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FIRST DIVISION

GUILLERMA S. SABLAS,
joined by her husband,
PASCUAL LUMANAS,
Petitioners,

- versus-

G.R. No. 144568


Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,*
CORONA,
AZCUNA and
GARCIA, JJ.

ESTERLITA S. SABLAS and


RODULFO S. SABLAS,
Respondents.

Promulgated:
July 3, 2007

x-------------------------------------------x
DECISION
CORONA, J.:

This case traces its roots to a complaint for judicial partition, inventory and
accounting filed by respondents Esterlita S. Sablas and Rodulfo S. Sablas against
petitioner spouses Pascual Lumanas and Guillerma S. Sablas in the Regional Trial Court
of Baybay, Leyte, Branch 14[1] on October 1, 1999.[2]
Petitioner spouses were served with summons and a copy of the complaint on
October 6, 1999. On October 21, 1999, they filed a motion for extension of time
requesting an additional period of 15 days, or until November 5, 1999, to file their
answer. However, they were able to file it only on November 8, 1999. While the trial
court observed that the answer was filed out of time, it admitted the pleading because no
motion to declare petitioner spouses in default was filed.[3]

The following day, November 9, 1999, respondents filed a motion to declare


petitioner spouses in default.[4] It was denied by the trial court in an order dated December
6, 1999.[5] Respondents moved for reconsideration but it was also denied. [6] Thereafter,
they challenged the December 6, 1999 order in the Court of Appeals in a petition for
certiorari[7] alleging that the admission of the answer by the trial court was contrary to the
rules of procedure and constituted grave abuse of discretion amounting to lack of
jurisdiction.
In a decision dated July 17, 2000,[8] the appellate court ruled that the trial court
committed grave abuse of discretion because, pursuant to Section 3, Rule 9 of the Rules
of Court, the trial court had no recourse but to declare petitioner spouses in default when
they failed to file their answer on or before November 5, 1999. Thus, the Court of
Appeals granted the petition, vacated the December 6, 1999 order and remanded the case
to the trial court for reception of plaintiffs evidence.
Aggrieved, petitioner spouses (defendants in the trial court) now assail the July
17, 2000 decision of the Court of Appeals in this petition for review on certiorari.[9]
Petitioner spouses contend that the Court of Appeals decision was not in accord with
the rules of procedure as it misconstrued Section 3, Rule 9 of the Rules of Court and was
in contravention of jurisprudence.
We agree.

WHERE THERE IS NO MOTION, THERE


CAN BE NO DECLARATION OF DEFAULT

The elements of a valid declaration of default are:


1.

the court has validly acquired jurisdiction over the person of the
defending party either by service of summons or voluntary appearance;[10]

2.

the defending party failed to file the answer within the time allowed
therefor and

3.

a motion to declare the defending party in default has been filed by


the claiming party with notice to the defending party.

An order of default can be made only upon motion of the claiming party. [11] It can
be properly issued against the defending party who failed to file the answer within the
prescribed period only if the claiming party files a motion to that effect with notice to the
defending party.
In this connection, Section 3, Rule 9 of the Rules of Court provides:
SEC. 3. Default: Declaration of. If the defending party fails to
answer within the time allowed therefor, the court shall, upon motion of
the claiming party with notice to the defending party, and proof of such
failure, declare the defending party in default. x x x. (emphasis supplied)

Three requirements must be complied with before the court can declare the
defending party in default: (1) the claiming party must file a motion asking the court to
declare the defending party in default; (2) the defending party must be notified of the
motion to declare him in default and (3) the claiming party must prove that the defending
party has failed to answer within the period provided by the Rules of Court.[12]
The rule on default requires the filing of a motion and notice of such motion to the
defending party. It is not enough that the defendant fails to answer the complaint within
the reglementary period.[13] The trial court cannot motu proprio declare a defendant in
default[14] as the rules leave it up to the claiming party to protect his or its interests. The

trial court should not under any circumstances act as counsel of the claiming party.

WHERE
THERE
IS
NO
DECLARATION
OF
DEFAULT,
ANSWER MAY BE ADMITTED EVEN
IF FILED OUT OF TIME

It is within the sound discretion of the trial court to permit the defendant to file his
answer and to be heard on the merits even after the reglementary period for filing the
answer expires.[15] The Rules of Court provides for discretion on the part of the trial court
not only to extend the time for filing an answer but also to allow an answer to be filed
after the reglementary period.[16]
Thus, the appellate court erred when it ruled that the trial court had no recourse
but to declare petitioner spouses in default when they failed to file their answer on or
before November 5, 1999.
The rule is that the defendants answer should be admitted where it is filed before
a declaration of default and no prejudice is caused to the plaintiff.[17] Where the answer is
filed beyond the reglementary period but before the defendant is declared in default and
there is no showing that defendant intends to delay the case, the answer should be
admitted.[18]
Therefore, the trial court correctly admitted the answer of petitioner spouses even
if it was filed out of time because, at the time of its filing, they were not yet declared in
default nor was a motion to declare them in default ever filed. Neither was there a
showing that petitioner spouses intended to delay the case.

WHERE ANSWER HAS BEEN FILED,


THERE CAN BE NO DECLARATION
OF DEFAULT ANYMORE

Since the trial court already admitted the answer, it was correct in denying the
subsequent motion of respondents to declare petitioner spouses in default.
In Cathay Pacific Airways, Ltd. v. Hon. Romillo, Jr.,[19] the Court ruled that it was
error to declare the defending party in default after the answer was filed. The Court was
in fact even more emphatic in Indiana Aerospace University v. Commission on Higher
Education:[20] it was grave abuse of discretion to declare a defending party in default
despite the latters filing of an answer.
The policy of the law is to have every litigants case tried on the merits as much as
possible. Hence, judgments by default are frowned upon. [21] A case is best decided when
all contending parties are able to ventilate their respective claims, present their arguments
and adduce evidence in support thereof. The parties are thus given the chance to be heard
fully and the demands of due process are subserved. Moreover, it is only amidst such an
atmosphere that accurate factual findings and correct legal conclusions can be reached by
the courts.
Accordingly, the petition is hereby GRANTED. The July 17, 2000 decision of the
Court of Appeals in CA-G.R. SP No. 57397 is REVERSED and SET ASIDE and the
December 6, 1999 order of the Regional Trial Court of Baybay, Leyte, Branch 14 is
REINSTATED. The case is REMANDED to the trial court for further proceedings.
SO ORDERED.
THIRD DIVISION

THE HEIRS OF THE LATE RUBEN


REINOSO, SR., represented by Ruben
Reinoso Jr.,
Petitioners,

G.R. No. 116121

Present:

CARPIO,* J.
- versus -

VELASCO, JR., Chairperson,


PERALTA,
ABAD, and
MENDOZA, JJ.

COURT OF APPEALS, PONCIANO


TAPALES, JOSE GUBALLA, and
FILWRITERS GUARANTY ASSURANCE
CORPORATION,* *
Respondent.

Promulgated:

July 18, 2011

x -------------------------------------------------------------------------------------x
DECISION
MENDOZA, J.:

Before the Court is a petition for review assailing the May 20, 1994 Decision [1]
and June 30, 1994 Resolution[2] of the Court of Appeals (CA), in CA-G.R. CV No. 19395,
which set aside the March 22, 1988 Decision of the Regional Trial Court, Branch 8,
Manila (RTC) for non-payment of docket fees. The dispositive portion of the CA
decision reads:
IN VIEW OF ALL THE FOREGOING, the decision appealed

from is SET ASIDE and REVERSED and the complaint in this case is
ordered DISMISSED.
No costs pronouncement.
SO ORDERED.

The complaint for damages arose from the collision of a passenger jeepney and a
truck at around 7:00 oclock in the evening of June 14, 1979 along
E. Rodriguez Avenue,Quezon City
. As a result, a passenger of the jeepney, Ruben Reinoso, Sr. (Reinoso), was killed. The
passenger jeepney was owned by Ponciano Tapales (Tapales) and driven by Alejandro
Santos (Santos), while the truck was owned by Jose Guballa (Guballa) and driven by
Mariano Geronimo (Geronimo).
On November 7, 1979, the heirs of Reinoso (petitioners) filed a complaint for
damages against Tapales and Guballa. In turn, Guballa filed a third party complaint
against Filwriters Guaranty Assurance Corporation (FGAC) under Policy Number OV09527.
On March 22, 1988, the RTC rendered a decision in favor of the petitioners and
against Guballa. The decision in part, reads:
In favor of herein plaintiffs and against defendant Jose Guballa:
1. For the death of Ruben Reinoso, Sr.

2. Loss of earnings (monthly income at the time of death ( 2,000.00 Court used 1,000.00 only p
year) & victim then being 55 at death had ten (10) years life expectancy
3. Mortuary, Medical & funeral expenses
condoled..
4. Moral damages ..
5. Exemplary damages
6. Litigation expenses .
7. Attorneys fees

Or a total of 250,000.00
For damages to property:

and

all

incidental

expenses

in

the

In favor of defendant Ponciano Tapales and against defendant Jose


Guballa:
1. Actual damages for repair is already awarded to defendant-cross-claimant Ponciano Tapales by
Exh. 1-G-Tapales); hence, cannot recover twice.
2.
Compensatory damages (earnings at 150.00 per day) and for two (2) months
shop.
3.
Moral damages ...
4.
5.

Exemplary damages .
Attorneys fees

or a total of 44,000.00
Under the 3rd party complaint against 3rd party defendant Filwriters
Guaranty Assurance Corporation, the Court hereby renders judgment in
favor of said 3rd party plaintiff by way of 3 rd party liability under policy
No. OV-09527 in the amount of 50,000.00 undertaking plus 10,000.00
as and for attorneys fees.
For all the foregoing, it is the well considered view of the Court
that plaintiffs, defendant Ponciano Tapales and 3rd Party plaintiff Jose
Guballa established their claims as specified above, respectively. Totality
of evidence preponderance in their favor.
JUDGMENT
WHEREFORE, in view of the foregoing, judgment is hereby
rendered as follows:
In favor of plaintiffs for the death of Ruben Reinoso,
Sr.250,000.00;
In favor of defendant Ponciano Tapales due to damage of his
passenger jeepney.44,000.00;
In favor of defendant Jose Guballa under Policy No. OV09527....60,000.00;
All the specified accounts with 6% legal rate of interest per annum
from date of complaint until fully paid (Reformina vs. Tomol, 139 SCRA
260; and finally;
Costs of suit.
SO ORDERED.[3]

On appeal, the CA, in its Decision dated May 20, 1994, set aside and reversed the
RTC decision and dismissed the complaint on the ground of non-payment of docket fees
pursuant to the doctrine laid down in Manchester v. CA.[4] In addition, the CA ruled that
since prescription had set in, petitioners could no longer pay the required docket fees.[5]
Petitioners filed a motion for reconsideration of the CA decision but it was denied
in a resolution dated June 30, 1994.[6] Hence, this appeal, anchored on the following
GROUNDS:
A. The Court of Appeals MISAPPLIED THE RULING of the
Supreme Court in the case of Manchester Corporation vs. Court of
Appeals to this case.
B. The issue on the specification of the damages appearing in the
prayer of the Complaint was NEVER PLACED IN ISSUE BY ANY
OF THE PARTIES IN THE COURT OF ORIGIN (REGIONAL
TRIAL COURT) NOR IN THE COURT OF APPEALS.
C. The issues of the case revolve around the more substantial issue as
to the negligence of the private respondents and their culpability to
petitioners.[7]
The petitioners argue that the ruling in Manchester should not have been applied
retroactively in this case, since it was filed prior to the promulgation of the
Manchesterdecision in 1987. They plead that though this Court stated that failure to state
the correct amount of damages would lead to the dismissal of the complaint, said doctrine
should be applied prospectively.
Moreover, the petitioners assert that at the time of the filing of the complaint in
1979, they were not certain of the amount of damages they were entitled to, because the
amount of the lost income would still be finally determined in the course of the trial of
the case. They claim that the jurisdiction of the trial court remains even if there was
failure to pay the correct filing fee as long as the correct amount would be paid
subsequently.
Finally, the petitioners stress that the alleged defect was never put in issue either in
the RTC or in the CA.
The Court finds merit in the petition.

The rule is that payment in full of the docket fees within the prescribed period is
mandatory.[8] In Manchester v. Court of Appeals,[9] it was held that a court acquires
jurisdiction over any case only upon the payment of the prescribed docket fee. The strict
application of this rule was, however, relaxed two (2) years after in the case of Sun
Insurance Office, Ltd. v. Asuncion,[10] wherein the Court decreed that where the initiatory
pleading is not accompanied by the payment of the docket fee, the court may allow
payment of the fee within a reasonable period of time, but in no case beyond the
applicable prescriptive or reglementary period. This ruling was made on the premise that
the plaintiff had demonstrated his willingness to abide by the rules by paying the
additional docket fees required.[11] Thus, in the more recent case of United Overseas Bank
v. Ros,[12] the Court explained that where the party does not deliberately intend to defraud
the court in payment of docket fees, and manifests its willingness to abide by the rules by
paying additional docket fees when required by the court, the liberal doctrine enunciated
in Sun Insurance Office, Ltd., and not the strict regulations set in Manchester, will apply.
It has been on record that the Court, in several instances, allowed the relaxation of the
rule on non-payment of docket fees in order to afford the parties the opportunity to fully
ventilate their cases on the merits. In the case of La Salette College v. Pilotin,[13] the
Court stated:
Notwithstanding the mandatory nature of the requirement of
payment of appellate docket fees, we also recognize that its strict
application is qualified by the following:first, failure to pay those fees
within the reglementary period allows only discretionary, not automatic,
dismissal; second, such power should be used by the court in conjunction
with its exercise of sound discretion in accordance with the tenets of
justice and fair play, as well as with a great deal of circumspection in
consideration of all attendant circumstances.[14]

While there is a crying need to unclog court dockets on the one hand, there is, on
the other, a greater demand for resolving genuine disputes fairly and equitably,[15] for it is
far better to dispose of a case on the merit which is a primordial end, rather than on a
technicality that may result in injustice.
In this case, it cannot be denied that the case was litigated before the RTC and
said trial court had already rendered a decision. While it was at that level, the matter of
non-payment of docket fees was never an issue. It was only the CA which motu propio
dismissed the case for said reason.
Considering the foregoing, there is a need to suspend the strict application of the

rules so that the petitioners would be able to fully and finally prosecute their claim on the
merits at the appellate level rather than fail to secure justice on a technicality, for, indeed,
the general objective of procedure is to facilitate the application of justice to the rival
claims of contending parties, bearing always in mind that procedure is not to hinder but to
promote the administration of justice.[16]
The Court also takes into account the fact that the case was filed before the
Manchester ruling came out. Even if said ruling could be applied retroactively, liberality
should be accorded to the petitioners in view of the recency then of the ruling. Leniency
because of recency was applied to the cases of Far Eastern Shipping Company v. Court
of Appeals[17] and Spouses Jimmy and Patri Chan v. RTC of Zamboanga. [18] In the case of
Mactan Cebu International Airport Authority v. Mangubat (Mactan),[19] it was stated that
the intent of the Court is clear to afford litigants full opportunity to comply with the new
rules and to temper enforcement of sanctions in view of the recency of the changes
introduced by the new rules. In Mactan, the Office of the Solicitor General (OSG) also
failed to pay the correct docket fees on time.
We held in another case:
x x x It bears stressing that the rules of procedure are merely
tools designed to facilitate the attainment of justice. They were
conceived and promulgated to effectively aid the court in the
dispensation of justice. Courts are not slaves to or robots of technical
rules, shorn of judicial discretion. In rendering justice, courts have
always been, as they ought to be, conscientiously guided by the norm
that, on the balance, technicalities take a backseat against substantive
rights, and not the other way around. Thus, if the application of the
Rules would tend to frustrate rather than promote justice, it is always
within the power of the Court to suspend the Rules, or except a
particular case from its operation.[20]

The petitioners, however, are liable for the difference between the actual fees paid
and the correct payable docket fees to be assessed by the clerk of court which shall
constitute a lien on the judgment pursuant to Section 2 of Rule 141 which provides:
SEC. 2. Fees in lien. Where the court in its final judgment
awards a claim not alleged, or a relief different from, or more than that
claimed in the pleading, the party concerned shall pay the additional
fees which shall constitute a lien on the judgment in satisfaction of
said lien. The clerk of court shall assess and collect the corresponding
fees.

As the Court has taken the position that it would be grossly unjust if petitioners
claim would be dismissed on a strict application of the Manchester doctrine, the
appropriate action, under ordinary circumstances, would be for the Court to remand the
case to the CA. Considering, however, that the case at bench has been pending for more
than 30 years and the records thereof are already before this Court, a remand of the case
to the CA would only unnecessarily prolong its resolution. In the higher interest of
substantial justice and to spare the parties from further delay, the Court will resolve the
case on the merits.
The facts are beyond dispute. Reinoso, the jeepney passenger, died as a result of
the collision of a jeepney and a truck on June 14, 1979 at around 7:00 oclock in the
evening along
E. Rodriguez Avenue, Quezon City
. It was established that the primary cause of the injury or damage was the
negligence of the truck driver who was driving it at a very fast pace. Based on the sketch
and spot report of the police authorities and the narration of the jeepney driver and his
passengers, the collision was brought about because the truck driver suddenly swerved to,
and encroached on, the left side portion of the road in an attempt to avoid a wooden
barricade, hitting the passenger jeepney as a consequence. The analysis of the RTC
appears in its decision as follows:
Perusal and careful analysis of evidence adduced as well as proper
consideration of all the circumstances and factors bearing on the issue as
to who is responsible for the instant vehicular mishap convince and
persuade this Court that preponderance of proof is in favor of plaintiffs
and defendant Ponciano Tapales. The greater mass of evidence spread on
the records and its influence support plaintiffs plaint including that of
defendant Tapales.
The Land Transportation and Traffic Rule (R.A. No. 4136), reads
as follows:
Sec. 37. Driving on right side of highway. Unless a
different course of action is required in the interest of the safety
and the security of life, person or property, or because of
unreasonable difficulty of operation in compliance therewith,
every person operating a motor vehicle or an animal drawn vehicle
on highway shall pass to the right when meeting persons or
vehicles coming toward him, and to the left when overtaking
persons or vehicles going the same direction, and when turning to
the left in going from one highway to another, every vehicle shall

be conducted to the right of the center of the intersection of the


highway.
Having in mind the foregoing provision of law, this Court is
convinced of the veracity of the version of the passenger jeepney driver
Alejandro Santos, (plaintiffs and Tapales witness) that while running on
lane No. 4 westward bound towards Ortigas Avenue at between 30-40
kms. per hour (63-64 tsn, Jan. 6, 1984) the sand & gravel truck from the
opposite direction driven by Mariano Geronimo, the headlights of which
the former had seen while still at a distance of about 30-40 meters from
the wooden barricade astride lanes 1 and 2, upon reaching said wooden
block suddenly swerved to the left into lanes 3 and 4 at high speed
napakabilis po ng dating ng truck. (29 tsn, Sept. 26, 1985) in the process
hitting them (Jeepney passenger) at the left side up to where the reserve
tire was in an oblique manner pahilis (57 tsn, Sept. 26, 1985). The
jeepney after it was bumped by the truck due to the strong impact was
thrown resting on its right side while the left side was on top of the
Bangketa (side walk). The passengers of the jeepney and its driver were
injured including two passengers who died. The left side of the jeepney
suffered considerable damage as seen in the picture (Exhs. 4 & 5-Tapales,
pages 331-332, records) taken while at the repair shop.
The Court is convinced of the narration of Santos to the effect that
the gravel & sand truck was running in high speed on the good portion
of E. Rodriguez Avenue (lane 1 & 2) before the wooden barricade and
(having in mind that it had just delivered its load at the Corinthian
Gardens) so that when suddenly confronted with the wooden obstacle
before it had to avoid the same in a manner of a reflex reaction or kneejerk response by forthwith swerving to his left into the right lanes (lanes 3
& 4). At the time of the bumping, the jeepney was running on its right lane
No. 4 and even during the moments before said bumping, moving at
moderate speed thereon since lane No. 3 was then somewhat rough
because being repaired also according to Mondalia who has no reason to
prevaricate being herself one of those seriously injured. The narration of
Santos and Mondalia are convincing and consistent in depicting the true
facts of the case untainted by vacillation and therefore, worthy to be relied
upon. Their story is forfeited and confirmed by the sketch drawn by the
investigating officer Pfc. F. Amaba, Traffic Division, NPD, Quezon City
who rushed to the scene of the mishap (Vide: Resolution of Asst fiscal
Elizabeth B. Reyes marked as Exhs. 7, 7-A, 7-B-Tapales, pp. 166-168,
records; the Certified Copy found on pages 598-600, ibid, with the
attached police sketch of Pfc. Amaba, marked as Exh. 8-Tapales on page
169, ibid; certified copy of which is on page 594, ibid) indicating the fact
that the bumping indeed occurred at lane No. 4 and showing how the
gavel & sand truck is positioned in relation to the jeepney. The said
police sketch having been made right after the accident is a piece of
evidence worthy to be relied upon showing the true facts of the bumpingoccurrence. The rule that official duty had been performed (Sec.5(m), R-

131, and also Sec. 38, R-a30, Rev. Rules of Court) there being no
evidence adduced and made of record to the contrary is that said
circumstance involving the two vehicles had been the result of an official
investigation and must be taken as true by this Court.[21]

While ending up on the opposite lane is not conclusive proof of fault in


automobile collisions,[22] the position of the two vehicles, as depicted in the sketch of the
police officers, clearly shows that it was the truck that hit the jeepney. The evidentiary
records disclosed that the truck was speeding along E. Rodriguez, heading towards
Santolan Street
, while the passenger jeepney was coming from the opposite direction. When the
truck reached a certain point near the Meralco Post No. J9-450, the front portion of the
truck hit the left middle side portion of the passenger jeepney, causing damage to both
vehicles and injuries to the driver and passengers of the jeepney. The truck driver should
have been more careful, because, at that time, a portion of E. Rodriguez Avenue
was under repair and a wooden barricade was placed in the middle thereof.
The Court likewise sustains the finding of the RTC that the truck owner, Guballa,
failed to rebut the presumption of negligence in the hiring and supervision of his
employee.Article 2176, in relation to Article 2180 of the Civil Code, provides:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
xxxx
Art. 2180. The obligation imposed by Art. 2176 is demandable not
only for ones own acts or omissions but also for those of persons for
whom one is responsible.
xxxx
Employers shall be liable for the damage caused by their
employees and household helpers acting within the scope of their
assigned tasks even though the former are not engaged in any business
or industry.

xxxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence of a
good father of a family to prevent damage.
Whenever an employees negligence causes damage or injury to another, there
instantly arises a presumption juris tantum that the employer failed to exercise
diligentissimi patris families in the selection or supervision of his employee. [23] Thus, in
the selection of prospective employees, employers are required to examine them as to
their qualification, experience and service record. With respect to the supervision of
employees, employers must formulate standard operating procedures, monitor their
implementation, and impose disciplinary measures for breaches thereof. These facts must
be shown by concrete proof, including documentary evidence. [24] Thus, the RTC
committed no error in finding that the evidence presented by respondent Guballa was
wanting. It ruled:
x x x. As expected, defendant Jose Guballa, attempted to
overthrow this presumption of negligence by showing that he had
exercised the due diligence required of him by seeing to it that the driver
must check the vital parts of the vehicle he is assigned to before he leaves
the compound like the oil, water, brakes, gasoline, horn (9 tsn, July 17,
1986); and that Geronimo had been driving for him sometime in 1976
until the collision in litigation came about (5-6 tsn, ibid); that whenever
his trucks gets out of the compound to make deliveries, it is always
accompanied with two (2) helpers (16-17 tsn, ibid). This was all which he
considered as selection and supervision in compliance with the law to free
himself from any responsibility. This Court then cannot consider the
foregoing as equivalent to an exercise of all the care of a good father of a
family in the selection and supervision of his driver Mariano
Geronimo.[25]
WHEREFORE, the petition is GRANTED. The May 20, 1994 Decision and
June 30, 1994 Resolution of the Court of Appeals are REVERSED and SET ASIDE and
the March 22, 1988 Decision of the Regional Trial Court, Branch 8, Manila, is
REINSTATED.
SO ORDERED.

SECOND DIVISION
[G.R. Nos. 121576-78. June 16, 2000]
BANCO DO BRASIL, petitioner, vs. THE COURT OF APPEALS, HON. ARSENIO M.
GONONG, and CESAR S. URBINO, SR., respondents.
DECISION
DE LEON, JR., J.:

Before us is a petition for review on certiorari of the Decision1 [Penned by Associate


Justice Jainal D. Rasul and concurred in by Associate Justices Segundino G. Chua and
Consuelo Ynares-Santiago, now Associate Justice of the Supreme Court, in CA-G.R. S.P.
Nos. 24669, 28387 & 29317, Rollo, pp. 33-47.] and the Resolution2 [Id., pp. 49-53.] of
the Court of Appeals3 [Former Special Eighth Division.] dated July 19, 1993 and August
15, 1995, respectively, which reinstated the entire Decision4 [Penned by Judge Arsenio
M. Gonong, Civil Case No. 89-51451, Records, Vol. 2, pp. 517-528.] dated February 18,
1991 of the Regional Trial Court of Manila, Branch 8, holding, among others, petitioner
Banco do Brasil liable to private respondent Cesar Urbino, Sr. for damages amounting to
$300,000.00.5 [The Appellate Court erroneously declared in its decision that the amount
of P300,000.00 was awarded by the trial court, Rollo, p. 36.]
At the outset, let us state that this case should have been consolidated with the recently
decided case of Vlason Enterprises Corporation v. Court of Appeals and Duraproof
Services, represented by its General Manager, Cesar Urbino Sr.6 [G.R. Nos. 121662-64,
July 6, 1999, Third Division, penned by Associate Justice Artemio V. Panganiban and
concurred in by Associate Justices Jose C. Vitug, Fidel P. Purisima, and Minerva P.
Gonzaga-Reyes.], for these two (2) cases involved the same material antecedents, though
the main issue proffered in the present petition vary with the Vlason case.
The material antecedents, as quoted from the Vlason7 [Decision in G.R. Nos. 121662-64,
pp. 3-13.] case, are:
Poro Point Shipping Services, then acting as the local agent of Omega Sea
Transport Company of Honduras & Panama, a Panamanian Company (hereafter
referred to as Omega), requested permission for its vessel M/V Star Ace, which
had engine trouble, to unload its cargo and to store it at the Philippine Ports
Authority (PPA) compound in San Fernando, La Union while awaiting
transhipment to Hongkong. The request was approved by the Bureau of
Customs.8 [Records, Vol. 1, pp. 27-31.] Despite the approval, the customs
personnel boarded the vessel when it docked on January 7, 1989, on suspicion
that it was the hijacked M/V Silver Med owned by Med Line Philippines Co.,
and that its cargo would be smuggled into the country.9 [Records, Vol. 1, p. 32.]
The district customs collector seized said vessel and its cargo pursuant to Section
2301, Tariff and Customs Code. A notice of hearing of SFLU Seizure
Identification No. 3-89 was served on its consignee, Singkong Trading Co. of

Hongkong, and its shipper, Dusit International Co., Ltd. of Thailand.


While seizure proceedings were ongoing, La Union was hit by three typhoons,
and the vessel ran aground and was abandoned. On June 8, 1989, its authorized
representative, Frank Cadacio, entered into salvage agreement with private
respondent to secure and repair the vessel at the agreed consideration of $1
million and "fifty percent (50%) [of] the cargo after all expenses, cost and
taxes."10 [Records, Vol. 1, pp. 36-39.]
Finding that no fraud was committed, the District Collector of Customs, Aurelio
M. Quiray, lifted the warrant of seizure on July 1989.11 [Decision dated July 17,
1989, in SFLU Seizure Identification No. 3-89; Records, Vol. 1, pp. 54-68.]
However, in a Second Indorsement dated November 11, 1989, then Customs
Commissioner Salvador M. Mison declined to issue a clearance for Quirays
Decision; instead, he forfeited the vessel and its cargo in accordance with
Section 2530 of the Tariff and Customs Code.12 [2nd Indorsement dated
November 1989; Records, Vol. 1, pp. 70-71.] Accordingly, acting District
Collector of Customs John S. Sy issued a Decision decreeing the forfeiture and
the sale of the cargo in favor of the government.13 [Decision dated November
17, 1989, Records, Vol. 1, pp. 74-86.]
To enforce its preferred salvors lien, herein Private Respondent Duraproof
Services filed with the Regional Trial Court of Manila a Petition for Certiorari,
Prohibition and Mandamus14 [Docketed as Civil Case No. 89-51451 and raffled
to Branch 8; Records, Vol. 1, pp. 1-26.] assailing the actions of Commissioner
Mison and District Collector Sy. Also impleaded as respondents were PPA
Representative Silverio Mangaoang and Med Line Philippines, Inc.
On January 10, 1989, private respondent amended its Petition15 [Ibid., pp. 122145.] to include former District Collector Quiray; PPA Port Manager Adolfo Ll.
Amor, Jr.; x Vlason Enterprises as represented by its president, Vicente
Angliongto; Singkong Trading Company as represented by Atty. Eddie
Tamondong; Banco Du Brasil; Dusit International Co.; Thai-Nan Enterprises
Ltd., and Thai-United Trading Co., Ltd.16 [Amended Petition, id., pp. 122 &
128-129.] x x x
Summonses for the amended Petition were served on Atty. Joseph Capuyan for
Med Line Philippines: Anglionto (through his secretary, Betty Bebero), Atty.
Tamondong and Commissioner Mison.17 [Sheriffs Return, id., pp. 160-164 &
171.] Upon motion of the private respondent, the trial court allowed summons by
publication to be served upon defendants who were not residents and had no
direct representative in the country.18 [Id., pp. 153-156.]
On January 29, 1990, private respondent moved to declare respondents in
default, but the trial court denied the motion in its February 23, 1990 Order19
[Id., pp. 214-215.], because Mangaoang and Amor had jointly filed a Motion to

Dismiss, while Mison and Med Line had moved separately for an extension to
file a similar motion.20 [Eventually, both separately filed their motions to
dismiss.] Later it rendered an Order dated July 2, 1990, giving due course to the
motions to dismiss filed by Mangaoang and Amor on the ground of litis
pendentia, and by the commissioner and district collector of customs on the
ground of lack of jurisdiction.21 [Records, Vol. 1, pp. 325-326.] In another
Order, the trial court dismissed the action against Med Line Philippines on the
ground of litis pendentia.22 [Order dated September 10, 1990; Records, Vol. 2,
p. 359.]
On two other occasions, private respondent again moved to declare the following
in default: [Vlason], Quiray, Sy and Mison on March 26, 1990;23 [Records, Vol.
1, pp. 237-238.] and Banco [do] Bra[s]il, Dusit International Co., Inc., Thai-Nan
Enterprises Ltd. and Thai-United Trading Co., Ltd. on August 24, 1990.24 [Ibid.,
pp. 351-352.] There is no record, however, that the trial court acted upon the
motions. On September 18, 1990, [private respondent] filed another Motion for
leave to amend the petition,25 [Records, Vol. 2, pp. 370-371.] alleging that its
counsel failed to include "necessary and/or indispensable parties": Omega
represented by Cadacio; and M/V Star Ace represented by Capt. Nahon Rada,
relief captain. Aside from impleading these additional respondents, private
respondent also alleged in the Second (actually, third) Amended Petition26
[Motion for Leave to Admit Second Amended Petition and Supplemental
Petition, ibid., p. 370; Second Amended Petition with Supplemental Petition,
ibid., pp. 372-398.] that the owners of the vessel intended to transfer and alienate
their rights and interest over the vessel and its cargo, to the detriment of the
private respondent.
The trial court granted leave to private respondent to amend its Petition, but only
to exclude the customs commissioner and the district collector.27 [Order dated
September 28, 1990, Records, Vol. 2, p. 407.] Instead, private respondent filed
the "Second Amended Petition with Supplemental Petition" against Singkong
Trading Company; and Omega and M/V Star Ace,28 [Records, Vol. 2, pp. 414415.] to which Cadacio and Rada filed a Joint Answer.29 [Ibid., pp. 425-288.]
Declared in default in an Order issued by the trial court on January 23, 1991,
were the following: Singkong Trading Co., Commissioner Mison, M/V Star Ace
and Omega.30 [Id., p. 506.] Private respondent filed, and the trial court granted,
an ex parte Motion to present evidence against the defaulting respondents.31
[Order dated December 10, 1990, id., p. 492.] Only private respondent, Atty.
Tamondong, Commissioner Mison, Omega and M/V Star Ace appeared in the
next pretrial hearing; thus, the trial court declared the other respondents in
default and allowed private respondent to present evidence against them.32
[Order dated January 23, 1991, Records, Vol. 2, p. 506. The records (pp. 493495), however, show that only Duraproof Service, Singkong Trading and M/V
Star Ace were served summons.] Cesar Urbino, general manager of private
respondent, testified and adduced evidence against the other respondents, x x

x.33 [RTC Decision, p. 7; Rollo, p. 92; penned by Judge Arsenio M. Gonong.]


On December 29, 1990, private respondent and Rada, representing Omega,
entered into a Memorandum of Agreement stipulating that Rada would write and
notify Omega regarding the demand for salvage fees of private respondent; and
that if Rada did not receive any instruction from his principal, he would assign
the vessel in favor of the salvor.34 [Memorandum of Agreement, id., pp. 511512.]
On February 18, 1991, the trial court disposed as follows:
"WHEREFORE, IN VIEW OF THE FOREGOING, based on the
allegations, prayer and evidence adduced, both testimonial and
documentary, the Court is convinced, that, indeed, defendants/respondents
are liable to [private respondent] in the amount as prayed for in the petition
for which it renders judgment as follows:
1. Respondent M/V Star Ace, represented by Capt. Nahum Rada, [r]elief
[c]aptain of the vessel and Omega Sea Transport Company, Inc., represented by
Frank Cadacio[,] is ordered to refrain from alienating or [transferring] the vessel
M/V Star Ace to any third parties;
2. Singkong Trading Company to pay the following:
a. Taxes due the government;
b. Salvage fees on the vessel in the amount of $1,000,000.00 based on xxx
Lloyds Standard Form of Salvage Agreement;
c. Preservation, securing and guarding fees on the vessel in the amount of
$225,000.00;
d. Maintenance fees in the amount of P2,685,000.00;
e. Salaries of the crew from August 16, 1989 to December 1989 in the amount of
$43,000.00 and unpaid salaries from January 1990 up to the present;
f. Attorneys fees in the amount of P656,000.00;
3. [Vlason] Enterprises to pay [private respondent] in the amount of
P3,000,000.00 for damages;
4. Banco [Du] Brasil to pay [private respondent] in the amount of $300,000.00
in damages;35 [Italics supplied.] and finally,
5. Costs of [s]uit."

Subsequently, upon the motion of Omega, Singkong Trading Co., and private
respondent, the trial court approved a Compromise Agreement36 [Records, Vol.
2, pp. 535-538.] among the movants, reducing by 20 percent the amounts
adjudged. For their part, respondents-movants agreed not to appeal the
Decision.37 [Order dated March 6, 1991, ibid., pp. 539-541. Private respondent
entered into two separate compromise agreements with Singkong Trading Co.
(id., pp. 535-536) and another with Omega (id., pp. 537-538). Both agreements
were dated March 4, 1991.] On March 8, 1991, private respondent moved for the
execution of judgment, claiming that the trial court Decision had already become
final and executory. The Motion was granted and a Writ of Execution was
issued. To satisfy the Decision, Sheriffs Jorge Victorino, Amado Sevilla and
Dionisio Camagon were deputized on March 13, 1991 to levy and to sell on
execution the defendants vessel and personal property.
xxx
On March 18, 1991, the Bureau of Customs also filed an ex parte Motion to
recall the execution, and to quash the notice of levy and the sale on execution.
Despite this Motion, the auction sale was conducted on March 21, 1991 by
Sheriff Camagon, with private respondent submitting the winning bid. The trial
court ordered the deputy sheriffs to cease and desist from implementing the Writ
of Execution and from levying on the personal property of the defendants.
Nevertheless, Sheriff Camagon issued the corresponding Certificate of Sale on
March 27, 1991.
On April 10, 1991, petitioner Banco do Brasil filed, by special appearance, an Urgent
Motion to Vacate Judgement and to Dismiss Case38 [Rollo, pp. 67-73.] on the ground
that the February 18, 1991 Decision of the trial court is void with respect to it for having
been rendered without validly acquiring jurisdiction over the person of Banco do Brasil.
Petitioner subsequently amended its petition39 [Rollo, pp. 74-80.] to specifically aver that
its special appearance is solely for the purpose of questioning the Courts exercise of
personal jurisdiction.
On May 20, 1991, the trial court issued an Order40 [Rollo, pp. 81-82.] acting favorably
on petitioners motion and set aside as against petitioner the decision dated February 18,
1991 for having been rendered without jurisdiction over Banco do Brasils person. Private
respondent sought reconsideration41 [Records, Vol. 3, pp. 103-105.] of the Order dated
May 20, 1991. However, the trial court in an Order42 [Rollo, p. 83.] dated June 21, 1991
denied said motion.
Meanwhile, a certiorari petition43 [Docketed as CA-G.R. SP No. 24669.] was filed by
private respondent before public respondent Court of Appeals seeking to nullify the cease
and desist Order dated April 5, 1991 issued by Judge Arsenio M. Gonong. Two (2) more
separate petitions for certiorari were subsequently filed by private respondent. The
second petition44 [Docketed as CA-G.R. SP No. 28387.] sought to nullify the Order45
[Penned by Judge Bernardo P. Pardo, then Executive Judge, and now Associate Justice of

the Supreme Court.] dated June 26, 1992 setting aside the Deputy Sheriffs return dated
April 1, 1991 as well as the certificate of sale issued by Deputy Sheriff Camagon. The
third petition46 [Docketed as CA-G.R. SP No. 29317.] sought to nullify the Order dated
October 5, 1992 of the Court of Tax Appeals directing the Commissioner of Customs to
place Bureau of Customs and PNP officers and guards to secure the M/V Star Ace and its
cargoes, make inventory of the goods stored in the premises as indicated to belong to the
private respondent. Likewise challenged was the Order dated August 17, 1992
authorizing the sale of M/V Star Ace and its cargoes.
These three (3) petitions were consolidated and on July 19, 1993, the appellate court
rendered its Decision47 [See Note 1, supra.] granting private respondents petitions,
thereby nullifying and setting aside the disputed orders and effectively "giving way to the
entire [decision dated February 18, 1991 of the x x x Regional Trial Court of Manila,
Branch 8, in Civil Case No. 89-51451 which remains valid, final and executory, if not yet
wholly executed."48 [Rollo, p. 46.]
Private respondent Urbino, Vlason Enterprises and petitioner Banco do Brasil filed
separate motions for reconsideration. For its part, petitioner Banco do Brasil sought
reconsideration, insofar as its liability for damages, on the ground that there was no valid
service of summons as service was on the wrong party the ambassador of Brazil.
Hence, it argued, the trial court did not acquire jurisdiction over petitioner Banco do
Brasil.49 [Rollo, pp. 107.] Nonetheless, the appellate court denied the motions for
reconsideration in its Resolution50 [See Note 2, supra.] dated August 15, 1995.
Hence, the instant petition.
Petitioner Banco do Brasil takes exception to the appellate courts declaration that the suit
below is in rem, not in personam,51 [Rollo, pp. 19-21.] thus, service of summons by
publication was sufficient for the court to acquire jurisdiction over the person of
petitioner Banco do Brasil, and thereby liable to private respondent Cesar Urbino for
damages claimed, amounting to $300,000.00. Petitioner further challenges the finding
that the February 18, 1991 decision of the trial court was already final and thus, cannot be
modified or assailed.52 [Rollo, p. 22-23.]
Petitioner avers that the action filed against it is an action for damages, as such it is an
action in personam which requires personal service of summons be made upon it for the
court to acquire jurisdiction over it. However, inasmuch as petitioner Banco do Brasil is a
non-resident foreign corporation, not engaged in business in the Philippines, unless it has
property located in the Philippines which may be attached to convert the action into an
action in rem, the court cannot acquire jurisdiction over it in respect of an action in
personam.
The petition bears merit, thus the same should be as it is hereby granted.
First. When the defendant is a nonresident and he is not found in the country, summons
may be served extraterritorially in accordance with Rule 14, Section 1753 [Section 17.

Extraterritorial service When the defendant does not reside and is not found in the
Philippines and the action affects the personal status of the plaintiff or relates to, or the
subject of which, is property within the Philippines, in which the defendant has or claims
a lien or interest, actual or contingent, or in which relief demanded consists, wholly or in
part, in excluding the defendant from any interest therein, or the property of the defendant
has been attached in the Philippines, service may, by leave of court, be effected out of the
Philippines by personal service as under section 7; or by publication in a newspaper of
general circulation in such places and for such time as the court may order, in which case
a copy of the summons and order of the court shall be sent by registered mail to the last
known address of the defendant, or in any other manner the court may deem sufficient.
Any order granting such leave shall specify a reasonable time, which shall not be less
than sixty (60) days after notice, within which the defendant must answer.] of the Rules of
Court. Under this provision, there are only four (4) instances when extraterritorial service
of summons is proper, namely: "(1) when the action affects the personal status of the
plaintiffs; (2) when the action relates to, or the subject of which is property, within the
Philippines, in which the defendant claims a lien or interest, actual or contingent; (3)
when the relief demanded in such action consists, wholly or in part, in excluding the
defendant from any interest in property located in the Philippines; and (4) when the
defendant non-residents property has been attached within the Philippines."54 [Ibid.,
now Sec. 15 of the 1997 Rules of Civil Procedure.] In these instances, service of
summons may be effected by (a) personal service out of the country, with leave of court;
(b) publication, also with leave of court; or (c) any other manner the court may deem
sufficient.55 [Ibid..]
Clear from the foregoing, extrajudicial service of summons apply only where the action is
in rem, an action against the thing itself instead of against the person, or in an action
quasi in rem, where an individual is named as defendant and the purpose of the
proceeding is to subject his interest therein to the obligation or loan burdening the
property. This is so inasmuch as, in in rem and quasi in rem actions, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction on the court provided
that the court acquires jurisdiction over the res.56 [Asiavest Limited v. Court of Appeals,
296 SCRA 539, 552-554 [1998]; Valmonte v. Court of Appeals, 252 SCRA 92, 99-102
[1996].]
However, where the action is in personam, one brought against a person on the basis of
his personal liability, jurisdiction over the person of the defendant is necessary for the
court to validly try and decide the case. When the defendant is a non-resident, personal
service of summons within the state is essential to the acquisition of jurisdiction over the
person.57 [The Dial Corporation v. Soriano, 161 SCRA 737, 743 [1988] citing Boudard v.
Tait, 67 Phil 170, 174 [1939].] This cannot be done, however, if the defendant is not
physically present in the country, and thus, the court cannot acquire jurisdiction over his
person and therefore cannot validly try and decide the case against him.58 [Asiavest
Limited v. Court of Appeals, supra. at 554.]
In the instant case, private respondents suit against petitioner is premised on petitioners
being one of the claimants of the subject vessel M/V Star Ace.59 [Records, Vol. 1, pp.

128-129.] Thus, it can be said that private respondent initially sought only to exclude
petitioner from claiming interest over the subject vessel M/V Star Ace. However, private
respondent testified during the presentation of evidence that, for being a nuisance
defendant, petitioner caused irreparable damage to private respondent in the amount of
$300,000.00.60 [Records, Vol. 2, p. 567.] Therefore, while the action is in rem, by
claiming damages, the relief demanded went beyond theres and sought a relief totally
alien to the action.
It must be stressed that any relief granted in rem or quasi in rem actions must be confined
to the res, and the court cannot lawfully render a personal judgment against the
defendant.61 [Villareal v. Court of Appeals, 295 SCRA 511, 525 [1998].] Clearly, the
publication of summons effected by private respondent is invalid and ineffective for the
trial court to acquire jurisdiction over the person of petitioner, since by seeking to recover
damages from petitioner for the alleged commission of an injury to his person or
property62 [The Dial Corporation v. Soriano, supra. at 742 citing Hernandez v.
Development Bank of the Phil., 71 SCRA 290, 292-293 [1976].] caused by petitioners
being a nuisance defendant, private respondents action became in personam. Bearing in
mind the in personam nature of the action, personal or, if not possible, substituted service
of summons on petitioner, and not extraterritorial service, is necessary to confer
jurisdiction over the person of petitioner and validly hold it liable to private respondent
for damages. Thus, the trial court had no jurisdiction to award damages amounting to
$300,000.00 in favor of private respondent and as against herein petitioner.
Second. We settled the issue of finality of the trial courts decision dated February 18,
1991 in the Vlason case, wherein we stated that, considering the admiralty case involved
multiple defendants, "each defendant had a different period within which to appeal,
depending on the date of receipt of decision."63 [Decision in G.R. Nos. 121662-64, p.
27.] Only upon the lapse of the reglementary period to appeal, with no appeal perfected
within such period, does the decision become final and executory.64 [Ibid.]
In the case of petitioner, its Motion to Vacate Judgment and to Dismiss Case was filed on
April 10, 1991, only six (6) days after it learned of the existence of the case upon being
informed by the Embassy of the Federative Republic of Brazil in the Philippines, on April
4, 1991, of the February 18, 1991 decision.65 [Rollo, pp. 67-80.] Thus, in the absence of
any evidence on the date of receipt of decision, other than the alleged April 4, 1991 date
when petitioner learned of the decision, the February 18, 1991 decision of the trial court
cannot be said to have attained finality as regards the petitioner.
WHEREFORE, the subject petition is hereby GRANTED. The Decision and the
Resolution of the Court of Appeals dated July 19, 1993 and August 15, 1995,
respectively, in CA-G.R. SP Nos. 24669, 28387 and 29317 are hereby REVERSED and
SET ASIDE insofar as they affect petitioner Banco do Brasil. The Order dated May 20,
1991 of the Regional Trial Court of Manila, Branch 8 in Civil Case No. 89-51451 is
REINSTATED.
SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.


THIRD DIVISION
PHILIPPINE COMMERCIAL
INTERNATIONAL BANK,
Petitioner,

G.R. No. 175587


Present:
Ynares-Santiago, J. (Chairperson),
Austria-Martinez,
Chico-Nazario,
Nachura, and
Reyes, JJ.

- versus -

JOSEPH ANTHONY M. ALEJANDRO,


Respondent.

Promulgated:

September 21, 2007


x ---------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:

This petition for review assails the May 31, 2006 Decision [1] of the Court of
Appeals in CA-G.R. CV No. 78200 affirming the August 30, 2000 Decision [2] of the
Regional Trial Court of Makati, which granted respondent Joseph Anthony M.
Alejandros claim for damages arising from petitioner Philippine Commercial
International Banks (PCIB) invalid garnishment of respondents deposits.
On October 23, 1997, petitioner filed against respondent a complaint[3] for sum of
money with prayer for the issuance of a writ of preliminary attachment. Said complaint
alleged that on September 10, 1997, respondent, a resident of Hong Kong, executed in
favor of petitioner a promissory note obligating himself to pay P249,828,588.90 plus
interest. In view of the fluctuations in the foreign exchange rates which resulted in the
insufficiency of the deposits assigned by respondent as security for the loan, petitioner
requested the latter to put up additional security for the loan. Respondent, however,
sought a reconsideration of said request pointing out petitioners alleged mishandling of
his account due to its failure to carry out his instruction to close his account as early as

April 1997, when the prevailing rate of exchange of the US Dollar to Japanese yen was
US$1.00:JPY127.50.[4] It appears that the amount of P249,828,588.90 was the
consolidated amount of a series of yen loans granted by petitioner to respondent during
the months of February and April 1997.[5]
In praying for the issuance of a writ of preliminary attachment under Section 1
paragraphs (e) and (f) of Rule 57 of the Rules of Court, petitioner alleged that (1)
respondent fraudulently withdrew his unassigned deposits notwithstanding his verbal
promise to PCIB Assistant Vice President Corazon B. Nepomuceno not to withdraw the
same prior to their assignment as security for the loan; and (2) that respondent is not a
resident of the Philippines. The application for the issuance of a writ was supported with
the affidavit of Nepomuceno.[6]
On October 24, 1997, the trial court granted the application and issued the writ ex
parte after petitioner posted a bond in the amount of P18,798,734.69, issued by
Prudential Guarantee & Assurance Inc., under Bond No. HO-46764-97. On the same
date, the bank deposits of respondent with Rizal Commercial Banking Corporation
(RCBC) were garnished. On October 27, 1997, respondent, through counsel, filed a
manifestation informing the court that he is voluntarily submitting to its jurisdiction.[8]
[7]

Subsequently, respondent filed a motion to quash[9] the writ contending that the
withdrawal of his unassigned deposits was not fraudulent as it was approved by
petitioner. He also alleged that petitioner knew that he maintains a permanent residence at
Calle Victoria, Ciudad Regina, Batasan Hills, Quezon City, and an office address in
Makati City at the Law Firm Romulo Mabanta Buenaventura Sayoc & De los Angeles, [10]
where he is a partner. In both addresses, petitioner regularly communicated with him
through its representatives. Respondent added that he is the managing partner of the
Hong Kong branch of said Law Firm; that his stay in Hong Kong is only temporary; and
that he frequently travels back to the Philippines.
On December 24, 1997, the trial court issued an order quashing the writ and
holding that the withdrawal of respondents unassigned deposits was not intended to
defraud petitioner. It also found that the representatives of petitioner personally
transacted with respondent through his home address in Quezon City and/or his office in
Makati City. It thus concluded that petitioner misrepresented and suppressed the facts

regarding respondents residence considering that it has personal and official knowledge
that for purposes of service of summons, respondents residence and office addresses are
located in the Philippines. The dispositive portion of the courts decision is as follows:
WHEREFORE, the URGENT MOTION TO QUASH, being
meritorious, is hereby GRANTED, and the ORDER of 24 October 1997 is
hereby RECONSIDERED and SET ASIDE and the WRIT OF attachment
of the same is hereby DISCHARGED.
SO ORDERED.[11]
With the denial[12] of petitioners motion for reconsideration, it elevated the case to
the Court of Appeals (CA-G.R. SP No. 50748) via a petition for certiorari. On May 10,
1999, the petition was dismissed for failure to prove that the trial court abused its
discretion in issuing the aforesaid order.[13] Petitioner filed a motion for reconsideration
but was denied on October 28, 1999.[14] On petition with this Court, the case was
dismissed for late filing in a minute resolution (G.R. No. 140605) dated January 19, 2000.
[15]
Petitioner filed a motion for reconsideration but was likewise denied with finality on
March 6, 2000.[16]
Meanwhile, on May 20, 1998, respondent filed a claim for damages in the amount
of P25 Million[17] on the attachment bond (posted by Prudential Guarantee & Assurance,
Inc., under JCL(4) No. 01081, Bond No. HO-46764-97) on account of the wrongful
garnishment of his deposits. He presented evidence showing that his P150,000.00 RCBC
check payable to his counsel as attorneys fees, was dishonored by reason of the
garnishment of his deposits. He also testified that he is a graduate of the Ateneo de
Manila University in 1982 with a double degree of Economics and Management
Engineering and of the University of the Philippines in 1987 with the degree of Bachelor
of Laws. Respondent likewise presented witnesses to prove that he is a well known
lawyer in the business community both in the Philippines and in Hong Kong. [18] For its
part, the lone witness presented by petitioner was Nepomuceno who claimed that she
acted in good faith in alleging that respondent is a resident of Hong Kong.[19]
On August 30, 2000, the trial court awarded damages to respondent in the amount
of P25 Million without specifying the basis thereof, thus:
WHEREFORE, premises above considered, and defendant having

duly established his claim in the amount of P25,000,000.00, judgment is


hereby rendered ordering Prudential Guarantee & [Assurance] Co., which
is solidarily liable with plaintiff to pay defendant the full amount of bond
under Prudential Guarantee & Assurance, Inc. JCL(4) No. 01081, [Bond
No. HO-46764-97], dated 24 October 1997 in the amount of
P18,798,734.69. And, considering that the amount of the bond is
insufficient to fully satisfy the award for damages, plaintiff is hereby
ordered to pay defendant the amount ofP6,201,265.31.
SO ORDERED.[20]
The trial court denied petitioners motion for reconsideration on October 24, 2000.
[21]

Petitioner elevated the case to the Court of Appeals which affirmed the findings of
the trial court. It held that in claiming that respondent was not a resident of the
Philippines, petitioner cannot be said to have been in good faith considering that its
knowledge of respondents Philippine residence and office address goes into the very
issue of the trial courts jurisdiction which would have been defective had respondent not
voluntarily appeared before it.
The Court of Appeals, however, reduced the amount of damages awarded to
petitioner and specified their basis. The dispositive portion of the decision of the Court
of Appeals states:
WHEREFORE, the appeal is PARTIALLY GRANTED and the
decision appealed from is hereby MODIFIED. The award of damages in
the amount of P25,000,000.00 is deleted. In lieu thereof, Prudential
Guarantee & [Assurance, Inc.], which is solidarily liable with appellant
[herein petitioner], is ORDERED to pay appellee [herein respondent]
P2,000,000.00 as nominal damages; P5,000,000.00 as moral damages; and
P1,000,000.00 as attorneys fees, to be satisfied against the attachment
bond under Prudential Guarantee & Assurance, Inc. JCL (4) No. 01081.
SO ORDERED.[22]
Both parties moved for reconsideration. On November 21, 2006, the Court of
Appeals denied petitioners motion for reconsideration but granted that of respondents
by ordering petitioner to pay additional P5Million as exemplary damages.[23]

Hence, the instant petition.


At the outset, it must be noted that the ruling of the trial court that petitioner is not
entitled to a writ of attachment because respondent is a resident of the Philippines and
that his act of withdrawing his deposits with petitioner was without intent to defraud, can
no longer be passed upon by this Court. More importantly, the conclusions of the court
that petitioner bank misrepresented that respondent was residing out of the Philippines
and suppressed the fact that respondent has a permanent residence in Metro Manila where
he may be served with summons, are now beyond the power of this Court to review
having been the subject of a final and executory order. Said findings were sustained by
the Court of Appeals in CA-G.R. SP No. 50784 and by this Court in G.R. No. 140605.
The rule on conclusiveness of judgment, which obtains under the premises, precludes the
relitigation of a particular fact or issue in another action between the same parties even if
based on a different claim or cause of action. The judgment in the prior action operates
as estoppel as to those matters in issue or points controverted, upon the determination of
which the finding or judgment was rendered. The previous judgment is conclusive in the
second case, as to those matters actually and directly controverted and determined. [24]
Hence, the issues of misrepresentation by petitioner and the residence of respondent for
purposes of service of summons can no longer be questioned by petitioner in this case.
The core issue for resolution is whether petitioner bank is liable for damages for
the improper issuance of the writ of attachment against respondent.
We rule in the affirmative.
Notwithstanding the final judgment that petitioner is guilty of misrepresentation
and suppression of a material fact, the latter contends that it acted in good faith.
Petitioner also contends that even if respondent is considered a resident of the
Philippines, attachment is still proper under Section 1, paragraph (f), Rule 57 of the Rules
of Court since he (respondent) is a resident who is temporarily out of the Philippines
upon whom service of summons may be effected by publication.
Petitioners contentions are without merit.
While the final order of the trial court which quashed the writ did not categorically

use the word bad faith in characterizing the representations of petitioner, the tenor of
said order evidently considers the latter to have acted in bad faith by resorting to a
deliberate strategy to mislead the court. Thus
In the hearings of the motion, and oral arguments of counsels
before the Court, it appears that plaintiff BANK through its contracting
officers Vice President CORAZON B. NEPOMUCENO and Executive
Vice President JOSE RAMON F. REVILLA, personally transacted with
defendant mainly through defendants permanent residence in METROMANILA, either in defendants home address in Quezon City or his main
business address at the ROMULO MABANTA BUENAVENTURA
SAYOC & DELOS ANGELES in MAKATI and while at times follow ups
were made through defendants temporary home and business addresses in
Hongkong. It is therefore clear that plaintiff could not deny their personal
and official knowledge that defendants permanent and official residence
for purposes of service of summons is in the Philippines. In fact, this
finding is further confirmed by the letter of Mr. JOHN GOKONGWEI, JR.
Chairman, Executive Committee of plaintiff BANK, in his letter dated 6
October 1997 on the subject loan to defendant of the same law firm was
addressed to the ROMULO LAW FIRM in MAKATI.
[Anent the] second ground of attachment x x x [t]he Court finds
that the amount withdrawn was not part of defendants peso deposits
assigned with the bank to secure the loan and as proof that the withdrawal
was not intended to defraud plaintiff as creditor is that plaintiff approved
and allowed said withdrawals. It is even noted that when the Court
granted the prayer for attachment it was mainly on the first ground under
Section 1(f) of Rule 57 of the 1997 Rules of Civil Procedure, that
defendant resides out of the Philippines.
On the above findings, it is obvious that plaintiff already knew
from the beginning the deficiency of its second ground for attachment
[i.e.,] disposing properties with intent to defraud his creditors, and
therefore plaintiff had to resort to this misrepresentation that defendant
was residing out of the Philippines and suppressed the fact that defendants
permanent residence is in METRO MANILA where he could be served
with summons.
On the above findings, and mainly on the misrepresentations made
by plaintiff on the grounds for the issuance of the attachment in the
verified complaint, the Court concludes that defendant has duly proven its
grounds in the MOTION and that plaintiff is not entitled to the attachment.
[25]

Petitioner is therefore barred by the principle of conclusiveness of judgment from


again invoking good faith in the application for the issuance of the writ. Similarly, in the
case of Hanil Development Co., Ltd. v. Court of Appeals,[26] the Court debunked the claim
of good faith by a party who maliciously sought the issuance of a writ of attachment, the
bad faith of said party having been previously determined in a final decision which
voided the assailed writ. Thus
Apropos the Application for Judgment on the Attachment Bond,
Escobar claims in its petition that the award of attorneys fees and
injunction bond premium in favor of Hanil is [contrary] to law and
jurisprudence. It contends that no malice or bad faith may be imputed to it
in procuring the writ.
Escobars protestation is now too late in the day. The question of
the illegality of the attachment and Escobars bad faith in obtaining it has
long been settled in one of the earlier incidents of this case. The Court of
Appeals, in its decision rendered on February 3, 1983 in C.A.-G.R. No.
SP-14512, voided the challenged writ, having been issued with grave
abuse of discretion. Escobars bad faith in procuring the writ cannot be
doubted. Its Petition for the Issuance of Preliminary Attachment made
such damning allegations that: Hanil was already able to secure a complete
release of its final collection from the MPWH; it has moved out some of
its heavy equipments for unknown destination, and it may leave the
country anytime. Worse, its Ex Parte Motion to Resolve Petition alleged
that after personal verification by (Escobar) of (Hanils) equipment in
Cagayan de Oro City, it appears that the equipments were no longer
existing from their compound. All these allegations of Escobar were
found to be totally baseless and untrue.
Even assuming that the trial court did not make a categorical pronouncement of
misrepresentation and suppression of material facts on the part of petitioner, the factual
backdrop of this case does not support petitioners claim of good faith. The facts and
circumstances omitted are highly material and relevant to the grant or denial of writ of
attachment applied for.
Finally, there is no merit in petitioners contention that respondent can be
considered a resident who is temporarily out of the Philippines upon whom service of
summons may be effected by publication, and therefore qualifies as among those against
whom a writ of attachment may be issued under Section 1, paragraph (f), Rule 57 of the
Rules of Court which provides:

(f)
In an action against a party x x x on whom summons
may be served by publication.
In so arguing, petitioner attempts to give the impression that although it
erroneously invoked the ground that respondent does not reside in the Philippines, it
should not be made to pay damages because it is in fact entitled to a writ of attachment
had it invoked the proper ground under Rule 57. However, even on this alternative
ground, petitioner is still not entitled to the issuance of a writ of attachment.
The circumstances under which a writ of preliminary attachment may be issued
are set forth in Section 1, Rule 57 of the Rules of Court, to wit:
SEC. 1. Grounds upon which attachment may issue. At the
commencement of the action or at any time before entry of judgment, a
plaintiff or any proper party may have the property of the adverse party
attached as security for the satisfaction of any judgment that may be
recovered in the following cases:
(a)
In an action for the recovery of a specified amount of
money or damages, other than moral and exemplary, on a cause of action
arising from law, contract, quasi-contract, delict or quasi-delict against a
party who is about to depart from the Philippines with intent to defraud his
creditors;
(b)
In an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a public officer, or
an officer of a corporation or an attorney, factor, broker, agent, or clerk, in
the course of his employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty;
(c)
In an action to recover the possession of personal property
unjustly or fraudulently taken, detained, or converted, when the property,
or any part thereof, has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or an authorized person;
(d)
In an action against a party who has been guilty of a fraud
in contracting the debt or incurring the obligation upon which the action is
brought, or in the performance thereof;
(e)
In an action against a party who has removed or disposed
of his property, or is about to do so, with intent to defraud his creditors;

(f)
In an action against a party who resides out of the
Philippines, or on whom summons may be served by publication.
The purposes of preliminary attachment are: (1) to seize the property of the
debtor in advance of final judgment and to hold it for purposes of satisfying said
judgment, as in the grounds stated in paragraphs (a) to (e) of Section 1, Rule 57 of the
Rules of Court; or (2) to acquire jurisdiction over the action by actual or constructive
seizure of the property in those instances where personal or substituted service of
summons on the defendant cannot be effected, as in paragraph (f) of the same
provision.[27]
Corollarily, in actions in personam, such as the instant case for collection of sum
of money,[28] summons must be served by personal or substituted service, otherwise the
court will not acquire jurisdiction over the defendant. In case the defendant does not
reside and is not found in the Philippines (and hence personal and substituted service
cannot be effected), the remedy of the plaintiff in order for the court to acquire
jurisdiction to try the case is to convert the action into a proceeding in rem or quasi in
rem by attaching the property of the defendant. [29] Thus, in order to acquire jurisdiction in
actions in personam where defendant resides out of and is not found in the Philippines, it
becomes a matter of course for the court to convert the action into a proceeding in rem or
quasi in rem by attaching the defendants property. The service of summons in this case
(which may be by publication coupled with the sending by registered mail of the copy of
the summons and the court order to the last known address of the defendant), is no longer
for the purpose of acquiring jurisdiction but for compliance with the requirements of due
process.[30]
However, where the defendant is a resident who is temporarily out of the
Philippines, attachment of his/her property in an action in personam, is not always
necessary in order for the court to acquire jurisdiction to hear the case.
Section 16, Rule 14 of the Rules of Court reads:
Sec. 16. Residents temporarily out of the Philippines. When an
action is commenced against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service may, by leave of
court, be also effected out of the Philippines, as under the preceding
section.

The preceding section referred to in the above provision is Section 15 which


provides for extraterritorial service (a) personal service out of the Philippines, (b)
publication coupled with the sending by registered mail of the copy of the summons and
the court order to the last known address of the defendant; or (c) in any other manner
which the court may deem sufficient.
In Montalban v. Maximo,[31] however, the Court held that substituted service of
summons (under the present Section 7, Rule 14 of the Rules of Court) is the normal mode
of service of summons that will confer jurisdiction on the court over the person of
residents temporarily out of the Philippines. Meaning, service of summons may be
effected by (a) leaving copies of the summons at the defendants residence with some
person of suitable discretion residing therein, or (b) by leaving copies at the defendants
office or regular place of business with some competent person in charge thereof. [32]
Hence, the court may acquire jurisdiction over an action in personam by mere substituted
service without need of attaching the property of the defendant.
The rationale in providing for substituted service as the normal mode of service
for residents temporarily out of the Philippines, was expounded in Montalban v. Maximo,
[33]
in this wise:
A man temporarily absent from this country leaves a definite place of
residence, a dwelling where he lives, a local base, so to speak, to which
any inquiry about him may be directed and where he is bound to return.
Where one temporarily absents himself, he leaves his affairs in the hands
of one who may be reasonably expected to act in his place and stead; to do
all that is necessary to protect his interests; and to communicate with him
from time to time any incident of importance that may affect him or his
business or his affairs. It is usual for such a man to leave at his home or
with his business associates information as to where he may be contacted
in the event a question that affects him crops up.

Thus, in actions in personam against residents temporarily out of the Philippines,


the court need not always attach the defendants property in order to have authority to try
the case. Where the plaintiff seeks to attach the defendants property and to resort to the
concomitant service of summons by publication, the same must be with prior leave,

precisely because, if the sole purpose of the attachment is for the court to acquire
jurisdiction, the latter must determine whether from the allegations in the complaint,
substituted service (to persons of suitable discretion at the defendants residence or to a
competent person in charge of his office or regular place of business) will suffice, or
whether there is a need to attach the property of the defendant and resort to service of
summons by publication in order for the court to acquire jurisdiction over the case and to
comply with the requirements of due process.
In the instant case, it must be stressed that the writ was issued by the trial court
mainly on the representation of petitioner that respondent is not a resident of the
Philippines.[34] Obviously, the trial courts issuance of the writ was for the sole purpose of
acquiring jurisdiction to hear and decide the case. Had the allegations in the complaint
disclosed that respondent has a residence in Quezon City and an office in Makati City, the
trial court, if only for the purpose of acquiring jurisdiction, could have served summons
by substituted service on the said addresses, instead of attaching the property of the
defendant. The rules on the application of a writ of attachment must be strictly construed
in favor of the defendant. For attachment is harsh, extraordinary, and summary in nature;
it is a rigorous remedy which exposes the debtor to humiliation and annoyance. [35] It
should be resorted to only when necessary and as a last remedy.
It is clear from the foregoing that even on the allegation that respondent is a
resident temporarily out of the Philippines, petitioner is still not entitled to a writ of
attachment because the trial court could acquire jurisdiction over the case by substituted
service instead of attaching the property of the defendant. The misrepresentation of
petitioner that respondent does not reside in the Philippines and its omission of his local
addresses was thus a deliberate move to ensure that the application for the writ will be
granted.
In light of the foregoing, the Court of Appeals properly sustained the finding of
the trial court that petitioner is liable for damages for the wrongful issuance of a writ of
attachment against respondent.
Anent the actual damages, the Court of Appeals is correct in not awarding the
same inasmuch as the respondent failed to establish the amount garnished by petitioner.
It is a well settled rule that one who has been injured by a wrongful attachment can

recover damages for the actual loss resulting therefrom. But for such losses to be
recoverable, they must constitute actual damages duly established by competent proofs,
which are, however, wanting in the present case.[36]
Nevertheless, nominal damages may be awarded to a plaintiff whose right has
been violated or invaded by the defendant, for the purpose of vindicating or recognizing
that right, and not for indemnifying the plaintiff for any loss suffered by him. Its award is
thus not for the purpose of indemnification for a loss but for the recognition and
vindication of a right. Indeed, nominal damages are damages in name only and not in
fact.[37] They are recoverable where some injury has been done but the pecuniary value of
the damage is not shown by evidence and are thus subject to the discretion of the court
according to the circumstances of the case.[38]
In this case, the award of nominal damages is proper considering that the right of
respondent to use his money has been violated by its garnishment. The amount of
nominal damages must, however, be reduced from P2 million to P50,000.00 considering
the short period of 2 months during which the writ was in effect as well as the lack of
evidence as to the amount garnished.
Likewise, the award of attorneys fees is proper when a party is compelled to
incur expenses to lift a wrongfully issued writ of attachment. The basis of the award
thereof is also the amount of money garnished, and the length of time respondents have
been deprived of the use of their money by reason of the wrongful attachment. [39] It may
also be based upon (1) the amount and the character of the services rendered; (2) the
labor, time and trouble involved; (3) the nature and importance of the litigation and
business in which the services were rendered; (4) the responsibility imposed; (5) the
amount of money and the value of the property affected by the controversy or involved in
the employment; (6) the skill and the experience called for in the performance of the
services; (7) the professional character and the social standing of the attorney; (8) the
results secured, it being a recognized rule that an attorney may properly charge a much
larger fee when it is contingent than when it is not.[40]
All the aforementioned weighed, and considering the short period of time it took
to have the writ lifted, the favorable decisions of the courts below, the absence of
evidence as to the professional character and the social standing of the attorney handling

the case and the amount garnished, the award of attorneys fees should be fixed not at P1
Million, but only at P200,000.00.
The courts below correctly awarded moral damages on account of petitioners
misrepresentation and bad faith; however, we find the award in the amount of P5 Million
excessive. Moral damages are to be fixed upon the discretion of the court taking into
consideration the educational, social and financial standing of the parties. [41] Moral
damages are not intended to enrich a complainant at the expense of a defendant. [42] They
are awarded only to enable the injured party to obtain means, diversion or amusements
that will serve to obviate the moral suffering he has undergone, by reason of petitioners
culpable action. Moral damages must be commensurate with the loss or injury suffered.
Hence, the award of moral damages is reduced to P500,000.00.

Considering petitioners bad faith in securing the writ of attachment, we sustain


the award of exemplary damages by way of example or correction for public good. This
should deter parties in litigations from resorting to baseless and preposterous allegations
to obtain writs of attachments. While as a general rule, the liability on the attachment
bond is limited to actual (or in some cases, temperate or nominal) damages, exemplary
damages may be recovered where the attachment was established to be maliciously sued
out.[43] Nevertheless, the award of exemplary damages in this case should be reduced
from P5M to P500,000.00.
Finally, contrary to the claim of petitioner, the instant case for damages by reason
of the invalid issuance of the writ, survives the dismissal of the main case for sum of
money. Suffice it to state that the claim for damages arising from such wrongful
attachment may arise and be decided separately from the merits of the main action.[44]
WHEREFORE, the petition is PARTIALLY GRANTED. The May 31, 2006
Decision of the Court of Appeals in CA-G.R. CV No. 78200 is AFFIRMED
withMODIFICATIONS. As modified, petitioner Philippine Commercial International
Bank is ordered to pay respondent Joseph Anthony M. Alejandro the following
amounts:P50,000.00 as nominal damages, P200,000.00 as attorneys fees; and
P500,000.00 as moral damages, and P500,000.00 as exemplary damages, to be satisfied
against the attachment bond issued by Prudential Guarantee & Assurance Inc., [45] under
JCL (4) No. 01081, Bond No. HO-46764-97.
No pronouncement as to costs.

SO ORDERED.

FIRST DIVISION

[G.R. No. 150656. April 29, 2003]

MARGARITA ROMUALDEZ-LICAROS,
LICAROS, respondent.

petitioner,

vs.

ABELARDO

B.

DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari[1] to annul the Decision[2] dated 9 August
2001 of the Court of Appeals in CA-G.R. SP No. 58487, as well as the Resolution dated
23 October 2001 denying the motion for reconsideration. The Court of Appeals
dismissed the petition to annul the following decisions[3] rendered by Branch 143 of the
Regional Trial Court of Makati:
(1) The Decision dated 27 December 1990[4] granting the dissolution of the conjugal
partnership of gains of the spouses Abelardo B. Licaros and Margarita RomualdezLicaros;
(2) The Decision dated 8 November 1991[5] declaring the marriage between the same
spouses null and void.
The Facts
The antecedent facts as found by the Court of Appeals are as follows:
x x x Abelardo Licaros (Abelardo, for short) and Margarita Romualdez-Licaros
(Margarita, hereafter) were lawfully married on December 15, 1968. Out of this marital
union were born Maria Concepcion and Abelardo, Jr. Ironically, marital differences,
squabbles and irreconcilable conflicts transpired between the spouses, such that sometime
in 1979, they agreed to separate from bed and board.

In 1982, Margarita left for the United States and there, to settle down with her two (2)
children. In the United States, on April 26, 1989, Margarita applied for divorce before
the Superior Court of California, County of San Mateo (Annex 1, Rejoinder, pp. 164165) where she manifested that she does not desire counseling at that time (Quotation, p.
166, Rollo). On August 6, 1990, Margarita was granted the decree of divorce(Annex 2,
Answer, p. 108, Rollo) together with a distribution of properties between her and
Abelardo (pp. 167-168, Rollo).
Not long after, on August 17, 1990, Abelardo and Margarita executed an Agreement of
Separation of Properties (pp. 60-64, Rollo). This was followed-up by a petition filed on
August 21, 1990 before the Regional Trial Court of Makati for the dissolution of the
conjugal partnership of gains of the spouses and for the approval of the agreement of
separation of their properties. This was docketed as Special Proceeding No. 2551. On
December 27, 1990, a decision was issued granting the petition and approving the
separation of property agreement.
For his part, on June 24, 1991, Abelardo commenced Civil Case No. 91-1757, for the
declaration of nullity of his marriage with Margarita, based on psychological incapacity
under the New Family Code. As Margarita was then residing at 96 Mulberry Lane,
Atherton, California, U.S.A., Abelardo initially moved that summons be served through
the International Express Courier Service. The court a quo denied the motion. Instead, it
ordered that summons be served by publication in a newspaper of general circulation
once a week for three (3) consecutive weeks, at the same time furnishing respondent a
copy of the order, as well as the corresponding summons and a copy of the petition at the
given address in the United States through the Department of Foreign Affairs, all at the
expense of Abelardo. Respondent was given sixty (60) days after publication to file a
responsive pleading.
On July 15, 1991, Process Server, Maximo B. Dela Rosa, submitted his Officers Return
quoted hereunder:
OFFICERS RETURN
THIS IS TO CERTIFY that on July 3, 1991, I have served a copy of summons and
complaint with annexes together with order dated June 28, 1991 issued by the Court in
the above-entitled case upon defendant Margarita Romualdez-Licaros c/o DFA. (sent by
Mail) thru Pat G. Martines receiving Clerk of Department of Foreign Affairs a person
authorized to receive this kind of process who acknowledged the receipt thereof at ADB
Bldg., Roxas Blvd., Pasay City, Metro Manila. (p. 40, Rollo)
As required by law, the case was referred to Trial Prosecutor Bruselas, Jr. to find out any
possible collusion between the parties in the case. Thereafter, with the negative report of
collusion, Abelardo was allowed to present his evidence ex-parte. On November 8, 1991,
the Decision (Annex A, Petition) was handed down in Civil Case No. 91-1757
declaring the marriage between Abelardo and Margarita null and void.

Almost nine (9) years later, on April 28, 2000, the petition at bench was commenced
when Margarita received a letter dated November 18, 1991 from a certain Atty. Angelo Q.
Valencia informing her that she no longer has the right to use the family name Licaros
inasmuch as her marriage to Abelardo had already been judicially dissolved by the
Regional Trial Court of Makati on November 8, 1991. Asseverating to have immediately
made some verifications and finding the information given to be true, petitioner
commenced the instant petition on the following grounds:
(A) THERE WAS EXTRINSIC FRAUD IN THE PREPARATION AND
FILING BY ABELARDO OF THE PETITION FOR DISSOLUTION OF
THE CONJUGAL PARTNERSHIP OF GAINS AND ITS ANNEX, THE
AGREEMENT OF SEPARATION OF PROPERTIES.
(B) THE TRIAL COURT LACKED JURISDICTION TO HEAR AND DECIDE
THE PETITION FOR DECLARATION OF NULLITY OF MARRIAGE. [6]
The Ruling of the Court of Appeals
The Court of Appeals debunked the claim of Margarita that there was extrinsic fraud
in the preparation and filing by Abelardo of the Petition for Dissolution of Conjugal
Partnership of Gainsand its annex, the Agreement of Separation of Properties. The Court
of Appeals stated:
x x x, the extrinsic fraud alluded to consists of Abelardo coercing Margarita into signing
the petition to dissolve their conjugal partnership of gains together with the agreement of
separation of properties, by threatening to cut-off all financial and material support of
their children then still studying in the United States; that petitioner had no hand directly
or indirectly in the preparation of the petition and agreement of separation of properties;
that petitioner never met the counsel for the petitioner, nor the notary public who
notarized the deed; and, petitioner never received any notice of the pendency of the
petition nor a copy of the decision.
Antithetically, a meticulous perusal of the controversial petition (Annex B-1) and the
agreement of separation of properties (pp. 60-64, Rollo) readily shows that the same were
signed by the petitioner on the proper space after the prayer and on the portion for the
verification of the petition. The same is true with the agreement of separation of
properties. What is striking to note is that on August 6, 1990, Margarita appeared before
Amado P. Cortez, Consul of the Republic of the Philippines at the San Francisco,
California, United States Consulate Office, to affirm and acknowledge before said official
that she executed the agreement of separation of properties of her own free will and deed,
after being informed of the contents thereof. And yet, there is no showing that Abelardo
was with her at the Philippine Consulate Office in confirming the separation of property
agreement. Moreover, on page 2 of the same agreement, it is specifically stated that such
property separation document shall be subject to approval later on by the proper court of
competent jurisdiction. The clear import of this is that the agreement must have to be

submitted before the proper court for approval, which explains and confirms petitioners
signature on the petition filed in court.
In main, We see no indication nor showing of coercion or fraud from these facts, which
could very well be considered as extrinsic or collateral fraud to justify a petition under
Rule 47. From all indications, the pretended coerced documents were rather freely and
voluntarily executed by the parties therein knowing fully well the imports thereof. This
conclusion finds more weight if We consider the fact that the separation of property was
fully implemented and enforced, when apparently both parties correspondingly received
the properties respectively assigned to each of them under the said document.[7]
The Court of Appeals also rejected Margaritas claim that the trial court lacked
jurisdiction to hear and decide the Petition for Declaration of Nullity of Marriage for
improper service of summons on her. The case involves the marital status of the parties,
which is an action in rem or quasi in rem. The Court of Appeals ruled that in such an
action the purpose of service of summons is not to vest the trial court with jurisdiction
over the person of the defendant, but only to comply with due process. The Court of
Appeals concluded that any irregularity in the service of summons involves due process
which does not destroy the trial courts jurisdiction over the res which is the parties
marital status. Neither does such irregularity invalidate the judgment rendered in the
case. Thus, the Court of Appeals dismissed the petition for annulment of judgment,
stating that:
At bar, the case involves the personal (marital) status of the plaintiff and the defendant.
This status is the res over which the Philippine court has acquired jurisdiction. This is
also the kind of action which the Supreme Court had ruled that service of summons may
be served extraterritorially under Section 15 (formerly Section 17) of Rule 14 and where
such service of summons is not for the purpose of vesting the trial court with jurisdiction
over the person of the defendant but only for the purpose of complying with the
requirements of fair play and due process. A fortiori, the court a quo had properly
acquired jurisdiction over the person of herein petitioner-defendant when summons was
served by publication and a copy of the summons, the complaint with annexes, together
with the Order of June 28, 1991, was served to the defendant through the Department of
Foreign Affairs by registered mail and duly received by said office to top it all. Such
mode was upon instruction and lawful order of the court and could even be treated as
any other manner the court may deem sufficient.[8]
Hence, the instant petition.
The Issues
The issues raised by Margarita are restated as follows:
I. Whether Margarita was validly served with summons in the case for declaration of
nullity of her marriage with Abelardo;

II. Whether there was extrinsic fraud in the preparation and filing by Abelardo of the
Petition for Dissolution of the Conjugal Partnership of Gains and its annex, the
Agreement of Separation of Properties.
The Courts Ruling
The petition is bereft of merit.
First Issue: Validity of the Service of Summons on Margarita
Margarita insists that the trial court never acquired jurisdiction over her person in the
petition for declaration of nullity of marriage since she was never validly served with
summons. Neither did she appear in court to submit voluntarily to its jurisdiction.
On the other hand, Abelardo argues that jurisdiction over the person of a non-resident
defendant in an action in rem or quasi in rem is not necessary. The trial and appellate
courts made a clear factual finding that there was proper summons by publication
effected through the Department of Foreign Affairs as directed by the trial court. Thus,
the trial court acquired jurisdiction to render the decision declaring the marriage a nullity.
Summons is a writ by which the defendant is notified of the action brought against
him. Service of such writ is the means by which the court acquires jurisdiction over his
person.[9]
As a rule, when the defendant does not reside and is not found in the Philippines,
Philippine courts cannot try any case against him because of the impossibility of
acquiring jurisdiction over his person unless he voluntarily appears in court. But when
the case is one of actions in rem or quasi in rem enumerated in Section 15,[10] Rule 14 of
the Rules of Court, Philippine courts have jurisdiction to hear and decide the case. In
such instances, Philippine courts have jurisdiction over the res, and jurisdiction over the
person of the non-resident defendant is not essential.[11]
Actions in personam[12] and actions in rem or quasi in rem differ in that actions in
personam are directed against specific persons and seek personal judgments. On the
other hand, actionsin rem or quasi in rem are directed against the thing or property or
status of a person and seek judgments with respect thereto as against the whole world.[13]
At the time Abelardo filed the petition for nullity of the marriage in 1991, Margarita
was residing in the United States. She left the Philippines in 1982 together with her two
children. The trial court considered Margarita a non-resident defendant who is not found
in the Philippines. Since the petition affects the personal status of the plaintiff, the trial
court authorized extraterritorial service of summons under Section 15, Rule 14 of the
Rules of Court. The term personal status includes family relations, particularly the
relations between husband and wife.[14]
Under Section 15 of Rule 14, a defendant who is a non-resident and is not found in
the country may be served with summons by extraterritorial service in four instances: (1)
when the action affects the personal status of the plaintiff; (2) when the action relates
to, or the subject of which is property within the Philippines, in which the defendant has

or claims a lien or interest, actual or contingent; (3) when the relief demanded consists,
wholly or in part, in excluding the defendant from any interest in property located in the
Philippines; or (4) when the property of the defendant has been attached within the
Philippines.
In these instances, extraterritorial service of summons may be effected under any of
three modes: (1) by personal service out of the country, with leave of court; (2) by
publication and sending a copy of the summons and order of the court by registered mail
to the defendants last known address, also with leave of court; or (3) by any other means
the judge may consider sufficient.
Applying the foregoing rule, the trial court required extraterritorial service of
summons to be effected on Margarita in the following manner:
x x x, service of Summons by way of publication in a newspaper of general circulation
once a week for three (3) consecutive weeks, at the same time, furnishing respondent
copy of this Order as well as the corresponding Summons and copy of the petition at her
given address at No. 96 Mulberry Lane, Atherton, California, U.S.A., thru the
Department of Foreign Affairs, all at the expense of petitioner.[15] (Emphasis ours)
The trial courts prescribed mode of extraterritorial service does not fall under the first or
second mode specified in Section 15 of Rule 14, but under the third mode. This refers to
any other means that the judge may consider sufficient.
The Process Servers Return of 15 July 1991 shows that the summons addressed to
Margarita together with the complaint and its annexes were sent by mail to the
Department of Foreign Affairs with acknowledgment of receipt. The Process Servers
certificate of service of summons is prima facie evidence of the facts as set out in the
certificate.[16] Before proceeding to declare the marriage between Margarita and Abelardo
null and void, the trial court stated in its Decision dated 8 November 1991 that
compliance with the jurisdictional requirements hav(e) (sic)been duly established.
We hold that delivery to the Department of Foreign Affairs was sufficient compliance
with the rule. After all, this is exactly what the trial court required and considered as
sufficient to effect service of summons under the third mode of extraterritorial service
pursuant to Section 15 of Rule 14.
Second Issue: Validity of the Judgment Dissolving the
Conjugal Partnership of Gains
Margarita claims that Abelardo coerced her into signing the Petition for Dissolution
of the Conjugal Partnership of Gains (Petition) and its annex, the Agreement of
Separation of Properties (Agreement). Abelardo allegedly threatened to cut off all
financial and material support to their children if Margarita did not sign the documents.
The trial court did not find anything amiss in the Petition and Agreement that
Abelardo filed, and thus the trial court approved the same. The Court of Appeals noted
that a meticulous perusal of the Petition and Agreement readily shows that Margarita
signed the same on the proper space after the prayer and on the portion for the
verification of the petition. The Court of Appeals observed further that on 6 August 1990,

Margarita appeared before Consul Amado Cortez in the Philippine Consulate Office in
San Francisco, California, to affirm that she executed the Agreement of her own free will.
There was no showing that Abelardo was at that time with her at the Philippine Consulate
Office. Abelardo secured judicial approval of the Agreement as specifically required in
the Agreement.
The Court is bound by the factual findings of the trial and appellate courts that the
parties freely and voluntarily executed the documents and that there is no showing of
coercion or fraud. As a rule, in an appeal by certiorari under Rule 45, the Court does not
pass upon questions of fact as the factual findings of the trial and appellate courts are
binding on the Court. The Court is not a trier of facts. The Court will not examine the
evidence introduced by the parties below to determine if the trial and appellate courts
correctly assessed and evaluated the evidence on record.[17]
The due and regular execution of an instrument acknowledged before an officer
authorized to administer oaths cannot be overthrown by bare allegations of coercion but
only by clear and convincing proof.[18] A person acknowledging an instrument before an
officer authorized to administer oaths acknowledges that he freely and voluntarily
executed the instrument, giving rise to aprima facie presumption of such fact.
In the instant case, Margarita acknowledged the Agreement before Consul Cortez.
The certificate of acknowledgment signed by Consul Cortez states that Margarita
personally appeared before him and acknowledged before me that SHE executed the
same of her own free will and deed.[19] Thus, there is a prima facie presumption that
Margarita freely and voluntarily executed the Agreement. Margarita has failed to rebut
this prima facie presumption with clear and convincing proof of coercion on the part of
Abelardo.
A document acknowledged before a notary public is prima facie evidence of the due
and regular execution of the document.[20] A notarized document has in its favor the
presumption of regularity in its execution, and to contradict the same, there must be
evidence that is clear, convincing and more than merely preponderant.[21]
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. SP No. 58487
dismissing the petition to annul judgment is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Ynares-Santiago, and Azcuna, JJ., concur.

THIRD DIVISION
[G.R. No. 133382. March 9, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EFREN MENDOZA y
SALVADOR, accused-appellant.
DECISION

PANGANIBAN, J.:
True, a father and husband has the duty and the right to defend himself, his family and his
home. However, in order to successfully invoke self-defense and defense of relative, he
must prove, by clear and convincing evidence, the concurrence of three elements, the
most important of which is unlawful aggression on the part of the victim. Absent
unlawful aggression, these defenses collapse and the accused must be convicted. slx mis
The Case
Efren Mendoza y Salvador was charged with murder for the July 14, 1993 killing of
Anchito A. Nano. Before the Regional Trial Court of Daet, Camarines Norte, an
Information[1] was filed against him on September 9, 1993, alleging as follows:
"That on or about 7:30 o clock [o]n the evening of July 14, 1993, at Brgy.
Manlucugan, [M]unicipality of Vinzons, [P]rovince of Camarines Norte,
and within the jurisdiction of this Honorable Court, the above-named
accused did then and there willfully, unlawfully and feloniously with
deliberate intent to kill, with treachery and evident premeditation, assault,
attack and hack with a bolo one ANCHITO A. NANO, thereby inflicting
upon the latter multiple hacking wounds, which were the proximate cause
of his instantaneous death, to the damage and prejudice of the heirs of the
victim.
"CONTRARY TO LAW."[2]
During his arraignment on October 22, 1993, appellant, with the assistance of Atty. Leo
Intia, entered a plea of not guilty.[3] On November 6, 1997, after trial in due course, the
court a quorendered its assailed nine-page Decision,[4] the dispositive portion of which
reads:
"WHEREFORE, premises considered, this court hereby finds the accused,
Efren Mendoza GUILTY beyond reasonable doubt of the crime of
MURDER defined and penalized under Article 248 of the Revised Penal
Code. The mitigating circumstance of voluntary surrender will not affect
the penalty imposed since it is offset by the aggravating circumstance of
treachery. Wherefore, he is hereby ordered to suffer the penalty of
RECLUSION PERPETUA, and to pay the heirs of the deceased the
following:
a) P 50,000.00 as death indemnity; and
b) P 30,000.00 as moral damages.
"The bond posted for the provisional liberty of said accused is hereby
CANCELLED.

"SO ORDERED."[5]
Hence, this appeal.[6]
The Facts
The Version of the Prosecution
In the Peoples Brief,[7] the Office of the Solicitor General presented the following
statement of facts:
"At around 7:00 p.m. of July 14, 1993, in Barangay Manlucugan, Vinzons,
Camarines Norte, Anchito Nano and Marianito Rafael passed by
appellants house and asked for a drink from appellants wife, Emily
Mendoza. Anchito began talking with Emily and they were about four
arms-length from Marianito when appellant suddenly appeared. Appellant
hacked Anchito on the nape, which prompted Marianito to flee out of fear
for his life. (TSN, March 9, 1993, pp.10-14).
"Brgy. Kagawad Pedro Saman, together with Ernesto Cribe and Trinidad
delos Santos, arrived later at the scene of the crime. Kagawad Saman
discovered Anchito in a kneeling position already dead. He also found (3)
three hack wounds on the nape and two (2) hack wounds at the back of
Anchitos body (TSN, March 10, 1997, pp. 7 and 18).
"At around 9:00 p.m. of that day, Trinidad delos Santos reported the
hacking incident to the sub-station of Aguit-it, Vinzons. SPO2 Silverio
Rafael proceeded to the crime scene and saw Anchitos body still in a
kneeling position with hack wounds at the back of the neck and body
(TSN, May 31, 1994, p. 5). Sda adsc
"SPO4 Rafael asked the people present who was the perpetrator of the
crime. The Barangay officials led by Kgwd. Saman and Kgwd. Cribe
informed Rafael that the perpetrator was appellant Efren Mendoza. SPO4
Rafael later observed that the appellants house was in total disarray and
he surmised that things might have been taken in a hurry. He also noted
that there was no weapon anywhere near the victims body (Ibid., pp. 1214 and 17).
"Later that night, appellant surrendered to Senior Police Officer Leonardo
Almadrones who promptly turned him over to Chief Investigator Joel
Guinto for the requisite investigation. During investigation, appellant
claimed that Anchito ransacked his house and hacked his seven (7) year
old son Ernie Mendoza (TSN, July 1, 1994, p. 5).
"Two days later, appellants wife and son went to the Vinzons police

station to blotter Ernie Mendozas wound. Investigator Guinto interviewed


Ernie Mendoza and concluded that Ernies wound was made by somebody
other than the victim since the said wound was not deep enough. Also,
when he questioned the child about the wound, the latter answered that
when he woke up, he already had a wound. Investigator Guinto later filed
the present charge against appellant after the victims common-law wife
brought several witnesses who each executed their corresponding sworn
affidavits." (Ibid., pp. 7 & 11)."[8]
The Version of the Defense
The defense presented six witnesses: Appellant Efren Mendoza, his wife Emily and his
son Ernie; Bayani Aguilar; Dr. Gaudencio Albano and Carmen Herico. In his Brief,[9]
appellant summarized the defense witnesses testimonies as follows:
"EMILY MENDOZA, wife of appellant, testified that at around 7:00 o
clock in the evening, the victim Anchito Nano and his companion
Marianito Rafael arrived at their house and upon arrival, Anchito Nano
destroyed the two (2) windows of their house. She saw afterwards that her
son, Ernie Mendoza, was hacked by Anchito Nano while the former was
peeping thru the destroyed window. She shouted for help and appellant,
her husband, responded to her call and saw Anchito Nano who was about
to attack her husband, but was hacked first by the latter. Marianito Rafael
who was just watching subsequently fled from the place of the incident.
She brought her son first to the faith healer for immediate treatment and
the following morning to the Provincial Hospital for medical treatment.
She learned later that her husband went to Vinzons Municipal Hall and
surrendered voluntarily to the police authority on the same day of July 14,
1993. (TSN, December 8, 1994, pp. 3-11).
"EFREN MENDOZA, accused-appellant, testified that on July 14, 1993,
at around 7:30 in [the] evening, he was at the comfort room 20 about
meters away from their house when he heard his wife shouting for help.
He ran immediately towards the direction of their house and saw Anchito
Nano destroying the lock of their window[;] hence he looked for a piece of
wood but found a bolo instead. He later heard his son shout, "Ama, tinaga
ako." He approached Anchito Nano to prevent him from entering their
house but the latter tried to hack him. He was able to deliver a hacking
blow ahead of the victim on the right side of the neck. Thereafter, he
immediately went to the Municipal Hall of Vinzons and surrendered
voluntarily to the police authority (TSN, March 27, 1995, pp. 3-8). Rtc
spped
"ERNIE MENDOZA, appellants son, testified that on July 14, 1993, at
around 7:30 in the evening, he noticed that somebody was hacking their
house, hence, he peeped through the window and saw Anchito Nano who

hacked him on the head, thereby resulting [in] los[s] of consciousness


while his mother [kept] on shouting for help. He was brought first to a
quack doctor for immediate treatment and the following morning, to the
provincial hospital where he was treated by Dr. Albano for the head injury
he sustained.
"BAYANI AGUILAR, police chief of Vinzons PNP testified that he issued
a certification on August 3, 1993 about the voluntary surrender of
appellant Efren Mendoza and another certification regarding one in the
report made by Emily Mendoza relative to the hacking of his son by
Anchito Nano which happened on July 14, 1993 at about 7:30 in the
evening at their house (TSN, November 7, 1995, pp. 2-4).
"DR. GAUDENCIO ALBANO, the attending doctor who treated
appellants son testified that he treated Ernie Mendoza who suffered a
wound laceration four (4) cm. long at the middle of the head which could
have been caused by a blunt object. (TSN, July 31, 1996, pp. 4-6).
"CARMEN HERICO testified that on July 14, 1993, at around 7:30 in the
evening, she heard her daughter, Emily Mendoza shouting for help, hence
she ran towards her daughters house and they met halfway along the road.
They proceeded back to her daughters house and she saw the fallen
window. She and her daughter, subsequently proceeded to the house of
Pedro Saman, a barangay kagawad and informed the latter about the
incident. (TSN, October 22, 1996, pp. 3, 5-6)."[10]
Trial Courts Ruling
The court a quo rejected appellant's plea of self-defense, ratiocinating as follows:
"To bolster his claim of self-defense, accused Efren Mendoza declared:
when he heard the shouts for help of his wife, immediately he ran towards
their house and saw the victim destroying their house. There, he heard his
son [shout], "Ama, tinaga ako." He immediately approached the victim in
order to prevent him from entering the house. He delivered the first blow
by hacking the victim, hitting the victim at the right side of the neck,
alleging that the victim, when they were facing each other, hacked the
accused first.
"Indeed, a mans house is his castle. He has the right to protect it. He may
repel force by force in defense of person, habitation or property against
anyone who manifestly intends or endeavors by violence or surprise to
commit a felony. But these circumstances surrounding the incident negates
the allegations of the accuseds self-defense. First, there is an eyewitness
on the part of the prosecution, that the accused suddenly attacked and
hacked the victim outside the house (tsn., March 9, 1994, pp. 12-13).

Secondly, the physical evidence of the number, location and severity of the
[hack] and incised wounds found on the body of the victim affirmed by the
medical findings contained in the autopsy report that all the hack wounds
[came] from the back of the victims body (tsn., Feb. 4, 1994, p. 7), and
the pictures presented in court (Exhibits "C" to "C-4") all indicate that the
victim was hacked from behind. Clearly, accuseds act was no longer one
of self-preservation, but a determined effort to kill his victim."[11]
Holding that appellants claim was debunked by the prosecution witnesses testimonies
which were more credible, the trial court explained: Korte
"Kagawad Pedro Saman was among the first persons who saw the vicinity
of the incident. He noticed that the victim was not carrying any weapon or
knife or a piece of wood and the house was in good condition (tsn, March
10, 1994, p. 14). It was corroborated by SPO4 Silverio Rafael that there
was indeed no weapon within the vicinity where the corpse of the victim
was found (tsn, May 31, 1994, p. 17) The allegations of the accused that
the victim was the aggressor who hacked him first is contrary to human
nature. There was no altercation, warning or even a challenge that [would]
enable the victim to be aggressor. The aggression must be real, or at least,
imminent and not merely imaginary. The aggressors intent must be
ostensibly revealed by his hostile attitude and other external acts
constituting a real, material, unlawful aggression. A threat, even if made
with a weapon or the belief that a person was about to be attacked, is not
sufficient. It is necessary that the intent be ostensibly revealed by an act of
aggression or by some external acts showing the commencement of actual,
material, unlawful aggression. This court finds that [since] the accused
was not in imminent danger of death or great bodily harm, an attempt to
defend himself by means which appeared unreasonable by using a long
bolo is unjustifiable. Hence, the self-defense foisted by the accused is not
well-founded, but an alibi to exonerate him from the offense he
committed."[12]
The Alleged Errors
In his Brief, appellant assails (1) the trial courts rejection of his plea of defense of
relative and (2) its characterization of the crime committed. Thus, he submits:
"I
THE TRIAL COURT ERRED IN NOT UPHOLDING THE THEORY OF
DEFENSE OF RELATIVE ESPOUSED BY THE ACCUSEDAPPELLANT DESPITE CORROBORATIVE EVIDENCE
SUPPORTING THE SAME.
II

THE TRIAL COURT ERRED IN CONVICTING ACCUSEDAPPELLANT OF THE CRIME OF MURDER DESPITE THE
ABSENCE OF QUALIFYING CIRCUMSTANCES OF TREACHERY
AND EVIDENT PREMEDITATION AS ALLEGED IN THE
INFORMATION."[13]
The Courts Ruling
The appeal is partly meritorious. The mitigating circumstance of voluntary surrender
should be appreciated in appellants favor. Sclaw
First Issue: Self-Defense and Defense of a Relative
The appellant admits to having hacked Anchito Nano, but vigorously insists that he did so
to defend himself, his family and his home.
Mendoza recounts that on that fateful night, he was relieving himself in their comfort
room situated about twenty meters outside their house, when he heard his wifes frantic
pleas for help. He immediately rushed to their house and saw Nano destroying their
windows. The former looked for something with which to arm himself and found a bolo.
He recalls that at this point, he heard his son shout, "Ama, tinaga ako!" Thereafter, he
approached Nano to prevent him from entering the house. The latter allegedly faced him
and was about to strike him with a bolo, but the former was able to parry the blow,
quickly retaliate and hit him on the neck.[14]
Requisites of Self-Defense and Defense of Relative
Because the accused raises self-defense and defense of a relative, it is incumbent upon
him to prove the presence of the following requisites: unlawful aggression on the part of
the victim, lack of sufficient provocation on his part, and reasonable necessity of the
means he used to repel the aggression.[15] It is settled that the accused who invokes selfdefense or defense of a relative must present clear and convincing evidence. Such person
cannot rely on the weakness of the prosecution, for even if it is weak, it cannot be
disbelieved because the former has admitted the killing.[16]Sc lex
Unlawful Aggression Not Proven
We find that the appellant was not able to prove the all-important first requisite -unlawful aggression on the part of Anchito Nano. Mendoza contends that it was the latter
who started the aggression by acting in a manner that was threatening and dangerous to
the former and his family, wreaking havoc on his house and in the process, injuring his
seven-year-old son. Appellant likewise avers that Nano was about to strike him when the
former, acting instinctively, delivered the fatal blows to the latter.
Emily and Ernie Mendoza, appellants wife and son, corroborated this assertion. They
testified that the deceased had started the fracas and caused the wound on Ernies head.

To further prove this claim, the defense presented Dr. Gaudencio Albano, Ernies
attending physician, who testified that the boy had suffered a laceration, four centimeters
long at the middle of the head, which could have been caused by a blunt object.[17]
Despite this corroboration, however, several circumstances belie appellants claim of selfdefense and defense of a relative. First, investigators found the deceased in a kneeling
position with five wounds - three on the nape, and two at the back. Thus, the nature and
the location of such wounds debunked appellants claim that Nano was about to attack
him.
Second, the bolo which Nano had allegedly used in his attack was not found within the
vicinity of the crime scene and was not presented in court. This point was established by
SPO4 Silverio Rafaels testimony[18] and the photographs[19] depicting the actual crime
scene.
Third, granting that Ernie Mendoza was injured, the appellant and his witnesses were not
able to prove adequately that such injury was caused by Nano, because there were
inconsistencies and improbabilities in their testimonies. Ernie claimed that he had lost
consciousness after being struck with a bolo by Nano.[20] However, appellant asserts that
he heard his child cry, "Ama, tinaga ako!" while the former was about to subdue the
assailant. Moreover, appellant admits that he did not see Nano hit his son.
Likewise, the testimonies of Carmen Herico (Emilys mother) and Pedro Saman
regarding the circumstances after the hacking incident negated Emilys claim that she had
rushed her wounded son to the faith healer. Herico went to her daughters house after
hearing the latters cries for help, but the former did not see anything except a fallen
window.[21] Surely, she would have noticed if her grandchild was injured. Pedro Saman,
the baranggay kagawad summoned by Herico, also testified that appellants children were
in the house when he arrived at the crime scene,[22] but he did not mention anything about
an injured child.
In any event, the trial court disbelieved the testimonies of the defense witnesses. The
well-settled rule is that the trial court's findings on the credibility of witnesses and their
testimonies are accorded great weight and respect, in the absence of any clear showing
that some facts or circumstances of weight or substance which could have affected the
result of the case have been overlooked, misunderstood or misapplied.[23] Appellant failed
to present any reason why this Court should reverse or modify the court a quos ruling.
In all, the totality of the evidence presented by the appellant was not sufficient to prove
that it was Nano who had started the fracas, and that the former was just acting to defend
himself, his family and his home. x law
Second Issue: Crime and Punishment
We agree with the trial court that the killing of Anchito Nano was qualified by treachery,
as alleged in the Information. The essence of treachery is the sudden and unexpected

attack, without the slightest provocation on the part of the person attacked.[24] Treachery
exists when the offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof which tend directly and especially to insure its
execution, without risk arising from the defense which the offended party might make.[25]
In the present case, the victim's lack of awareness of the attack can be gleaned from the
nature, the number and the location of his wounds. Furthermore, the testimony of
Marianito Rafael, against whom no ill motive was imputed by the appellant, likewise
established this fact. The former testified:
"Q......You mean to say that you were present when he was hacked?
A......Yes, sir.
Q......In what place was he hacked?
x x x......x x x......x x x
A......Near the house of Efren Mendoza.
Q......Why were you there? x x x
A......Because I asked for water from Emily Mendoza.
Q......And Anchito Nano was also there?
x x x......x x x......x x x
A......We were together.
x x x......x x x......x x x
Q......You mean to say that after you had a drink, Efren Mendoza came?
A......He came out suddenly.
Q......x x x [W]here did he come from?
A......He came from outside of the house.
Q......What did [he] do upon arriving, if any, this Efren Mendoza?
A......He suddenly hacked.
Q.......Who?

A......Anchito Nano.
x x x......x x x......x x x
Q......How many times was Anchito Nano hacked by Efren Mendoza, if
you know?
A......I only saw once, I ran away after seeing the first hack."[26]
Voluntary Surrender
Appellant argues that the mitigating circumstance of voluntary surrender should be
appreciated in his favor, because he immediately went to the Municipal Hall and
surrendered to the police on the night of the incident. Sc
We agree. To establish this mitigating circumstance, the following three requisites must
be shown: (a) the offender has not been actually arrested; (2) the offender surrenders
himself to a person in authority or the latter's agent; and (c) the surrender is voluntary.[27]
The defense must show intent to surrender unconditionally to the authorities, either
because of an acknowledgement of guilt orbecause of a wish to spare them the trouble
and the expense concomitant to the search and the capture of the accused.[28]
In this case, all these requisites were proven. Appellants assertion that he surrendered
was corroborated by Chief Inspector Bayani Aguilar, Vinzons chief of police, who issued
a Certification that "one Efren Mendoza x x x voluntarily surrendered [to] this station,
including his bolo x x x which was used to hack 3 times a certain Yoyoy Nano x x x."[29]
Contrary to the submission of the solicitor general,[30] the surrender of appellant was
unconditional. He readily admitted that he had hacked the victim and subsequently put
himself under police custody.
Furthermore, we hold that the trial court erred in ruling that voluntary surrender was
"offset by the aggravating circumstance of treachery."[31] The court a quo failed to
appreciate the distinction between a generic aggravating circumstance and a qualifying
one.
A qualifying circumstance changes the nature of the crime. A generic aggravating
circumstance, on the other hand, does not affect the designation of the crime; it merely
provides for the imposition of the prescribed penalty in its maximum period. Thus, while
a generic aggravating circumstance may be offset by a mitigating circumstance, a
qualifying circumstance may not.[32]
Treachery in the present case is a qualifying, not a generic aggravating circumstance. Its
presence served to characterize the killing as murder; it cannot at the same time be
considered as a generic aggravating circumstance to warrant the imposition of the
maximum penalty. Thus, it cannot offset voluntary surrender. Scmis

The Proper Penalty


When the crime was committed on July 14, 1993, the penalty for murder was reclusion
temporal, in its maximum period, to death.[33] At the time, however, RA 7659 which
reimposed the death penalty was not yet in effect. In any event, the presence of the
mitigating circumstance of voluntary surrender impels the imposition of the minimum
period of the applicable penalty,[34] reclusion temporal (maximum). Applying the
Indeterminate Sentence Law,[35] appellant should be sentenced to prision mayor in its
maximum period to reclusion temporal also in its maximum period.
Civil Indemnity
Citing People v. Victor,[36] the solicitor general argues that the civil indemnity should be
raised from P50,000 to P75,000. This is erroneous. In the said case, the Court held that
"starting with the case at bar, if the crime of rape is committed or effectively qualified by
any of the circumstances under which the death penalty is authorized by the present
amended law, the indemnity for the victim shall be in the increased amount of not less
than P75,000.00." Obviously, that ruling, which involved rape and imposed the death
penalty, cannot apply to the present case. Hence, consistent with current jurisprudence,[37]
we affirm the award of P50,000 as indemnity ex delicto.
Likewise, we affirm the award of moral damages in the sum of P30,000 for the anguish
and the wounded feelings suffered by the victims heirs, which were duly proven.
WHEREFORE, the assailed Decision of the Regional Trial Court is AFFIRMED with
the modification that appellant is hereby sentenced to an indeterminate penalty of 10
years and 1 day ofprision mayor (maximum) to 17 years, 4 months and 1 day of reclusion
temporal (maximum). All other awards are AFFIRMED. No pronouncement as to costs.
SO ORDERED. Mis sc

THIRD DIVISION
PEOPLE OF THEPHILIPPINES,
Plaintiff-Appellee,

G.R. No. 180451


Present:

-versus

SPO1 ARNULFO A. AURE and


SPO1 MARLON H. FEROL,

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
MORALES,*
CHICO-NAZARIO, and
NACHURA, JJ.

Accused-Appellants.

Promulgated:
October 17, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

CHICO-NAZARIO, J.:
For review is the Decision[1] of the Court of Appeals in CA-G.R. CR-HC No.
01127, dated 29 July 2005, affirming in toto the Decision,[2] dated 5 December 2000, of
theCaloocan City Regional Trial Court (RTC), Branch 127, in Criminal Cases No. C58617 and No. C-58693, finding accused-appellants Senior Police Officer 1 (SPO1)
Arnulfo A.Aure and SPO1 Marlon H. Ferol guilty of rape, and imposing upon them the
penalty of reclusion perpetua.
The records of the case bear the following facts:
On 20 January 2000, two separate informations[3] for rape were filed with the RTC
charging appellants of rape, thus:
In Criminal Case No. C-58617:
That on or about the 7th day of November, 1999 in Caloocan City,
Metro Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping one
another, with lewd design and by means of force and intimidation, did then
and there willfully, unlawfully and feloniously lie and have sexual
intercourse with one AAA,[4] 45 years old, married, against the latters will
and without her consent.
In Criminal Case No. C-58693:
That on or about the 7th day of November, 1999 in Caloocan City,
Metro Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping one
another, with lewd design and by means of force and intimidation did then
and there willfully, unlawfully and feloniously lie and have sexual

intercourse with one AAA, 45 years old, against the latters will and
without her consent.

Subsequently, these cases were consolidated for joint trial. When arraigned on 30
May 2000, appellants, assisted by their respective counsels de parte, pleaded Not guilty
to the charges.[5] Trial on the merits thereafter followed.
The prosecution presented as witnesses AAA, Philippine Anti-Organized Crime
Task Force (PAOCTF) Police Chief Inspector Ricardo Dandan (Inspector Dandan),
National Bureau of Investigation (NBI) Agent Ronald Abulencia (Agent Abulencia), NBI
Agent Antonio Erum, Jr. (Agent Erum), Dr. Nora Leonor Espino (Dr. Espino), Dr.
Annabelle Soliman (Dr. Soliman) and Federico Abesia (Abesia). Their testimonies,
woven together, present the following narrative:
On 7 November 1999, at around 3:00 p.m., AAA slept inside her house located at
XXX. Later, CCC (AAAs son), awakened AAA and told her that several policemen
entered the house. AAA stood up and saw appellant Aure accompanying her housemaid,
Maricel Formentera (Formentera), in walking out of the house.

AAA rushed to

appellantAure and Formentera and tried to pull back Formentera inside the house but she
failed to do so. AAA went out of the house and saw appellant Ferol and a certain SPO4
HonestGaton (SPO4 Gaton) holding her two minor housemates, Nerissa Ubay (Ubay)
and Judelyn Borenaga (Borenaga). She also saw several barangay tanods and kibitzers
standing nearby. At this juncture, AAA asked appellant Aure why they were taking the
three young girls and why they entered her house without warrant. Appellant Aure
replied that they are Central Intelligence Service (CIS) agents and were tasked to rescue
the three young girls whom she was keeping and allegedly abusing and exploiting.
Appellant Aure told AAA to explain her side at the Central Intelligence Division Group
(CIDG) office. Thereafter, appellants, SPO4 Gaton and several barangay tanods took
AAA and the three young girls to the XXX barangay hall where the incident was
blottered and, afterwards, to the CIDG office for booking and investigation.[6]
At about 7:00 p.m. of the same day, while still inside the CIDG office for
interrogation, AAA sat on a sofa near the main door of the office. Appellant Aure, who

was inside the computer room of the office, called AAA and instructed her to approach
him. When AAA entered the computer room, appellant Aure told her to sit beside him.
AAA complied. Appellant Aure asked her where she hid the two other minor companions
of Ubay and Borenaga but AAA disclaimed any knowledge thereof. Irked, appellant
Aureaccused her of deriving her livelihood from trading the flesh of the children.
Thereupon, appellant Aure placed his hand on her shoulder and gradually massaged her
back.

She resisted these moves but appellant Aure told her: HUWAG KA NANG

PUMALAG, MAGPAKABAIT KA NA LANG. She shouted for help but nobody


responded. She tried to free herself but he punched her thigh and held her shoulder
tightly. He pointed a gun at her side and directed her to stand. She fought back by
pulling down his head but he punched her other thigh. He made her stand by poking a
gun at her side. At this point, he started kissing her from face down to her breast. She
shouted and fought back again but he threatened her PAPATAYIN KITA, HUWAG KA NG
PUMALAG. He forcibly pulled down her pants which caused her to fall on the floor.
Afterwards, he took off his own pants and placed himself on top of her. She struggled by
putting her knees together but he forcibly separated her legs. He kissed her face, neck
and breast and pinned her both arms. Thereafter, he inserted his penis into her vagina and
made pumping motions for less than five minutes until she felt a warm liquid inside her
vagina.[7]
Appellant Aure, who was panting for breath, stayed on top of her for a few
minutes. Later, he stood up and wore his pants. He picked AAAs pants and threw it at
her. He told her to dress up and act as if nothing happened. He peeped through the
window of the computer room and warned her not to tell anyone of what happened or he
would kill her. He then went out of the computer room. After several minutes, he
instructed her to get out of the computer room which she did. She sat on the sofa and saw
appellantAure join several persons drinking liquor and playing cards inside the office.
She saw appellant Aure talking and drinking liquor with appellant Ferol and some police
officers. Subsequently, appellant Aure left the office while appellant Ferol stayed and
continued drinking liquor with some police officers.[8]
While AAA was sleeping on the sofa inside the office at about 2:00 a.m. of 8
November 1999, appellant Ferol tapped her shoulder and signaled her to proceed to his

table. He gave her coffee and told her to produce P300,000.00 in exchange for the
dropping of the cases they would file against her. She answered that she did not have that
amount of money and would rather be jailed. Disgusted, he remarked TIGNAN NATIN
KUNG HINDI KA IIYAK BUKAS SA DAMI NG MGA KASONG IPA-FILE NAMIN
LABAN SA IYO. He poked a gun at her temple and back and instructed her to go to the
computer room. While inside the computer room, he ordered her to remove her pants but
she was unable to move due to fear and numbness. He removed her pants and pushed her
to the ground. He placed himself on top of her and kissed her face, neck and breast. He
forcibly separated her legs, pulled up her arms and uttered to her HUWAG KA NA
LANG PUMALAG PATAPUSIN MO NA LANG AKO KUNG AYAW MONG
MASAKTAN. Thereupon, he inserted his penis into her vagina and made pumping
movements. When he stood up, she saw sperm cell on his organ. He ordered her to dress
up and fix herself. He warned her WALANG DAPAT MAKAALAM NITO, TANDAAN
MO PAPATAYIN KITA. Later, both of them went out of the computer room.[9]
At about 8:30 a.m. of the same day, appellants and other CIDG operatives took
AAA and the three young girls to Prosecutor Dionisio Sison (Prosecutor Sison) of
theCaloocan City Prosecutors Office for inquest proceedings on the charges of Violation
of Republic Act No. 7610 otherwise known as the Anti-Child Abuse Law, Physical
Injuries, and Illegal Recruitment.[10]
After the inquest, appellants and SPO4 Gaton brought AAA to the Ospital ng
Kalookan for medical examination.

AAA refused to be examined therein and was

constantly crying and refusing to answer the questions of her attending physician, Dr.
Espino. Hence, Dr. Espino did not push through with the examination and merely
indicated in AAAs medico-legal certificate the following observation: No visible sign of
external physical injury. Thereafter, appellants and SPO4 Gaton brought AAA to the
Caloocan City Jail where she was detained.[11]
At 6:00 p.m. of the same day, AAA was released from jail pursuant to a Release
Order issued by Prosecutor Sison. BBB, husband of AAA, then immediately brought
AAA to the Ospital ng Kalookan for a second medical examination with Dr. Espino.
During the examination, Dr. Espino found linear abrasions on the forearms of AAA. Dr.

Espinoincluded this finding in AAAs medico-legal certificate.[12]


On 9 November 1999, at around 10:00 a.m., AAA, per advice of Dr. Espino, went
back to the Ospital ng Kalookan for a third medical examination. Dr. Espino discovered
the following injuries on AAAs body: Old contusions both scapular area; (RT) & (L)
arm, middle 3rd both thighs. Dr. Espino added these observations in AAAs medicolegal certificate. The over-all findings of Dr. Espino, as stated in AAAs medico-legal
certificate, are as follows:

November 8, 1999 11:40 a.m.


-

No Visible Sign of External Physical Injury


Disposition: Back to SPO2 Marlon Ferol
Came back around 7:10 p.m. of November 8, 1999 with the following
injuries:
Linear abrasions forearm posterior aspect bilateral; arm
anterior aspect bilateral.

Follow-up OPD November 9, 1999 10:00 a.m. shows:


Additional findings: Old contusions both scapular area; (RT) &
(L) arm, middle 3rd both thighs.

Disposition: Referred to NBI for OB-GYNE Examination.[13]

During the examination, AAA broke down and confided to Dr. Espino that she
was raped. Dr. Espino handed her a Laboratory Request for OB-GYNE examination.[14]

On 11 November 1999, AAA, per advice of her lawyer, reported the rape incident
to the NBI. The case was assigned to Agent Abulencia and Agent Erum, Jr. before whom
AAA narrated the rape incident. The incident was reduced into AAAs sworn statement.
NBI Medico-Legal Officer Dr.
Soliman also conducted a genital examination on AAA. [15]The findings of Dr.
Soliman as stated in AAAs medical certificate are as follows:

CONCLUSIONS:
1. No evident signs of extragenital physical injury was noted on the body
of the subject at the time of the examination.
2. Hymen posteriorly attenuated.
3. Vaginal orifice wide (3.0 cms. in diameter) as to allow complete
penetration by an average-sized adult Filipino male organ in full erection
without producing new hymenal injury.[16]
After investigation, the NBI, through Director Federico Opinion, Jr., submitted a
letter-referral to the Caloocan City Prosecutors Office recommending the conduct of
inquest proceedings on appellants and the filing of charges against appellants for robbery,
extortion and rape.

The letter-referral was studied by Caloocan City Chief Inquest

Prosecutor Oscar Yu (Prosecutor Yu).

Prosecutor Yu also conducted a preliminary

examination on AAA. Thereafter, Prosecutor Oscar Yu, Agent Abulencia, Agent Erum, a
certain Agent Sixto Comia, and four other NBI agents proceeded to the CIDG office for
the purpose of inquesting appellants. Upon arriving therein, however, Colonel Edgar
C.Danao (Colonel Danao), Chief of the CIDG office, refused to turn over appellants to
Prosecutor Yu and to the NBI agents for inquest proceedings. Prosecutor Yu and the NBI
agents then left the CIDG office.[17]
Subsequently, a preliminary investigation on the case was conducted but
appellants did not appear during the hearings despite notice. Thereupon, appellants were
charged with rape before the RTC and corresponding warrants for their arrest were
issued.[18] Appellants then were arrested and detained at the PAOCTF office by Inspector
Dandanand his men.[19]
The prosecution also proffered documentary evidence to bolster the testimonies of
its witnesses, to wit: (1) sworn statement of AAA (Exhibit A) [20]; (2) medico-legal
certificate of AAA issued by Dr. Soliman (Exhibit B) [21]; (3) referral-letter of the NBI to
the Caloocan City Prosecutors Office (Exhibit C) [22]; (4) joint-affidavit of
AgentAbulencia, Agent Erum and other NBI agents (Exhibit E) [23]; (5) medico-legal
certificate of AAA issued by Dr. Espino (Exhibit G) [24]; (6) release order for AAA

(Exhibit H)[25]; (7) laboratory request for genital examination of AAA (Exhibit J)[26]; (8)
resolution of the Caloocan City Prosecutors Office dismissing the charges of violation of
Republic Act No. 7610 and Illegal Recruitment against AAA (Exhibit K)[27]; (9)
resolution of the Department of Justice (DOJ) dismissing the charge of physical injuries
against AAA (Exhibit L)[28]; and (10) memorandum from the CIDG-NCR confirming the
arrest and detention of appellants by PAOCTF operatives pursuant to the warrant of arrest
issued by the RTC (Exhibit N).[29]
For its part, the defense presented the testimonies of appellants, SPO2 Jaime
Acido, Virgilio Torres, Ronald Orcullo, Mary Ann Aglibar, Roberto Illut, Juvy Winnie de
Guzman, Colonel Danao, Barangay Chairman Antonio Galgana and Dr. Reymundo Dave
and Ms. Florenda Negre to refute the foregoing accusations. Appellants denied any
liability and interposed the defense of alibi. Appellants version of the incident, as
corroborated by their witnesses, are as follows:
On 7 November 1999, at around 7:30 a.m., appellants reported for work in the
CIDG office.

At about 11:30 in the morning of the same day, a certain Emelita

Pajaron(Pajaron) and Analyn Guinarez (Guinarez) arrived at the office and reported that
their two cousins, Ubay and Borenaga, were being detained and maltreated by AAA at the
latters house in XXX.

After securing the approval of their boss, Colonel Danao,

appellants, together with Pajaron and Guinarez, went to the barangay hall of XXX to
coordinate their rescue operation of Ubay and Borenaga. Thereafter, appellants, Pajaron,
Guinarez and several barangay tanods proceeded to the house of AAA at XXX. Upon
arriving thereat, appellants saw Ubay, Borenaga and Formentera at the gate of AAAs
house. The three young girls were waving at them and crying. AAA went out of the
house and told the three young girls to get inside the house but they refused. AAA
berated and cursed appellants. Appellants then invited AAA to the CIDG office for
investigation to which the latter acceded. Appellants, Ubay, Borenaga, Pajaron, Guinarez
and AAA went first to the barangay hall to blotter the incident and thereafter proceeded
to the CIDG office.[30]
Upon arriving at the CIDG office at about 5:00 p.m., appellants brought the three
young girls to the Ospital ng Kalookan for medical examination of the injuries found on

their bodies. Appellants and the three young girls went back to the CIDG office at 7:00
p.m. where they were met and interviewed by members of the media namely, Aglibar,
Illut and de Guzman.

Later, BBB, CCC, AAAs daughter-in-law, and an unnamed

policeman-friend of AAA, arrived at the office and talked with AAA. At this juncture,
appellants were busy preparing the pertinent documents for the filing of charges against
AAA. Appellants went back and forth to the computer room checking the drafts and
having them typed by their encoder, Torres. The interview of the three young girls by
members of the media and appellants preparation of relevant documents lasted until
11:30 p.m. Thereafter, at about 12:00 midnight of 8 November 1999, appellants, Aglibar,
Illut, de Guzman and the three young girls proceeded to Waray Waray Restaurant at Pier
12 to rescue two more minors allegedly kept by AAA in the said place. Appellants
surveillance and operation yielded negative results. Thus, appellants and company went
back to the CIDG office arriving therein at about 3:00 a.m. After half an hour, appellant
Aure left the office and proceeded home.[31] Appellant Ferol stayed in the office because
he was then on 24-hour duty. Appellant Ferol slept on his table inside the office until
8:30 in the morning. Orcullo and a certain Ricky Masangkay, both of whom were errand
boys of the office, also slept inside the office near appellant Ferol.[32]
At about 8:30 a.m., appellant Aure arrived at the office. Subsequently, Colonel
Danao also arrived. Appellants then brought AAA to the Caloocan City Prosecutors
Office for inquest proceedings. AAA was charged with violation of Republic Act No.
7610, Physical Injuries and Illegal Recruitment and was detained in Caloocan City Jail.[33]
On 12 November 1999, Prosecutor Yu and several NBI agents swooped down in
the CIDG office to conduct an inquest proceeding on appellants for the rape of AAA.
Colonel Danao refused to turn over appellants because the proceeding was improper as
appellants were not previously arrested.[34]
The defense also adduced documentary and object evidence to bolster the
testimonies of its witnesses, to wit: (a) referral-letter of Colonel Danao to the Caloocan
City Prosecutors Office requesting inquest of AAA for Violation of Republic Act No.
7610 and for Physical Injuries (Exhibit 1)[35]; (b) preliminary report of Dr. Soliman
(Exhibit 2)[36]; (c) medico-legal certificate issued by Dr. Soliman (Exhibit 3) [37]; (d)

medico-legal certificate issued by Dr. Espino (Exhibit 4)[38]; (e) Pinagsama-Samang


Salaysay ofUbay, Borenaga and Formentera (Exhibit 5) [39]; (f) joint-affidavit of de
Guzman, Aglibar and Illut (Exhibit 6)[40]; (g) a picture showing the entrance to the
computer room of the CIDG office (Exhibit 8)[41]; (h) sketch of the CIDG office (Exhibit
10)[42]; (i) certificate of completion of the Practical Investigative Techniques issued by the
CIDG to appellantAure (Exhibit 11)[43]; (j) complaint sheet charging AAA of
maltreatment of minors, illegal recruitment and illegal detention (Exhibit 12) [44]; (k)
certification issued by ChairmanGalgana that appellants proceeded to the barangay hall
before going to the house of AAA (Exhibit 13)[45]; and (l) joint-affidavit of appellants
(Exhibit 14).[46]
After trial, the RTC rendered a Decision on 5 December 2000 convicting appellant
Aure of rape in Criminal Case No. C-58617 and acquitting him of rape in Criminal Case
No. C-58693. On the other hand, appellant Ferol was convicted of rape in Criminal Case
No. C-58693 but was acquitted of rape in Criminal Case No. C-58617. The RTC
explained that in Criminal Case No. C-58617, the prosecution has duly established that
appellant Aure raped AAA on 7 November 1999, at around 7:00 p.m., inside the
computer room of the CIDG office. Nonetheless, the prosecution failed to prove that
appellant Ferol conspired with appellant Aure in raping AAA at such time and, hence,
appellant Ferol is acquitted of rape in Criminal Case No. C-58617. With regard to
Criminal Case No. C-58693, the prosecution had proven that appellant Ferol raped AAA
on 8 November 1999, at 2:00 a.m. inside the computer room of the CIDG office.
However, appellant Aure is acquitted of rape in this instance because there was no
evidence that he conspired with appellant Ferol in committing such rape.
In addition to the penalty of reclusion perpetua, each of the appellants was also
ordered to pay AAA the amounts of P50,000.00 as civil indemnity, P60,000.00 as moral
damages, and P70,000.00 as attorneys fees. The dispositive portion of the RTC Decision
reads:
WHEREFORE, premises considered and the prosecution having
established to a moral certainty the guilt of Accused ARNULFO A. AURE
and Accused MARLON H. FEROL in Crim. Case Nos. 58617 and 58693,
respectively, of the crime of Rape as defined and penalized under R.A.

8353, this Court in the absence of any modifying circumstances, hereby


sentences each of the said Accused to suffer the lesser penalty of
Reclusion Perpetua; to each indemnity the Private Complainant the civil
indemnity of P50,000; and to each pay her moral damages of P60,000.00
as well as attorneys fee ofP70,000.00 each, and to pay the costs, without
any subsidiary imprisonment in case of insolvency.
Anent the respective criminal liability of Accused MARLON
FEROL in Crim. Case No. 58617 and Accused ARNULFO AURE in
Crim. Case No. 58693, for failure of the prosecution to overcome with the
required quantum of proof their constitutional presumption of innocence,
they are ACQUITTED of the crime charged.
The preventive imprisonment suffered by both Accused shall be
credited in full in the service of their respective sentences in accordance
with Art. 29 of the Revised Penal Code.[47]

Appellants filed a motion for reconsideration[48] but this was denied.[49]


On 10 February 2002, appellants elevated the instant case to us for review.[50]
However, pursuant to our ruling in People v. Mateo,[51] we remanded the case to the Court
of Appeals for proper disposition.
On 29 July 2005, the Court of Appeals promulgated its Decision affirming in toto
the RTC Decision. Appellants filed a motion for reconsideration[52] which was denied.[53]
Before us, appellants assigned the following errors:
I.
THE RTC ERRED IN CONVICTING ACCUSED-APPELLANT AURE
IN CRIMINAL CASE NUMBER 58617 WITH RAPE DEFINED AND
PENALIZED UNDER R.A. 8353 COMMITTED ON NOVEMBER 7,
1999 AND AT THE SAME TIME ACQUITTING HIM IN CRIMINAL
CASE NUMBER 58693 OF THE ALLEGED CRIME OF RAPE
DEFINED AND PENALIZED UNDER R.A. 8353 ALLEGEDLY
COMMITTED ON SAME AND ONE OCCASION/INCIDENT OF
RAPE NOVEMBER 7, 1999.
II.

THE RTC ERRED IN CONVICTING ACCUSED-APPELLANT FEROL


IN CRIMINAL CASE 58693 WHICH ACCUSES ACCUSEDAPPELLANT FEROL WITH THE CRIME OF RAPE DEFINED AND
PENALIZED UNDER R.A. 8353 COMMITTED ON NOVEMBER 7,
1999 AND AT THE SAME TIME ACQUITTING HIM IN CRIMINAL
CASE NUMBER 58617 ALSO OF THE CRIME OF RAPE DEFINED
AND PENALIZED UNDER R.A. 8353 COMMITTED ON NOVEMBER
7, 1999, WORST ACCUSED-APPELLANT FEROL WAS CONVICTED
OF THE CRIME OF RAPE COMMITTED ON NOVEMBER 8, 1999
WITH WHICH HE WAS NOT BEING CHARGED IN CRIMINAL
CASE NUMBER 58693.
III.
THE RTC ERRED IN CONVICTING ACCUSED-APPELLANTS OF
THE CRIME OF RAPE DEFINED AND PENALIZED UNDER R.A.
8353 WHEN THE PROSECUTION FAILED TO PROVE AND
ESTABLISH THE GUILT OF THE ACCUSED-APPELLANTS OF THE
COMMISSION AND CIRCUMSTANCES OF THE ALLEGED CRIMES
OF RAPE DEFINED AND ALLEGED IN THE TWO (2)
INFORMATIONS UNDER CRIMINAL CASE NUMBERS 58167 AND
58693.

IV.
THE RTC ERRED IN CONVICTING ACCUSED-APPELLANTS EACH
OF THE CRIME OF RAPE WHEN THE PROSECUTION FAILED TO
ESTABLISH THE ALLEGATION AND CHARGE OF CONSPIRACY
AND WHEN RESPONDENT JUDGE HERSELF FOUND ABSENCE
OF CONSPIRACY.
V.
THE RTC ERRED IN HOLDING THAT THE TESTIMONIES OF
ACCUSED-APPELLANTS AND WITNESSES ARE BUT ALIBI AND
DEFINITELY FALLS WITHIN THE CATEGORY OF NEGATIVE AND
SELF-SERVING EVIDENCE.
VI.
THE RTC ERRED IN DENYING THE REQUEST OF ACCUSED
APPPELLANTS FOR THE CONDUCT OF THE REQUISITE
PRELIMINARY INVESTIGATION.

VII.
THE RTC IN RENDERING AND PROMULGATING THE SUBJECT
ASSAILED DECISION MANIFESTED CLEAR SIGNS OF BIAS,
PARTIALITY AND PREJUDICE AGAINST ACCUSED-APPELLANTS.
VIII.
THE RTC ERRED IN ORDERING ACCUSED-APPELLANTS TO PAY
FOR DAMAGES AND COST IN FAVOR OF PRIVATE
COMPLAINANT.

In reviewing rape cases, this Court is guided by three principles, to wit: (1) an
accusation of rape can be made with facility; it is difficult to prove but more difficult for
the person accused, though innocent, to disprove; (2) in view of the intrinsic nature of the
crime of rape where only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and (3) the evidence for the
prosecution must stand or fall on its own merits and cannot draw strength from the
weakness of the evidence for the defense.[54]
As a result of these guiding principles, credibility of the complainant becomes the
single most important issue. If the testimony of the victim is credible, convincing and
consistent with human nature, and the normal course of things, the accused may be
convicted solely on the basis thereof.[55]
We have carefully examined AAAs court testimony and found it to be credible
and trustworthy. Her positive identification of appellant Aure as the one who ravished
her on 7 November 1999 and of appellant Ferol as the one who defiled her 8 November
1999, as well as her direct account of the bestial acts, are clear and consistent, viz:
ATTY. DIETA TO WITNESS:
xxxx
A

[At] 7:00 p.m. [7 November 1999] SPO1 Aure called me to the


computer room.

After you were brought to the computer room by SPO1 Aure, what

happen?
A

I was made to sit and he sat beside me.

xxxx
Q

After that what transpired next?

He place his hand on my shoulder.

What was your reaction when Aure place his arm to your shoulder?

Hinahawi ko po iyong kamay niya na nakapatong sa balikat ko.


Pero po iyong kamay niya inihahagod po niya sa may likuran ko.

After that what transpired?

Sabi niya, Huwag ka ng pumalag, magpakabait ka na lang.

What was your reaction to the statement of Aure?

I was shouting for help because of what he was doing.

Did anybody respond to your shout for help?

Wala pong sumaklolo sa akin.

After that what transpired?

Pinipilit ko po na alisin and kamay ni SPO1 Aure sa likod ko,


nagpipiglas po ako, bigla po niyang sinuntok ang hita ko.

After Aure hit your thigh, what happen next?

Inakbayan po niya ako ng mahigpit sa balikat, itinutok po niya


iyong baril sa tagiliran ko.

xxxx
ATTY. DIETA TO WITNESS:
Q.

What was your reaction when Aure poked the gun to your side?

I was very afraid and do not know what to do.

After that what happen?

He was forcing me to stand by pulling up my shoulder.

After that what happen?

I was trying to release myself from his hold and try to get hold of
his head.

When you were not able to reach the head of Aure what transpired?

He got mad and punch me on the other thigh.

xxxx
ATTY. DIETA TO WITNESS:
Q

After Aure hit your thigh again what transpired?

Pilit po niya akong itinatayo. He was forcing me to stand up and


went behind my back and his hand were near my breast.

COURT:
Q

To make you stand with his both hands?

Bale nakatutok po sa may tagiliran ko iyong baril. Iyong kamay


po niya iyong isa nakayakap po dito sa pagitan po ng suso ko.

ATTY. DIETA TO WITNESS:


Q

What hand of Aure is holding the gun?

Right hand holding the gun.

After that what happen?

He was able to make me stand.

When you were already on standing position what transpired?

Pinaghahalikan na po niya ako sa iba-ibang parte ng katawan,


nagsisisigaw po ako, nanlalaban po ako sa kanya.

xxxx
Q

For how long did Aure kissed you in different parts of the body?

Noong nakatayo na po kami, nanlalaban po ako sa kanya. Sinabi


niya sa akin, papatayin kita, huwag ka ng pumalag.

What was your reaction when Aure threatened you of death?

I was very afraid. I almost die.

After that what transpired next?

He told me to take off my pants.

Did you do as Aure directed you to take off your pants?

Sa takot ko po hindi ko po namalayan na sumunod po ako sa


kanya. Inalis ko po ang butones at saka po binaba ko po. [56]

ATTY. DIETA TO WITNESS:


xxxx
Q

After that what happened?

SPO1 Aure pulled my pants down, sir.

After SPO1 Aure pulled your pants down, what happened next?

Napaupo po ako at bumagsak sa cemento.

xxxx
ATTY. DIETA TO WITNESS:
Q

What was SPO1 Aure doing at that time when you were already on
the floor?

Taking off his pants, sir.

After he took off his pants, what happened?

I cringed in fear and trembling, sir.

After that what happened next?

SPO1 Aure approached me and held my knee.

xxxx
ATTY. DIETA TO WITNESS:
Q

What was your reaction to the action of SPO1 Aure?

I was trying to free myself from his hold and made my knees
sticked (sic) together.

After that what transpired?

Nag-iiyak po ako sa takot. Nasasaktan po ako sa ginagawa niya.

xxxx
ATTY. DIETA TO WITNESS:
Q

Was he able to open your knees?

Yes, sir.

And when SPO1 Aure opened your knees, what happened next?

Itinuhod po niya yung tuhod niya sa pagitan ng aking mga hita.

After that what did SPO1 Aure do, if any?

He laid down at (sic) top me, sir.

When SPO1 Aure laid down on top of you, was he already naked?

Yes, no more pants, and brief, sir.

xxxx
ATTY. DIETA TO WITNESS:
xxxx
Q

When SPO1 Aure put his knees between your legs, what transpired
next after that?

He laid at (sic) top me and kissed all over my body, sir.

What particular parts of your body did SPO1 Aure kiss?

My face, neck and breast sir.

For how long that situation last?

I tried to fight back as I tried to lift his body from me, and I even
hit him on the back.

When you were fighting back with SPO1 Aure what was his
reaction?

Napakalakas niya, yung dalawang braso ko inipit niya sa


dalawang kamay niya.

After that what happened?

Nag-pump na po siya tuloy-tuloy po yung pag-papump niya,


pabilis ng pabilis po.

xxxx
ATTY. DIETA TO WITNESS:
Q

Do you recall how long SPO1 Aure was pumping above you?

Seconds only then he kissed my body, sir.

After that what happened?

I felt his foot kicked my pants down until it was taken off, sir.

After your pants was taken off, what transpired?

Tinutok niya yung ari niya sa aking pagkababae.

ATTY. DIETA:
At this point Your Honor I would like to manifest that the witness
is already crying.
xxxx
COURT TO WITNESS:
Q

You want to tell this Court that he was able to insert his penis into
your private part?

Opo.

ATTY. DIETA TO WITNESS:


Q

After SPO1 Aure inserted his penis to your private part, what did
he do next?

Pabilis ng pabilis ang kanyang pagpapump hanggang sa may


naramdaman po akong mainit na likido na pumasok sa aking ari.

Do you recall how long did that pumping happen after you felt a
warm liquid to your vagina?

Wala pa pong limang minuto.

After you felt that liquid discharged from SPO1 Aure, what
happened next?

Humihingal si SPO1 Aure na bigla na lang po siyang dumagan sa


katawan ko, flat po.

xxxx
Q

After that what happened?

SPO1 Aure stood up and wore his pants.

After SPO1 Aure put on his pants, what did he do next?

Hinagis po niya ang aking pantalon at sinabi po niya na magayos ako ng aking sarili na parang walang nangyari.

On your part what did you do when SPO1 Aure gave your pants
back?

Hindi ako makakilos sa takot at hindi ko kaagad naisuot yun.

What about SPO1 Aure what did he do?

He approached me and poked the gun on my face.

What was your reaction when SPO1 Aure poked his gun on your
face?

I obeyed him and put on my panty and my pants.

After you put on your panty and pants, what happened next after
that?

I sat on a chair and SPO1 Aure went to the door.

After that what did SPO1 Aure do?

He opened the door and peeped outside, sir.

After SPO1 Aure opened the door and peeped outside, what
happened next?

Lumapit po sa kinauupuan ko at sinabi niya na tandaan mo


walant dapat makakaalam nito kundi papatayin kita.

What was your reaction to his statement?

Umiyak ako ng umiyak, hindi po ako makakilos.

xxxx
ATTY. DIETA TO WITNESS:
Q

So it was SPO1 Ferol who approached you and tapped your


shoulder at about 2:00 a.m. of November 8, 1999?

Yes, sir.

xxxx
Q

After that what happened next?

He poked his gun on my temple and told me to enter the computer


room.

When you were inside the computer room, what transpired, if any?

Pinahuhubad niya po sa akin yung pantalon ko.

xxxx
ATTY. DIETA TO WITNESS:
Q

While you wee inside the computer room, what happened next?

He told me to take off my pants, sir.

What did you do?

Sa pagkakataon pong yun di ako makakilos, namamanhid po yung


buong katawan ko sa nerbiyos.

As you mentioned that you were already numb due to fright, what
did you do if any?

I could not move and I felt that he was the one unbuttoning my
pants.

You mentioned that he was the one unbuttoning your pants, to


whom are your referring to?

Ferol, sir.

Was SPO1 Ferol about to unbutton your pants?

Yes, up to my thigh.

After that what happened next?

He pushed me to the folding bed, sir.

After he pushed you to the folding bed, what happened?

Facing down to the folding bed he pulled me down to the cement


floor and my back hitting the floor first.

xxxx
ATTY. DIETA TO WITNESS:
Q

After you were pulled down to the cement, what happened next?

He approached me and pulled my pants down.

After SPO1 Ferol pulled your pants down, what did he do next?

He hurriedly took off his pants, sir.

After SPO1 Ferol took off his pants, what did he do if any?

Dinaganan niya po ako sa aking katawan paluhod.

That particular moment what were you doing at that time?

HINDI NA PO AKO MAKAKILOS SA NERBIYOS.

When SPO1 Ferol was already kneeling above your body as you
mentioned, what transpired next?

He took off his T-shirt, sir.

xxxx
ATTY. DIETA TO WITNESS:
Q

After SPO1 Ferol put off his T-shirt, what did he do next?

He bent down and started kissing me. Malikot po siya.

Will you tell this Court what part of your body was kissed by SPO1
Ferol at that time?

Face, neck, head, body up to my breast.

xxxx
ATTY. DIETA TO WITNESS:
Q

When SPO1 Ferol was kissing you what were you doing at that
time?

I was trying to free myself but he was forcing me to open my legs.

Was SPO1 Ferol able to open your legs?

Yes, sir.

After he opened your legs, what did he do next?

Nag-pump siya ng nag -pump, ang katawan niya nasa pagitan ng


aking mga hita.

For how long did SPO1 Ferol make that pumping motion between
your legs?

Due to fright I could not remember anything.

After that what transpired?

I tried to hit or box him but he held both my arms and pulled it up.

After SPO1 Ferol held your hands, what happened next?

Sabi po niya, huwag ka na lang pumalag patapusin mo na lang


ako kung ayaw mo masaktan.

What was your reaction to the statement of SPO1 Ferol?

I was trying to free myself and crying but I could not do so.

After you were not able to free yourself from the body of SPO1
Ferol what happened next?

Nag-pump po siya ng nag-pump.

COURT: (butts in) TO WITNESS:


xxxx
Q

When he was pumping, was his penis inside your private part
already?

Yes, he was able to make his organ entered to (sic) my organ, Your
Honor.

ATTY. DIETA TO WITNESS:


Q

For how long did SPO1 Ferol make this pumping?

Only for a short while, all I felt was I could not feel anything
except fear.

After that what happened?

He stood up and I saw white sperm in front of him.

Where did you see that white sperm?

Outside of his organ, sir.

After that what did you do, if any?

Napaluhod po ako, nanginginig po ako sa takot. Inutusan po niya

akong magsuot ng aking panty at pantalon.


Q

Were you able to put on your panty and pants?

I could not move at that time.

xxxx
ATTY. DIETA TO WITNESS:
Q

After that what happened?

He told me to fix myself or else he will kill me and due to fear I


crawled to get my pants.

Were you able to put on your panty and pants?

Yes, sir.

After that what did you do next?

I was crying and he told me walang dapat makaalam nito,


tandaan mo papatayin kita.[57]

It is settled that the testimony of a married rape victim, such as AAA, is given full
weight and credence because no married woman with a husband and children would
place herself on public trial for rape where she would be subjected to suspicion, morbid
curiosity, malicious imputations, and close scrutiny of her personal life, not to speak of
the humiliation and scandal she and her family would suffer, if she was merely
concocting her charge and would not be able to prove it in court.[58]
It is also significant to note that the RTC gave full credence to the foregoing
testimony of AAA as she relayed her painful ordeal in a candid manner. It found the
testimonies of AAA to be clear, spontaneous and reliable. Jurisprudence instructs that
when the credibility of a witness is of primordial consideration, as in this case, the
findings of the trial court, its calibration of the testimonies of the witnesses and its
assessment of the probative weight thereof, as well as its conclusions anchored on said
findings, are accorded respect if not conclusive effect. This is because the trial court has
had the unique opportunity to observe the demeanor of the witnesses and was in the best

position to discern whether they were telling the truth. When the trial courts findings
have been affirmed by the appellate court, as in the present case, said findings are
generally binding upon this Court.[59]
Further, the abovementioned testimonies are consistent with the documentary
evidence submitted by the prosecution. The RTC and the Court of Appeals found the
testimonies of AAA to be credible.
Appellants, nonetheless, claim in their first, second and fourth assigned errors that
the informations in Criminal Cases No. C-58617 and No. C-58693 both alleged that they
conspired in raping AAA once on 7 November 1999. The RTC, however, found no
conspiracy between appellants in raping AAA. Nonetheless, it held that appellant Aure
alone raped AAA on 7 November 1999 and thus convicted him of rape in Criminal Case
No. C-58617 but acquitted him of rape in Criminal Case No. C-58693; while appellant
Ferolalone raped AAA on 8 November 1999 and, hence, convicted him of rape in
Criminal Case No. C-58693 but acquitted him of rape in Criminal Case No. C-58617.
Appellants maintain that the foregoing findings and rulings of the RTC are inconsistent
with the allegations of conspiracy in the two informations and that the RTC cannot
individually and separately convict appellants of rape because the informations in the two
cases alleged conspiracy between them in raping AAA. Also, appellant Ferol cannot be
convicted in Criminal Case No. C-58693 of rape committed on 8 November 1999
because such fact was not alleged in the informations. Appellants argued that the said
finding and ruling of the RTC violated their constitutional rights to be informed of the
nature of the case against them, to be presumed innocent of the charges, and to due
process.[60]
Although the informations in Criminal Cases No. C-58617 and No. C-58693 both
alleged that appellants conspired in raping AAA, it does not necessarily follow that the
RTC cannot individually and separately convict appellants of rape. The rule is that once a
conspiracy is established, the act of one is the act of all, and each of the conspirators is
liable for the crimes committed by the other conspirators. It follows then that if the
prosecution fails to prove conspiracy, the alleged conspirators should be held individually
responsible for their own respective acts.[61] In the instant cases, the RTC ruled that the

prosecution failed to establish conspiracy between appellants in raping AAA.


Nevertheless, on the basis of AAAs credible testimony and documentary evidence for the
prosecution, the RTC found that appellant Aure alone raped AAA on 7 November 1999
and that appellant Ferol alone raped AAA on 8 November 1999. Thus, the RTC was
correct in holding appellants individually responsible for their respective acts of rape.
It is true that the information in Criminal Case No. C-58693 alleged that appellants
conspired in raping AAA on 7 November 1999, and that the RTC convicted
appellantFerol alone in Criminal Case No. C-58693 of raping AAA on 8 November 1999.
Nonetheless, the discrepancy on the actual date of rape does not constitute a serious error
warranting the reversal of appellant Ferols conviction.

The date or time of the

commission of rape is not a material ingredient of the said crime because the gravamen of
rape is carnal knowledge of a woman through force and intimidation. The precise time or
date when the rape took place has no substantial bearing on its commission. As such, the
date or time need not be stated with absolute accuracy.

It is sufficient that the

information states that the crime has been committed at any time as near as possible to
the date of its actual commission.[62] In sustaining the view that the exact date of
commission of rape is immaterial, we held in People v. Purazo[63] that:
We have ruled, time and again, that the date is not an essential
element of the crime of rape, for the gravamen of the offense is carnal
knowledge of a woman. As such, the time or place of commission in rape
cases need not be accurately stated. As early as 1908, we already held that
where the time or place or any other fact alleged is not an essential
element of the crime charged, conviction may be had on proof of the
commission of the crime, even if it appears that the crime was not
committed at the precise time or place alleged, or if the proof fails to
sustain the existence of some immaterial fact set out in the complaint,
provided it appears that the specific crime charged was in fact committed
prior to the date of the filing of the complaint or information within the
period of the statute of limitations and at a place within the jurisdiction of
the court.

Further, we have held that even a variance of a few months between the time set
out in the information and that established by the evidence during trial does not to
constitute a serious error warranting the reversal of conviction solely on that ground. [64]

In the case at bar, the difference between date/time of the rape as alleged in Criminal
Case No. C-58693 (7 November 1999) and as testified to by AAA (8 November 1999)
was one day only. Indeed, appellant Ferols actual commission of rape was not that
remote or far with the date of rape alleged in the information under Criminal Case No. C58693. Besides, all the essential elements of rape were stated in the said information and
the prosecution had duly established that appellant Ferol had carnal knowledge of AAA
through force and intimidation on 8 November 1999.
Appellants posit in their third and fifth assigned errors that AAA was motivated by
revenge in charging them with rape because they refused her plea to dismiss the charges
of child abuse, illegal recruitment and physical injuries on her; that AAAs non-disclosure
of the rape incident to Prosecutor Sison during her inquest with the latter for child abuse,
illegal recruitment and physical injuries shows that the rape charges were fabricated; that
it was physically impossible for appellants to rape AAA because the latter was taller and
stronger than them; that AAAs statement in her Sinumpaang Salaysay that she felt pain
in her vagina after the rape incidents was inconsistent with the medical findings of Dr.
Soliman that AAAs vaginal orifice was wide (3.0 centimeters in diameter) as to allow
complete penetration by an average-sized adult Filipino male organ in full erection
without producing hymenal injury; and that their corroborating witnesses were credible
and should have been believed by the RTC.[65]
Motives such as resentment, hatred or revenge have never swayed this Court from
giving full credence to the testimony of a rape victim. [66] Also, ill motives become
inconsequential if there is an affirmative and credible declaration from the rape victim
which clearly established the liability of the accused. [67]

In the present case, AAA

categorically identified appellants as the one who ravished her. Her recount of the
incidents, as found by the RTC, the Court of Appeals, and by this Court, was sincere and
truthful.
Delay in reporting an incident of rape due to death threats and shame does not
affect the credibility of the complainant nor undermine her charge of rape. [68] The silence
of a rape victim or her failure to disclose her misfortune to the authorities without loss of
material time does not prove that her charge is baseless and fabricated. It is a fact that the

victim would rather privately bear the ignominy and pain of such an experience than
reveal her shame to the world or risk the rapists making good on his threat to hurt or kill
her.[69]
AAA testified that appellants threatened to kill her if she would divulge the sexual
attacks on her.[70] Considering that appellants were police officers and armed, and that
AAA was still under appellants custody when Prosecutor Sison inquested AAA, the
latters initial reluctance to report the incidents was understandable. Further, she narrated
that she did not immediately tell the authorities and her husband of the rape incidents
because she was confused and ashamed.[71]
Besides, AAAs delay in reporting the rape incidents was not that unreasonably
long. The rape incidents took place on 7 and 8 November 1999 and AAA reported the
matter to the NBI after three days therefrom, or on 11 November 1999. In several cases
we have decided,[72] the delay in reporting the rape incidents lasted for months and even
for years; nevertheless, the victims were found to be credible.
The fact that AAA was taller and stronger than appellants does not imply that it
was physically impossible for appellants to rape AAA.

It should be recalled that

appellants poked a gun at AAA and inflicted physical injuries on the latter during the
commission of rapes. Further, the rapes were committed in the office of appellants.
Under these circumstances, AAA was no match for appellants and could not use her tall
and strong built to resist the advances of appellants.
The alleged inconsistency between AAAs Sinumpaang Salaysay and the medical
findings of Dr. Soliman is immaterial. Whether or not AAA felt pain in her vagina during
the rapes is beside the point since virginity is not an element of rape. Further, rape is
consummated from the moment the offender had carnal knowledge of the victim. [73] Full
penetration of the vagina is not essential; any penetration of the female organ by the male
organ, however slight, is sufficient.[74] AAA testified that appellants inserted their penis
into her vagina through force and intimidation.
Denial is inherently a weak defense as it is negative and self-serving. Corollarily,

alibi is the weakest of all defenses for it is easy to contrive and difficult to prove. For
alibi to prosper, it is not enough for the accused to prove that he was somewhere else
when the crime was committed. He must likewise prove that it was physically impossible
for him to be present at the crime scene or its immediate vicinity at the time of its
commission.[75]
Appellant Aure claims he was inside the CIDG office and was constantly in and
out of the computer room at around 7:00 p.m. of 7 November 1999. AAA testified that
she was raped inside the computer room of the CIDG office at the same time and date.
On the other hand, appellant Ferol alleges that he was at Pier 12, Tondo, Manila, at 2:00
a.m.of 8 November 1999 and subsequently slept on his table inside the CIDG office at
around 3:00 a.m. of the same date. AAA testified that he was raped by appellant Ferol
inside the computer room of the CIDG office at around 2:00 a.m. of 8 November 1999. It
is apparent from the foregoing that appellants were at or near the crime scene during the
rape incidents and that it was not physically impossible for them to be at the crime scene
during the rape incidents. Having failed to comply with the requirements of the law for
an alibi to prosper, appellants respective alibis, though corroborated by other defense
witnesses, cannot serve as basis for their acquittal. It should be stressed further that as
between denials and alibi of appellants and positive testimony of AAA, the latter is
accorded greater evidentiary weight.[76]
Appellants maintain in their sixth, seventh and eighth assigned errors that the
Caloocan City Prosecutors Office did not conduct preliminary investigation prior to the
filing of the present cases; that they did not receive any subpoena as regards the said
preliminary investigation; and that the RTC judge, Judge Myrna Dimaranan Vidal, was
bias, partial and rendered the assailed Decision without any factual and legal basis.[77]
It appears from the records that upon filing of a complaint by AAA for rape against
appellants with the Caloocan City Prosecutors Office, a preliminary investigation was
scheduled on 3 and 17 December 1999 by Prosecutor Yu.[78] Thereafter, two subpoenas
for the said investigation, dated 22 November 1999 (for the 3 December 1999 schedule)
and 3 December 1999 (for the 17 December 1999 schedule), were sent by Prosecutor Yu
to appellants at the latters CIDG office.[79] Despite receipt of these subpoenas, appellants

did not appear during the conduct of preliminary investigation. Appellants claim that
they did not receive said subpoenas in the CIDG office does not inspire belief because
they were active, on-duty police officers at the CIDG during the period of November and
December 1999. In fact, appellant Ferol was the acting Chief of the Warrant Department
of the CIDG office during the period of November and December 1999. [80] The said
department was in charge of receiving subpoenas and warrants from courts and other
offices.

It was unbelievable that they did not receive, nor was informed, of the

subpoenas.
Mere imputation of bias and partiality against a judge is not enough since bias and
partiality can never be presumed.[81] There was no plausible proof that Judge Vidal was
bias. On the contrary, the records show that Judge Vidal was fair and considerate to both
prosecution and defense. We have examined the RTC Decision and found that it contains
sufficient factual and legal basis.

In the said 47-page Decision, Judge Vidal has

thoroughly and extensively discussed the facts and the law on which appellants
conviction for rape were based.
We shall now determine the propriety of the penalties imposed by the RTC as
affirmed by the Court of Appeals.
Article 266-B of the Revised Penal Code provides that the penalty for rape
committed through force and intimidation, as in these cases, is reclusion perpetua. The
same provision also states that the death penalty shall be imposed if the victim was raped
while under the custody of the police authorities, or, when the rape is committed by any
member of the Philippine National Police (PNP) or any law enforcement agency.[82]
In the case under consideration, AAA was raped by appellants while she was under
the custody of the CIDG. Further, appellants were members of the PNP-CIDG at the
time they raped AAA. Nonetheless, these aggravating/qualifying circumstances were not
specifically alleged in the informations. It is settled that the aggravating/qualifying
circumstances be expressly and specifically alleged in the information, otherwise they
cannot be appreciated, even if they are subsequently proved during the trial. [83] Thus, the
RTC was correct in imposing the penalty of reclusion perpetua on each of the appellants.

The RTC was also correct in holding that each of the appellants is liable for civil
indemnity in the amount of P50,000.00 because such award is mandatory upon the
finding of fact of rape.[84] Also, the award of moral damages is proper but the amount
thereof should be reduced from P60,000.00 to P50,000.00 for each of the appellants
pursuant to prevailing jurisprudence.[85] Likewise, the award of attorneys fees in the
amount of P70,000.00 is in order[86] because the records show that AAA incurred such
expenses in hiring a private prosecutor for the instant case.[87] However, such attorneys
fees should be paid jointly by appellants and not by each of them as erroneously held by
the RTC. AAA testified that she spent a total amount of P70,000.00 in prosecuting both
Criminal Cases No. C-58671 and No. C-58693.[88]
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-HC No.
01127, dated 29 July 2005, is hereby AFFIRMED with the following MODIFICATIONS:
(1) the amount of P60,000.00 imposed on each of the appellants as moral damages is
reduced to P50,000.00; and (2) the amount of P70,000.00 as attorneys fees should be
paid jointly by appellants and not by each of them. Costs against appellants.

SO ORDERED.
SECOND DIVISION
[A.C. No. 5121 : April 16, 2012]
DOMINGO A. MUERTEGUI, JR. v. ATTY. CLEMENCIO SABITSANA, JR.

Sirs/Mesdames:
Please take notice that the Court, Second Division, issued a Resolution dated 16 April 2012
which reads as follows:cralaw
A.C. No. 5121 (Domingo A. Muertegui, Jr. v. Atty. Clemencio Sabitsana, Jr.). Complainant is asking this Court to reconsider its Resolution dated 5 December 2011
declaring the case closed and terminated considering that no petition for review was filed

with the Court per records of the Office of the Bar Confidant.
On 9 August 1999, complainant filed a Letter-Complaint for Disbarment against
respondent. This Court thereafter referred the case to the Integrated Bar of the Philippines
(IBP) for investigation, report and recommendation.
On 26 May 2006, the Board of Governors of the IBP issued Resolution No. XV1I-2006-331
dismissing the Complaint, absent convincing evidence to subject respondent to any
disciplinary action. The Notice of Resolution was not sent to complainant's counsel of
record, Atty. Wellington B. Lachica. It was instead sent to a certain Atty. Gabino A.
Velasquez.
On 14 August 2006, Atty. Velasquez filed a Manifestation before this Court, clarifying that
he was not the counsel of record in the present disbarment case, and that he was not
acquainted with Atty. Lachica. Acting on this Manifestation, this Court ordered the
correction of the entry of complainant's counsel of record and the service of the IBP's
Resolution on Atty. Lachica.
Thereafter, on 15 June 2007, complainant, through Atty. Lachica, filed a Motion for
Reconsideration. On 13 August 2007, this Court referred the motion to the IBP for proper
disposition.
On 14 May 2011, the IBP issued Resolution No. XIX-2011-179 denying, the Motion for
Reconsideration. However, despite the fact that it was Atty. Lachica who filed the Motion
for Reconsideration, the IBP did not correct its entry regarding the counsel of record of
complainant. As indicated in its Notice of Resolution, the IBP sent a copy of the Notice, this
time to Atty. Getulio M. Francisco.
On 25 July 2011, Atty. Francisco filed a Manifestation with the IBP stating that he was not
the counsel of complainant in the present case, but was instead representing the latter in
G.R. No. 181359.
Despite the Manifestation, the records do not bear any proof that a copy of Resolution No.
XIX-2011-179 was served on Atty. Lachica.
Hence, the present Motion for Reconsideration.
Service of decisions must be made upon the counsel on record if a party appears by counsel.
[1]
Decisions do not become final and executory until there is a proper service on the counsel
of the parties.[2]
Rule III, Sec. 2 of B.M. No. 1755[3] provides:
In case a decision is rendered by the BOG that exonerates the respondent or imposes a
sanction less than suspension or disbarment, the aggrieved party can file a motion for

reconsideration within the 15-day period from notice. If the motion is denied, said party can
file a petition for review under Rule 45 of the Rules of Court with this Court within fifteen
(15) days from notice of the resolution resolving the motion. If no motion for
reconsideration is filed, the decision shall become final and executory and a copy of said
decision shall be furnished this Court.
Considering that there has been no proper service of the IBP Resolution No. XIX-2011-179
upon complainant's counsel of record, Atty. Lachica, the case cannot be considered closed
and terminated. Complainant may still pursue the remedies available to him pursuant to
Rule III, Sec. 2 of B.M. No. 1755.cralaw
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is GRANTED.
Let a copy of Resolution No. XIX-2011-179 be furnished to Atty. Lachica. The Integrated
Bar of the Philippines isORDERED to correct the information on the counsel of record of
complainant.
Very truly yours,
(Sgd.) TERESITA AQUINO TUAZON
Deputy Division Clerk of Court
Endnotes:

Allado v. Diokno
Allado v. Diokno, G.R. No. 113630 May 5, 1994
Facts: The crime alleged to petitioner Allado and Mendoza, by the PACC [Presidential
Anti-Crime Commission], is heinous crime of kidnapping with murder of Eugen
Alexander Van Twest, a German national, who is reportedly an international fugitive from
justice. Other incidental crimes charged were illegal possession of firearms and
ammunition, carnapping, and usurpation of authority. The whole investigation was
triggered by an extrajudicial confession by a Security Guard Escolastico Umbal, a
discharge of the Philippine Constabulary. Based on the confession of Umbal, Judge
Barrios of RTC Br 11 issued a search warrant against petitioners. For the institution of
criminal proceedings the DOJ took over the case, after a new panel of prosecutors were
recommended [cz petitioners claim the first set of prosecutors were affiliated w/ Lacson
head of PACC and could not be impartial] and after preliminary investigation found

probable cause that accused commited the crime and submitted the case for trial which
was assigned to Judge Diokno of Br 62. Judge Diokno after finding probable cause issued
warrant of arrest.
Issue: WON the judge erred in finding probable cause issuing the search warrant.
Ruling: Yes, there is no probable cause in this case. The probable cause test is an
objective one, for in order that there be probable cause the facts and circumstances must
be such as would warrant a belief by a reasonably discreet and prudent man that the
accused is guilty of the crime which has just been committed. There is serious doubt on
Van Twest's reported death since the corpus delicti has not been established, nor have his
remains been recovered.
We are reminded of the leading case of U.S. v. Samarin, decided ninety-two years ago
where this Court ruled that when the supposed victim is wholly unknown, his body not
found, and there is but one witness who testifies to the killing, the corpus delicti is not
sufficiently proved. In People v. Inting, we emphasized the important features of the
constitutional mandate: (a) The determination of probable cause is a function of the
judge; it is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the
judge alone makes this determination; (b) The preliminary inquiry made by a prosecutor
does not bind the judge. It merely assists him in making the determination of probable
cause. The judge does not have to follow what the prosecutor presents to him. By itself,
the prosecutor's certification of probable cause is ineffectual. It is the report, the
affidavits, the transcript of stenographic notes (if any), and all other supporting
documents behind the prosecutor's certification which are material in assisting the judge
in his determination of probable cause; and, (c) Judges and prosecutors alike should
distinguish the preliminary inquiry which determines probable cause for the issuance of a
warrant of arrest from the preliminary investigation proper which ascertains whether the
offender should be held for trial or released. Even if the two inquiries be conducted in the
course of one and the same proceeding, there should be no confusion about their
objectives. The determination of probable cause for the warrant is made by the judge. The
preliminary investigation proper - whether or not there is reasonable ground to believe
that the accused is guilty of the offense charged and therefore, whether or not he should

be subjected to the expense, rigors and embarrassment of trial - is a function of the


prosecutor
The extrajudicial statement of Umbal suffers from material inconsistencies - In Lim v.
Felix, where we reiterated Soliven v. Makasiar and People v. Inting, we said The Judge does not have to personally examine the complainant and his witnesses. The
Prosecutor can perform the same functions as a commissioner for the taking of the
evidence. However, there should be a report and necessary documents supporting the
Fiscal's bare certification. All these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes depends on
the circumstances of each case. We cannot determine beforehand how cursory or
exhaustive the Judge's examination should be. The Judge has toexercise sound discretion
for, after all, the personal determination is vested in the Judge by the Constitution. It can
be as brief or as detailed as the circumstances of each case require. To be sure, the judge
must go beyond the Prosecutor's certification and investigation report whenever
necessary. He should call for the complainant and witnesses themselves to answer the
court's probing questions when the circumstances of the case so require.

Romualdez-Licaros vs. Licaros


BY Maki
ROMUALDEZ-LICAROS vs. LICAROS
G.R. No. 150656 April 29, 2003
Summons.
Summons is a writ by which the defendant is notified of the action brought against him.
Service of such writ is the means by which the court acquires jurisdiction over his person.
Facts:
Abelardo and Margarita were lawfully married. Marital differences, squabbles and
irreconcilable conflicts transpired between the spouses, such that sometime in 1979, they

agreed to separate from bed and board. Margarita then left for the United States with her
children. She filed with the courts of California a petition to divorce her husband, and it
was granted.
Abelardo and Margarita executed an Agreement of Separation of Properties, which was
duly granted by the RTC Makati.
Meanwhile, Abelardo commenced the proceeding on the voiding his marriage with
Margarita on account of psychological incapacity. As Margarita was in the US, Abelardo
initially moved that summons be served through the International Express Courier
Service. The court a quo denied the motion. Instead, it ordered that summons be served
by publication in a newspaper of general circulation once a week for three (3)
consecutive weeks, at the same time furnishing respondent a copy of the order, as well as
the corresponding summons and a copy of the petition at the given address in the United
States through the Department of Foreign Affairs, all at the expense of Abelardo. An
Officers return was duly submitted declaring the completion of the service of summons.
Finally, the marriage was declared void through Article 36 Family Code by the RTC.
Margarita appeared before the Consulate Office in San Francisco to sign the agreement
on separation of property. Abelardo allegedly threatened to cut off all financial and
material support to their children if Margarita did not sign the documents.
9 years later, Margarita contested such declaration of nullity of marriage on account of
extrinsic fraud and questioned the court that it did not acquire jurisdiction over her, hence
such decision is void and ineffectual.
Issue:
WON Margarita was validly served with summons in the case for declaration of nullity of
her marriage with Abelardo? YES
WON there was extrinsic fraud in the preparation and filing by Abelardo of the Petition
for Dissolution of the Conjugal Partnership of Gains and its annex, the Agreement of
Separation of Properties? NO
Held:
As a rule, when the defendant does not reside and is not found in the Philippines,
Philippine courts cannot try any case against him because of the impossibility of
acquiring jurisdiction over his person unless he voluntarily appears in court. But when the
case is one of actions in rem or quasi in rem enumerated in Section 15, Rule 14 of the
Rules of Court, Philippine courts have jurisdiction to hear and decide the case. In such
instances, Philippine courts have jurisdiction over the res, and jurisdiction over the person
of the non-resident defendant is not essential.

Jurisdiction over the person of a non-resident defendant in an action in rem or quasi in


rem is not necessary. The trial and appellate courts made a clear factual finding that there
was proper summons by publication effected through the Department of Foreign Affairs
as directed by the trial court. Thus, the trial court acquired jurisdiction to render the
decision declaring the marriage a nullity.
Under Section 15 of Rule 14, a defendant who is a non-resident and is not found in the
country may be served with summons by extraterritorial service in four instances:
(1)when the action affects the personal status of the plaintiff; (2) when the action relates
to, or the subject of which is property within the Philippines, in which the defendant has
or claims a lien or interest, actual or contingent; (3) when the relief demanded consists,
wholly or in part, in excluding the defendant from any interest in property located in the
Philippines; or (4) when the property of the defendant has been attached within the
Philippines.
In these instances, extraterritorial service of summons may be effected under any of three
modes: (1) by personal service out of the country, with leave of court; (2) by publication
and sending a copy of the summons and order of the court by registered mail to the
defendants last known address, also with leave of court; or (3) by any other means the
judge may consider sufficient. The trial courts prescribed mode of extraterritorial service
does not fall under the first or second mode specified in Section 15 of Rule 14, but under
the third mode.
On the Issue of Fraud: A meticulous perusal of the Petition and Agreement readily shows
that Margarita signed the same on the proper space after the prayer and on the portion for
the verification of the petition. In the instant case, Margarita acknowledged the
Agreement before Consul Cortez. The certificate of acknowledgment signed by Consul
Cortez states that Margarita personally appeared before him and acknowledged before
me that SHE executed the same of her own free will and deed. Thus, there is a prima
facie presumption that Margarita freely and voluntarily executed the Agreement.
Margarita has failed to rebut this prima facie presumption with clear and convincing
proof of coercion on the part of Abelardo.

SECOND DIVISION

SECOND DIVISION

[G.R. No. 150185. May 27, 2004]

TERESITA TANGHAL OKABE, petitioner, vs. HON. PEDRO DE LEON


GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City, Branch
119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA,
respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court,
as amended, that part of the Decision[1] of the Court of Appeals in CA-G.R. SP No. 60732
dismissing her petition for certiorari under Rule 65 of the Rules of Court, as amended, for
the nullification of the August 25 and 28, 2000 Orders of the respondent judge in
Criminal Case No. 00-0749.
The Antecedents
Cecilia Maruyama executed a fifteen-page affidavit-complaint[2] and filed the same
with the Office of the City Prosecutor of Pasay City, on December 29, 1999, charging
Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In
her affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she entrusted
Y11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who was engaged
in the business of door-to-door delivery from Japan to the Philippines. It was alleged
that the petitioner failed to deliver the money as agreed upon, and, at first, denied
receiving the said amount but later returned only US$1,000 through Lorna Tanghal.
During the preliminary investigation, the complainant, respondent Maruyama,
submitted the affidavit of her witnesses, namely, Hermogena Santiago, Wilma Setsu and
Marilette G. Izumiya and other documentary evidence. In her affidavit, Setsu alleged that
the money which was entrusted to the petitioner for delivery to the Philippines belonged
to her and her sister Annie Hashimoto, and their mother Hermogena Sanchez-Quicho,
who joined respondent Maruyama in her complaint against petitioner Okabe and Tanghal.
Respondent Maruyama, likewise, submitted a reply[3] to the petitioners counter-affidavit.
After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito J.
Vibandor came out with a resolution dated March 30, 2000, finding probable cause for
estafa against the petitioner.[4] Attached to the resolution, which was submitted to the city
prosecutor for approval, was the Information[5] against the petitioner and Maruyamas
affidavit-complaint. The city prosecutor approved the resolution and the Information
dated March 30, 2000 attached thereto.[6]
On May 15, 2000, an Information against the petitioner was filed in the Regional
Trial Court of Pasay City, docketed as Criminal Case No. 00-0749. The case was raffled
to Branch 119 of the court presided by Judge Pedro de Leon Gutierrez. [7] The accusatory
portion of the Information reads:
That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and

within the jurisdiction of this Honorable Court, the above-named accused defrauded
Cecilia Maruyama and Conchita Quicho, complainant herein, in the following manner, to
wit: said accused received in trust from Cecilia Maruyama the amount of Japanese Yen
1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the money to
Conchita Quicho at the NAIA International Airport, Pasay City, immediately upon
accused arrival from Japan, but herein accused once in possession of the same, did, then
and there willfully, unlawfully and feloniously misappropriate and convert to her own
personal benefit the said amount, and despite demands accused failed and refused to do
so, to the damage and prejudice of the complainants in the aforesaid amount.
Contrary to law.[8]
Appended to the Information was the affidavit-complaint of respondent Maruyama
and the resolution of Investigating Prosecutor Vibandor. On May 19, 2000, the trial court
issued a warrant for the arrest of the petitioner with a recommended bond of P40,000. On
June 15, 2000, the petitioner posted a personal bail bond in the said amount, duly
approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC
of Quezon City, who forthwith recalled the said warrant. The approved personal bail
bond of the petitioner was transmitted to the RTC of Pasig City on June 21, 2000. Upon
her request, the petitioner was furnished with a certified copy of the Information, the
resolution and the criminal complaint which formed part of the records of the said case.
The petitioner left the Philippines for Japan on June 17, 2000 without the trial courts
permission, and returned to the Philippines on June 28, 2000. She left the Philippines
anew on July 1, 2000, and returned on July 12, 2000.
On July 14, 2000, the trial court issued an Order setting the petitioners arraignment
and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the private prosecutor filed
an urgent ex parte motion for the issuance of the hold departure order, alleging as
follows:
3. It has come to the knowledge of private complainant that there is an impending
marriage within the Philippines of either the son or daughter of the above-named accused
and that the above-named accusedwho has businesses in Japan, and is presently in
Japanwill soon exit Japan and enter the Philippines to precisely attend said wedding;
4. Given [a] the bail was fixed at merely P40,000.00 and b] the considerable financial
capability of the accused, it is a foregone conclusion that the above-named accused will,
upon arrest, readily and immediately post bond, and leave for Japanthereby frustrating
and rendering inutile the administration of criminal justice in our country. The speed
with which accused Teresita Sheila Tanghal Okabe can post bond and leave for Japan
effectively evading arraignment and pleathus necessitates the immediate issuance of a
Hold Departure Order even before her arrival here in the Philippines;[9]
The trial court issued an order on the same day, granting the motion of the private
prosecutor for the issuance of a hold departure order and ordering the Commission on
Immigration and Deportation (CID) to hold and prevent any attempt on the part of the
petitioner to depart from the Philippines.[10] For her part, the petitioner filed on July 17,

2000 a verified motion for judicial determination of probable cause and to defer
proceedings/arraignment, alleging that the only documents appended to the Information
submitted by the investigating prosecutor were respondent Maruyamas affidavitcomplaint for estafa and the resolution of the investigating prosecutor; the affidavits of
the witnesses of the complainant, the respondents counter-affidavit and the other
evidence adduced by the parties were not attached thereto. The petitioner further alleged
that the documents submitted by the investigating prosecutor were not enough on which
the trial court could base a finding of probable cause for estafa against her. She further
averred that conformably to the rulings of this Court in Lim v. Felix[11] and Roberts, Jr. v.
Court of Appeals,[12] it behooved the investigating prosecutor to submit the following to
the trial court to enable it to determine the presence or absence of probable cause: (a)
copies of the affidavits of the witnesses of the complainant; (b) the counter-affidavit of
Okabe and those of her witnesses; (c) the transcripts of stenographic notes taken during
the preliminary investigation; and, (d) other documents presented during the said
investigation.
On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold
Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan
alleging, thus:
3. Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of
whom are still minors, namely:
3.1. Okabe, Jeffrey-18 years old born on 13 August 1981.
3.2. Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High School
student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City,
Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.
3.3. Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School
student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City,
Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.
3.4. The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki
High School where her two (2) minor sons aforesaid are presently enrolled and studying
because Okabe, Masatoshis graduation will take place on 26 July 2000.
3.5. The two (2) minor children of the accused absolutely depend their support (basic
necessities) for foods, clothings, medicines, rentals, schooling and all other expenses for
their survival to their legitimate mother who is the accused herein.
3.6. The issuance of the hold departure order (HDO) will impair the inherent custodial
rights of the accused as the legitimate mother over these two (2) minor children which is
repugnant to law.
3.7. The issuance of the hold departure order (HDO) will unduly restrict the accused to
her custodial rights and visitation over her aforesaid minor children who are permanently

living in Japan.
3.8. The issuance of the hold departure order (HDO) will unduly deprived (sic) these
minor children to their right to obtain education and survival.
4. Accuseds only source of income and livelihood is door-to-door delivery from Japan
to the Philippines and vice versa which has been taking place for a very long period of
time and in the process she has been constantly departing from the Philippines on a
weekly basis and arriving in Japan on the same frequency, as evidenced by xerox copies
of the pages of her Philippine Passports which are hereto attached as Annexes A, A1, A-2 up to A-30, respectively. To deprive her of this only source of her livelihood
to which the aforesaid two (2) minor children are deriving their very survival in a foreign
land will (sic) tantamount to oppression rather than prosecution and depriving the said
minor sons of their right to live even before trial on the merits of this case that will (sic)
tantamount to the destruction of the future of these minor children.[13]
The private prosecutor opposed the petitioners motions during the hearing on July
21, 2000 which was also the date set for her arraignment. The hearing of the motions as
well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On the said date, the
petitioner filed a manifestation objecting to her arraignment prior to the resolution of her
pending motions. She alleged that her arraignment for the crime charged should not be
made a condition for the granting of her motion to recall the hold departure order issued
against her. The arraignment of the petitioner was again reset to 2:00 p.m. of August 28,
2000, pending the resolution of her two motions. On August 25, 2000, the petitioner filed
a motion for the postponement of her arraignment alleging that, in case the trial court
ruled adversely thereon, she would refuse to enter a plea and seek relief from the
appellate court. The court denied the petitioners motions on the following grounds:
(a)
Based on its personal examination and consideration of the Information,
the affidavit-complaint of respondent Maruyama and the resolution of the investigating
prosecutor duly approved by the city prosecutor, the court found probable cause for the
petitioners arrest. Since the petitioners motion for a determination of probable cause
was made after the court had already found probable cause and issued a warrant for the
petitioners arrest, and after the latter filed a personal bail bond for her provisional liberty,
such motion was a mere surplusage;
(b)
When the petitioner posted a personal bail bond for her provisional liberty,
she thereby waived her right to question the courts finding of the existence of probable
cause for her arrest and submitted herself to the jurisdiction of the court, more so when
she filed the motion for the lifting of the hold departure order the court issued, and the
motion to defer the proceedings and her arraignment; and
(c)
The hold departure order issued by the trial court was in accord with
Supreme Court Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court
in Manotoc, Jr. v. Court of Appeals.[14]
When the case was called for the petitioners arraignment at 2:00 p.m., on August 28,
2000, she refused to plead.[15] Her counsel advised her, in open court, not to enter a plea

and, with leave of court, left the courtroom. The court then entered a not guilty plea for
the petitioner.[16] It also issued an order, on the said date, setting the pre-trial and initial
presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000.[17]
The petitioner then filed with the Court of Appeals a petition for certiorari under
Rule 65 of the Rules of Court with a plea for a writ of preliminary injunction. The case
was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the following errors to
the trial court:
I
RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED
WARRANT OF ARREST DESPITE OF (SIC) LACK
OF PROBABLE CAUSE
II
RESPONDENT COURT HAS VIOLATED THE
RIGHT OF THE PETITIONER TO DUE PROCESS
III
RESPONDENT COURT HAS ALREADY PRE-JUDGED
THE CONVICTION OF THE PETITIONER FOR ESTAFA
IV
RESPONDENT COURT HAS EXHIBITED ITS APPARENT
PARTIALITY TOWARDS THE PROSECUTION AND
AGAINST THE PETITIONER
V
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE
MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE
PURSUANT TO THE DOCTRINE OF ROBERTS, JR.
VI
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC)
THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE
PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR
HUMANITARIAN CONSIDERATION
VII
RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION
WHEN IT ISSUED THE QUESTIONED ORDERS[18]
On January 31, 2001, the CA rendered a Decision [19] partially granting the petition in
that the assailed order of the trial court denying the petitioners motion to lift/recall the
hold departure order was set aside. However, the petitioners motion for reconsideration
of the trial courts decision was denied and her petition for the nullification of the August

25, 2000 Order of the respondent judge was dismissed. The CA ruled that by posting bail
and praying for reliefs from the trial court, the petitioner waived her right to assail the
respondent judges finding of the existence of probable cause. The appellate court cited
the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.[20] Thus, the appellate court
affirmed the assailed order of the RTC, based on the respondent judges personal
examination of respondent Maruyamas affidavit-complaint, the resolution of the
investigating prosecutor and the Information approved by the city prosecutor, a finding of
probable cause was in order. However, the appellate court allowed the petitioner to travel
to Japan under the following conditions:
(1)

That petitioner post a bond double the amount of her alleged monetary
liability under the Information filed against her, as recommended by the
Office of the Solicitor General;

(2)

That petitioner inform respondent Court of each and all of her travel
itinerary prior to leaving the country;

(3)

That petitioner make periodic reports with respondent Court;

(4)

That petitioner furnish respondent Court with all the addresses of her
possible place of residence, both here and in Japan; and

(5)

Such other reasonable conditions which respondent Court may deem


appropriate under the circumstances.[21]

The appellate court did not resolve the issue of whether the trial court had prejudged
the case and was partial to the prosecution. The decretal portion of the decision of the
CA reads:
WHEREFORE, premises considered, the instant special civil action for certiorari is
hereby PARTIALLY GRANTED insofar as the denial of petitioners Motion to
Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the accused to
Regularly Travel to Japan is concerned. In all other respect, the same is hereby
DENIED.
SO ORDERED.[22]
On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the
decision of the CA contending that the appellate court erred in applying the ruling of this
court in Cojuangco, Jr. v. Court of Appeals [23] instead of Section 26, Rule 114 of the
Revised Rules on Criminal Procedure. The petitioner posited that the said rule, which
took effect on December 1, 2000, before the court rendered its decision, had superseded
the ruling of this Court in the Cojuangco case. However, the appellate court held that
Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot be applied
retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised
Rules on Criminal Procedure took effect.
Hence, the instant petition for review on certiorari for the reversal of the decision and
resolution of the CA and praying that after due proceedings, judgment be rendered in her
favor, thus:

WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due
proceedings, judgment be rendered in favor of the petitioner and against the respondents
as follows:
(a) GIVING DUE COURSE to the instant petition;
(b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision
promulgated on 31 January 2001 (Annex A hereof) of the Honorable Court of Appeals
in CA-G.R. SP No. 60732 as well as its Resolution promulgated on 27 September 2001
(Annex B hereof);
(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable cause;
(d) DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void;
(e) ORDERING the private respondents to pay the petitioners the following amount:
(i) at least P1,000,000.00 as moral damages;
(ii) at least P1,000,000.00 as exemplary damages;
(iii) at least P500,000.00 as attorneys fees and for other expenses of
litigation.
(f) ORDERING the private respondent to pay the costs of this suit.
(g) Petitioner further prays for such other reliefs just and equitable under the premises.[24]
The petitioner asserts that the CA committed the following reversible errors:
I
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION
OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL
PROCEDURE WHICH TOOK EFFECT ON 01 DECEMBER 2000 WHICH
IS FAVORABLE TO THE PETITIONER/ACCUSED.
II
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR IN RULING THAT WHATEVER INFIRMITY THERE WAS IN
THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS
CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO THE
RESPONDENT COURTS JURISDICTION WHEN SHE POSTED BAIL
AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS
MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND TO
ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last

paragraph, Page 9 DECISION dated 31 January 2001).


III
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR WHEN IT RELIED UPON THE RULING IN THE CASE OF
COJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN
IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER
APPLICABLE.
IV
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH
THE CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF
WARRANT OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE
RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINTAFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE
INVESTIGATING
PROSECUTOR;
AND
(iii)
CRIMINAL
INFORMATION.
V
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE
RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS
VIOLATIVE OF THE PETITIONERS RIGHT TO DUE PROCESS.
VI
THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN)
FOR ESTAFA ENTITLED PEOPLE VS. SHEILA OKABE; CIVIL CASE
NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY
WITH PRELIMINARY ATTACHMENT ENTITLED CONCHITA
SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE; AND
CRIM. CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119)
ENTITLED
PEOPLE
VS.
TERESITA TANGHAL OKABE
CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM
SHOPPING.[25]
By way of comment, the Office of the Solicitor General refuted the petitioners
assigned errors, contending as follows:
I
The Court of Appeals did not commit a reversible error in not applying
Section 26, Rule 114 of the Revised Rules on Criminal Procedure.
II
The Court of Appeals did not commit a reversible error in ruling that the
infirmity, if any, in the issuance by the respondent Judge of the warrant of
arrest against petitioner was cured when petitioner voluntarily submitted to

the trial courts jurisdiction when she posted bail and filed motions seeking
for affirmative reliefs from the trial court, such as the motion to lift/recall
Hold Departure Order (HDO) and to allow petitioner to travel regularly to
Japan.
III
The Court of Appeals did not commit a reversible error in applying the ruling
in the Cojuangco case.
IV
The Court of Appeals did not commit a reversible error in finding that
respondent Judge complied with the constitutional requirements on the
issuance of a warrant of arrest.
V
The Court of Appeals did not commit a reversible error when it did not rule
on the partiality of the respondent Judge in handling Criminal Case No. 000749.
VI
The Honorable Court of Appeals did not commit a reversible error when it
did not rule on petitioners claim of forum shopping.[26]
The Court shall resolve the assigned errors simultaneously as they are interrelated.
The petitioner asserts that the respondent judge could not have determined the
existence of probable cause for her arrest solely on the resolution of the investigating
prosecutor and the undated affidavit-complaint of respondent Maruyama. She posits that
the respondent judge should have ordered the investigating prosecutor to submit the
affidavits of the witnesses of respondent Maruyama and the latters documentary
evidence, as well as the counter-affidavit of the petitioner and the transcripts of the
stenographic notes, if any, taken during the preliminary investigation. The petitioner adds
that the respondent judge should have personally reviewed the said documents,
conformably to the rulings of this Court in Lim v. Felix,[27] Roberts, Jr. v. Court of
Appeals[28] and Ho v. People,[29] before determining the presence or absence of probable
cause. She posits that the respondent judge acted with grave abuse of discretion
amounting to excess or lack of jurisdiction in denying her motion for a determination of
probable cause, and the alternative motion for a dismissal of the case against her for lack
of probable cause.
The petitioner further asserts that the appellate court erred in affirming the ruling of
the respondent judge that, by posting a personal bail bond for her provisional liability and
by filing several motions for relief, she thereby voluntarily submitted herself to the
jurisdiction of the trial court and waived her right to assail the infirmities that infected the
trial courts issuance of the warrant for her arrest. She avers that the appellate courts
reliance on the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan[30] is misplaced,
and submits that the appellate court should have applied Section 26, Rule 114 of the
Revised Rules of Court retroactively, as it rendered the ruling of this Court in the

Cojuangco, Jr. case obsolete.


The Office of the Solicitor General, on the other hand, asserts that the respondent
judge did not commit any grave abuse of discretion when he found probable cause
against the petitioner forestafa, and thereafter issued a warrant for her arrest. It argues
that the respondent judge personally determined the existence of probable cause
independently of the certification of the investigating prosecutor, and only after
examining the Information, the resolution of the investigating prosecutor, as well as the
affidavit-complaint of the private complainant. It asserts that such documents are
sufficient on which to anchor a finding of probable cause. It insists that the appellate
court correctly applied the ruling of this Court in the Cojuangco, Jr. v. Court of Appeals
case, and that the respondent judge complied with both the requirements of the
constitution and those set forth in the Rules of Court before issuing the said warrant.[31]
We agree with the contention of the petitioner that the appellate court erred in not
applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, viz:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued therefor, or from
assailing the regularity or questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before entering his plea. The court shall
resolve the matter as early as practicable but not later than the start of the trial of the case.
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal
Procedure is a new one, intended to modify previous rulings of this Court that an
application for bail or the admission to bail by the accused shall be considered as a
waiver of his right to assail the warrant issued for his arrest on the legalities or
irregularities thereon.[32] The new rule has reverted to the ruling of this Court in People v.
Red.[33] The new rule is curative in nature because precisely, it was designed to supply
defects and curb evils in procedural rules. Hence, the rules governing curative statutes
are applicable. Curative statutes are by their essence retroactive in application. [34]
Besides, procedural rules as a general rule operate retroactively, even without express
provisions to that effect, to cases pending at the time of their effectivity, in other words to
actions yet undetermined at the time of their effectivity.[35] Before the appellate court
rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was
already in effect. It behooved the appellate court to have applied the same in resolving
the petitioners petition for certiorariand her motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting her personal bail
bond, it cannot be argued that she waived her right to question the finding of probable
cause and to assail the warrant of arrest issued against her by the respondent judge. There
must be clear and convincing proof that the petitioner had an actual intention to
relinquish her right to question the existence of probable cause.[36] When the only proof of
intention rests on what a party does, his act should be so manifestly consistent with, and
indicative of, an intent to voluntarily and unequivocally relinquish the particular right that
no other explanation of his conduct is possible.[37] In this case, the records show that a
warrant was issued by the respondent judge in Pasay City for the arrest of the petitioner, a

resident of Guiguinto, Bulacan. When the petitioner learned of the issuance of the said
warrant, she posted a personal bail bond to avert her arrest and secure her provisional
liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City approved the bond and
issued an order recalling the warrant of arrest against the petitioner. Thus, the posting of
a personal bail bond was a matter of imperative necessity to avert her incarceration; it
should not be deemed as a waiver of her right to assail her arrest. So this Court ruled in
People v. Red:[38]
The present defendants were arrested towards the end of January, 1929, on the Island
and Province of Marinduque by order of the judge of the Court of First Instance of
Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque.
In view of these circumstances and the number of the accused, it may properly be held
that the furnishing of the bond was prompted by the sheer necessity of not remaining in
detention, and in no way implied their waiver of any right, such as the summary
examination of the case before their detention. That they had no intention of waiving this
right is clear from their motion of January 23, 1929, the same day on which they
furnished a bond, and the fact that they renewed this petition on February 23, 1929,
praying for the stay of their arrest for lack of the summary examination; the first motion
being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second
remaining undecided, but with an order to have it presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the right granted to them
by section 13, General Order No. 58, as amended by Act No. 3042.[39]
Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received
certified true copies of the Information, the resolution of the investigating prosecutor, the
affidavit-complaint of the private complainant, respondent Maruyama, and a certification
from the branch clerk of court that only the Information, resolution and affidavitcomplaint formed part of the entire records of the case. The next day, June 17, 2000, the
petitioner, through counsel, filed a verified motion for judicial determination of probable
cause and to defer the proceedings and her arraignment. All the foregoing are
inconsistent with a waiver of her right to assail the validity of her arrest and to question
the respondent judges determination of the existence of probable cause for her arrest.
Neither can the petitioners filing of a motion for the lifting of the hold departure
order and for leave to go to Japan be considered a waiver of her right to assail the validity
of the arrest warrant issued by the respondent judge. It bears stressing that when the
petitioner filed the motion to lift the hold departure order issued against her by the
respondent judge, her motion for a determination of probable cause was still unresolved.
She sought a lifting of the hold departure order on July 14, 2000 and filed a motion for
leave to go to Japan, to give the respondent judge an opportunity to reconsider the said
order, preparatory to assailing the same in the appellate court in case her motion was
denied.
The issue that now comes to fore is whether or not the respondent judge committed a
grave abuse of his discretion amounting to excess or lack of jurisdiction in issuing his
August 25, 2000 Order. By grave abuse of discretion is meant such patent and gross

abuse of discretion as to amount to an evasion of positive duty or a virtual refusal to


perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reasons of passion or personal
hostility.[40] Hence, when the court has jurisdiction over the case, its questioned acts, even
if its findings are not correct, would at most constitute errors of law and not abuse of
discretion correctible by the extraordinary remedy of certiorari.[41]
We agree with the petitioner that before the RTC judge issues a warrant of arrest
under Section 6, Rule 112 of the Rules of Court [42] in relation to Section 2, Article III of
the 1987 Constitution, the judge must make a personal determination of the existence or
non-existence of probable cause for the arrest of the accused. The duty to make such
determination is personal and exclusive to the issuing judge. He cannot abdicate his duty
and rely on the certification of the investigating prosecutor that he had conducted a
preliminary investigation in accordance with law and the Rules of Court, as amended, and
found probable cause for the filing of the Information.
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating
prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC, is
tasked to determine whether there is sufficient ground to engender a well-founded belief
that a crime has been committed and the respondent therein is probably guilty thereof and
should be held for trial. A preliminary investigation is for the purpose of securing the
innocent against hasty, malicious and oppressive prosecution, and to protect him from an
open and public accusation of a crime, from the trouble, expense and anxiety of a public
trial.[43]
If the investigating prosecutor finds probable cause for the filing of the Information
against the respondent, he executes a certification at the bottom of the Information that
from the evidence presented, there is a reasonable ground to believe that the offense
charged has been committed and that the accused is probably guilty thereof. Such
certification of the investigating prosecutor is, by itself, ineffective. It is not binding on
the trial court. Nor may the RTC rely on the said certification as basis for a finding of the
existence of probable cause for the arrest of the accused.[44]
In contrast, the task of the presiding judge when the Information is filed with the
court is first and foremost to determine the existence or non-existence of probable cause
for the arrest of the accused. Probable cause is meant such set of facts and circumstances
which would lead a reasonably discreet and prudent man to believe that the offense
charged in the Information or any offense included therein has been committed by the
person sought to be arrested.[45] In determining probable cause, the average man weighs
facts and circumstances without resorting to the calibrations of the rules of evidence of
which he has no technical knowledge. He relies on common sense. [46] A finding of
probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed and that it was committed by the accused. Probable cause demands
more than bare suspicion, it requires less than evidence which would justify conviction.[47]
The purpose of the mandate of the judge to first determine probable cause for the
arrest of the accused is to insulate from the very start those falsely charged of crimes from
the tribulations, expenses and anxiety of a public trial:

It must be stressed, however, that in these exceptional cases, the Court took the
extraordinary step of annulling findings of probable cause either to prevent the misuse of
the strong arm of the law or to protect the orderly administration of justice. The
constitutional duty of this Court in criminal litigations is not only to acquit the innocent
after trial but to insulate, from the start, the innocent from unfounded charges. For the
Court is aware of the strains of a criminal accusation and the stresses of litigation which
should not be suffered by the clearly innocent. The filing of an unfounded criminal
information in court exposes the innocent to severe distress especially when the crime is
not bailable. Even an acquittal of the innocent will not fully bleach the dark and deep
stains left by a baseless accusation for reputation once tarnished remains tarnished for a
long length of time. The expense to establish innocence may also be prohibitive and can
be more punishing especially to the poor and the powerless. Innocence ought to be
enough and the business of this Court is to shield the innocent from senseless suits right
from the start.[48]
In determining the existence or non-existence of probable cause for the arrest of the
accused, the RTC judge may rely on the findings and conclusions in the resolution of the
investigating prosecutor finding probable cause for the filing of the Information. After
all, as the Court held in Webb v. De Leon,[49] the judge just personally reviews the initial
determination of the investigating prosecutor finding a probable cause to see if it is
supported by substantial evidence.[50] However, in determining the existence or nonexistence of probable cause for the arrest of the accused, the judge should not rely solely
on the said report.[51] The judge should consider not only the report of the investigating
prosecutor but also the affidavit/affidavits and the documentary evidence of the parties,
the counter-affidavit of the accused and his witnesses, as well as the transcript of
stenographic notes taken during the preliminary investigation, if any, submitted to the
court by the investigating prosecutor upon the filing of the Information. [52] Indeed, in Ho
v. People,[53] this Court held that:
Lastly, it is not required that the complete or entire records of the case during the
preliminary investigation be submitted to and examined by the judge. We do not intend
to unduly burden trial courts by obliging them to examine the complete records of every
case all the time simply for the purpose of ordering the arrest of an accused. What is
required, rather, is that the judge must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of
stenographic notes, if any) upon which to make his independent judgment or, at the very
least, upon which to verify the findings of the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and entirely on the prosecutors
recommendation, as Respondent Court did in this case. Although the prosecutor enjoys
the legal presumption of regularity in the performance of his official duties and functions,
which in turn gives his report the presumption of accuracy, the Constitution, we repeat,
commands the judge to personally determine probable cause in the issuance of warrants
of arrest. This Court has consistently held that a judge fails in his bounden duty if he
relies merely on the certification or the report of the investigating officer.[54]
The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised

Rules on Criminal Procedure which provides that an Information or complaint filed in


court shall be supported by the affidavits and counter-affidavits of the parties and their
witnesses, together with the other supporting evidence of the resolution:
SEC. 8. Records. (a) Records supporting the information or complaint. An information
or complaint filed in court shall be supported by the affidavits and counter-affidavits of
the parties and their witnesses, together with the other supporting evidence and the
resolution on the case.
If the judge is able to determine the existence or non-existence of probable cause on
the basis of the records submitted by the investigating prosecutor, there would no longer
be a need to order the elevation of the rest of the records of the case. However, if the
judge finds the records and/or evidence submitted by the investigating prosecutor to be
insufficient, he may order the dismissal of the case, or direct the investigating prosecutor
either to submit more evidence or to submit the entire records of the preliminary
investigation, to enable him to discharge his duty.[55]The judge may even call the
complainant and his witness to themselves answer the courts probing questions to
determine the existence of probable cause.[56] The rulings of this Court in Soliven v.
Makasiar[57] and Lim v. Felix[58] are now embodied in Section 6, Rule 112 of the Revised
Rules on Criminal Procedure, with modifications, viz:
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within
ten (10) days from the filing of the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish probable
cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment
order if the accused has already been arrested pursuant to a warrant issued by the judge
who conducted the preliminary investigation or when the complaint or information was
filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within five (5)
days from notice and the issue must be resolved by the court within thirty (30) days from
the filing of the complaint of information.
In this case, the investigating prosecutor submitted to the respondent judge only his
resolution after his preliminary investigation of the case and the affidavit-complaint of the
private complainant, and failed to include the affidavits of the witnesses of the private
complainant, and the latters reply affidavit, the counter-affidavit of the petitioner, as well
as the evidence adduced by the private complainant as required by case law, and now by
Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. The aforecited
affidavits, more specifically the fax message of Lorna Tanghal and the document signed
by her covering the amount of US$1,000, are of vital importance, as they would enable
the respondent judge to properly determine the existence or non-existence of probable
cause.
First. When respondent Maruyama handed the money to the petitioner, she did not
require the latter to sign a document acknowledging receipt of the amount. The petitioner
avers that it is incredible that Maruyama would entrust P3,993,500 in Japanese Yen to her

without even requiring her to sign a receipt therefor, especially since respondent
Maruyama was not even the owner of the money;
Second. The affidavit of Hermogena Santiago, a witness of the respondent, is
unreliable, because it is based on information relayed to her by Lorna Tanghal that she
(Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a Mitsubishi
L300 van with the petitioner. It appears that Tanghal failed to submit any counteraffidavit to the investigating prosecutor;
Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is
also unreliable, as it was based on information relayed to her by Thelma Barbiran, who
used to work for the petitioner as a housemaid, that she (Barbiran) had in her possession a
fax message from Lorna Tanghal, implicating the petitioner in the crime charged.
Barbiran did not execute any affidavit;
Fourth. There is no indication in the resolution of the investigating prosecutor that
the petitioner received the fax message of Lorna Tanghal;
Fifth. The private complainant claims that the petitioner tried to reimburse the
P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her affidavitcomplaint that the document evidencing the remittance was signed by Lorna Tanghal, not
by the petitioner. The petitioner claimed that Lorna Tanghal had to remit US$1,000 to
respondent Maruyama because the latter made it appear to Tanghal that the police
authorities were about to arrest the petitioner, and Tanghal was impelled to give the
amount to respondent Maruyama to avert her arrest and incarceration;
Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had
no case against her because the crime charged in the latters affidavit-complaint was the
same as that filed against her in the Metropolitan Trial Court of Bulacan, which was
withdrawn by the complainant herself;
Seventh. The investigating prosecutor stated in his resolution that the private
complainant established the element of deceit. However, the crime charged against the
petitioner as alleged in the Information is estafa with abuse of confidence.
In sum, then, we find and so declare that the respondent judge committed a grave
abuse of his discretion amounting to excess or lack of jurisdiction in finding probable
cause for the petitioners arrest in the absence of copies of the affidavits of the witnesses
of the private complainant and her reply affidavit, the counter-affidavit of the petitioner,
and the evidence adduced during the preliminary investigation before the investigating
prosecutor.
In view of the foregoing disquisitions, there is no more need to resolve the other
issues raised by the petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
decision of the Court of Appeals is REVERSED and SET ASIDE. The assailed Orders
dated August 25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge in
Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the
Regional Trial Court of Pasay City, Branch 119. The respondent judge is hereby
DIRECTED to determine the existence or non-existence of probable cause for the arrest

of the petitioner based on the complete records, as required under Section 8(a), Rule 112
of the Revised Rules on Criminal Procedure.
SO ORDERED.

SECOND DIVISION

[G.R. No. 130644. October 27, 1997]

THE MINOR FRANCISCO JUAN LARRANAGA, represented in this suit by his


mother MARGARITA G. LARRANAGA, petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
RE S O LUTI ON
PUNO, J.:
On October 1, 1997, petitioner Margarita G. Larranaga filed a petition for certiorari,
prohibition and mandamus with writs of preliminary prohibitory and mandatory
injunction seeking to annul the information for kidnapping and serious illegal detention
against her minor son, Francisco Juan Larranagga alias Paco, filed in the RTC [1] of Cebu
City as well as the warrant of arrest issued as a consequence thereof. Petitioner as an
alternative remedy prays for the annulment of the order[2] of the Office of the City
Prosecutor of Cebu denying Larranaggas motion for a regular preliminary investigation
and that it be conducted by a panel of prosecutors from the office of the State Prosecutor,
Department of Justice. On October 6, 1997, petitioner filed a Supplemental Petition
praying for the issuance of the writ of habeas corpus to relieve her son from his alleged
illegal confinement or to grant him bail.
It appears that on September 15, 1997, some PNP CIG authorities went to the Center
for Culinary Arts located at 287 Katipunan Avenue, Loyola Heights, Quezon City to
arrest Francisco Juan Larranaga. Larranaga, thru his lawyer, Atty. Raymundo Armovit
remonstrated against the warrantless arrest. The, police did not carry out the arrest on the
assurance that Larranaga would be brought to Cebu City by his lawyer on September 17,

1997 for perlominary investigation.


On September 17, 1997, Atty. Armovit attended the preliminary investigation
conducted by the Office of the City State Prosecutor of Cebu. Forthwith, he moved that
his client be given a regular preliminary investigation. He also requested for copies of all
affidavits and documents in support of the complaint against his client and that he be
granted a non-extendible period of twenty (20) days from their receipt to file the defense
affidavit. The motion was denied by the city prosecutor on the ground that Larranaga
should be treated as a detention prisoner, hence entitled only to an inquest investigation.
Atty. Armovit was ordered to present Larranaga in person. He was warned that his failure
would be treated as waiver of his clients right to a preliminary investigation and he
would be proceeded against pursuant to section 7, Rule 112 of the Rules of Court. Atty.
Armivits verbal motion for reconsideration was denied by the city prosecutor.
On September 19, 1997, Larranaga, thru counsel, rushed to the Court of Appeals
assailing the actuations of the Cebu prosecutors thru a petition for certiorari, prohibition
and mandamus.[3]However, Larranagas effort to stop the filing of a criminal information
against him failed. It turned out that on September 17, 1997 the said prosecutors had
filed an information with the RTC of Cebu charging Larranaga with kidnapping and
serious illegal detention. The prosecutors recommended no bail. On September 22,
1997, counsel filed a Supplemental Petition with the Court of Appeals impleading the
RTC of Cebu City to prevent petitioners arrest. The move again proved fruitless as
Larranaga was arrested on the night of September 22, 1997 by virtue of a warrant of
arrest issued by the Executive Judge of the RTC of Cebu City, the Honorable Priscila
Agana. A second Supplemental Petition was filed by Larranagas counsel in the Court of
Appeals bringing to its attention the arrest of Larranaga. On September 25, 1997 the
Court of Appeals dismissed Larranagas petitions, hence, the case at bar.
On October 8, 1997, we ordered the Solicitor General to file a consolidated comment
on the petition within a non-extendible period of ten (10) days. On October 16, 1997, we
temporarily restrained the presiding judge of Branch 7 of the RTC of Cebu from
proceeding with the case to prevent the issues from becoming moot.
On October 20, 1997, the Office of the Solicitor General filed a Manifestation and
motion in lieu of Consolidated Comment. The Solicitor General submitted that x x x it
is within petitioners constitutional and legal rights to demand that a regular preliminary
investigation rather than a mere inquest be conducted before resolving the issue of
whether or not to file informations against him. He asked that x x x the petition be
given due course and petitioner be accorded his right to preliminary investigation. He
further recommended that x x x during the pendency thereof, petitioner be released from
detention.
We agree.
Petitioner is entitled not to a mere inquest investigation but to a regular preliminary
investigation. Section 7 of Rule 112 cannot be invoked to justify petitioners inquest
investigation. Said section clearly provides that when a person is lawfully arrested
without a warrant for an offense cognizable by the Regional Trial Court, the complaint or
information may be filed by the offended party, peace officer or fiscal without a

preliminary investigation having been first conducted, on the basis of the affidavit of the
offended party or arresting officer or person.
The records do not show that petitioner was "lawfully arrested. For one, the
petitioner was not arrested on September 15, 1997, as his counsel persuaded the arresting
officers that he would instead be presented in the preliminary investigation to be
conducted in Cebu City on September 17, 1997. For another, the arresting officers had
no legal authority to make a warrantless arrest of the petitioner for a crime committed
some two (2) months before. So we held in Go vs. Court of Appeals, viz:[4]
Secondly, we do not belie that the warrantless arrest or detention of petitioner in the
instant case falls within the terms of Section 5 of the Rule 113 of the 1985 Rules on
Criminal Procedure which provides:
Sec 5. Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail, and he shall be proceeded against in accordance with Rule 112, Section 7.
Petitioners arrest took place six (6) days after the shooting of Maguan. The arresting
officers obviously were not present, within the meaning of Section 5(a), at the time
petitioner had allegedly shot Maguan. Neither could the arrest effected six (6) days after
the shooting be reasonably regarded as effected when (the shooting had) in fact just been
committed within the meaning of Section 5(b). Moreover, none of the arresting officers
had any personal knowledge of facts indicating that petitioner was the gunman who had
shot Maguan. The information upon which the police acted had been derived from
statements made by alleged eyewitnesses to the shooting one stated that petitioner was
the gunman; another was able to take down the alleged gunmans cars plate number
which turned out to be registered in petitioners wifes name. That information did not,
however, constitute personal knowledge.
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner
within the meaning of Section 5 of Rule 113. It is clear too that section 7 of Rule 112 is
not applicable. x x x When the police filed a complaint for frustrated homicide with the

Prosecutor, the latter should have immediately scheduled a preliminary investigation to


determine whether there was probable cause for charging petitioner in court for the
killing of Eldon Maguna. Instead, as noted earlier, the Prosecutor proceeded under the
erroneous supposition that section 7 of the Rule 112 was applicable and required
petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition
for carrying out a preliminary investigation. This was substantive error, for petitioner
was entitled to a preliminary investigation and that right should have been accorded him
without any conditions. Moreover, since petitioner had not been arrested, with or without
a warrant, he was also entitled to be released forthwith subject only to his appearing at the
preliminary investigation.
It then follows that the right of petitioner to a regular preliminary investigation
pursuant to section 3 of Rule 112 cannot stand any diminution. Petitioner, a minor, is
charged with a capital offense kidnapping and serious illegal detention. Its filing in
court means his arrest and incarceration as in all probability he would not be allowed bail.
His conviction will bring him face to face with the death penalty. Thus, petitioners
counsel was fart from being unreasonable when he demanded from the city prosecutors
that he be furnished copies of the affidavits supporting the complaint and that he be given
a non-extendible period of twenty (20) days to submit defense affidavit. As well pointed
of his motion x x x prevented petitioner from preparing and submitting the affidavits of
some forty (40) classmates, teachers, proctors and security guards who had previously
made known their willingness to testify that:
- during the whole day of July 16 and again on July 17 petitioner and his classmates
were all in their school at Quezon City; in fact in the afternoon of July 16 and 17, 1997,
petitioner and his classmates took their mid-term exams;
- following their exams on July 16 they had partied together first at petitioners Quezon
City apartment until about 9 o clock in the evening, and then repaired to a Quezon City
restaurant at Katipunan Avenue where they stayed on until 3 oclock in the morning of
July 17; they even had pictures taken of their party;
- indeed petitioners July 16 examination papers and that of a classmates are ready for
submission as evidence, along with petitioners grades for the terms end in September
1997;
- two of their teachers, also a proctor, and a security guard actually remember seeing
petitioner at their Quezon City school on July 16 and 17;
- petitioner was duly registered and attended classes starting June 1997 until terms end in
September 1997;
- petitioner had also been logged to have been in his Quezon City apartment since June
1997, particularly including July 16 and 17;
- petitioner only went to Cebu late afternoon of July 17 on board PAL flight No. PR833,

as shown by his plane ticket and boarding pass.


Fairness dictates that the request of petitioner for a chance to be heard in a capital
offense case should have been granted by the Cebu City prosecutor. In Webb vs. de Leon,
[5]
we emphasized that attuned to the times, our Rules have discarded the pure
inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasijudicial type of preliminary investigation conducted by one whose high duty is to be fair
and impartial. As this Court emphasized in Rolito Go vs. Court of Appeals, the right to
have a preliminary investigation conducted before being bound over for trial for a
criminal offense and hence formally at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right. A preliminary investigation
should therefore be scrupulously conducted so that the constitutional right to liberty
of a potential accused can be protected from any material damage.
IN VIEW WHEREOF, the Court resolves: (1) to set aside the inquest investigation
of petitioner and to order the Office of the City Prosecutor of Cebu to conduct a regular
preliminary investigation of the petitioner in accord with section 3, Rule 112; (2) to annul
the order for Detention During The Pendency of the Case issued by Executive Judge
Priscilla Agana against the petitioner in Crim. Case No. CBU-45303 and 45304; (3) to
order the immediate release of petitioner pending his preliminary investigation and (4) to
order the Presiding Judge of Br. VII, RTC of Cebu City to cease and desist from
proceeding with the arraignment and trial of petitioner in Crim. Case No. CBU-45303
and 45304, pending the result of petitioners preliminary investigation.
SO ORDERED.
Regalado, (Chairman), Mendoza, and Torres, Jr., JJ., concur.

SECOND DIVISION

[G.R. No. 130644. October 27, 1997]

THE MINOR FRANCISCO JUAN LARRANAGA, represented in this suit by his


mother MARGARITA G. LARRANAGA, petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
RE S O LUTI ON
PUNO, J.:
On October 1, 1997, petitioner Margarita G. Larranaga filed a petition for certiorari,

prohibition and mandamus with writs of preliminary prohibitory and mandatory


injunction seeking to annul the information for kidnapping and serious illegal detention
against her minor son, Francisco Juan Larranagga alias Paco, filed in the RTC [1] of Cebu
City as well as the warrant of arrest issued as a consequence thereof. Petitioner as an
alternative remedy prays for the annulment of the order[2] of the Office of the City
Prosecutor of Cebu denying Larranaggas motion for a regular preliminary investigation
and that it be conducted by a panel of prosecutors from the office of the State Prosecutor,
Department of Justice. On October 6, 1997, petitioner filed a Supplemental Petition
praying for the issuance of the writ of habeas corpus to relieve her son from his alleged
illegal confinement or to grant him bail.
It appears that on September 15, 1997, some PNP CIG authorities went to the Center
for Culinary Arts located at 287 Katipunan Avenue, Loyola Heights, Quezon City to
arrest Francisco Juan Larranaga. Larranaga, thru his lawyer, Atty. Raymundo Armovit
remonstrated against the warrantless arrest. The, police did not carry out the arrest on the
assurance that Larranaga would be brought to Cebu City by his lawyer on September 17,
1997 for perlominary investigation.
On September 17, 1997, Atty. Armovit attended the preliminary investigation
conducted by the Office of the City State Prosecutor of Cebu. Forthwith, he moved that
his client be given a regular preliminary investigation. He also requested for copies of all
affidavits and documents in support of the complaint against his client and that he be
granted a non-extendible period of twenty (20) days from their receipt to file the defense
affidavit. The motion was denied by the city prosecutor on the ground that Larranaga
should be treated as a detention prisoner, hence entitled only to an inquest investigation.
Atty. Armovit was ordered to present Larranaga in person. He was warned that his failure
would be treated as waiver of his clients right to a preliminary investigation and he
would be proceeded against pursuant to section 7, Rule 112 of the Rules of Court. Atty.
Armivits verbal motion for reconsideration was denied by the city prosecutor.
On September 19, 1997, Larranaga, thru counsel, rushed to the Court of Appeals
assailing the actuations of the Cebu prosecutors thru a petition for certiorari, prohibition
and mandamus.[3]However, Larranagas effort to stop the filing of a criminal information
against him failed. It turned out that on September 17, 1997 the said prosecutors had
filed an information with the RTC of Cebu charging Larranaga with kidnapping and
serious illegal detention. The prosecutors recommended no bail. On September 22,
1997, counsel filed a Supplemental Petition with the Court of Appeals impleading the
RTC of Cebu City to prevent petitioners arrest. The move again proved fruitless as
Larranaga was arrested on the night of September 22, 1997 by virtue of a warrant of
arrest issued by the Executive Judge of the RTC of Cebu City, the Honorable Priscila
Agana. A second Supplemental Petition was filed by Larranagas counsel in the Court of
Appeals bringing to its attention the arrest of Larranaga. On September 25, 1997 the
Court of Appeals dismissed Larranagas petitions, hence, the case at bar.
On October 8, 1997, we ordered the Solicitor General to file a consolidated comment
on the petition within a non-extendible period of ten (10) days. On October 16, 1997, we
temporarily restrained the presiding judge of Branch 7 of the RTC of Cebu from
proceeding with the case to prevent the issues from becoming moot.

On October 20, 1997, the Office of the Solicitor General filed a Manifestation and
motion in lieu of Consolidated Comment. The Solicitor General submitted that x x x it
is within petitioners constitutional and legal rights to demand that a regular preliminary
investigation rather than a mere inquest be conducted before resolving the issue of
whether or not to file informations against him. He asked that x x x the petition be
given due course and petitioner be accorded his right to preliminary investigation. He
further recommended that x x x during the pendency thereof, petitioner be released from
detention.
We agree.
Petitioner is entitled not to a mere inquest investigation but to a regular preliminary
investigation. Section 7 of Rule 112 cannot be invoked to justify petitioners inquest
investigation. Said section clearly provides that when a person is lawfully arrested
without a warrant for an offense cognizable by the Regional Trial Court, the complaint or
information may be filed by the offended party, peace officer or fiscal without a
preliminary investigation having been first conducted, on the basis of the affidavit of the
offended party or arresting officer or person.
The records do not show that petitioner was "lawfully arrested. For one, the
petitioner was not arrested on September 15, 1997, as his counsel persuaded the arresting
officers that he would instead be presented in the preliminary investigation to be
conducted in Cebu City on September 17, 1997. For another, the arresting officers had
no legal authority to make a warrantless arrest of the petitioner for a crime committed
some two (2) months before. So we held in Go vs. Court of Appeals, viz:[4]
Secondly, we do not belie that the warrantless arrest or detention of petitioner in the
instant case falls within the terms of Section 5 of the Rule 113 of the 1985 Rules on
Criminal Procedure which provides:
Sec 5. Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

Petitioners arrest took place six (6) days after the shooting of Maguan. The arresting
officers obviously were not present, within the meaning of Section 5(a), at the time
petitioner had allegedly shot Maguan. Neither could the arrest effected six (6) days after
the shooting be reasonably regarded as effected when (the shooting had) in fact just been
committed within the meaning of Section 5(b). Moreover, none of the arresting officers
had any personal knowledge of facts indicating that petitioner was the gunman who had
shot Maguan. The information upon which the police acted had been derived from
statements made by alleged eyewitnesses to the shooting one stated that petitioner was
the gunman; another was able to take down the alleged gunmans cars plate number
which turned out to be registered in petitioners wifes name. That information did not,
however, constitute personal knowledge.
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner
within the meaning of Section 5 of Rule 113. It is clear too that section 7 of Rule 112 is
not applicable. x x x When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary investigation to
determine whether there was probable cause for charging petitioner in court for the
killing of Eldon Maguna. Instead, as noted earlier, the Prosecutor proceeded under the
erroneous supposition that section 7 of the Rule 112 was applicable and required
petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition
for carrying out a preliminary investigation. This was substantive error, for petitioner
was entitled to a preliminary investigation and that right should have been accorded him
without any conditions. Moreover, since petitioner had not been arrested, with or without
a warrant, he was also entitled to be released forthwith subject only to his appearing at the
preliminary investigation.
It then follows that the right of petitioner to a regular preliminary investigation
pursuant to section 3 of Rule 112 cannot stand any diminution. Petitioner, a minor, is
charged with a capital offense kidnapping and serious illegal detention. Its filing in
court means his arrest and incarceration as in all probability he would not be allowed bail.
His conviction will bring him face to face with the death penalty. Thus, petitioners
counsel was fart from being unreasonable when he demanded from the city prosecutors
that he be furnished copies of the affidavits supporting the complaint and that he be given
a non-extendible period of twenty (20) days to submit defense affidavit. As well pointed
of his motion x x x prevented petitioner from preparing and submitting the affidavits of
some forty (40) classmates, teachers, proctors and security guards who had previously
made known their willingness to testify that:
- during the whole day of July 16 and again on July 17 petitioner and his classmates
were all in their school at Quezon City; in fact in the afternoon of July 16 and 17, 1997,
petitioner and his classmates took their mid-term exams;
- following their exams on July 16 they had partied together first at petitioners Quezon
City apartment until about 9 o clock in the evening, and then repaired to a Quezon City
restaurant at Katipunan Avenue where they stayed on until 3 oclock in the morning of
July 17; they even had pictures taken of their party;

- indeed petitioners July 16 examination papers and that of a classmates are ready for
submission as evidence, along with petitioners grades for the terms end in September
1997;
- two of their teachers, also a proctor, and a security guard actually remember seeing
petitioner at their Quezon City school on July 16 and 17;
- petitioner was duly registered and attended classes starting June 1997 until terms end in
September 1997;
- petitioner had also been logged to have been in his Quezon City apartment since June
1997, particularly including July 16 and 17;
- petitioner only went to Cebu late afternoon of July 17 on board PAL flight No. PR833,
as shown by his plane ticket and boarding pass.
Fairness dictates that the request of petitioner for a chance to be heard in a capital
offense case should have been granted by the Cebu City prosecutor. In Webb vs. de Leon,
[5]
we emphasized that attuned to the times, our Rules have discarded the pure
inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasijudicial type of preliminary investigation conducted by one whose high duty is to be fair
and impartial. As this Court emphasized in Rolito Go vs. Court of Appeals, the right to
have a preliminary investigation conducted before being bound over for trial for a
criminal offense and hence formally at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right. A preliminary investigation
should therefore be scrupulously conducted so that the constitutional right to liberty
of a potential accused can be protected from any material damage.
IN VIEW WHEREOF, the Court resolves: (1) to set aside the inquest investigation
of petitioner and to order the Office of the City Prosecutor of Cebu to conduct a regular
preliminary investigation of the petitioner in accord with section 3, Rule 112; (2) to annul
the order for Detention During The Pendency of the Case issued by Executive Judge
Priscilla Agana against the petitioner in Crim. Case No. CBU-45303 and 45304; (3) to
order the immediate release of petitioner pending his preliminary investigation and (4) to
order the Presiding Judge of Br. VII, RTC of Cebu City to cease and desist from
proceeding with the arraignment and trial of petitioner in Crim. Case No. CBU-45303
and 45304, pending the result of petitioners preliminary investigation.
SO ORDERED.
Regalado, (Chairman), Mendoza, and Torres, Jr., JJ., concur.