduced himself as ANTHONY Banzon, the owner of the car and offered to sell it for P130,000.00. Hernandez then left the pawnshop (pp. 85-95, TSN, 1 March 1985; pp. 4-13, TSN, 8 March 1985). During the negotiation, Pat. de la Rosa became suspicious that the car had been stolen because of the low price of P130,000.00, and when told that he would be paid the next day, SALVADOR insisted that if possible, the former pay P100,000.00 in advance as he was in need of money very badly. On top of that, when Pat. de la Rosa declined to pay immediately, SALVADOR left the car behind. Pat. de la Rosa then reported his suspicions to Sgt. Reynaldo Roldan of the Quezon City Police (pp. 8-19, TSN, 8 March 1985). Sgt. Roldan

forthwith dispatched Pfc. Damaso Osma, Pat. Edgardo de Leon, Pat. Anthony Name and Pat. Justiniano Estrella, Jr., to P. Campa Street (pp. 95-96, TSN, 27 February 1985; p. 4, TSN, 25 March 1985). At P. Campa Street, the dispatched policemen, together with Pat. de la Rosa, posted themselves and waited for SALVADOR to arrive. At about 8:00 P.M., SALVADOR did arrive together with BELOSO. They got inside the car with BELOSO taking the steering wheel. The policemen approached and asked the two to alight. BELOSO started shouting that he was ANTHONY Banzon, the owner of the car and showed the car registration and a residence certificate, all in the name of ANTHONY Banzon. This all the more aroused Pat. de la Rosa's suspicion for earlier it was SALVADOR who claimed to be ANTHONY. The policemen decided to take the two to the Quezon City Police Headquarters for questioning (pp. 97-102, TSN, 29 February 1985; pp. 21-28, TSN, 8 March 1985; pp. 2631, TSN, 13 March 1985; pp. 71-76, TSN, 18 March 1985). Meanwhile, at around 9:00 P.M. of the same day, Cynthia Juarez a boarder of the house of DE LA CRUZ, reported to Pfc. Evelio Bactad of the Makati Police that when she arrived at the boarding house she found it unlocked but with the lights on and a dead man in the kitchen. The house is located at Obrero Street, Makati, Metro Manila. Bactad proceeded to the place to conduct an investigation and there found a lifeless body of a man, a already in the state of rigor mortis with a gunshot wound on the forehead, and an empty super.38 caliber shell about two feet away from the left side of his body (pp. 14-21, TSN, 25 February 1985). Cynthia Juarez mistakenly identified the body to be that of her landlord Danilo DE LA CRUZ. At about 2:00 A.M. of 6 December 1984, a male person went to the same Makati police station to report that his house has been ransacked by someone. He introduced himself as Danilo DE LA CRUZ. Pfc. Bactad, perplexed as to the identity of the dead body, held DE LA CRUZ for further questioning (pp. 14-25, TSN, 25 February 1985). Pfc. Bactad then coordinated with the Quezon City Police anti-carnapping unit, which had given notice that they had apprehended two persons, Romeo SALVADOR and Dantes BELOSO. These two were later turned over to the Makati Police Precinct. Pfc. Bactad was subsequently able to straighten out the identity of the victim to be ANTHONY Banzon (pp. 22-27 and 95, TSN, ibid.). The medical examination conducted by a medicolegal officer of the NBI on the cadaver of the victim on 6 December 1984 revealed the cause of death to be "hemorrhage, intracranial severe, secondary to gunshot wound." The bullet used was identified as a .38 caliber gun, fired at short distance from the victim, entered the back of the head and exited through his forehead. The same physician placed the time of death at about four (4) hours, more or less, after he had taken his last meal (pp. 57-59, TSN, 27 February 1985). Sgt. Reynaldo Roldan, a Quezon City policeman, who was called by Pat. de la Rosa to report the latter's suspicion about a carnapped vehicle, interrogated BELOSO and SALVADOR and elicited their modus operandi as follows: 1) blank residence certificates were secured and kept by the three accused; 2) their "business" of buying of cars was advertised in the newspapers; 3) the ads yielding fruitful results, prospective sellers would be asked about their respective certificates of registration and other documents; 4) when the portion for the signature of the owner is found to be blank, the accused would pretend to test the car, demand the certificate of registration, and fill in the signature space with their own signature; 5) present the same certificate of registration bearing their own signature, along with the residence certificate supplied by DE LA CRUZ which is made to coincide with the name and signature appearing in the certificate of registration, to the prospective buyers; and 6) pretend to test the car although, in fact, just waiting for the opportunity to leave the owner of the car behind so that the accused could dispose of the same in the meantime. All accused, on the other hand, profess innocence. BELOSO claims that he was merely hired to man the

office at Centrum Condominium; that he had nothing to do with the carnapping of ANTHONY'S vehicle; that he went to the house of DE LA CRUZ at about 3:00 P.M. of 5 December 1984, but was not allowed to enter the same; and that while he was by the gate, he was given the key of ANTHONY's car by DE LA CRUZ to drive for SALVADOR who did not know how to drive; that, in turn, the registration papers of the car and other documents were handed to SALVADOR with specific instructions to bring the vehicle to the prospective buyer, Hernandez. For his part, SALVADOR claims that he was merely called by DE LA CRUZ to go to the latter's house to assist BELOSO in the sale of the car. He denies having been a long acquaintance of either DE LA CRUZ or BELOSO. He claims that on 5 December 1984 DE LA CRUZ instructed him to go to the Royal Beauty Parlor between 10:00 and 11:00 A.M., which he did. After waiting for some ten (10) to fifteen (15) minutes, DE LA CRUZ arrived on board a taxi cab. They proceeded to DE LA CRUZ's house. Arriving thereat and finding it closed, they went to Lugawan sa Makati for a snack. After eating, they returned to DE LA CRUZ's house around 12:00 noon. A few minutes later, Elmer Mabunga, driver of DE LA CRUZ arrived (pp. 14-15, TSN, March 5, 1986). At 12:30 P.M., the three of them left the house. Elmer rode in a jeepney while they took a taxi. DE LA CRUZ dropped him off at the Royal Beauty Parlor while DE LA CRUZ proceeded to Centrum Condominium. He was instructed by DE LA CRUZ to wait from 2:00 to 2:30 P.M. after which he should go back to the house. At around 3:00 P.M., he went back and after calling DE LA CRUZ'name, the latter came out of the house, opened the first door, and told him to wait for BELOSO. At around 3:20 to 3:30 P.M., BELOSO arrived. From here on, the testimonies of BELOSO and SALVADOR are substantially similar in that they were given the keys of the car and some documents and told to go to a certain Hernandez, a prospective buyer. In a nutshell, it is BELOSO and SALVADOR's position that they were unaware of any carnapping; that they were in a regular business transaction to sell a car with promise of a commission; that they were not in the house of DE LA CRUZ in the early afternoon of 5 December 1984 when ANTHONY was killed; that they were unaware of the killing, of ANTHONY which, according to SALVADOR was DE LA CRUZ' own doing. Both BELOSO and SALVADOR are in unison in claiming that their statements, marked as Exhibits "B" for SALVADOR, and "C" and "K" for BELOSO, are inadmissible in evidence as the same were extracted by force and without the presence of counsel. The Trial Court gave no credence to the exculpatory allegations of BELOSO and SALVADOR and convicted them, as well as DE LA CRUZ, of Carnapping with Homicide. Hence, this appeal, filed originally by all three accused. Appellants BELOSO and SALVADOR ascribe the following errors to the Trial Court: By Dantes BELOSO: I. The Trial Judge who had no occasion to observe demeanors of witnesses as he merely prepared the decision in this case as the trial was entirely heard by Justice Elbinas erred in concluding that at around 9:00 A.M. of December 5, 1984 the late Anthony Banzon was called by Beloso. II. The Lower Court, with due respect, gravely erred in holding that the three (3) accused conspired in stealing the car subject of this case. III. The Lower Court again, with due respect, gravely erred in applying the case of People

vs. Mangulabnan, et al. in concluding that the three (3) accused are liable in the death of Anthony Banzon and that Beloso could have been present at the time the victim was shot. IV. The Court a quo gravely erred in ruling that all the accused conspired in the killing of Anthony Banzon and Beloso 'could have been inside the house and was present at the time Banzon was shot' because if he were not present, 'he could have been found negative of gun powder nitrates. V. All in all, the Lower Court, as far as Beloso is concerned, as shown by indubitable facts heretofore and/or hereinafter discussed and as facts and evidence on records will show, committed grave error in convicting Beloso of the crime charged. By Romeo SALVADOR: The Court a quo erred: I. Gravely in admitting Salvador's alleged extrajudicial confession (Exibit 'B') taken by police officers during custodial investigation without assistance of counsel. II. In giving equal weight and effect on the prosecution's evidence presented during the joint trial which are not applicable to appellant Salvador. III. In finding Salvador a co-conspirator of the crime charged although his admitted participation was only to assist in the aborted sale of the car without knowledge that it was a 'carnapped' vehicle and without knowledge that the registered owner was earlierkilled. IV. In convicting Salvador in the absence of proof beyond reasonable doubt. It may, indeed, be that Judge Phinney C. Araquil, who penned the Trial Court Decision, had not heard the case at all, the trial having been conducted by then Judge Jesus M. Elbinias, who was elevated to the Court of Appeals. Nonetheless, the transcripts of stenographic notes taken during the trial were extant and complete and there was no impediment for Judge Araquil to have decided the case. It is not unusual for a Judge who did not try a case to decide it on the basis of the record (People vs. Escalante, L-37147, 22 August 1984, 131 SCRA 237). The fact that the Judge who heard the evidence is not the one who rendered the judgment and that for that reason the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous (Co Tao vs. Court of Appeals, 101 Phil. 188 [1957]). The rest of the assigned errors center on the findings of conspiracy and guilt by the Trial Court and may be considered jointly. The evidence sustains those findings. The three accused had known one another some time before December 1984 at relatively different periods. Before Pfc. Bactad at the police station, BELOSO and SALVADOR identified DE LA CRUZ as an "associate" although the latter denied it (p.29, TSN, 25 February 1985,). BELOSO had been hired through DE LA CRUZ to

man the office at Centrum Condominium, Perez Street, Legazpi Village, Makati. On 4 December 1984, they had gotten together at the Kool King Restaurant at Pasong Tamo, Makati, to discuss a "car deal" to be consummated the next day. Dantes BELOSO, masquerading for Mike Garcia, had caused an advertisement to be published in the 28 and 29 November issues of the Bulletin Today. On the same dates, BELOSO had rented an office space at the Centrum Condominium under the name of said Garcia for the two days mentioned, and again on 5 December 1984 at P50.00 per hour, complete with staff facilities. BELOSO held himself out as in the business of buying cars. The victim, ANTHONY, responded to the ad, went to said office and offered to sell his Telstar, Model '83. Posing again as Mike Garcia, BELOSO called ANTHONY's house at around 9:00 A.M. on 5 December 1984 and informed the latter's mother that he was the buyer of the car. When ANTHONY went to the Centrum office, BELOSO told ANTHONY to wait for DE LA CRUZ. Upon the latter's arrival, he had a talk with ANTHONY. DE LA ORTIZ made sure that ANTHONY's certificate of registration, official receipt and other pertinent papers of the Telstar were in order (pp. 9-12, TSN, October 9, 1985). ANTHONY and DE LA CRUZ then proceeded to the latter's house at Barrio Obrero, Makati. Meanwhile, SALVADOR was instructed by DE LA CRUZ also to wait at the latter's house. When DE LA CRUZ and ANTHONY arrived, the former told SALVADOR to take a snack somewhere while he (DE LA CRUZ) and ANTHONY talked. It was after SALVADOR returned to the house that the killing of ANTHONY transpired between 12:00 noon and 2:00 P.M. Later, at about 3:00 P.M., DE LA CRUZ then allegedly called for BELOSO at the Centrum office. When BELOSO arrived, DE LA CRUZ handed him the keys to the car, which was parked nearby. DE LA CRUZ also handed to SALVADOR a brown envelope containing papers of the Telstar with the instruction to bring the car to a certain Hernandez, who was buying the car. Following that bidding, the two left and looked for Hernandez. But unable to locate him, SALVADOR went on his own in a taxi. BELOSO was left with the car at the Brunch Restaurant near UERM. After having located Hernandez, SALVADOR, Hernandez, and a driver went back to where BELOSO was, took the car and proceeded to the Metropolitan Pawnshop leaving BELOSO behind. At this place, the three alighted. SALVADOR introduced himself as ANTHONY Banzon, the owner of the car and the name appearing in the car's Certificate of Registration, to Pat. Rosauro de la Rosa, brother of the pawnshop owner who was the real buyer of the car. SALVADOR even showed the Registration Certificate and a Residence Certificate, purportedly ANTHONY'S, as proof thereof. SALVADOR then asked for P130,000.00 as selling price. Pat. de la Rosa agreed but asked that payment be made the following day as banks were already closed. SALVADOR, however, insisted on payment that evening as he was badly in need of money. This made Pat. de la Rosa suspicious that the car had been stolen, and reported t6 the Quezon City police. Pat. de la Rosa then instructed SALVADOR to return to the pawnshop the next day. As SALVADOR did not know how to drive he left the Telstar at the pawnshop, went to the Brunch Restaurant near UERM, picked up BELOSO so the latter could drive the car back to DE LA CRUZ. When they returned that night and boarded the car, elements of the Quezon City police approached them and asked them questions. BELOSO got down from the car and started shouting that he was ANTHONY, the owner of the car (p. 23, TSN, March 8, 1985). Notwithstanding, the police brought them to the Quezon City police headquarters. Here, the investigators recovered some documents inside BELOSO's clutch bag, among them, a residence certificate in ANTHONY's name (Exhibit "H-1"). In BELOSO's possession were also found a motor registration certificate in ANTHONY's name, two (2) blank residence certificates and one residence certificate in the name of Mark Garcia (p. 120, TSN, 27 February 1985). BELOSO's and SALVADOR's protestations of innocence do not inspire belief. Both of them posed as ANTHONY at one time or another during the "negotiations." When SALVADOR offered to sell the car to Rodolfo Hernandez, he introduced himself as ANTHONY Banzon. He even presented to Hernandez a car registration certificate and a residence certificate all in the name of ANTHONY Banzon. Later, when Hernandez introduced SALVADOR to Pat. de la Rosa, the former's contact, SALVADOR again introduced himself as ANTHONY Banzon (pp. 85-95, TSN, 1 March 1985; pp. 4-13, TSN, 8 March 1985). These

misrepresentations are indication that he knew the car was stolen. at further bolsters the conclusion that he had a hand in the commission of the crime was the fact that when he and BELOSO were arrested by the Quezon City anti-carnapping unit, it was now BELOSO claiming to be ANTHONY Banzon (pp. 97-102, TSN, 29 February 1985; pp. 21-28, TSN, 8 March 1985; pp. 26-31, TSN, 13 March 1985; pp. 71-76, TSN, 18 March 1985). BELOSO's claim that he was ANTHONY Banzon and SALVADOR's silence in the face of such claim, despite the fact that he had earlier misrepresented himself as ANTHONY, all the more reveal that the two of them were one in keeping secret the true ownership of the car. A more perfect example of a conspiracy cannot be contrived BELOSO and SALVADOR shared the same purpose with DE LA CRUZ in carnapping the vehicle with a view to selling it at a low price and making money which they badly needed. They were united in its execution as may be inferred from the facts and circumstances established by the evidence. Conspiracy need not be established by direct evidence of the acts charged, but may and generally must be proved by a number of indefinite acts, condition and circumstances which vary according to the purpose to be accomplished (People vs. Colman, et al., G.R. Nos. L-6652-54, 28 February 1958, 103 Phil. 6). The existence of conspiracy may be inferred from acts tending to show a community of design or purpose (People vs. Mada-I Santalani, G.R. No. L-29979, 28 September 1979, 93 SCRA 315). What of the killing of ANTHONY? There is no question that he was killed "in the commission of the carnapping" (Sec. 14, RA 6539). It is clear from the evidence as well that he was killed in the house of DE LA CRUZ between 1:30 and 2:00 P.M. on 5 December 1984 (Brief, Danilo de la Cruz, p. 19). It was at that house where ANTHONY was found dead by a boarder by the name of Cynthia Juarez at around 9:00 P.M. of the same date. DE LA CRUZ tried to camouflage the killing by ostensibly reporting to the police that his place had been ransacked and that a person had been killed. As Pat. Bactad testified, however, when he and a police team went to the house, belongings therein were found wrapped and ready to be transferred. BELOSO claims that he was sent for by DE LA CRUZ from the Centrum office only at 3:00 P.M. on 5 December 1984 and was not, therefore, at the DE LA CRUZ residence at the time the killing was perpetrated in the nearly afternoon of that date. Similarly SALVADOR claims that he went to the DE LA CRUZ house only at 3:00 P.M. and when he did he was merely at the gate and did not enter the house. Consequently they conclude that neither of them can be held culpable for ANTHONY'S death. Those denial, however, cannot prevail over the physical evidence that BELOSO and SALVADOR were found positive for nitrates, which means that they were within the vicinity when the gun was fired. When a paraffin or nitrate test is applied, there appears gunpowders nitrate which are dark blue collor. These spects are nothing more or less than minutes particles of nitrate which have blown into the skin by what might be termed the invisible backfire of the pistol, but they do not appear unless a hand has been instrumental in pulling the trigger, (Rbinson, Science Cathes the Criminal, pp. 99-100). The fact that DE LA CRUZ was negative for powder burns, although he was tagged by SALVADOR as the triggerman, can only mean that he knew hoe to sufficiently protect himself, a knowledge that must have been derived form his stint as an officer of the Philippine Army. The identical claims of BELOSO and SALVADOR that they were heavy smokers, of about 3 packs of Marlboro cigarretes a day, which accounts for the pressent of nitrate in both their right and left hands, is contradicted by the testimony of the forensic chemist that nitrates produced by cigarrete smoking have different

characteristics form those caused by powder burns. BELOSO's and SALVADOR's complicity in the kiling is, therefore, established not by any of the extradujicial confesions (Exhibits "B", "C" and "K") but by the physical evidence on record. So that, even if those sworns statements are declared inadmissible for having been given without the presence of the counsel, their culpability is borne out by the evidence indefendent of the same. That the respective participations of BELOSO and SALVADOR in the kiling is not claercut is of no moment: In order to determine the existence of the crime of robbery with homicide, it is enough that a homicide would result by reason or on the occasion of the robbery and it is immaterial that the death would supervene by mere accident provided that the homicide be produced by reason or on occasion of the robbery inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime that has to be taken into consideration." (People vs. Mangulabnan, et al., 99 Phil. 992 [1956]). Moreover, conspiracy having been adequately proven, all the conspirators are liable as co-principals regardless of the extent and character of their participation because in contemplation of law, the act of one is the act of all. The degree of actual participation by each of the conspirators is immaterial (People vs. Loreno, G.R. No. 54414, 9 July 1984, 130 SCRA 311). As conspirators, each is equally responsible for the acts of their co-conspirators. At this juncture, we find it apropos to state that earmarks of the voluntariness of the extrajudicial confessions exist. For one, there is no convincing evidence of maltreatment. For another, SALVADOR subscribed and swore to his Statement before Sr. State Counsel Norberto C. Ponce who certified "I have personally examined the affiant and that I am satisfied that he voluntarily executed and understood his affidavit." Signing as witness was Atty. Florito S. Macalino of CLAO (Exhibit "B-5"). Similarly, BELOSO subscribed and swore to his Affidavit before 2nd Asst. Fiscal Dennis M. Villa Ignacio, with Atty. William T. Uy of CLAO, Makati, as witness (Exhibit "C-4"). Of record also is the fact that during the execution of the extrajudicial confessions, Tim Olivares, a police reporter of the newspaper "Tempo" was present. This would further negate the alleged maltreatment suffered by BELOSO and SALVADOR at the hands of police authorities. That reporter would surely have pounced upon any sign or report of maltreatment (People vs. Ladrera, G.R. No. 55539, 21 May 1987, 150 SCRA 113). Further, in BELOSO's Affidavit, Exhibit "'C", erasures appear, duly countersigned by him, which clearly negate his claim that his confession was made involuntarily (People vs. Tanchico, G.R. No. L-23690, 23 October 1979, 93 SCRA 575). The crime committed is Camapping with Homicide, with carnapping defined as "the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things" (Sec. 2, RA No. 6539). The penalty prescribed by the same law reads: Sec. 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when

the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping (Sec. 14, ibid.). In this case, the owner of the carnapped vehicle was killed in the commission of the carnapping obviously to gain possession of the car, its registration certificate and other pertinent papers, get the owner out of the way, and thus facilitate its sale to a third party, in keeping with the modus operandi of the perpetrators. WHEREFORE, the judgment appealed from is hereby AFFIRMED, with proportionate costs against accusedappellants Dantes Beloso and Romeo Salvador. SO ORDERED. Padilla, Sarmiento and Regalado, JJ., concur. Paras J., took no part.

Footnotes * Penned by Judge Phinney C. Araquil. $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}83843_44_4_5_90_footnotes>mainG.R. Nos. 83843-44 April 5, 1990 ROSITA LABRADOR vs. COURT OF APPEALS Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. 83843-44 April 5, 1990 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants, vs. COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-appellees. Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.: The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador is dated, as provided for in Article 810 2 of the New Civil Code. The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will. On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special Proceeding No. 922I of the alleged holographic will of the late Melecio Labrador. Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for only Five Thousand (P5,000) Pesos. ( Rollo, p. 37) Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly had already acquired by devise from their father Melecio Labrador under a holographic will executed on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is fictitious. After both parties had rested and submitted their respective evidence, the trial court rendered a joint decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and void the Deed of Absolute sale. The court a quo had also directed the respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from December 20, 1976, when it was paid to vendee a retro. Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified said joint decision of the court a quo by denying the allowance of the probate of the will for being undated and reversing the order of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence, this petition. Petitioners now assign the following errors committed by respondent court, to wit:

I THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and II THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS. The alleged undated holographic will written in Ilocano translated into English, is quoted as follows: ENGLISH INTERPRETATION OF THE WILL OF THE LATE MELECIO LABRADOR WRITTEN IN ILOCANO BY ATTY. FIDENCIO L. FERNANDEZ I First Page This is also where it appears in writing of the place which is assigned and shared or the partition in favor of SAGRADO LABRADOR which is the fishpond located and known place as Tagale. And this place that is given as the share to him, there is a measurement of more or less one hectare, and the boundary at the South is the property and assignment share of ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as the SEA as it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the time for me being now ninety three (93) years, then I feel it is the right time for me to partition the fishponds which were and had been bought or acquired by us, meaning with their two mothers, hence there shall be no differences among themselves, those among brothers and sisters, for it is I myself their father who am making the apportionment and delivering to each and everyone of them the said portion and assignment so that there shall not be any cause of troubles or differences among the brothers and sisters. II Second Page And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father. Now, this is the final disposition that I am making in writing and it is this that should be followed and complied with in order that any differences or troubles may be forestalled and nothing will happen along these troubles among my children, and that they will be in

good relations among themselves, brothers and sisters; And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all others like the other kind of bamboo by name of Bayog, it is their right to get if they so need, in order that there shall be nothing that anyone of them shall complain against the other, and against anyone of the brothers and sisters. III THIRD PAGE And that referring to the other places of property, where the said property is located, the same being the fruits of our earnings of the two mothers of my children, there shall be equal portion of each share among themselves, and or to be benefitted with all those property, which property we have been able to acquire. That in order that there shall be basis of the truth of this writing (WILL) which I am here hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am signing my signature below hereof, and that this is what should be complied with, by all the brothers and sisters, the children of their two mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo) The petition, which principally alleges that the holographic will is really dated, although the date is not in its usual place, is impressed with merit. The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It is worthy of note to quote the first paragraph of the second page of the holographic will, viz: And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father. (emphasis supplied) (p. 46, Rollo) The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. These requirements are present in the subject will. Respondents claim that the date 17 March 1968 in the will was when the testator and his beneficiaries entered into an agreement among themselves about "the partitioning and assigning the respective assignments of the said fishpond," and was not the date of execution of the holographic will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with Article 783 which defines a will as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death." Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was a will.

The act of partitioning and the declaration that such partitioning as the testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the nature of the estate property to be disposed of and of the character of the testamentary act as a means to control the disposition of his estate. Anent the second issue of finding the reimbursement of the P5,000 representing the redemption price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property belonging to another and which they had no authority to sell, rendering such sale null and void. Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession of the property for its disposition in accordance with the will. Petitioners therefore deserve to be reimbursed the P5,000. PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00). SO ORDERED. Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes 1 Penned by Justice Jorge S. Imperial and concurred in by Justices Jose A.R. Melo and Manuel C. Herrera 2 Article 810 provides: A person may execute a holographic will which must be entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. $ + GRSI Copyrightregno N94-027 {bmr footnote.bmp}93419_32_9_18_90_footnotes>mainG.R. Nos. 93419-32 September 18, 1990 PEOPLE OF THE PHIL. vs. GUALBERTO P. DELGADO Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 93419-32 September 18, 1990 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. GUALBERTO P. DELGADO, PRESIDING JUDGE, RTC, Br. 29, Toledo City, ELSIE RAGO LUMANGTAD, VIVENCIA ABARIDO, AVELINA BUTASLAC, ROSELLANO BUTASLAC, HAYDELISA LUMANGTAD, SILVESTRE

LUMANGTAD, MAXIMO RACAZA, NENA RACAZA, VICTORIANO/ VICTOR RAGO, EDNA TEJAS, MERCEDITA TEJAS, TEOFISTO TEJAS, BERNABE TOQUERO, JR., and PEDRO RAFAELA, respondents. Jose P. Balbuena for petitioner. Fred B. Casas for respondents.

GANCAYCO, J.: The authority of the Regional Trial Court (RTC) to review the actions of the Commission on Elections (COMELEC) in the investigation and prosecution of election offenses filed in said court is the center of controversy of this petition. On January 14, 1988 the COMELEC received a report-complaint from Atty. Lauron E. Quilatan, Election Registrar of Toledo City, against private respondents for alleged violation of the Omnibus Election Code. The COMELEC directed Atty. Manuel Oyson, Jr., Provincial Election Supervisor of Cebu, to conduct the preliminary investigation of the case. After conducting such preliminary investigation, Oyson submitted a report on April 26, 1989 finding a prima facie case and recommending the filing of an information against each of the private respondents for violation of Section 261 (y) (2) and (5) of the Omnibus Election Code. The COMELEC en banc in minute resolution No. 89-1291 dated October 2, 1989 as amended by resolution No. 89-1574 dated November 2, 1989 resolved to file the information against the private respondents as recommended. On February 6, 1990, fifteen (15) informations were filed against each of private respondents in the RTC of Toledo City docketed as Criminal Cases Nos. TCS-1220 to TCS-1234. In three separate manifestations the Regional Election Director of Region VII was designated by the COMELEC to handle the prosecution with the authority to assign another COMELEC prosecutor. Private respondents, through counsels, then filed motions for reconsiderations and the suspension of the warrant of arrest with the respondent court on the ground that no preliminary investigation was conducted. On February 22, 1990 an order was issued by respondent court directing the COMELEC through the Regional Election Director of Region VII to conduct a reinvestigation of said cases and to submit his report within ten (10) days after termination thereof. The Toledo City INP was directed to hold in abeyance the service of the warrants of arrest until the submission of the reinvestigation report. 1 On March 16,1990 the COMELEC Prosecutor filed a motion for reconsideration and opposition to the motion for reinvestigation alleging therein that it is only the Supreme Court that may review the decisions, orders, rulings and resolutions of the COMELEC. This was denied in an order dated April 5, 1990 whereby the respondent trial court upheld its jurisdiction over the subject matter. 2 Hence, the herein petition for certiorari, mandamus and prohibition wherein the following issues are raised: (a) Whether or not the respondent Court has the power or authority to order the Commission on Elections through its Regional Election Director of Region VII or its Law

Department to conduct a reinvestigation of Criminal Cases Nos. TCS-1220 to TCS-1234; (b) Whether or not the respondent court in issuing its disputed order dated April 5,1990 gravely usurped the functions of the Honorable Supreme Court, the sole authority that has the power to review on certiorari, decisions, orders, resolutions or instructions of the Commission on Elections; and (c) Whether or not the respondent Court has the power or authority to order the Comelec Law Department to furnish said respondent the records of preliminary investigation of the above criminal cases for purposes of determining a probable cause. 3 The main thrust of the petition is that inasmuch as the COMELEC is an independent constitutional body, its actions on election matters may be reviewed only on certiorari by the Supreme Court. 4 On the other hand, the respondents contend that since the cases were filed in court by the COMELEC as a public prosecutor, and not in the exercise of its power to decide election contests, the trial court has authority to order a reinvestigation. Section 2, Article IX-C of the Constitution provides: SEC. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or involving elective baranggay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. (5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution,

or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission in addition to other penalties that may be prescribed by law. (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusions or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates. (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. (9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. (Emphasis supplied.) Section 52, Article VII of the Omnibus Election Code (Batas Pambansa Blg. 881) provides among the powers and functions of the COMELEC as followsSec. 52. Power and functions of the Commission on Elections.-In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of securing free, orderly and honest elections .... (Emphasis supplied.) Section 7, Article IX-A of the Constitution reads thus SEC, 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law any decision, order, of ruling or each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis supplied.) From the aforementioned provisions of Section 2, Article IX-C of the Constitution the powers and functions of the COMELEC may be classified in this manner

(1) Enforcement of election laws; 5 (2) Decision of election contests; 6 (3) Decision of administrative questions; 7 (4) Deputizing of law enforcement agencies; 8 (5) Registration of political parties; 9 and (6) Improvement of elections. 10 As provided in Section 7, Article IX of the Constitution, unless otherwise provided by law, any decision, order or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. In Filipinas Engineering and Machine Shop vs. Ferrer, 11 this Court held that "what is contemplated by the term final orders, rulings and decisions' of the COMELEC reviewable on certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by said body in the exercise of its adjudicatory or quasi-judicial powers." Thus, the decisions of the COMELEC on election contests or administrative questions brought before it are subject to judicial review only by this Court. However, under Section 2(6), of Article IX-C of the Constitution, the COMELEC may "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices." Under Section 265 of the Omnibus Election Code, the COMELEC, through its duly authorized legal officers, "have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same." Section 268 of the same Code provides that: "The regional trial courts shall have exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases." From the foregoing provisions of the Constitution and the Omnibus Election Code, it is clear that aside from the adjudicatory or quasi-judicial power of the COMELEC to decide election contests and administrative questions, it is also vested the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the Code before the competent court. Thus, when the COMELEC, through its duly authorized law officer, conducts the preliminary investigation of an election offense and upon a prima facie finding of a probable cause, files the information in the proper court, said court thereby acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case must be subject to the approval of the court. 12 The COMELEC cannot conduct a reinvestigation of the case without the authority of the court or unless so ordered by the court. 13 The records of the preliminary investigation required to be produced by the court must be submitted by the COMELEC. The trial court may rely on the resolution of the COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary

investigation, in the issuance of the warrant of arrest. Nevertheless the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest. 14 The refusal of the COMELEC or its agents to comply with the order of the trial court requiring them to conduct a reinvestigation in this case and to submit to the court the record of the preliminary investigation on the ground that only this Court may review its actions is certainly untenable. One last word. The petition is brought in the name of the People of the Philippines. Only the Solicitor General can represent the People of the Philippines in this proceeding. 15 In the least, the consent of the Office of the Solicitor General should have been secured by the COMELEC before the filing of this petition. On this account alone, the petition should be dismissed. WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED. Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Fernan, C.J. and Paras, J., are on leave.

Footnotes 1 Annex E to petition; pages 56 to 57, rollo. 2 Annex G to petition; pages 60 to 62, rollo. 3 Pages 2 to 3, Rollo. 4 Citing Section 7, Article IX and section 2(l), Article IX-C of the Constitution. 5 Section 2(l), Article IX-C, Constitution. 6 Id., paragraph (2). 7 Id., paragraph (3). 8 Id., paragraph (4). 9 Id., paragraph (5). 10 Id., paragraph (7). See also Cruz, Philippine Political Law 1987 Edition, pages 287 to 297.

11 135 SCRA 25, 32 (1985). 12 Crespo vs. Mogul, 151 SCRA 462 (1987). 13 Ibid. 14 Section 2, Article III, Constitution. l5 City Fiscal of Tacloban vs. Espina, 166 SCRA 614, 616 to 617 (1988).