G.R. No.

212196

January 12, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs. RAMIL DORIA DAHIL and ROMMEL CASTRO y CARLOS, AccusedAppellants.
MENDOZA, J.:

On October 1, 2002, Dahil and Castro were charged in three (3) separate
Informations before the RTC.

Version of the Prosecution

The agents of PDEA conducted surveillance and casing operations
relative to the information they received that "Buddy" and "Mel" were
trafficking dried marijuana in Angeles City.

The Chief of PDEA formed a team to conduct a buy-bust operation. The

team was composed of four (4) police officers, namely, Sergeant dela
Cruz, as team leader; and PO2 Corpuz, SPO1 Licu and PO2 Javiar, as
members. PO2 Corpuz was designated as the poseur-buyer while
SPO1 Licu was assigned as his back-up.

In Criminal Case No. DC 02-376, Dahil and Castro were

charged with violation of Section 5, Article II of R.A. No. 9165 for the sale
of marijuana (six (6) tea bags of dried marijuana fruiting tops).

In Criminal Case No. DC 02-377, Dahil was charged with

possession of marijuana in violation of Section 11, Article II of R.A. No.
9165 (Five (5) tea bags of dried marijuana fruiting tops)

In Criminal Case No. DC 02-378, Castro was charged with

possession of marijuana in violation of Section 11, Article II of R.A. No.
9165 (One (1) brick in form wrapped in masking tape of dried marijuana
fruiting tops)

Trial ensued and the prosecution presented PO2 Corpuz and SPO1 Licu as
witnesses.

The team proceeded to the target place at around 8:00 oclock in the
evening. Upon arriving, PO2 Corpuz together with the informant went to
the house of Dahil. When PO2 Corpuz and the informant were in front of
the house, they met Dahil and Castro. The informant then introduced PO2
Corpuz as the buyer of marijuana. Dahil asked PO2 Corpuz how much
would he be buying and the latter answered that he would buy P200.00
worth of marijuana. At this juncture, Dahil took out from his pocket six (6)
plastic sachets of marijuana and handed them to PO2 Corpuz. After
checking the items, PO2 Corpuz handed two (2) P100.00 marked bills to
Castro. Immediately thereafter, PO2 Cruz took off his cap to signal that
the sale had been consummated. The rest of the buy-bust team then
rushed to their location and arrested Castro and Dahil. PO2 Corpuz frisked
Dahil and recovered from his possession another five (5) plastic sachets
containing marijuana while SPO1 Licu searched the person of Castro and
confiscated from him one (1) brick of suspected marijuana.

Both Castro and Dahil, together with the confiscated drugs, were then
brought by the buy-bust team to the PDEA office. There, the seized items
were marked by PO2 Corpuz and SPO1Licu.

CA Ruling The accused argued that there were irregularities on the

preservation of the integrity and evidentiary value of the illegal items
seized from them. The CA denied the appeal. It was held among others
that the prosecution was able to establish the chain of custody.

An inventory of the seized items was also prepared which was signed by
Kagawad Pamintuan. Thereafter, PO2 Corpuz brought the confiscated
drugs to the Philippine National Police (PNP) Crime Laboratory for
examination, which subsequently yielded positive results for marijuana.

The sole issue of whether or not the law enforcement officers

substantially complied with the chain of custody procedure
required by R.A. No. 9165.

Version of the Defense

The Courts Ruling

In his defense, Dahil claimed that a tricycle driver came looking for him
after he had arrived home. He saw the tricycle driver with another man
already waiting for him. He was then asked by the unknown man whether
he knew a certain Buddy in their place. He answered that there were
many persons named Buddy. Suddenly, persons alighted from the
vehicles parked in front of his house and dragged him into one of the
vehicles. He was brought to Clark Air Base and was charged with illegal
selling and possession of marijuana.

The Court holds that that there was no unbroken chain of

custody and that the prosecution failed to establish the very
corpus delicti of the crime charged.

For his part, Castro testified that he was watching a game of chess when
he was approached by some men who asked if he knew a certain Boy. He
then replied that he did not know the said person and then the men
ordered him to board a vehicle and brought him to Clark Air Base where
he was charged with illegal possession of marijuana.

RTC Ruling RTC found both accused liable. The RTC was convinced that
the prosecution was able to prove the case of selling and possession of
illegal drugs against the accused.

A buy-bust operation gave rise to the present case. It is susceptible to

police abuse, the most notorious of which is its use as a tool for extortion.
The presentation of the dangerous drugs as evidence in court is material
if not indispensable in every prosecution for the illegal sale and
possession of dangerous drugs. As such, the identity of the dangerous
drugs should be established beyond doubt by showing that the items
offered in court were the same substances bought during the buy-bust
operation. The Prosecution must prove the corpus delicti. That proof is
vital to a judgment of conviction.

"Chain of Custody" means the duly recorded authorized movements

and custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction.

Such record of movements and custody of seized item shall include the
identity and signature of the person who held temporary custody of the
seized item, the date and time when such transfer of custody were made
in the course of safekeeping and use in court as evidence, and the final
disposition.

As a means of ensuring the establishment of the chain of custody, the

apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof.
Provided, that the physical inventory and photograph shall be conducted
at the place where the search warrant is served; or at the nearest police
station or at the nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures; Provided,
further that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody over said items;

The strict procedure was not complied with.

First, the inventory of the property was not immediately conducted after
seizure and confiscation as it was only done at the police station. PO2
Corpuz gave the flimsy excuse that they failed to immediately conduct an
inventory because they did not bring with them the material or
equipment for the preparation of the documents. Such explanation is
unacceptable considering that they conducted a surveillance on the
target for a couple of weeks. They should have been prepared with their
equipment even before the buy-bust operation took place.

Second, there is doubt as to the identity of the person who prepared the
Inventory of Property Seized. According to the CA decision, it was
Sergeant dela Cruz who prepared the said document. PO2 Cruz on the
other hand, testified that it was their investigator who prepared the
document while SPO1 Licus testimony was that a certain SPO4
Jamisolamin was their investigator.

Third, there were conflicting claims on whether the seized items were
photographed in the presence of the accused or his/her representative or
counsel, a representative from the media and the DOJ, and any elected
public official. PO2 Corpuz testified that no pictures of the seized items
were taken while SPO1 Licu said that pictures of the accused were taken.
From the vague statements of the police officers, the Court doubts that
photographs of the alleged drugs were indeed taken.

The prosecution failed to establish that the integrity and

evidentiary value of the seized items were preserved.

Notwithstanding the failure of the prosecution to establish these rigorous

requirements, jurisprudence dictates that substantial compliance is
sufficient. Failure to strictly comply with the law does not necessarily
render the arrest of the accused illegal or the items seized or confiscated
from him inadmissible. The issue of non-compliance with the said section
is not of admissibility, but of weight to be given on the evidence.
The links that the prosecution must establish in the chain of custody in a
buy-bust situation to be as follows: first, the seizure and marking, if
practicable, of the illegal drug recovered from the accused by the
apprehending officer; second, the turnover of the illegal drug seized by
the apprehending officer to the investigating officer; third, the turnover
by the investigating officer of the illegal drug to the forensic chemist for

laboratory examination; and fourth, the turnover and submission of the

marked illegal drug seized by the forensic chemist to the court.

custody because it will be the investigating officer who shall conduct the
proper investigation and prepare the necessary documents for the
developing criminal case. Certainly, the investigating officer must have
possession of the illegal drugs to properly prepare the required
documents.

First link: Marking of the Drugs Recovered from the Accused by the
Apprehending Officer.

"Marking" means the placing by the apprehending officer or the poseurbuyer of his/her initials and signature on the items seized. Marking after
seizure is the starting point in the custodial link. It is vital that the seized
contraband be immediately marked because succeeding handlers of the
specimens will use the markings as reference. The marking of the
evidence serves to separate the marked evidence from the corpus of all
other similar or related evidence from the time they are seized from the
accused until they are disposed of at the end of the criminal proceedings,
thus, preventing switching, planting or contamination of evidence.

In the present case, PO2 Corpuz and SPO1 Licu claimed that they had
placed their initials on the seized items. They, however, gave little
information on how they actually did the marking. It is clear, nonetheless,
that the marking was not immediately done at the place of seizure, and
the markings were only placed at the police station based on the
testimony of PO2 Corpuz.

The investigator in this case was a certain SPO4 Jamisolamin.

Surprisingly, there was no testimony from the witnesses as to the
turnover of the seized items to SPO4 Jamisolamin. The case of the
prosecution is forcing this Court to resort to guesswork.

Third Link: Turnover by the Investigating Officer of the Illegal Drugs to

the Forensic Chemist.

Once the seized drugs arrive at the forensic laboratory, it will be the
laboratory technician who will test and verify the nature of the substance.
In this case, it was only during his cross-examination that PO2 Corpuz
provided some information on the delivery of the seized drugs to Camp
Olivas.

Fourth Link: Turnover of the Marked Illegal Drug Seized by the Forensic
Chemist to the Court.
Second Link: Turnover of the Seized Drugs by the Apprehending Officer
to the Investigating Officer.

Usually, the police officer who seizes the suspected substance turns it
over to a supervising officer, who will then send it by courier to the police
crime laboratory for testing. This is a necessary step in the chain of

The last link involves the submission of the seized drugs by the forensic
chemist to the court when presented as evidence in the criminal case. No
testimonial or documentary evidence was given whatsoever as to how
the drugs were kept while in the custody of the forensic chemist until it
was transferred to the court.

In view of all the foregoing, the Court can only conclude that,
indeed, there was no compliance with the procedural
requirements because of the inadequate physical inventory and
the lack of photography of the marijuana allegedly confiscated
from Dahil and Castro. No explanation was offered for the nonobservance of the rule. The prosecution miserably failed to prove that
the integrity and the evidentiary value of the seized items were
preserved. The four links required to establish the proper chain of
custody were breached with irregularity and lapses.

The Court cannot either agree with the CA that the evidentiary rule
involving the presumption of regularity of the performance of official
duties could apply in favor of the police officers. The regularity of the
performance of duty could not be properly presumed in favor of the
police officers because the records were replete with indicia of their
serious lapses. The presumption stands when no reason exists in the
records by which to doubt the regularity of the performance of official
duty. And even in that instance, the presumption of regularity will never
be stronger than the presumption of innocence in favor of the accused.
Otherwise, a mere rule of evidence will defeat the constitutionally
enshrined right of an accused to be presumed innocent.

WHEREFORE, the appeal is GRANTED. The accused-appellants, Ramil

Doria Dahil and Rommel Castro y Carlos, are ACQUITTED of the crime
charged against them.

G.R. No. 182835

April 20, 2010

RUSTAN ANG y PASCUA, Petitioner,

vs. THE HONORABLE COURT OF APPEALS and IRISH SAGUD,
Respondents.

on his responsibility to the other woman and their child. Irish changed her
cellphone number but Rustan somehow managed to get hold of it and
sent her text messages. Rustan used two cellphone numbers for sending
his messages. Irish replied to his text messages but it was to ask him to
leave her alone.

ABAD, J.:

This case concerns a claim of commission of the crime of violence against

women when a former boyfriend sent to the girl the picture of a naked
woman, not her, but with her face on it.

The Indictment
The public prosecutor charged Rustan before the RTC of Baler, Aurora, of
violation of the Anti-Violence Against Women and Their Children Act (R.A.
9262).

The Facts and the Case

Irish and Rustan were classmates at Wesleyan University in Aurora
Province. Rustan courted Irish and they became "on-and-off" sweethearts
towards the end of 2004. When Irish learned afterwards that Rustan had
taken a live-in partner (now his wife), whom he had gotten pregnant, Irish
broke up with him.

Before Rustan got married, however, he got in touch with Irish and tried
to convince her to elope with him, saying that he did not love the woman
he was about to marry. Irish rejected the proposal and told Rustan to take

One time, Irish received through multimedia message service (MMS) a

picture of a naked woman with spread legs and with Irishs face
superimposed on the figure. The senders cellphone number was one of
the numbers that Rustan used.
After she got the obscene picture, Irish got other text messages from
Rustan. He boasted that it would be easy for him to create similarly
scandalous pictures of her. And he threatened to spread the picture he
sent through the internet.

Irish sought the help of the vice mayor of Maria Aurora who referred her
to the police. Under police supervision, Irish asked Rustan to meet her
and he did. The waiting police officers intercepted and arrested him. They
searched him and seized his Sony Ericsson P900 cellphone and several
SIM cards.

For his part, Rustan admitted having courted Irish. He began

visiting her in Tarlac in October 2003 and their relation lasted
until December of that year. He claimed that after their relation
ended, Irish wanted reconciliation. They met in December 2004 but, after
he told her that his girlfriend at that time (later his wife) was already
pregnant, Irish walked out on him.

Sometime later, Rustan got a text message from Irish, asking him to
meet her at Lorentess Resort as she needed his help in selling her
cellphone. When he arrived at the place, two police officers approached
him, seized his cellphone and the contents of his pockets, and brought
him to the police station.

The principal issue in this case is whether or not accused Rustan sent
Irish by cellphone message the picture with her face pasted on the body
of a nude woman, inflicting anguish, psychological distress, and
humiliation on her in violation of Section 5(h) of R.A. 9262.

The subordinate issues are:

Rustan further claims that he also went to Lorentess because
Irish asked him to help her identify a prankster who was sending
her malicious text messages. Rustan got the senders number and,
pretending to be Irish, contacted the person. Rustan claims that he got
back obscene messages from the prankster, which he forwarded to Irish
from his cellphone. This explained, he said, why the obscene messages
appeared to have originated from his cellphone number. Rustan claims
that it was Irish herself who sent the obscene picture to him. He
presented six pictures of a woman whom he identified as Irish.

Michelle Ang (Michelle), Rustans wife, testified that she was sure Irish
sent the six pictures. Michelle claims that she received the pictures and
hid the memory card that contained them because she was jealous and
angry. She did not want to see anything of Irish. But, while the woman in
the pictures posed in sexy clothing, in none did she appear naked.
Further, the face of the woman could not be seen. Irish denied that she
was the woman in those four pictures.

1. Whether or not a "dating relationship" existed between Rustan and

Irish as this term is defined in R.A. 9262;
2. Whether or not a single act of harassment, like the sending of the nude
picture in this case, already constitutes a violation of Section 5(h) of R.A.
9262;
3. Whether or not the evidence used to convict Rustan was obtained from
him in violation of his constitutional rights; and
4. Whether or not the RTC properly admitted in evidence the obscene
picture presented in the case.

The Courts Rulings

Violence against women includes an act or acts of a person against a
woman with whom he has or had a sexual or dating relationship.

RTC: Rustan guilty.

CA: Affirmed!

Section 5 identifies the act or acts that constitute violence against

women and these include any form of harassment that causes
substantial emotional or psychological distress to a woman.

The Issues Presented

One. The parties to this case agree that the prosecution needed to prove
that accused Rustan had a "dating relationship" with Irish. A "dating

relationship" includes a situation where the parties are romantically

involved over time and on a continuing basis during the course of the
relationship.

Here, Rustan claims that, being "romantically involved," implies that the
offender and the offended woman have or had sexual relations. According
to him, "romance" implies a sexual act. But it seems clear that the law
did not use in its provisions the colloquial verb "romance" that implies a
sexual act. It did not say that the offender must have "romanced" the
offended woman. Rather, it used the noun "romance" to describe a
couples relationship, i.e., "a love affair." R.A. 9262 provides in Section 3
that "violence against women x x x refers to any act or a series of acts
committed by any person against a woman x x x with whom the person
has or had a sexual or dating relationship." Clearly, the law itself
distinguishes a sexual relationship from a dating relationship.

Rustan also claims that since the relationship between Irish and him was
of the "on-and-off" variety (away-bati), their romance cannot be regarded
as having developed "over time and on a continuing basis." An "awaybati" or a fight-and-kiss thing between two lovers is a common
occurrence. Their taking place does not mean that the romantic relation
between the two should be deemed broken up during periods of
misunderstanding.

Two. Rustan argues that the one act of sending an offensive picture
should not be considered a form of harassment. He claims that such
would unduly ruin him personally and set a very dangerous precedent.

Section 3(a) of R.A. 9262 punishes "any act or series of acts" that
constitutes violence against women. This means that a single act of
harassment, which translates into violence, would be enough. The object

of the law is to protect women and children. Punishing only violence that
is repeatedly committed would license isolated ones.

Rustan alleges that todays women, like Irish, are so used to obscene
communications that her getting one could not possibly have produced
alarm in her or caused her substantial emotional or psychological
distress. He claims having previously exchanged obscene pictures with
Irish such that she was already desensitized by them.

But, firstly, the RTC which saw and heard Rustan and his wife give their
testimonies was not impressed with their claim that it was Irish who sent
the obscene pictures of herself. Michelle, Rustans wife, claimed that she
deleted several other pictures that Irish sent. But her testimony did not
make sense. She said that she did not know that Exhibits 2 to 7 had
remained saved after she deleted the pictures. Later, however, she said
that she did not have time to delete them. The RTC was correct in not
giving credence to her testimony.

Secondly, the naked woman on the picture, her legs spread open
and bearing Irishs head and face, was clearly an obscene picture
and, to Irish a revolting and offensive one. Surely, any woman like
Irish, who is not in the pornography trade, would be scandalized and
pained if she sees herself in such a picture. What makes it further
terrifying is that, as Irish testified, Rustan sent the picture with a threat to
post it in the internet for all to see. That must have given her a
nightmare.

Three. Rustan argues that, since he was arrested and certain items were
seized from him without any warrant, the evidence presented against him
should be deemed inadmissible.

The bulk of the evidence against him consisted in Irishs testimony that
she received the obscene picture and malicious text messages that the
senders cellphone numbers belonged to Rustan with whom she had been
previously in communication. Indeed, to prove that the cellphone
numbers belonged to Rustan, Irish and the police used such numbers to
summon him to come to Lorentess Resort and he did. Consequently, the
prosecution did not have to present the confiscated cellphone and SIM
cards to prove that Rustan sent those messages. Moreover, Rustan
admitted having sent the malicious text messages to Irish.

Four. Rustan claims that the obscene picture sent to Irish through a text
message constitutes an electronic document. Thus, it should be
authenticated by means of an electronic signature, as provided under
Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).

But, firstly, Rustan is raising this objection to the admissibility of the

obscene picture for the first time before this Court. The objection is too
late, he should be deemed to have already waived such ground for
objection.

Besides, the rules he cites do not apply to the present criminal

action. The Rules on Electronic Evidence applies only to civil
actions,
quasi-judicial
proceedings,
and
administrative
proceedings.15

In conclusion, this Court finds that the prosecution has proved each and
every element of the crime charged beyond reasonable doubt.

G.R. No. 204894

March 10, 2014

PEOPLE OF THE PHILIPPINES, Appellee,

vs. NOEL ENOJAS y HINGPIT, ARNOLD GOMEZ y FABREGAS,
FERNANDO SANTOS y DELANTAR, and ROGER JALANDONI y ARI,
Appellants.

On hearing the shots, PO2 Gregorio came around and fired at an armed
man. He saw another man run while firing his gun at PO2 Gregorio. The
latter returned fire but the men were able to take a taxi and escape. PO2
Gregorio radioed for help and for an ambulance. On returning to his
mobile car, he realized that accused Enojas, the taxi driver they had with
them had fled.

ABAD, J.:

On September 4, 2006 the City Prosecutor of Las Pias charged Enojas,

Gomez, Santos, and Jalandoni with murder.

Torred, the Chief of Investigation Division of the Las Pias Police,

testified that he and PO2 Rosarito immediately responded to PO2
Gregorios urgent call. Suspecting that accused Enojas, the taxi driver
who fled, was involved in the attempted robbery, they searched the
abandoned taxi and found a mobile phone that Enojas apparently left
behind. Torred instructed PO3 Cambi to monitor its incoming messages.

P02 Gregorio testified that at around 10:30 in the evening of

August 29, 2006, he and PO2 Pangilinan were patrolling the vicinity of
Toyota Alabang and SM Southmall when they spotted a taxi that was
suspiciously parked in front of the Aguila Auto Glass shop. The officers
approached the taxi and asked the driver, later identified as accused
Enojas, for his documents. The latter complied but, having entertained
doubts regarding the veracity of documents shown them, they asked him
to come with them to the police station in their mobile car for further
questioning.

The police later ascertained that the suspect whom PO2

Pangilinan had killed was someone named Reynaldo Mendoza who was
armed with a .38 caliber revolver. Follow-up operations at nearby
provinces resulted in finding the dead body of one of the suspects, Alex
Angeles.

Accused Enojas voluntarily went with the police officers and left
his taxi behind. On reaching the 7-11 convenience store, they stopped
and PO2 Pangilinan went down to relieve himself there. As he approached
the stores door, however, he came upon two suspected robbers and shot
it out with them. PO2 Pangilinan shot one suspect dead and hit the other
who still managed to escape. But someone fired at PO2 Pangilinan
causing his death.

PO3 Cambi and PO2 Rosarito testified that they monitored the
messages in accused Enojas mobile phone and, posing as Enojas,
communicated with the other accused. The police then conducted an
entrapment operation that resulted in the arrest of accused Santos and
Jalandoni. Subsequently, the police were also able to capture accused
Enojas and Gomez.

The prosecution presented the transcripts of the mobile

phone text messages between Enojas and some of his coaccused.

Here the totality of the circumstantial evidence the prosecution

presented sufficiently provides basis for the conviction of all the accused.
They pointed out that they were entitled to an acquittal since
they were all illegally arrested and since the evidence of the text
messages were inadmissible, not having been properly identified.
The Court must, however, disagree with the CAs ruling that the
aggravating circumstances of
On June 2, 2008 the RTC rendered judgment, finding all the
accused guilty of murder qualified by evident premeditation and
use of armed men with the special aggravating circumstance of
use of unlicensed firearms.

a) aid of armed men and

b) use of unlicensed firearms qualified the killing of PO2
Pangilinan to murder.

The Court of Appeals (CA) dismissed the appeal and affirmed in toto
the conviction of the accused. The CA, however, found the absence of
evident premeditation since the prosecution failed to prove that the
several accused planned the crime before committing it.

In "aid of armed men," the men act as accomplices only.

They must not be acting in the commission of the crime under the same
purpose as the principal accused, otherwise they are to be regarded as
co-principals or co-conspirators.

The defense points out that the prosecution failed to present direct
evidence that the accused Enojas, Gomez, Santos, or Jalandoni took part
in shooting PO2 Pangilinan dead. This may be true but the prosecution
could prove their liability by circumstantial evidence that meets the
evidentiary standard of proof beyond reasonable doubt.

The use of unlicensed firearm, on the other hand, is a

special aggravating circumstance that is not among the
circumstances mentioned in Article 248 of the Revised Penal Code as
qualifying a homicide to murder. Consequently, the accused in this case
may be held liable only for homicide, aggravated by the use of
unlicensed firearms, a circumstance alleged in the information.

It has been held that circumstantial evidence is sufficient for

conviction if: 1) there is more than one circumstance; 2) the facts from
which the inferences are derived are proven; and 3) the combination of
all the circumstances is such as to produce a conviction beyond
reasonable doubt.

As to the admissibility of the text messages, Text messages

are to be proved by the testimony of a person who was a party to the
same or has personal knowledge of them. Here, PO3 Cambi, posing as
the accused Enojas, exchanged text messages with the other accused in
order to identify and entrap them. As the recipient of those messages
sent from and to the mobile phone in his possession, PO3 Cambi had
personal knowledge of such messages and was competent to
testify on them.

The text messages to and from the mobile phone left at the scene by
accused Enojas provided strong leads on the participation and identities
of the accused. Indeed, the police caught them in an entrapment using
this knowledge.

WHEREFORE, the Court MODIFIES the Court of Appeals Decision. The

Court instead FINDS accused-appellants GUILTY of the lesser crime of
HOMICIDE with the special aggravating circumstance of use of
unlicensed firearms.

G.R. No. 173540

January 22, 2014

PEREGRINA MACUA VDA. DE AVENIDO, Petitioner,

vs. TECLA HOYBIA AVENIDO, Respondent.

This case involves a contest between two women both claiming to have
been validly married to the same man, now deceased.

Tecla instituted a Complaint for Declaration of Nullity of Marriage

against Peregrina on the ground that she (Tecla), is the lawful
wife of the deceased Eustaquio.

In her complaint, Tecla alleged that her marriage to Eustaquio was

solemnized on 30 September 1942 in Talibon, Bohol in rites officiated by
the Parish Priest of the said town. According to her, the fact of their
marriage is evidenced by a Marriage Certificate recorded with the Office
of the Local Civil Registrar. However, due to World War II, records were
destroyed. Thus, only a Certification was issued by the LCR.

During the existence of Tecla and Eustaquios union, they begot four (4)
children. Sometime in 1954, Eustaquio left his family and his
whereabouts was not known. In 1958, Tecla and her children were
informed that Eustaquio was in Davao City living with another woman
Sayson who later died in 1977 without any issue.

In 1979, Tecla learned that her husband Eustaquio got married to another
woman by the name of Peregrina, which marriage she claims must be

declared null and void for being bigamous an action she sought to
protect the rights of her children over the properties acquired by
Eustaquio.

life as a wife and how she took care of Eustaquio when he already had
poor health, as well as her knowledge that Tecla is not the legal wife, but
was once a common law wife of Eustaquio. Peregrina likewise set forth
documentary evidence to substantiate her allegations and to prove her
claim for damages, to wit:

Peregrina filed her answer to the complaint with counterclaim, essentially

averring that she is the legal surviving spouse of Eustaquio who died on
22 September 1989 in Davao City, their marriage having been celebrated
on 30 March 1979 at St. Jude Parish in Davao City. She also contended
that the case was instituted to deprive her of the properties she owns in
her own right and as an heir of Eustaquio.

1) Marriage Contract between Pregrina and the late Eustaquio

showing the date of marriage on 3 March 1979;

Tecla
presented
consisting of:

testimonial

and

documentary

evidence

1) Testimonies of Adelina, Climaco and Tecla herself

substantiate her alleged prior existing and valid marriage.

to

2) Affidavit of Eustaquio executed on 22 March 1985 declaring

himself as single when he contracted marriage with the petitioner
although he had a common law relation with one Tecla

RTC: rendered a Decision denying Teclas petition, as well as Peregrinas

counter-claim.
Not convinced, Tecla appealed to the CA raising as error the trial courts
alleged disregard of the evidence on the existence of her marriage to
Eustaquio.

2) Documentary evidence such as the following:

a. Certification of Loss/Destruction of Record of Marriage.
b. Certification of Submission of a copy of Certificate of
Marriage to the Office of the Civil Registrar General,
National Statistics Office (NSO)

The CA ruled in favor of Tecla by declaring the validity of her

marriage to Eustaquio, while pronouncing on the other hand, the
marriage between Peregrina and Eustaquio to be bigamous, and
thus, null and void.

c. Certification of Marriage between Eustaquio Sr., and

Tecla issued by the Parish Priest of Talibon, Bohol
k. Electronic copy of the Marriage Contract between
Eustaquio and Peregrina.etc

On the other hand, Peregrina testified on, among others, her

marriage to Eustaquio that took place in Davao City on 3 March 1979; her

Peregrina now questions the said ruling, raises the following legal issues:

1.

Whether or not the court can validly rely on the "presumption

of marriage" to overturn the validity of a subsequent
marriage;

2. Whether or not secondary evidence may be considered

and/or taken cognizance of, without proof of the
execution or existence and the cause of the unavailability
of the best evidence, the original document;

3. Whether or not a Certificate of Marriage issued by the church

has a probative value to prove the existence of a valid marriage
without the priest who issued the same being presented to the
witness stand.

Our Ruling
Essentially, the question before us is whether or not the
evidence presented during the trial proves the existence of the
marriage of Tecla to Eustaquio.

The CA, on the other hand, concluded that there was a presumption of
lawful marriage between Tecla and Eustaquio as they deported
themselves as husband and wife and begot four (4) children. Such
presumption, supported by documentary evidence. consisting of the
same Certifications disregarded by the trial court, as well as the
testimonial evidence especially that of Adelina Avenido-Ceno, created,
according to the CA, sufficient proof of the fact of marriage. Contrary to
the trial courts ruling, the CA found that its appreciation of the evidence
presented by Tecla is well in accord with Section 5, Rule 130 of the Rules
of Court.

While a marriage certificate is considered the primary evidence

of a marital union, it is not regarded as the sole and exclusive
evidence of marriage. Jurisprudence teaches that the fact of marriage
may be proven by relevant evidence other than the marriage certificate.
Hence, even a persons birth certificate may be recognized as competent
evidence of the marriage between his parents.

It should be stressed that the due execution and the loss of the marriage
contract, both constituting the conditio sine qua non for the introduction
of secondary evidence of its contents, were shown by the very evidence
they have disregarded. They have thus confused the evidence to show
due execution and loss as "secondary" evidence of the marriage. In
Hernaez v. Mcgrath, the Court clarified this misconception thus:

x x x [T]he court below was entirely mistaken in holding that parol

evidence of the execution of the instrument was barred. The court
confounded the execution and the contents of the document. It is the
contents, x x x which may not be proven by secondary evidence when
the instrument itself is accessible. Proofs of the execution are not
dependent on the existence or non-existence of the document, and, as a
matter of fact, such proofs of the contents: due execution, besides the
loss, has to be shown as foundation for the inroduction of secondary
evidence of the contents.
xxxx

Evidence of the execution of a document is, in the last analysis,

necessarily collateral or primary. It generally consists of parol testimony
or extrinsic papers. Even when the document is actually produced, its
authencity is not necessarily, if at all, determined from its face or recital
of its contents but by parol evidence. At the most, failure to produce the
document, when available, to establish its execution may effect the

weight of the evidence presented but not the admissibility of such

evidence.

The "marriage may be prove[n] by other competent evidence.

Truly, the execution of a document may be proven by the parties

themselves, by the swearing officer, by witnesses who saw and
recognized the signatures of the parties; or even by those to whom the
parties have previously narrated the execution thereof. The Court has
also held that "[t]he loss may be shown by any person who [knows] the
fact of its loss, or by any one who ha[s] made, in the judgment of the
court, a sufficient examination in the place or places where the document
or papers of similar character are usually kept by the person in whose
custody the document lost was, and has been unable to find it; or who
has made any other investigation which is sufficient to satisfy the court
that the instrument [has] indeed [been] lost."

In the present case, due execution was established by the testimonies of

Adela Pilapil, who was present during the marriage ceremony, and of
petitioner herself as a party to the event. The subsequent loss was shown
by the testimony and the affidavit of the officiating priest, Monsignor
Yllana, as relevant, competent and admissible evidence. Since the due
execution and the loss of the marriage contract were clearly shown by
the
evidence
presented,
secondary
evidencetestimonial
and
documentarymay be admitted to prove the fact of marriage.

marriage ceremony, and by [Tecla] herself as a living witness to

the event. The loss was shown by the certifications issued by the NSO
and LCR of Talibon, Bohol. These are relevant, competent and admissible
evidence. Since the due execution and the loss of the marriage contract
were clearly shown by the evidence presented, secondary evidence
testimonial and documentary may be admitted to prove the fact of
marriage.

The starting point then, is the presumption of marriage.

Marriage in this jurisdiction is not only a civil contract, but it is a new
relation, an institution in the maintenance of which the public is deeply
interested. Consequently, every intendment of the law leans toward
legalizing matrimony. Persons dwelling together in apparent matrimony
are presumed, in the absence of any counter-presumption or evidence
special to the case, to be in fact married.

A presumption established by our Code of Civil Procedure is that a man

and a woman deporting themselves as husband and wife have entered
into a lawful contract of marriage. (Sec. 334, No. 28) Semper
praesumitur pro matrimonio Always presume marriage.

In the case at bar, the establishment of the fact of marriage was

completed by the testimonies of Adelina, Climaco and Tecla; the
unrebutted the certifications of marriage issued by the parish
priest of the Most Holy Trinity Cathedral of Talibon, Bohol.

As correctly stated by the appellate court:

In the case at bench, the celebration of marriage between [Tecla]
and EUSTAQUIO was established by the testimonial evidence
furnished by [Adelina] who appears to be present during the

Petition is DENIED and the assailed Decision of the Court of is

AFFIRMED. The marriage between petitioner Peregrina and the
deceased Eustaquio is hereby declared NULL and VOID.

G. R. No. 171601, April 08, 2015

SPOUSES BONIFACIO AND LUCIA PARAS, Petitioners, v. KIMWA
CONSTRUCTION AND DEVELOPMENT CORPORATION, Respondent.
DECISION
LEONEN, J.:
This resolves the Petition for Review on Certiorari 1 under Rule 45 of the
1997 Rules of Civil Procedure praying that the assailed Decision 2 dated
July 4, 2005 and Resolution3 dated February 9, 2006 of the Court of
Appeals Special 20th Division in CA-G.R. CV No. 74682 be reversed and
set aside, and that the Decision 4 of Branch 55 of the Regional Trial Court,
Mandaue City dated May 16, 2001 in Civil Case No. MAN-2412 be
reinstated.5
The trial court's May 16, 2001 Decision ruled in favor of petitioners
Spouses Bonifacio and Lucia Paras (plaintiffs before the Regional Trial
Court) in their action for breach of contract with damages against
respondent Kimwa Construction and Development Corporation (Kimwa). 6
The assailed Decision of the Court of Appeals reversed and set aside the
trial court's May 16, 2001 Decision and dismissed Spouses Paras'
Complaint.7 The Court of Appeals' assailed Resolution denied Spouses
Paras'
Motion
for
Reconsideration.8
Lucia Paras (Lucia) was a "concessionaire of a sand and gravel permit at
Kabulihan, Toledo City[.]"9 Kimwa is a "construction firm that sells
concrete aggregates to contractors and haulers in Cebu."10
On December 6, 1994, Lucia and Kimwa entered into a contract
denominated "Agreement for Supply of Aggregates" (Agreement) where
40,000 cubic meters of aggregates were "allotted"11 by Lucia as supplier
to Kimwa.12 Kimwa was to pick up the allotted aggregates at Lucia's
permitted area in Toledo City13 at P240.00 per truckload.14

This

ALL
Agreement

MEN
made

and

BY
entered

That the SUPPLIER is [sic] Special Permittee of (Rechanelling Block # VI of

Sapang Daco River along Barangay Ilihan) located at Toledo City under
the terms and conditions:
1. That the aggregates is [sic] to be picked-up by the
CONTRACTOR at the SUPPLIER [sic] permitted area at the
rate of TWO HUNDRED FORTY (P240.00) PESOS per truck
load;
2. That the volume allotted by the SUPPLIER to the
CONTRACTOR is limited to 40,000 cu.m.;
3. That the said Aggregates is [sic] for the exclusive use of
the Contractor;
4. That the terms of payment is Fifteen (15) days after the
receipt of billing;
5. That there is [sic] no modification, amendment,
assignment or transfer of this Agreement after
acceptance shall be binding upon the SUPPLIER unless
agreed to in writing by and between the CONTRACTOR
and SUPPLIER.
IN WITNESS WHEREOF, we have hereunto affixed our signatures this 6 th
day of December, 1994 at Mandaue City, Cebu, Philippines.
LUCIA PARAS (sgd.)
CORAZON Y. LUA (sgd.)
Supplier
Contractor15
(Emphasis supplied)
Pursuant to the Agreement, Kimwa hauled 10,000 cubic meters of
aggregates. Sometime after this, however, Kimwa stopped hauling
aggregates.16
Claiming that in so doing, Kimwa violated the Agreement, Lucia, oined by
her husband, Bonifacio, filed the Complaint17 for breach of contract with
damages
that
is
now
subject
of
this
Petition.

The entirety of this Agreement reads:

AGREEMENT FOR SUPPLY OF AGGREGATES
KNOW

President MRS. CORAZON Y. LUA, of legal age, Filipino and a resident of

Subangdaku, Mandaue City[,] hereinafter referred to as the
CONTRACTOR;
WITNESSETH:

THESE
into

by

PRESENTS:
and

between:

LUCIA PARAS, of legal age, Filipino, married and resident of Poblacion,

Toledo City, Province of Cebu, hereinafter referred to as the SUPPLIER:
-andKIMWA CONSTRUCTION AND DEVELOPMENT CORP., a corporation
duly organized and existing under the laws of the Philippines with office
address at Subangdaku, Mandaue City, hereinafter represented by its

In their Complaint, Spouses Paras alleged that sometime in December

1994, Lucia was approached by Kimwa expressing its interest to purchase
gravel and sand from her.18 Kimwa allegedly asked that it be "assured" 19
of 40,000 cubic meters worth of aggregates. 20 Lucia countered that her
concession area was due to be rechanneled on May 15, 1995, when her
Special Permit expires.21 Thus, she emphasized that she would be willing
to enter into a contract with Kimwa "provided the forty thousand cubic
meter[s] w[ould] be withdrawn or completely extracted and hauled
before 15 May 1995[.]"22 Kimwa then assured Lucia that it would take
only two to three months for it to completely haul the 40,000 cubic
meters of aggregates.23 Convinced of Kimwa's assurances, Lucia and

Kimwa

entered

into

the

Agreement. 24

Spouses Paras added that within a few days, Kimwa was able to extract
and haul 10,000 cubic meters of aggregates. However, after extracting
and hauling this quantity, Kimwa allegedly transferred to the concession
area of a certain Mrs. Remedios dela Torre in violation of their Agreement.
They then addressed demand letters to Kimwa. As these went unheeded,
Spouses
Paras
filed
their
Complaint. 25
In its Answer,26 Kimwa alleged that it never committed to obtain 40,000
cubic meters of aggregates from Lucia. It argued that the controversial
quantity of 40,000 cubic meters represented only an upper limit or the
maximum quantity that it could haul. 27 It likewise claimed that it neither
made any commitment to haul 40,000 cubic meters of aggregates before
May 15, 1995 nor represented that the hauling of this quantity could be
completed in two to three months.28 It denied that the hauling of 10,000
cubic meters of aggregates was completed in a matter of days and
countered that it took weeks to do so. It also denied transferring to the
concession area of a certain Mrs. Remedios dela Torre. 29
Kimwa asserted that the Agreement articulated the parties' true intent
that 40,000 cubic meters was a maximum limit and that May 15, 1995
was never set as a deadline. Invoking the Parol Evidence Rule, it insisted
that Spouses Paras were barred from introducing evidence which would
show
that
the
parties
had
agreed
differently. 30
On May 16, 2001, the Regional Trial Court rendered the Decision in favor
of Spouses Paras. The trial court noted that the Agreement stipulated
that the allotted aggregates were set aside exclusively for Kimwa. It
reasoned that it was contrary to human experience for Kimwa to have
entered into an Agreement with Lucia without verifying the latter's
authority as a concessionaire. 31 Considering that the Special Permit 32
granted to Lucia (petitioners' Exhibit "A" before the trial court) clearly
indicated that her authority was good for only six (6) months from
November 14, 1994, the trial court noted that Kimwa must have been
aware that the 40,000 cubic meters of aggregates allotted to it must
necessarily be hauled by May 15, 1995. As it failed to do so, it was liable
to Spouses Paras for the total sum of P720,000.00, the value of the
30,000 cubic-meters of aggregates that Kimwa did not haul, in addition to
attorney's
fees
and
costs
of
suit. 33
On appeal, the Court of Appeals reversed the Regional Trial Court's
Decision. It faulted the trial court for basing its findings on evidence
presented which were supposedly in violation of the Parol Evidence Rule.
It noted that the Agreement was clear that Kimwa was under no
obligation to haul 40,000 cubic meters of aggregates by May 15, 1995. 34

In a subsequent Resolution, the Court of Appeals denied reconsideration

to
Spouses
Paras.35
Hence,

this

Petition

was

filed.

The issue for resolution is whether respondent Kimwa Construction and

Development Corporation is liable to petitioners Spouses Paras for
(admittedly) failing to haul 30,000 cubic meters of aggregates from
petitioner Lucia Paras' permitted area by May 15, 1995.
To resolve this, it is necessary to determine whether petitioners Spouses
Paras were able to establish that respondent Kimwa was obliged to haul a
total of 40,000 cubic meters of aggregates on or before May 15, 1995.
We reverse the Decision of the Court of Appeals and reinstate that of the
Regional Trial Court. Respondent Kimwa is liable for failing to haul the
remainder of the quantity which it was obliged to acquire from petitioner
Lucia
Paras.
Rule 130, Section 9 of the Revised Rules on Evidence provides for the
Parol Evidence Rule, the rule on admissibility of documentary evidence
when the terms of an agreement have been reduced into writing:
Section 9. Evidence of written agreements. When the terms of an
agreement have been reduced to writing, it is considered as containing
all the terms agreed upon and there can be, between the parties and
their successors in interest, no evidence of such terms other than the
contents
of
the
written
agreement.
However, a party may present evidence to modify, explain or add to the
terms of written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
The term "agreement" includes wills.
Per this rule, reduction to written form, regardless of the formalities
observed,36 "forbids any addition to, or contradiction of, the terms of a
written agreement by testimony or other evidence purporting to show
that different terms were agreed upon by the parties, varying the purport
of
the
written
contract."37

This rule is animated by a perceived wisdom in deferring to the

contracting parties' articulated intent. In choosing to reduce their
agreement into writing, they are deemed to have done so meticulously
and carefully, employing specific frequently, even technical
language as are appropriate to their context. From an evidentiary
standpoint, this is also because "oral testimony . . . coming' from a party
who has an interest in the outcome of the case, depending exclusively on
human memory, is not as reliable as written or documentary evidence.
Spoken words could be notoriously unreliable unlike a written contract
which speaks of a uniform language." 38 As illustrated in Abella v. Court of
Appeals:39ChanRoblesVirtualawlibrary
Without any doubt, oral testimony as to a certain fact, depending as it
does exclusively on human memory, is not as reliable as written or
documentary evidence. "I would sooner trust the smallest slip of paper
for truth," said Judge Limpkin of Georgia, "than the strongest and most
retentive memory ever bestowed on mortal man." This is especially true
in this case where such oral testimony is given by a party to the case who
has an interest in its outcome, and by a witness who claimed to have
received a commission from the petitioner.40cralawlawlibrary
This, however, is merely a general rule. Provided that a party puts in
issue in its pleading any of the four (4) items enumerated in the second
paragraph of Rule 130, Section 9, "a party may present evidence to
modify, explain or add to the terms of the agreement[.]" 41 Raising any of
these items as an issue in a pleading such that it falls under the
exception is not limited to the party initiating an action. In Philippine
National Railways v. Court of First Instance of Albay,42 this court noted
that "if the defendant set up the affirmative defense that the contract
mentioned in the complaint does not express the true agreement of the
parties, then parol evidence is admissible to prove the true agreement of
the parties[.]"43 Moreover, as with all possible objections to the admission
of evidence, a party's failure to timely object is deemed a waiver, and
parol
evidence
may
then
be
entertained.
Apart from pleading these exceptions, it is equally imperative that the
parol evidence sought to be introduced points to the conclusion proposed
by the party presenting it. That is, it must be relevant, tending to "induce
belief in [the] existence"44 of the flaw, true intent, or subsequent
extraneous terms averred by the party seeking to introduce parol
evidence.
In sum, two (2) things must be established for parol evidence to be
admitted: first, that the existence of any of the four (4) exceptions has
been put in issue in a party's pleading or has not been objected to by the
adverse party; and second, that the parol evidence sought to be
presented serves to form the basis of the conclusion proposed by the
presenting party.cralawlawlibrary
II

Here, the Court of Appeals found fault in the Regional Trial Court for
basing its findings "on the basis of evidence presented in violation of the
parol evidence rule."45 It proceeded to fault petitioners Spouses Paras for
showing "no proof of [respondent Kimwa's] obligation." 46 Then, it stated
that "[t]he stipulations in the agreement between the parties leave no
room
for
interpretation."47
The

Court

of

Appeals

is

in

serious

error.

At the onset, two (2) flaws in the the Court of Appeals' reasoning must be
emphasized. First, it is inconsistent to say, on one hand, that the trial
court erred on the basis of "evidence presented" 48 (albeit supposedly in
violation of the Parol Evidence Rule), and, on the other, that petitioners
Spouses Paras showed "no proof."49 Second, without even accounting for
the exceptions provided by Rule 130, Section 9, the Court of Appeals
immediately concluded that whatever evidence petitioners Spouses Paras
presented
was
in
violation
of
the
Parol
Evidence
Rule.
Contrary to the Court of Appeal's conclusion, petitioners Spouses Paras
pleaded in the Complaint they filed before the trial court a mistake or
imperfection in the Agreement, as well as the Agreement's failure to
express the true intent of the parties. Further, respondent Kimwa,
through its Answer, also responded to petitioners Spouses Paras' pleading
of these issues. This is, thus, an exceptional case allowing admission of
parol
evidence.
Paragraphs 6 to 10 of petitioners' Complaint read:
6. Sensing that the buyers-contractqrs and haulers alike could easily
consumed [sic] the deposits defendant proposed to the plaintiffwife that it be assured of a forty thousand (40,000) cubic meter
[sic];
7. Plaintiff countered that the area is scheduled to be rechanneled
on 15 May 1995 and by that time she will be prohibited to sell the
aggregates;
8. She further told the defendant that she would be willing to enter
into a contract provided the forty thousand cubic meter [sic] will
be withdrawn or completely extracted and hauled before 15 May
1995, the scheduled rechanneling:
9. Defendant assured her that it will take them only two to three
months to haul completely the desired volume as defendant has
all the trucks needed;
10. Convinced of the assurances, plaintiff-wife and the defendant
entered into a contract for the supply of the aggregates
sometime on 6 December 1994 or thereabouts, at a cost of Two
Hundred Forty (P240.00) Pesos per truckload[.]50

It is true that petitioners Spouses Paras' Complaint does not specifically

state words and phrases such as "mistake," "imperfection," or "failure to
express the true intent of the parties." Nevertheless, it is evident that the
crux of petitioners Spouses Paras' Complaint is their assertion that the
Agreement "entered into on 6 December 1994 or thereabouts" 51 was
founded on the parties' supposed understanding that the quantity of
aggregates allotted in favor of respondent Kimwa must be hauled by May
15, 1995, lest such hauling be rendered impossible by the rechanneling
of petitioner Lucia Paras' permitted area. This assertion is the very
foundation of petitioners' having come to court for relief.
Proof of how petitioners Spouses Paras successfully pleaded and put this
in issue in their Complaint is how respondent Kimwa felt it necessary to
respond to it or address it in its Answer. Paragraphs 2 to 5 of respondent
Kimwa's Answer read:
2. The allegation in paragraph six of the complaint is admitted
subject to the qualification that when defendant offered to buy
aggregates from the concession of the plaintiffs, it simply asked
the plaintiff-concessionaire if she could sell a sufficient supply of
aggregates to be used in defendant's construction business and
plaintiff-concessionaire agreed to sell to the defendant
aggregates from her concession up to a limit of 40,000 cubic
meters at the price of P240.00 per cubic meter.
3. The allegations in paragraph seven and eight of the complaint
are vehemently denied by the defendant. The contract which was
entered into by the plaintiffs and the defendant provides only
that the former supply the latter the volume of 40,000.00 cubic
meters of aggregates. There is no truth to the allegation that the
plaintiff wife entered into the contract under the condition that
the aggregates must be quarried and hauled by defendant
completely before May 15, 1995, otherwise this would have been
unequivocally stipulated in the contract.
4. The allegation in paragraph nine of the complaint is hereby
denied. The defendant never made any assurance to the plaintiff
wife that it will take only two to three months to haul the
aforesaid volume of aggregates. Likewise, the contract is silent
on this aspect for in fact there is no definite time frame agreed
upon by the parties within which defendant is to quarry and haul
aggregates from the concession of the plaintiffs.
5. The allegation in paragraph ten of the complaint is admitted
insofar as the execution of the contract is concerned. However,
the contract was executed, not by reason of the alleged
assurances of the defendant to the plaintiffs, as claimed by the
latter, but because of the intent and willingness of the plaintiffs
to supply and sell aggregates to it. It was upon the instance of
the plaintiff that the defendant sign the subject contract to
express in writing their agreement that the latter would haul

aggregates from plaintiffs' concession up to such point in time

that the maximum limit of 40,000 cubic meters would be quarried
and hauled without a definite deadline being set. Moreover, the
contract does not obligate the defendant to consume the allotted
volume of 40,000 cubic meters.52
Considering how the Agreement's mistake, imperfection, or supposed
failure to express the parties' true intent was successfully put in issue in
petitioners Spouses Paras' Complaint (and even responded to by
respondent Kimwa in its Answer), this case falls under the exceptions
provided by Rule 130, Section 9 of the Revised Rules on Evidence.
Accordingly, the testimonial and documentary parol evidence sought to
be introduced by petitioners Spouses Paras, which attest to these
supposed flaws and what they aver to have been the parties' true intent,
may be admitted and considered.cralawlawlibrary
III
Of course, this admission and availability for consideration is no
guarantee of how exactly the parol evidence adduced shall be
appreciated by a court. That is, they do not guarantee the probative
value, if any, that shall be attached to them. In any case, we find that
petitioners have established that respondent Kimwa was obliged to haul
40,000 cubic meters of aggregates on or before May 15, 1995.
Considering its admission that it did not haul 30,000 cubic meters of
aggregates,
respondent
Kimwa
is
liable
to
petitioners.
The Pre-Trial Order issued by the Regional Trial Court in Civil Case No.
MAN-2412 attests to respondent Kimwa's admission that:
6) Prior to or during the execution of the contract[,] the Plaintiffs
furnished the Defendant all the documents and requisite papers in
connection with the contract, one of which was a copy of the
Plaintiff's [sic] special permit indicating that the Plaintiff's [sic]
authority was only good for (6) months from November 14, 1994. 53
This Special Permit was, in turn, introduced by petitioners in evidence as
their Exhibit "A,"54 with its date of issuance and effectivity being
specifically identified as their Exhibit "A-1." 55 Relevant portions of this
Special
Permit
read:
To All Whom It May Concern:
PERMISSION is hereby granted to:
Name
Address
LUCIA PARAS
Poblacion, Toledo City
to undertake the rechannelling of Block No. VI of Sapang Daco River
along Barangay Ilihan, Toledo City, subject to following terms and
conditions:
1. That the volume to be extracted from the area is approximately 40,000
cubic meters;

This permit which is valid for six (6) months from the date hereof is
revocable anytime upon violation of any of the foregoing conditions or in
the
interest
of
public
peace
and
order.

haul 40,000 cubic meters of aggregates on or before May 15, 1995. As it

admittedly hauled only 10,000 cubic meters, respondent Kimwa is liable
for breach of contract in respect of the remaining 30,000 cubic meters.

Cebu Capitol, Cebu City, November 14, 1994.56cralawlawlibrary

Having been admittedly furnished a copy of this Special Permit,
respondent Kimwa was well aware that a total of only about 40,000 cubic
meters of aggregates may be extracted by petitioner Lucia from the
permitted area, and that petitioner Lucia Paras' operations cannot extend
beyond May 15, 1995, when the Special Permit expires.

WHEREFORE, the Petition is GRANTED. The assailed Decision dated July

4, 2005 and Resolution dated February 9, 2006 of the Court of Appeals
Special 20th Division in CA-G.R. CV No. 74682 are REVERSED and SET
ASIDE. The Decision of Branch 55 of the Regional Trial Court, Mandaue
City dated May 16, 2001 in Civil Case No. MAN-2412 is REINSTATED.

The Special Permit's condition that a total of only about 40,000 cubic
meters of aggregates may be extracted by petitioner Lucia Paras from
the permitted area lends credence to the position that the aggregates
"allotted" to respondent Kimwa was in consideration of its corresponding
commitment to haul all 40,000 cubic meters. This is so, especially in light
of the Agreement's own statement that "the said Aggregates is for the
exclusive use of [respondent Kimwa.]"57 By allotting the entire 40,000
cubic meters, petitioner Lucia Paras bound her entire business to
respondent Kimwa. Rational human behavior dictates that she must have
done so with the corresponding assurances from it. It would have been
irrational, if not ridiculous, of her to oblige herself to make this allotment
without respondent Kimwa's concomitant undertaking that it would
obtain
the
entire
amount
allotted.
Likewise, the condition that the Special Permit shall be valid for only six
(6) months from November 14, 1994 lends credence to petitioners
Spouses Paras' assertion that, in entering into the Agreement with
respondent Kimwa, petitioner Lucia Paras did so because of respondent
Kimwa's promise that hauling can be completed by May 15, 1995. Bound
as she was by the Special Permit, petitioner Lucia Paras needed to make
it eminently clear to any party she was transacting with that she could
supply aggregates only up to May 15, 1995 and that the other party's
hauling must be completed by May 15, 1995. She was merely acting with
due diligence, for otherwise, any contract she would enter into would be
negated; any commitment she would make beyond May 15, 1995 would
make her guilty of misrepresentation, and any prospective income for her
would
be
rendered
illusory.
Our evidentiary rules impel us to proceed from the position (unless
convincingly shown otherwise) that individuals act as rational human
beings, i.e, "[t]hat a person takes ordinary care of his concerns[.]" 58 This
basic evidentiary stance, taken with the- supporting evidence petitioners
Spouses Paras adduced, respondent Kimwa's awareness of the conditions
under which petitioner Lucia Paras was bound, and the Agreement's own
text specifying exclusive allotment for respondent Kimwa, supports
petitioners Spouses Paras' position that respondent Kimwa was obliged to

A legal interest of 6% per annum shall likewise be imposed on the total

judgment award from the finality of this Decision until full satisfaction.
SO ORDERED.

G.R. No. 182864

January 12, 2015
EASTERN
SHIPPING
LINES,
INC.,
Petitioner,
vs.
BPI/MS INSURANCE CORP., & MITSUI SUMITOMO INSURANCE CO.,
LTD., Respondents.
DECISION
PEREZ, J.:
Before this Court is a Petition for Review on Certiorari1 of the Decision2 of
the Second Division of the Court of Appeals in CA-G.R. CV No. 88744
dated 31 January 2008, modifying the Decision of the Regional Trial Court
(RTC) by upholding the liability of Eastern Shipping Lines, Inc. (ESLI) but
absolving Asian Terminals, Inc. (ATI) from liability and deleting the award
of attorney's fees.
The facts gathered from the records follow:
On 29 December 2004, BPI/MS Insurance Corporation (BPI/MS) and Mitsui
Sumitomo Insurance Company Limited (Mitsui) filed a Complaint3 before
the RTC of Makati City against ESLI and ATI to recover actual damages
amounting to US$17,560.48 with legal interest, attorneys fees and costs
of suit.
In their complaint, BPI/MS and Mitsui alleged that on 2 February 2004 at
Yokohama, Japan, Sumitomo Corporation shipped on board ESLIs vessel
M/V "Eastern Venus 22" 22 coils of various Steel Sheet weighing 159,534
kilograms in good order and condition for transportation to and delivery
at the port of Manila, Philippines in favor of consignee Calamba Steel
Center, Inc. (Calamba Steel) located in Saimsim, Calamba, Laguna as
evidenced by a Bill of Lading with Nos. ESLIYMA001. The declared value
of the shipment was US$83,857.59 as shown by an Invoice with Nos.
KJGE-03-1228-NT/KE3. The shipment was insured with the respondents
BPI/MS and Mitsui against all risks under Marine Policy No. 103GG03448834.
On 11 February 2004, the complaint alleged that the shipment arrived at
the port of Manila in an unknown condition and was turned over to ATI for
safekeeping. Upon withdrawal of the shipment by the Calamba Steels
representative, it was found out that part of the shipment was damaged
and was in bad order condition such that there was a Request for Bad
Order Survey. It was found out that the damage amounted to
US$4,598.85 prompting Calamba Steel to reject the damaged shipment
for being unfit for the intended purpose.
On 12 May 2004 at Kashima, Japan, Sumitomo Corporation again shipped
on board ESLIs vessel M/V "Eastern Venus 25" 50 coils in various Steel
Sheet weighing 383,532 kilograms in good order and condition for
transportation to and delivery at the port of Manila, Philippines in favor of
the same consignee Calamba Steel asevidenced by a Bill of Lading with
Nos. ESLIKSMA002. The declared value of the shipment was
US$221,455.58 as evidenced by Invoice Nos. KJGE-04-1327-NT/KE2. The
shipment was insured with the respondents BPI/MS and Mitsui against all
risks under Marine Policy No. 104-GG04457785.

On 21 May 2004, ESLIs vessel withthe second shipment arrived at the

port of Manila partly damaged and in bad order. The coils sustained
further damage during the discharge from vessel to shore until its
turnover to ATIs custody for safekeeping.
Upon withdrawal from ATI and delivery to Calamba Steel, it was found out
that the damage amounted to US$12,961.63. As it did before, Calamba
Steel rejected the damaged shipment for being unfit for the intended
purpose.
Calamba Steel attributed the damages on both shipments to ESLI as the
carrier and ATI as the arrastre operator in charge of the handling and
discharge of the coils and filed a claim against them. When ESLI and ATI
refused to pay, Calamba Steel filed an insurance claim for the total
amount of the cargo against BPI/MS and Mitsuias cargo insurers. As a
result, BPI/MS and Mitsui became subrogated in place of and with all the
rights and defenses accorded by law in favor of Calamba Steel.
Opposing the complaint, ATI, in itsAnswer, denied the allegations and
insisted that the coils in two shipments were already damaged upon
receipt from ESLIs vessels. It likewise insisted that it exercised due
diligence in the handling of the shipments and invoked that in case of
adverse decision, its liability should not exceed P5,000.00 pursuant to
Section 7.01, Article VII4 of the Contract for Cargo Handling Services
between Philippine Ports Authority (PPA) and ATI.5 A cross-claim was also
filed against ESLI.
On its part, ESLI denied the allegations of the complainants and averred
that the damage to both shipments was incurred while the same were in
the possession and custody of ATI and/or of the consignee or its
representatives. It also filed a cross-claim against ATI for indemnification
in case of liability.6
To expedite settlement, the case was referred to mediation but it was
returned to the trial court for further proceedings due tothe parties
failure to resolve the legal issues as noted inthe Mediators Report dated
28 June 2005.7
On 10 January 2006, the court issued a Pre-Trial Order wherein the
following stipulations wereagreed upon by the parties:
1. Parties admitted the capacity of the parties to sue and be
sued;
2. Parties likewise admitted the existence and due execution of
the Bill of Lading covering various steel sheets in coil attached to
the Complaint as Annex A;
3. Parties admitted the existence of the Invoiceissued by
Sumitomo Corporation, a true and faithful copy of which was
attached to the Complaint as Annex B;
4. Parties likewise admitted the existence of the Marine Cargo
Policy issued by the Mitsui Sumitomo Insurance Company,
Limited, copy of which was attached to the Complaint as Annex
C;

5. [ATI] admitted the existence and due execution of the Request

for Bad Order Survey dated February 13, 2004, attached to the
Complaint as Annex D;
6. Insofar as the second cause of action, [ESLI] admitted the
existence and due execution of the document [Bill of Lading Nos.
ESLIKSMA002, Invoice with Nos. KJGE-04-1327-NT/KE2 and Marine
Cargo Policy against all risks on the second shipment] attachedto
the Complaint as Annexes E, F and G;
7. [ATI] admitted the existence of the Bill of Lading together with
the Invoices and Marine Cargo Policy. [It] likewise admitted by
[ATI] are the Turn Over Survey of Bad Order Cargoes attached to
the Complaint as Annexes H, H-1 and J.8
The parties agreed that the procedural issue was whether there was a
valid subrogation in favor of BPI/MS and Mitsui; and that the substantive
issues were, whether the shipments suffered damages, the cause of
damage, and the entity liable for reparation of the damages caused.9
Due to the limited factual mattersof the case, the parties were required
to present their evidence through affidavits and documents. Upon
submission of these evidence, the case was submitted for resolution.10
BPI/MS and Mitsui, to substantiate their claims, submitted the Affidavits
of (1) Mario A. Manuel (Manuel),11 the Cargo Surveyor of Philippine Japan
Marine Surveyors and Sworn Measurers Corporation who personally
examined and conducted the surveys on the two shipments; (2) Richatto
P. Almeda,12 the General Manager of Calamba Steel who oversaw and
examined the condition, quantity, and quality of the shipped steel coils,
and who thereafter filed formal notices and claims against ESLI and ATI;
and (3) Virgilio G. Tiangco, Jr.,13 the Marine Claims Supervisor of BPI/MS
who processed the insurance claims of Calamba Steel. Along with the
Affidavits were the Bills of Lading14 covering the two shipments,
Invoices,15 Notices of Loss of Calamba Steel,16 Subrogation Form,17
Insurance Claims,18 Survey Reports,19 Turn Over Survey of Bad Order
Cargoes20 and Request for Bad Order Survey.21
ESLI, in turn, submitted the Affidavits of Captain Hermelo M. Eduarte,22
Manager of the Operations Department of ESLI, who monitored in
coordination with ATI the discharge of the two shipments, and Rodrigo
Victoria (Rodrigo),23 the Cargo Surveyor of R & R Industrial and Marine
Services, Inc., who personally surveyed the subject cargoes on board the
vessel as well as the manner the ATI employees discharged the coils. The
documents presented were the Bills of Lading, Secretarys Certificate24
of PPA, granting ATI the duty and privilege to provide arrastre and
stevedoring services at South Harbor, Port of Manila, Contract for Cargo
Handling Services,25 Damage Report26 and Turn Over Report made by
Rodrigo.27 ESLI also adopted the Survey Reports submitted by BPI/MS
and Mitsui.28
Lastly, ATI submitted the Affidavits of its Bad Order Inspector Ramon
Garcia (Garcia)29 and Claims Officer Ramiro De Vera.30 The documents
attached to the submissions were the Turn Over Surveys of Bad Cargo

Order,31 Requests for Bad Order Survey,32 Cargo Gatepasses issued by

ATI,33 Notices of Loss/Claims of Calamba Steel34 and Contract for Cargo
Handling Services.35
On 17 September 2006, RTC Makati City rendered a decision finding both
the ESLI and ATI liable for the damages sustained by the two shipments.
The dispositive portion reads: WHEREFORE, judgment is hereby rendered
in favor of [BPI/MS and Mitsui] and against [ESLI Inc.] and [ATI], jointly
and severally ordering the latter to pay [BPI/MS and Mitsui] the following:
1. Actual damages amounting to US$17,560.48 plus 6% legal interest per
annum commencing from the filing of this complaint, until the same is
fully paid;
2. Attorneys fees in a sum equivalent to 20% of the amount
claimed;
3. Costs of suit.36
Aggrieved, ESLI and ATI filed their respective appeals before the Court of
Appeals on both questions of fact and law.37
Before the appellate court, ESLI argued that the trial court erred when it
found BPI/MS has the capacity to sue and when it assumed jurisdiction
over the case. It also questioned the ruling on its liability since the Survey
Reports indicated that the cause ofloss and damage was due to the
"rough handling of ATIs stevedores during discharge from vessel to shore
and during loading operation onto the trucks."It invoked the limitation of
liability of US$500.00 per package asprovided in Commonwealth Act No.
65 or the Carriage of Goods by Sea Act (COGSA).38 On the other hand,
ATI questioned the capacity to sue of BPI/MS and Mitsui and the award of
attorneys fees despite its lack of justification in the body of the decision.
ATI also imputed error on the part of the trial court when it ruled that
ATIs employees were negligent in the ruling of the shipments. It also
insisted on the applicability of the provision of COGSA on limitation of
liability.39
In its Decision,40 the Court of Appeals absolved ATI from liability thereby
modifying the decision of the trial court. The dispositive portions reads:
WHEREFORE, the appeal of ESLI is DENIED, while that of ATI is GRANTED.
The assailed Judgment dated September 17, 2006 of Branch 138, RTC of
Makati City inCivil Case No. 05-108 is hereby MODIFIED absolving ATI
from liability and deleting the award of attorneys fees. The rest of the
decision is affirmed.41
Before this Court, ESLI seeks the reversal of the ruling on its liability.
At the outset, and notably, ESLI included among its arguments the
attribution of liability to ATI but it failed to implead the latter as a party to
the present petition. This non-inclusion was raised by BPI/MS and Mitsui
as an issue42 in its Comment/Opposition43 and Memorandum:44 For
reasons known only to [ESLI],it did not implead ATI as a party respondent
in this case when it could have easily done so. Considering the nature of
the arguments raised by petitioner pointing to ATI as solely responsible
for the damages sustained by the subject shipments, it is respectfully
submitted that ATI is an indispensable party in this case. Without ATI

being impleaded, the issue of whether ATI is solely responsible for the
damages could not be determined with finality by this Honorable Court.
ATI certainly deserves to be heard on the issue but it could not defend
itself because it was not impleaded before this Court. Perhaps, this is the
reason why [ESLI] left out ATI in this case so that it could not rebut while
petitioner puts it at fault.45
ESLI in its Reply46 put the blame for the non-exclusion of ATI to BPI/MS
and Mitsui:
[BPI/MS and Mitsui] claim that herein [ESLI] did not implead [ATI] as a
party respondent in the Petition for Review on Certiorari it had filed.
Herein Petitioner submits that it is not the obligation of [ESLI] to implead
ATI as the same isalready the look out of [BPI/MS and Mitsui]. If [BPI/MS
and Mitsui] believe that ATI should be made liable, they should have filed
a Motion for Reconsideration with the Honorable Court of Appeals. The
fact that [BPI/MS and Mitsui] did not even lift a finger to question the
decision of the Honorable Court of Appeals goes to show that [BPI/MS and
Mitsui] are not interested as to whether or not ATI is indeed liable.47
It is clear from the exchange that both [ESLI] and [BPI/MS and Mitsui] are
aware of the non-inclusion of ATI, the arrastre operator, as a party to this
review of the Decision of the Court of Appeals. By blaming each other for
the exclusion of ATI, [ESLI] and [BPI/MS and Mitsui] impliedly agree that
the absolution of ATI from liability isfinal and beyond review. Clearly,
[ESLI] is the consequential loser. It alone must bear the proven liability for
the loss of the shipment. It cannot shift the blame to ATI, the
arrastreoperator, which has been cleared by the Court of Appeals. Neither
can it argue that the consignee should bear the loss.
Thus confined, we go to the merits of the arguments of ESLI.
First Issue: Liability of ESLI
ESLI bases of its non-liability onthe survey reports prepared by BPI/MS
and Mitsuis witness Manuel which found that the cause of damage was
the rough handling on the shipment by the stevedores of ATI during the
discharging operations.48 However, Manuel does not absolve ESLI of
liability. The witness in fact includes ESLI in the findings of negligence.
Paragraphs 3 and 11 of the affidavit of witness Manuel attribute fault to
both ESLI and ATI.
3. The vessel M.V. "EASTERN VENUS" V 22-S carrying the said shipment
of 22 coils of various steel sheets arrived at the port of Manila and
discharged the said shipment on or about 11 February 2004 to the
arrastre operator [ATI]. I personally noticed that the 22 coils were roughly
handled during their discharging from the vessel to the pier of [ATI] and
even during the loading operations of these coils from the pier to the
trucks that will transport the coils to the consigneess warehouse. During
the aforesaid operations, the employees and forklift operators of [ESLI]
and [ATI] were very negligent in the handling of the subject cargoes.
xxxx
11. The vessel M.V. "EASTERN VENUS" V 25-S carrying the said shipment
of 50 coils of various steel sheets arrived at the port of Manila and

discharged the said shipment on or about 21 May 2004 to the arrastre

operator [ATI]. I personally noticed that the 50 coils were roughly handled
during their discharging from the vessel to the pier of [ATI] and even
during the loading operations of these coils from the pier to the trucks
that will transport the coils to the consigneess warehouse. During the
aforesaid operations, the employees and forklift operators of [ESLI] and
[ATI] were very negligent in the handling of the subject cargoes.49
(Emphasis supplied).
ESLI cannot rely only on parts it chooses. The entire body of evidence
should determine the liability of the parties. From the statements of
Manuel, [ESLI] was negligent, whether solely or together with ATI.
To further press its cause, ESLI cites the affidavit of its witness Rodrigo
who stated that the cause of the damage was the rough mishandling by
ATIs stevedores.
The affidavit of Rodrigo states that his functions as a cargo surveyor are,
(1) getting hold of a copy of the bill of lading and cargo manifest; (2)
inspection and monitoring of the cargo on-board, during discharging and
after unloading from the vessel; and (3) making a necessary report of his
findings. Thus, upon arrival at the South Harbor of Manila of the two
vessels of ESLI on 11 February 2004 and on 21 May 2004, Rodrigo
immediately boarded the vessels to inspect and monitor the unloading of
the cargoes. In both instances, it was his finding that there was
mishandling on the part of ATIs stevedores which he reported as the
cause of the damage.50 Easily seen, however, is the absence of a crucial
point in determining liability of either or both ESLI and ATI lack of
determination whether the cargo was in a good order condition as
described in the bills of lading at the time of his boarding. As Rodrigo
admits, it was also his duty to inspect and monitor the cargo on-board
upon arrival of the vessel. ESLI cannot invoke its non-liability solely on
the manner the cargo was discharged and unloaded. The actual condition
of the cargoes upon arrival prior to discharge is equally important and
cannot be disregarded. Proof is needed that the cargo arrived at the port
of Manila in good order condition and remained as such prior to its
handling by ATI.
Common carriers, from the nature of their business and on public policy
considerations, are bound to observe extra ordinary diligence in the
vigilance over the goods transported by them. Subject to certain
exceptions enumerated under Article 173451 of the Civil Code, common
carriers are responsible for the loss, destruction, or deterioration of the
goods. The extraordinary responsibility of the common carrier lasts from
the time the goods are unconditionally placed in the possession of, and
received by the carrier for transportation until the same are delivered,
actually or constructively, by the carrier to the consignee, or to the
person who has a right to receive them.52
In maritime transportation, a bill of lading is issued by a common carrier
as a contract, receipt and symbol of the goods covered by it.1wphi1 If it
has no notation of any defect ordamage in the goods, it is considered as

a "clean bill of lading." A clean bill of lading constitutes prima facie

evidence of the receipt by the carrier of the goods as therein
described.53
Based on the bills of lading issued, it is undisputed that ESLI received the
two shipments of coils from shipper Sumitomo Corporation in good
condition at the ports of Yokohama and Kashima, Japan. However, upon
arrival at the port of Manila, some coils from the two shipments were
partly dented and crumpled as evidenced by the Turn Over Survey of Bad
Order Cargoes No. 67982 dated 13 February 200454 and Turn Over
Survey of Bad Order Cargoes Nos. 6836355 and 6836556 both dated 24
May 2004 signed by ESLIs representatives, a certain Tabanao and
Rodrigo together with ATIs representative Garcia. According toTurn Over
Survey of Bad Order Cargoes No. 67982, four coils and one skid were
partly dented and crumpled prior to turnover by ESLI to ATIs possession
while a total of eleven coils were partly dented and crumpled prior to
turnover based on Turn Over Survey Bad Order Cargoes Nos. 68363 and
68365.
Calamba Steel requested for a re-examination of the damages sustained
by the two shipments. Based on the Requests for Bad Order Survey Nos.
5826757 and 5825458 covering the first shipment dated 13 and 17
February 2004, four coils were damaged prior to turnover. The second
Request for Bad Order Survey No. 5865859 dated 25 May 2004 also
affirmed the earlier findings that elevencoils on the second shipment
were damaged prior to turnover.
In Asian Terminals, Inc., v. Philam Insurance Co., Inc.,60 the Court based
its ruling on liability on the Bad Order Cargo and Turn Over of Bad Order.
The Receipt bore a notation "B.O. not yet over to ATI," while the Survey
stated that the said steel case was not opened at the time of survey and
was accepted by the arrastre in good order. Based on these documents,
packages in the Asian Terminals, Inc. case were found damaged while in
the custody of the carrier Westwind Shipping Corporation.
Mere proof of delivery of the goods in good order to a common carrier
and of their arrival in bad order at their destination constitutes a prima
faciecase of fault or negligence against the carrier. If no adequate
explanation is given as to how the deterioration, loss, or destruction of
the goods happened, the transporter shall be held responsible.61 From
the foregoing, the fault is attributable to ESLI. While no longer an issue, it
may be nonetheless state that ATI was correctly absolved of liability for
the damage.
Second Issue: Limitation of Liability
ESLI assigns as error the appellate courts finding and reasoning that the
package limitation under the COGSA62 is inapplicable even if the bills of
lading covering the shipments only made reference to the corresponding
invoices. Noticeably, the invoices specified among others the weight,
quantity, description and value of the cargoes, and bore the notation
"Freight Prepaid" and "As Arranged."63 ESLI argues that the value of the
cargoes was not incorporated in the bills of lading64 and that there was

no evidence that the shipper had presented to the carrier in writing prior
to the loading of the actual value of the cargo, and, that there was a no
payment of corresponding freight.65 Finally, despite the fact that ESLI
admits the existence of the invoices, it denies any knowledge either of
the value declared or of any information contained therein.66
According to the New Civil Code, the law of the country to which the
goods are to be transported shall govern the liability of the common
carrier for their loss, destruction or deterioration.67 The Code takes
precedence as the primary law over the rights and obligations of common
carriers with the Code of Commerce and COGSA applying suppletorily.68
The New Civil Code provides that a stipulation limiting a common
carriers liability to the value of the goods appearing in the bill of lading is
binding, unless the shipper or owner declares a greater value.69 In
addition, a contract fixing the sum that may be recovered by the owner
or shipper for the loss, destruction, or deterioration of the goods is valid,
if it is reasonable and just under the circumstances, and has been fairly
and freely agreed upon.70
COGSA, on the other hand, provides under Section 4, Subsection 5 that
an amount recoverable in case ofloss or damage shall not exceed
US$500.00 per package or per customary freight unless the nature and
value of such goods have been declared by the shipper before shipment
and inserted in the bill of lading.
In line with these maritime law provisions, paragraph 13 of bills of lading
issued by ESLI to the shipper specifically provides a similar restriction:
The value of the goods, in calculating and adjusting any claims for which
the Carrier may be liable shall, to avoid uncertainties and difficulties in
fixing value, be deemed to the invoice value of the goods plus ocean
freight and insurance, if paid, Irrespective of whether any other value is
greater or less, and any partial loss or damage shall be adjusted pro
rataon the basis of such value; provided, however, that neither the
Carrier nor the ship shall in any event be or become liable for any loss,
non-delivery or misdelivery of or damage or delay to, or in connection
with the custody or transportation of the goods in an amount exceeding
$500.00 per package lawful money of the United States, or in case of
goods not shipped in packages, per customary freight unit, unless the
nature of the goods and a valuation higher than $500.00 is declared in
writing by the shipper on delivery to the Carrier and inserted in the bill of
lading and extra freight is paid therein as required by applicable tariffs to
obtain the benefit of such higher valuation. In which case even if the
actual value of the goods per package orunit exceeds such declared
value, the value shall nevertheless be deemed to be the declared value
and any Carriers liability shall not exceed such declared value and any
partial loss or damage shall be adjusted pro-rata on the basis thereof. The
Carrier shall not be liable for any loss or profit or any consequential or
special damage and shall have the option of replacing any lost goods and
replacing o reconditioning any damage goods. No oral declaration or

agreement shall be evidence of a value different from that provided

therein.71
xxxx
Accordingly, the issue whether or not ESLI has limited liability as a carrier
is determined by either absence or presence of proof that the nature and
value of the goods have been declared by Sumitomo Corporation and
inserted in the bills of lading.
ESLI contends that the invoices specifying the weight, quantity,
description and value of the cargo in reference to the bills of lading do
not prove the fact that the shipper complied with the requirements
mandated by the COGSA. It contends that there must be an insertion of
this declaration in the bill of lading itself to fall outside the statutory
limitation of liability.
ESLI asserts that the appellate court erred when it ruled that there was
compliance with the declaration requirement even if the value of the
shipment and fact of payment were indicated on the invoice and not on
the bill of lading itself.
There is no question about the declaration of the nature, weight and
description of the goods on the first bill of lading.
The bills of lading represent the formal expression of the parties rights,
duties and obligations. It is the best evidence of the intention of the
parties which is to be deciphered from the language used in the contract,
not from the unilateral post facto assertions of one of the parties, or of
third parties who are strangers to the contract.72 Thus, when the terms
of an agreement have been reduced to writing, it is deemed to contain all
the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents
of the written agreement.73
As to the non-declaration of the value of the goods on the second bill of
lading, we see no error on the part of the appellate court when it ruled
that there was a compliance of the requirement provided by COGSA. The
declaration requirement does not require that all the details must be
written down on the very bill of lading itself. It must be emphasized that
all the needed details are in the invoice, which "contains the itemized list
of goods shipped to a buyer, stating quantities, prices, shipping charges,"
and other details which may contain numerous sheets.74 Compliance can
be attained by incorporating the invoice, by way of reference, to the bill
of lading provided that the former containing the description of the
nature, value and/or payment of freight charges isas in this case duly
admitted as evidence.
In Unsworth Transport International(Phils.), Inc. v. Court of Appeals,75 the
Court held that the insertion of an invoice number does not in itself
sufficiently and convincingly show that petitioner had knowledge of the
value of the cargo. However, the same interpretation does not squarely
apply if the carrier had been advised of the value of the goods as
evidenced by the invoice and payment of corresponding freight charges.
It would be unfair for ESLI to invoke the limitation under COGSA when the

shipper in fact paid the freight charges based on the value of the goods.
In Adams Express Company v. Croninger,76 it was said: "Neither is it
conformable to plain principles of justice that a shipper may understate
the value of his property for the purpose of reducing the rate, and then
recover a larger value in case of loss. Nor does a limitation based upon
an agreed value for the purpose of adjusting the rate conflict with any
sound principle of public policy." Conversely, but for the same reason, it is
unjust for ESLI to invoke the limitation when it is informed that the
shipper paid the freight charges corresponding to the value of the goods.
Also, ESLI admitted the existence and due execution of the Bills of Lading
and the Invoice containing the nature and value of the goods on the
second shipment. As written in the Pre-Trial Order,77 the parties,
including ESLI, admitted the existence and due execution of the two Bills
of Lading78 together with the Invoice on the second shipment with Nos.
KJGE-04-1327-NT/KE279 dated 12 May 2004. On the first shipment, ESLI
admitted the existence of the Invoice with Nos. KJGE-031228-NT/KE380
dated 2 February 2004.
The effect of admission of the genuineness and due execution of a
document means that the party whose signature it bears admits that he
voluntarily signed the document or itwas signed by another for him and
with his authority.81
A review of the bill of ladings and invoice on the second shipment
indicates that the shipper declared the nature and value of the goods
with the corresponding payment of the freight on the bills of lading.
Further, under the caption "description of packages and goods," it states
that the description of the goods to be transported as "various steel
sheet in coil" with a gross weight of 383,532 kilograms (89.510 M3).On
the other hand, the amount of the goods is referred in the invoice, the
due execution and genuineness of which has already been admitted by
ESLI, is US$186,906.35 as freight on board with payment of ocean freight
of US$32,736.06 and insurance premium of US$1,813.17. From the
foregoing, we rule that the non-limitation of liability applies in the present
case.
We likewise accord the same binding effect on the contents of the invoice
on the first shipment.1wphi1 ESLI contends that what was admitted and
written on the pre-trial order was only the existence of the first shipment
invoice but not its contents and due execution. It invokes admission of
existence but renounces any knowledge of the contents written on it.82
Judicial admissions are legally binding on the party making the
admissions. Pre-trial admission in civil cases is one of the instances of
judicial admissions explicitly provided for under Section 7,Rule 18 of the
Rules of Court, which mandates that the contents of the pre-trial order
shall control the subsequent course of the action, thereby, defining and
limiting the issues to be tried. In Bayas v. Sandiganbayan,83 this Court
emphasized that:
Once the stipulations are reduced into writing and signed by the parties
and their counsels, they become binding on the parties who made them.

They become judicial admissions of the fact or facts stipulated. Even if

placed at a disadvantageous position, a party may not be allowed to
rescind them unilaterally, it must assume the consequences of the
disadvantage.84
Moreover, in Alfelor v. Halasan,85 this Court declared that:
A party who judicially admits a fact cannot later challenge that fact as
judicial admissions are a waiver of proof; production of evidence is
dispensed with. A judicial admission also removes an admitted fact from
the field of controversy. Consequently, an admission made in the
pleadings cannot be controverted by the party making such admission
and are conclusive as to such party, and all proofs to the contrary or
inconsistent there with should be ignored, whether objection is
interposed by the party or not. The allegations, statements or admissions
contained in a pleading are conclusive as against the pleader. A party
cannot subsequently take a position contrary of or inconsistent with what
was pleaded.86 (Citations omitted)
The admission having been made in a stipulation of facts at pre-trial by
the parties, it must be treated as a judicial admission. Under Section 4, of
Rule 129 of the Rules of Court, a judicial admission requires no proof.87
It is inconceivable that a shipping company with maritime experience and
resource like the ESLI will admit the existence of a maritime document
like an invoice even if it has no knowledge of its contents or without
having any copy thereof.
ESLI also asserts that the notation "Freight Prepaid" and "As Arranged,"
does not prove that there was an actual declaration made in writing of
the payment of freight as required by COGSA. ESLI did not as it could not
deny payment of freight in the amount indicated in the documents.
Indeed, the earlier discussions on ESLI's admission of the existence and
due execution of the invoices, cover and disprove the argument
regarding actual declaration of payment. The bills of lading bore a
notation on the manner of payment which was "Freight Prepaid" and "As
Arranged" while the invoices indicated the amount exactly paid by the
shipper to ESLI.
WHEREFORE, we DENY the Petition for Review on Certiorari. The Decision
dated 31 January 2008 and Resolution dated 5 May 2008 of the Second
Division of the Court of Appeals in CA-G.R. CV. No. 88744 are hereby
AFFIRMED.
SO ORDERED.

Republic
of
the
Philippines
SUPREME
COURT
Manila
THIRD DIVISION
G.R. No. 193225
February 9, 2015
BBB,*
Petitioner,
vs.
AAA,* Respondent.
RESOLUTION
REYES, J.:
Petitioner BBB is now before this Court with a Petition for Review on
Certiorari1 under Rule 45 of the Rules of Civil Procedure to assail the
Decision2 dated November 6, 2009 and Resolution3 dated August 3,
2010 of the Court of Appeals (CA) in CA-G.R. CV No. 89581, which
affirmed with modification the issuance against him on August 14, 2007
of a Permanent Protection Order (PPO)4 by the Regional Trial Court (RTC)
of Pasig City, Branch 162, in favor of his wife, herein respondent AAA.
Antecedent Facts
The CA aptly summarized as follows the facts of the case until the RTCs
issuance of the PPO against BBB:
Both [BBB] and [AAA] allege that they first met in 1991 but started to
date seriously only in 1996. [AAA] was then a medical student and was
raising her first child borne from a previous relationship, a boy named
[CCC], with the help of her parents.
During the relationship with [BBB], [AAA] bore two more children namely,
[DDD] (born on December 11, 1997) and [EEE] (born on October 19,
2000).
To legalize their relationship, [BBB] and [AAA] married in civil rights on
October 10, 2002 and thereafter, the birth certificates of the children,
including [CCCs], was amended to change their civil status to
legitimated by virtue of the said marriage.
The relationship, both admit, was far from ideal and has had its share of
happy moments and heated arguments. The two however have
contradicting statements as to the cause of their present situation.
[BBB] alleges that [AAAs] irrational jealousy has caused their frequent
arguments. According to [BBB], [AAA] has been suspicious of [BBB] and
his relationship with his female co-workers, which [BBB] alleges, contrary
to [AAAs] suspicion, are purely professional. According to [BBB], because
of their repeated fights, he was forced to leave the family home to
prevent the brewing animosity between him and his wife. Soon after
[BBB] left, [AAA] herself decided to leave the family home and brought
the children with her, which made it difficult for [BBB] to see their kids
regularly. This has also caused the family expense to double, making it
even more difficult for [BBB] to fulfill his financial obligations.
[AAA], on the other hand, alleges that their heated arguments were often
due to [BBBs] incessant womanizing. When confronted about it, [BBB],
instead of denying the same, would even curse [AAA].

The breaking point for [AAA] came when, [BBBs] alleged mistress, a
woman by the name of [FFF], insulted and humiliated [AAA] in public, in
the presence of [BBB] himself, who, according to [AAA], did nothing to
stop the same. Extremely hurt, [AAA] decided to leave the conjugal home
with the children and lived temporarily at a friends house. She however
went back to the conjugal home with [DDD] and [EEE] after some time,
leaving her son [CCC] at her friends house.
What made matters worse, according to [AAA], was the apparent biases
of [BBB] in favor of [DDD] and [EEE]. That despite his promise to treat
[CCC] as his own, [BBB] would still treat the latter differently from the two
kids, putting [CCC] at a disadvantage. [AAA], cites as example the
instances when, [BBB] would buy food and toys for [DDD] and [EEE] only,
buying nothing for [CCC].
While living separately from [BBB], [AAA] discovered that [BBB] was not
paying the rentals due on the condominium unit they were occupying,
forcing [AAA] to move out. [AAA] was likewise compelled to find work to
support the family, after [BBB] has started to be remiss in his financial
obligations to the family. According to [AAA], the amounts given by [BBB]
were not sufficient to cover the family expenses, forcing her to request
for loans from friends.
[AAA] likewise feels threatened after discovering [that BBB] was stalking
her and/or their children. [AAA] alleges that she found out that [BBB] has
sought the help of one [GGG], a friend of [BBB] who lives within the same
compound where [AAA] lives, to go through the guards logbook to
monitor their every move, i.e., who visits them, what time [AAA] leaves
and returns back home, etc.
Citing the foregoing as constituting economic and psychological abuse,
[AAA] filed an application for the issuance of a Temporary Protection
Order with a request to make the same permanent after due hearing,
before the Regional Trial Court of Pasig City.
Finding good ground in [AAAs] application, the court a quo issued a
Temporary Protection Order (TPO). The TPO was thereafter, made
permanent by virtue of a Decision of the RTC dated August [14, 2007],
the dispositive portion of which orders:
"x x x x
a. Prohibiting [BBB], directly and indirectly, from stalking, harassing,
annoying, or otherwise verbally abusing [AAA], directly or indirectly, to
refrain from insulting her, cursing her and shouting invectives at her;
b. Prohibiting [BBB] from committing or threatening to commit any act
that may cause mental and emotional anguish to [AAA], i.e. publicly
displaying her extramarital relations with his mistress [FFF] and anyone
else for that matter;
c. Prohibiting [BBB] from exposing the minor children to immoral and
illicit environment, specifically prohibiting him to allow her (sic)
mistress[FFF] and anyone else to be with them in instances where he
would be allowed by this Court to see their children;

d. Allowing [BBB] ALONE to see and visit his children once a month (for a
total of 12 visits per year) at the latters residence for a maximum period
of 2 years [sic]each visit, subject to further orders from this Court. For
this purpose, [BBBs every visit] shall be accompanied by the Court
Sheriff, who shall coordinate with [AAA] as to the availability of time and
date of children for such visit, at the expense of [BBB]. For every visit,
the Court Sheriff is directed to submit his report within 5 days from the
date [BBB] visited the children;
e. Directing [BBB] to allow [AAA] to continue to have lawful use and
possession of the motor vehicle more particularly described as follows:
One (1) Hyundai Starex Van
1997 Model
Plate Number: WJP 902
Chassis Number:
Serial Number KMJWH7HPXU158443
f. Granting [AAA] permanent sole custody over their common children
until further orders from this Court;
g. Ordering [BBB] to provide support in the amount of Php 62,918.97 per
month (not Php 81,650.00 being prayed by [AAA]) to [AAA] as monthly
support, inclusive of educational expenses, groceries, medicines, medical
bills, and insurance premiums, starting from the month of January 2007
to be given within the first five (5) days of the month through the Court
Sheriff, who shall coordinate with [AAA] in receiving such support;
h. Requiring [BBB] to stay away from the offended party and any
designated family or household member at a distance of 100 meters;
i. Requiring [BBB] to stay away from the residence, school, place of
employment or any specified place frequented regularly by the offended
party and children and any designated family or household member;
j. Ordering [BBB] to post bond of Php 300,000.00 to keep peace pursuant
to Section 23 of RA 9262 with the undertaking that [BBB] will not commit
the violence sought to be prevented and that in case such violence is
committed[,] he will pay the amount determined by the Court in its
judgment;
k. Ordering [BBB] to pay the sum of Php 100,000.00 (not Php 200,000.00
being prayed by [AAA]) representing both reasonable attorneys fees and
cost of litigation, including cost of suit.
x x x x."5
Ruling of the CA
BBB filed before the CA an appeal6 to challenge the RTC Decision dated
August 14, 2007.1wphi1 BBB alleged that the RTCs (a) issuance of the
PPO against him, (b) award to AAA of the sole custody over their children,
(c) directives for him to pay attorneys fees and costs of litigation and to
post an excessive amount of bond, and (d) declaration that he had an
abusive character lack factual bases.
On November 6, 2009, the CA rendered the assailed decision affirming
the factual findings and dispositions of the RTC, but ordering the remand
of the case for the latter to determine in the proper proceedings who

shall be awarded custody of the children. Like the RTC, the CA found that
under the provisions of Republic Act (R.A.) No. 9262,7 BBB had subjected
AAA and their children to psychological, emotional and economic abuses.
BBB displayed acts of marital infidelity which exposed AAA to public
ridicule causing her emotional and psychological distress. While BBB
alleged that FFF was only a professional colleague, he continued to have
public appearances with her which did not help to dispel AAAs
accusation that the two had an extra-marital relation. Further, BBB
verbally abused AAA either in person or through text messages. The CA
likewise did not favorably consider BBBs claim that he cannot provide
financial support to AAA and the children in the amount required by the
RTC as his income merely depended on contractual hosting and events
management assignments. The CA emphasized that AAA was in the
position to know the sources of BBBs income. Citing Section 288 of R.A.
No. 9262 and Article 2139 of the Family Code, the CA, however, ordered
the RTC to determine who shall be entitled to exercise custody over the
children, who at that time were already older than seven years of age.
The CA denied BBBs Motion for Partial Reconsideration10 by way of the
Resolution11 dated August 3, 2010 which is likewise assailed in the
instant petition.
Issues
Undaunted, BBB now comes before this Court raising the following issues:
I
WHETHER OR NOT THE [CA]COMMITTED ERROR IN AFFIRMING THE RTCS
DECISION TO MAKE THE [TEMPORARY RESTRAINING ORDER (TPO)]
PERMANENT.
II
WHETHER OR NOT THE [CA]COMMITTED ERROR IN AFFIRMING THE RTCS
AWARD OF ATTORNEYS FEES AND COST OF LITIGATION IN FAVOR OF
[AAA].
III
WHETHER OR NOT THE [CA]COMMITTED ERROR IN AFFIRMING THE RTCS
ORDER REQUIRING [BBB] TO POST AN EXCESSIVE AMOUNTOF BOND TO
KEEP THE PEACE.12
IV
WHETHER OR NOT THE CA AND THE RTC CORRECTLY ADMITTED INTO
EVIDENCETHE UNAUTHENTICATED TEXT MESSAGES ADDUCED BY AAA.13
V
WHETHER OR NOT THE AWARD OF SUPPORT SHOULD BE DELETED AS
THE SPOUSES COMMON BIOLOGICAL CHILDREN, DDD AND EEE, ARE
ALREADY UNDER BBBS ACTUAL CARE AND CUSTODY SINCE AUGUST
2010 WHEN AAA LEFT TO WORK AS A NURSE IN THE UNITED STATES.14
In support of the instant petition, BBB merely reiterates his factual claims
in the proceedings below relative to his financial position and AAAs
supposedly baseless accusations and demands from him. In addition, he
posits that the text messages offered by AAA as evidence were
unauthenticated; hence, doubt exists as to their admissibility. Further, he

points out that due to the current whereabouts and circumstances of the
parties, the PPO issued against him is rendered moot. He now has actual
care and custody of DDD and EEE, while CCC, who is not his biological
son, resides in a college dormitory. BBB and AAA barely get in touch with
each other except when the latter initiates the same.
In her Comment15 to the petition, AAA counters that BBB erroneously
raises factual issues which are subjects beyond the contemplation of a
petition filed under Rule 45 of the Rules of Civil Procedure. Further, BBB
continuously violates the PPO, which under the provisions of R.A. No.
9262, is supposed to be immediately executory upon its issuance by the
RTC. AAA claims that BBB still verbally abuses her. BBB has not posted
the 300,000.00 bond required from him. He likewise has not paid the
attorneys fees and costs of litigation awarded to AAA. He does not
provide support for CCC, who, in the eyes of the law, is also among his
legitimated children. AAA further alleges that in2010, she left DDD and
EEE under the care of BBB only because the circumstances then
obtaining forced her to do so. Three years had then lapsed from the time
she filed an application for a protection order and still, no execution of
the PPO ensued. She could not depend for financial support from BBB.
She was thus left with no choice but to yield custody over DDD and EEE
even if the set-up exposed the children to BBBs illicit affairs. AAA points
out that since their children are all older than seven years of age, they
are already capable of choosing for themselves whom they want to
exercise custody over them.
Pending the Courts deliberation of the instant case, BBB filed a
Manifestation and Motion to Render Judgment Based on a Memorandum
of Agreement (MOA).16 BBB alleges that on July 29, 2013, he and AAA
had entered into a compromise anent the custody, exercise of parental
authority over, and support of DDD and EEE.17
AAAs counsel, Atty. Shielah Elbinias-Uyboco (Atty. Uyboco), filed a
Comment to the MOA18 pointing out that AAA signed the MOA while
emotionally distressed and sans the formers advice and guidance. Atty.
Uyboco likewise emphasizes that BBBs illicit relationship with FFF
continues in violation of the PPO issued by the RTC.
In BBBs Reply,19 he counters that AAA should be presumed to have
acted with due care and full knowledge of the contents of the MOA which
she signed. Further, BBBs alleged involvement with FFF is an issue which
need not be resolved in a judgment based on compromise.
Disquisition of the Court
The instant petition is not a proper subject of a compromise agreement.
The Court cannot take the simplest course of finally writing finis to the
instant petition by rendering a judgment merely based on compromise as
prayed for by BBB due to reasons discussed below.
Alleging psychological violence and economic abuse, AAA anchored her
application for the issuance of a TPO and a PPO on the basis of the
provisions of R.A. No. 9262. In the instant petition, what is essentially
being assailed is the PPO issued by the RTC and which was affirmed by

the CA. The rules, however, intend that cases filed under the provisions of
R.A. No. 9262 be not subjects of compromise agreements.
It bears stressing that Section 23(d) of A.M. No. 04-10-11-SC20 explicitly
prohibits compromise on any act constituting the crime of violence
against women. Thus, in Garcia v. Drilon,21 the Court declared that:
Violence, however, is not a subject for compromise. A process which
involves parties mediating the issue of violence implies that the victim is
somehow at fault. x x x.22 (Emphasis deleted) AM No. 10-4-16-SC,23 on
the other hand, directs the referral to mediation of all issues under the
Family Code and other laws in relation to support, custody, visitation,
property relations and guardianship of minor children, excepting
therefrom those covered by R.A. No. 9262.
While AAA filed her application for a TPO and a PPO as an independent
action and not as an incidental relief prayed for in a criminal suit, the
instant petition cannot be taken outside the ambit of cases falling under
the provisions of R.A. No. 9262. Perforce, the prohibition against
subjecting the instant petition to compromise applies.
The courts a quo committed no error in issuing a PPO against BBB.
Anent the main issues raised in the instant petition, the Court finds no
error in the CAs ruling that the RTC properly issued a PPO against BBB
and that a remanding of the case to the trial court is necessary to
determine who shall exercise custody over CCC, DDD and EEE. However,
the choices of the children as with whom they would prefer to stay would
alter the effects of the PPO. Hence, this Court affirms the herein assailed
PPO except items (d), (f), (g), (h) and (i)24 thereof relative to who shall be
granted custody over the three children, how the spouses shall exercise
visitation rights, and the amount and manner of providing financial
support, which are matters the RTC is now directed to determine with
dispatch.
The Court notes BBBs manifestation that he and AAA had arrived at an
amicable settlement as regards the issues of custody, exercise of
parental authority over, and support of DDD and EEE. While these
matters can be lawful subjects of compromise, AAAs vacillation, as
expressed by her counsel, compels the Court to exercise prudence by
directing the RTC to resolve with finality the aforesaid issues. The parties
are, however, not precluded from entering into a compromise as regards
the aforesaid issues, but the Court now requires the RTCs direct
supervision lest the parties muddle the issues anew and fail to put an end
to their bickering.
No grounds exist which compel this Court to resolve the first three issues
raised by BBB since they are merely factual in character.
In Padalhin v. Lavia,25 the Court declared that:
Primarily, Section 1, Rule 45 of the Rules of Court categorically states that
the petition filed shall raise only questions of law, which must be
distinctly set forth. A question of law arises when there is doubt as to
what the law is on a certain state of facts, while there is a question of fact
when the doubt arises as to the truth or falsity of the alleged facts. For a

question to be one of law, the same must not involve an examination of

the probative value of the evidence presented by the litigants or any of
them. The resolution of the issue must rest solely on what the law
provides on the given set of circumstances. Once it is clear that the issue
invites a review of the evidence presented, the question posed is one of
fact.
x x x [T]he substantive issue of whether or not the petitioners are entitled
to moral and exemplary damages as well as attorneys fees is a factual
issue which is beyond the province of a petition for review on certiorari. x
xx
In the case at bar, the petitioner spouses present to us issues with an
intent to subject to review the uniform factual findings of the RTC and the
CA. Specifically, the instant petition challenges the existence of clear and
substantial evidence warranting the award of damages and attorneys
fees in Lavias favor. Further, the instant petition prays for the grant of
the Spouses Padalhins counterclaims on the supposed showing that the
complaint filed by Lavia before the RTC was groundless. It bears
stressing that we are not a trier of facts. Undoubtedly, the questions now
raised before us are factual and not legal in character, hence, beyond the
contemplation of a petition filed under Rule 45 of the Rules of Civil
Procedure.26 (Italics in the original and emphasis ours)
In BBBs case, he avers that the RTC and the CAs (a) issuance of the PPO,
(b) award of attorneys fees and costs of litigation in AAAs favor, and (c)
directive for him to post a bond in the amount of 300,000.00 all lack
factual bases. The first three issues presented unmistakably call for a recalibration of evidence. While the general rule that only legal issues can
be resolved in a petition filed under Rule 45 recognizes exceptions,27
BBBs case does not fall in the latter category. The RTC and the CA are in
accord with each other as to their factual findings, which are supported
by substantial evidence, thus, binding upon this Court.
The doubt raised by BBB anent the admissibility of the text messages as
evidence is not genuinely a legal issue.
In the case of Justice Vidallon-Magtolis v. Salud,28 it is stated that any
question as to the admissibility of text messages as evidence is rendered
moot and academic if the party raising such issue admits authorship of
the subject messages.29
BBB argues that the RTC and the CA erred in admitting as evidence the
text messages which were sent by him and FFF to AAA since they were
unauthenticated. However, BBB himself effectively admitted in the
pleadings filed with this Court and the CA that he indeed sent the text
messages attributed to him by AAA. The Appellants Brief30 filed before
the CA stated in part that:
[AAA] conveniently chose to leave out the initiatory messages to which
[BBB] replied to. It is totally obvious that the alleged messages from
[BBB] are only messages that are in response to an ongoing verbal or
virtual tussle and the adamant refusal of [AAA] to bring the children
home despite the entreaties of [BBB]. Be it noted that [BBB], for the past

several months leading up to their separation, and up to the time that the
instant case has been filed, continuously endured the extreme mood
swings, malicious accusations, haranguing, curses, insults, and even
violence from [AAA].31 (Emphasis and underscoring in the original and
italics ours)
Further, in the instant petition, BBB repleads that:
[I]t is utterly apparent that the alleged messages from [BBB] are only
messages that are in response to an ongoing verbal or virtual tussle
between the parties.32
In the above-quoted portions of the pleadings, BBB attempted to justify
why he sent the messages to AAA. However, in doing so, he, in effect,
admitted authorship of the messages which AAA adduced as evidence. It
is likewise noted that BBB did not deny ownership of the cellphone
number from which the text messages were sent.
Hence, while at first glance, it would seem that the issue of admissibility
of the text messages requires an interpretation of the rules of evidence,
this Court does not find the same to be necessary. While BBB had
admitted authorship of the text messages, he pleads for this Court to
consider those messages as inadmissible for allegedly being
unauthenticated. BBBs arguments are unbearably self-contradictory and
he cannot be allowed to take refuge under technical rules of procedure to
assail what is already apparent.
The deletion from the PPO of the directive of the RTC and the CA relative
to the award of support is not warranted. While CCC is not BBBs
biological son, he was legitimated under the latters name. Like DDD and
EEE, CCC is entitled to receive support from BBB.
BBB claims that DDD and EEE are now under his sole care and custody,
which allegedly renders moot the provision in the PPO relative to support.
BBB points out that CCC is not his biological son. Impliedly then, BBB
justifies why CCC is not entitled to receive support from him. This Court is
not persuaded.
Article 177 of the Family Code provides that "[o]nly children conceived
and born outside of wedlock of parents who, at the time of the conception
of the former, were not disqualified by any impediment to marry each
other may be legitimated." Article 178 states that "[l]egitimation shall
take place by a subsequent valid marriage between parents."
In the case at bar, the parties do not dispute the fact that BBB is not
CCCs biological father. Such being the case, it was improper to have CCC
legitimated after the celebration of BBB and AAAs marriage. Clearly
then, the legal process of legitimation was trifled with. BBB voluntarily
but falsely acknowledged CCC as his son. Article 1431 of the New Civil
Code pertinently provides:
Art. 1431. Through estoppel an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or disproved
as against the person relying thereon.
At least for the purpose of resolving the instant petition, the principle of
estoppel finds application and it now bars BBB from making an assertion

contrary to his previous representations. He should not be allowed to

evade a responsibility arising from his own misrepresentations. He is
bound by the effects of the legitimation process. CCC remains to be
BBBs son, and pursuant to Article 179 of the Family Code, the former is
entitled to the same rights as those of a legitimate child, including the
receipt of his fathers support.
Notwithstanding the above, there is no absolute preclusion for BBB from
raising before the proper court the issue of CCCs status and filiation.
However, BBB cannot do the same in the instant petition before this
Court now. In Tison v. CA,33 the Court held that "the civil status [of a
child] cannot be attacked collaterally." The childs legitimacy "cannot be
contested by way of defense or as a collateral issue in another action for
a different purpose."34 The instant petition sprang out of AAAs
application for a PPO before the RTC. Hence, BBBs claim that CCC is not
his biological son is a collateral issue, which this Court has no authority to
resolve now.
All told, the Court finds no merit in BBBs petition, but there exists a
necessity to remand the case for the RTC to resolve matters relative to
who shall be granted custody over the three children, how the spouses
shall exercise visitation rights, and the amount and manner of providing
financial support.
The RTC and the CA found substantial evidence and did not commit
reversible errors when they issued the PPO against BBB. Events, which
took place after the issuance of the PPO, do not erase the fact that
psychological, emotional and economic abuses were committed by BBB
against AAA. Hence, BBBs claim that he now has actual sole care of DDD
and EEE does not necessarily call for this Courts revocation of the PPO
and the award to him of custody over the children.
This Court, thus, affirms the CAs order to remand the case for the RTC to
resolve the question of custody. Since the children are now all older than
seven years of age, they can choose for themselves whom they want to
stay with. If all the three children would manifest to the RTC their choice
to stay with AAA, then the PPO issued by RTC shall continue to be
executed in its entirety. However, if any of the three children would
choose to be under BBBs care, necessarily, the PPO issued against BBB
relative to them is to be modified. The PPO, in its entirety, would remain
effective only as to AAA and any of the children who opt to stay with her.
Consequently, the RTC may accordingly alter the manner and amount of
financial support BBB should give depending on who shall finally be
awarded custody over the children. Pursuant to Articles 201 and 202 of
the Family Code, BBBs resources and means and the necessities of AAA
and the children are the essential factors in determining the amount of
support, and the same can be reduced or increased proportionately. The
RTC is reminded to be circumspect in resolving the matter of support,
which is a mutual responsibility of the spouses. The parties do not
dispute that AAA is now employed as well, thus, the RTC should consider

the same with the end in mind of promoting the best interests of the
children.
A final note on the effectivity and violation of a PPO
The Court reminds the parties that the application for the issuance of a
PPO is not a process to be trifled with. It is only granted after notice and
hearing. Once issued, violation of its provisions shall be punishable with a
fine ranging from Five Thousand Pesos (5,000.00) to Fifty Thousand Pesos
(P50,000.00) and/or imprisonment of six (6) months.35
Section 16 of R.A. No. 9262, on the other hand, provides that "[a] PPO
shall be effective until revoked by a court upon application of the person
in whose favor the order was issued." Pending the resolution of the
instant petition, BBB claims that he and AAA had executed a MOA, upon
which basis a judgment by compromise is sought to be rendered. Atty.
Uyboco, on her part, pointed out AAAs vacillation anent the MOAs
execution. With the foregoing circumstances, the parties, wittingly or
unwittingly, have imposed upon this Court the undue burden of
speculating whether or not AAAs half-hearted acquiescence to the MOA
is tantamount to an application for the revocation of the PPO. The Court,
however, refuses to indulge the whims of either parties. The questions
raised in the instant petition for the Court to dispose of revolve around
the propriety of the PPOs issuance. The Court resolves that principal
query in the affirmative. The PPO thus stands unless AAA, categorically
and without any equivocation, files an application for its revocation.
IN VIEW OF THE FOREGOING, the petition is DENIED. The Decision dated
November 6, 2009 and Resolution dated August 3, 2010 of the Court of
Appeals in CA-G.R. CV No. 89581 are AFFIRMED. The Permanent
Protection Order, dated August 14, 2007, issued against BBB by the
Regional Trial Court of Pasig City, Branch 162STANDS except items (d),
(f), (g), (h) and (i)36 thereof. The case is hereby remanded to the trial
court for it to accordingly modify the aforecited items after determining
with dispatch the following:
(1) who between BBB and AAA shall exercise custody over the
three children;
(2) how the parties shall exercise their respective visitation
rights; and
(3) the amount and manner of providing financial support.
The Reply and Manifestation dated November 10, 2014 and December 4,
2014, respectively, are NOTED.
SO ORDERED.
BIENVENIDO L. REYES
Footnotes
* Section 44 of Republic Act No. 9262 (Anti-Violence Against Women and
Their Children Act of 2004) requires the confidentiality of all records
pertaining to cases of violence against women and their children. Per said
section, all public officers and employees are prohibited from publishing
or causing to be published in any format the name and other identifying

information of a victim or an immediate family member. The penalty of

one (I) year imprisonment and a fine of not more than Five Hundred
Thousand pesos (P500,000.00) shall be imposed upon those who violate
the provision. Pursuant thereto, in the courts' promulgation of decisions,
final resolutions and/or final orders, the names of women and children
victims shall be replaced by fictitious initials, and their personal
circumstances or any information, which tend to identify them, shall
likewise not be disclosed.
** Additional Member per Raffle dated October 18, 2010 vice Associate
Justice Diosdado M. Peralta.

Republic
of
the
Philippines
SUPREME
COURT
Manila
SECOND DIVISION
G.R. No. 174461
September 11, 2013
LETICIA
I.
KUMMER,
Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We decide the appeal tiled by petitioner Leticia I. Kummer assailing the
April 28, 2006 decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
27609. The CA decision affirmed the July 27, 2000 judgment 2 of the
Regional Trial Court (RTC), Branch 4, Tuguegarao City, Cagayan, finding
the petitioner and her co-accused Freiderich Johan I. Kummer guilty
beyond reasonable doubt of the crime of homicide in Criminal Case No.
1130.
The Facts
The prosecution's evidence revealed that on June 19, 1988, between 9:00
and 10:00 p.m., Jesus Mallo, Jr., accompanied by Amiel Malana, went to
the house of the petitioner. Mallo knocked at the front door with a stone
and identified himself by saying, "Auntie, ako si Boy Mallo."
The petitioner opened the door and at this point, her son and co-accused,
Johan, using his left hand, shot Mallo twice using a gun about six (6)
inches long.3 Malana, who was with Mallo and who witnessed the
shooting, immediately ran towards the west, followed by Mallo. When
Malana turned his back, he saw the petitioner leveling and firing her long
gun at Mallo, hitting the latters back and causing him to fall flat on the
ground.4
Thereafter, the petitioner went inside the house and came out with a
flashlight. Together with her co-accused, she scoured the pathway up to
the place where Mallo was lying flat. 5 At that point, the petitioner
uttered,"Johan, patay na," in a loud voice. 6 The petitioner and her coaccused putdown the guns and the flashlight they were holding, held
Mallos feet and pulled him to about three (3) to four (4) meters away
from the house. Thereafter, they returned to the house and turned off all
the lights.7
The following morning, policeman Danilo Pelovello went to the
petitioners house and informed her that Mallo had been found dead in
front of her house. Pelovello conducted an investigation through inquiries
among the neighbors, including the petitioner, who all denied having any
knowledge of the incident.
The prosecution filed an information 8 for homicide on January 12,1989
against the petitioner and Johan, docketed as Criminal Case No.
1130.Both accused were arraigned and pleaded not guilty to the crime
charged. They waived the pre-trial, and the trial on the merits accordingly
followed.

The petitioner denied the charge and claimed in her defense that she and
her children, Johan, Melanie and Erika, were already asleep in the evening
of June 19, 1988. She claimed that they were awakened by the sound of
stones being thrown at their house, a gun report, and the banging at their
door.
Believing that the noise was caused by the members of the New Peoples
Army prevalent in their area, and sensing the possible harm that might
be inflicted on them, Johan got a .38 cal. gun from the drawer and fired it
twice outside to scare the people causing the disturbance. The noise
continued, however, with a stone hitting the window and breaking the
glass; another stone hit Melanie who was then sick. This prompted Johan
to get the shotgun placed beside the door and to fire it. The noise
thereafter stopped and they all went back to sleep.
In its judgment dated July 27, 2000, the RTC found the prosecutions
evidence persuasive based on the testimonies of prosecution
eyewitnesses Ramon Cuntapay and Malana who both testified that the
petitioner shot Mallo. The testimonial evidence, coupled by the positive
findings of gunpowder nitrates on the left hand of Johan and on the
petitioners right hand, as well as the corroborative testimony of the
other prosecution witnesses, led the RTC to find both the petitioner and
Johan guilty beyond reasonable doubt of the crime charged.
Johan, still a minor at the time of the commission of the crime, was
released on the recognizance of his father, Moises Kummer. Johan
subsequently left the country without notifying the court; hence, only the
petitioner appealed the judgment of conviction with the CA.
She contended before the CA that the RTC committed reversible errors in
its appreciation of the evidence, namely: (1) in giving credence to the
testimonial evidence of Cuntapay and of Malana despite the
discrepancies between their sworn statements and direct testimonies; (2)
in not considering the failure of the prosecution to cite the petitioners
motive in killing the victim; (3) in failing to consider that the writer of the
decision, Judge Lyliha L. Abella-Aquino, was not the judge who heard the
testimonies; and (4) in considering the paraffin test results finding the
petitioner positive for gunpowder residue.
The CA rejected the petitioners arguments and affirmed the RTC
judgment, holding that the discrepancies between the sworn statement
and the direct testimony of the witnesses do not necessarily discredit
them because the contradictions are minimal and reconcilable. The CA
also ruled that the inconsistencies are minor lapses and are therefore not
substantial. The petitioners positive identification by the eyewitnesses as
one of the assailants remained unrefuted. The CA, moreover, held that
proof of motive is only necessary when a serious doubt arises on the
identity of the accused. That the writer of the decision was not the judge
who heard the testimonies of the witnesses does not necessarily make
the decision erroneous.

In sum, the CA found Malana and Cuntapays positive identification and

the corroborative evidence presented by the prosecution more than
sufficient to convict the petitioner of the crime charged.
On further appeal to this Court, the petitioner submits the issue of
whether the CA committed a reversible error in affirming the RTCs
decision convicting her of the crime of homicide.
In essence, the case involves the credibility of the prosecution
eyewitnesses and the sufficiency of the prosecutions evidence.
Our Ruling
We find the petition devoid of merit.
The petitioners conviction is anchored on the positive and direct
testimonies of the prosecution eyewitnesses, which testimonies the
petitioner submits to be both inconsistent and illogical. The petitioner
essentially impugns the credibility of the witnesses on these grounds. The
petitioner moreover claims that her conviction was based on doctrinal
precepts that should not apply to her case.
Variance
between
the
eyewitnesses
testimonies
in
open
court
and
their
affidavits
does
not
affect
their
credibility
In her attempt to impugn the credibility of prosecution eyewitnesses
Malana and Cuntapay, the petitioner pointed to the following in
consistencies: First, in paragraph 7 of Malanas July 21, 1988 affidavit, he
stated that after hearing two gunshots, he dived to the ground for cover
and heard another shot louder than the first two. This statement is
allegedly inconsistent with his declaration during the direct examination
that he saw the petitioner and Johan fire their guns at Mallo. Second, the
July 22, 1988affidavit of Cuntapay likewise stated that he heard two burst
of gun fire coming from the direction of the petitioners house and heard
another burst from the same direction, which statement is allegedly
inconsistent with his direct testimony where he claimed that he saw the
petitioner shoot Mallo. Third, in his affidavit, Malana declared that he ran
away as he felt the door being opened and heard two shots, while in his
testimony in court, he stated that he ran away after Mallo was already
hit. According to the petitioner, these and some other trivial and minor
inconsistencies in the testimony of the two witnesses effectively
destroyed their credibility.
We find these claims far from convincing. The Court has consistently held
that inconsistencies between the testimony of a witness in open court, on
one hand, and the statements in his sworn affidavit, on the other hand,
referring only to minor and collateral matters, do not affect his credibility
and the veracity and weight of his testimony as they do not touch upon
the commission of the crime itself. Slight contradictions, in fact, even
serve to strengthen the credibility of the witnesses, as these may be
considered as badges of truth rather than indicia of bad faith; they tend
to prove that their testimonies have not been rehearsed. Nor are such

inconsistencies, and evenimpro babilities, unusual, for no person has

perfect faculties of senses or recall.9
A close scrutiny of the records reveals that Malana and Cuntapay
positively and firmly declared in open court that they saw the petitioner
and Johan shoot Mallo. The inconsistencies in their affidavit, they
reasoned, were due to the oversight of the administering official in typing
the exact details of their narration.
It is oft repeated that affidavits are usually abbreviated and inaccurate.
Oftentimes, an affidavit is incomplete, resulting in its seeming
contradiction with the declarants testimony in court. Generally, the
affiant is asked standard questions, coupled with ready suggestions
intended to elicit answers, that later turn out not to be wholly descriptive
of the series of events as the affiant knows them. 10 Worse, the process of
affidavit-taking may sometimes amount to putting words into the affiants
mouth, thus allowing the whole statement to be taken out of context.
The court is not unmindful of these on-the-ground realities. In fact, we
have ruled that the discrepancies between the statements of the affiant
in his affidavit and those made by him on the witness stand do not
necessarily discredit him since ex parte affidavits are generally
incomplete.11 As between the joint affidavit and the testimony given in
open court, the latter prevails because affidavits taken ex-parte are
generally considered to be inferior to the testimony given in court. 12
In the present case, we find it undeniable that Malana and Cuntapay
positively identified the petitioner as one of the assailants. This is the
critical point, not the inconsistencies that the petitioner repeatedly refers
to, which carry no direct bearing on the crucial issue of the identity of the
perpetrator of the crime. Indeed, the inconsistencies refer only to minor
details that are not critical to the main outcome of the case. Moreover,
the basic rule is that the Supreme Court accords great respect and even
finality to the findings of credibility of the trial court, more so if the same
were affirmed by the CA, as in this case. 13 We find no reason to break this
rule and thus find that both the RTC and the CA were correct in giving
credence to the testimonies of Malana and Cuntapay.
It
is
not
necessary
for
the
validity
of
the
judgment
that
it
be
rendered
by
the judge who heard the case
The petitioner contends that the CA, in affirming the judgment of the RTC,
failed to recognize that the trial court that heard the testimonies of
Malana and Cuntapay was not the same court that rendered the
decision.14
We do not share this view.
The rule is settled that the validity of a judgment is not rendered
erroneous solely because the judge who heard the case was not the
same judge who rendered the decision. In fact, it is not necessary for the
validity of a judgment that the judge who penned the decision should
actually hear the case in its entirety, for he can merely rely on the

transcribed stenographic notes taken during the trial as the basis for his
decision.15
Thus, the contention - that since Judge Lyliha L. Abella-Aquino was not the
one who heard the evidence and thereby did not have the opportunity to
observe the demeanor of the witnesses - must fail. It is sufficient that the
judge, in deciding the case, must base her ruling completely on the
records before her, in the way that appellate courts do when they review
the evidence of the case raised on appeal. 16 Thus, a judgment of
conviction penned by a different trial judge is not erroneous if she relied
on the records available to her.
Motive is irrelevant when the
accused has been positively identified
by an eyewitness
We agree with the CAs ruling that motive gains importance only when
the identity of the assailant is in doubt. As held in a long line of cases, the
prosecution does not need to prove the motive of the accused when the
latter has been identified as the author of the crime. 17
Once again, we point out that the petitioner was positively identified by
Malana and Cuntapay. Thus, the prosecution did not have to identify and
prove the motive for the killing. It is a matter of judicial knowledge that
persons have been killed for no apparent reason at all, and that
friendship or even relationship is no deterrent to the commission of a
crime.18
The petitioner attempts to offer the justification that the witnesses did
not really witness the shooting as their affidavits merely attested that
they heard the shooting of Mallo (and did not state that they actually
witnessed it). We find this to be a lame argument whose merit we cannot
recognize.
That Malana and Cuntapay have been eyewitnesses to the crime remains
unrefuted. They both confirmed in their direct testimony before the RTC
that they saw the petitioner fire a gun at Mallo. This was again reaffirmed by the witnesses during their cross examination. The fact that
their respective affidavits merely stated that they heard the gunshots
does not automatically foreclose the possibility that they also saw the
actual shoot in gas this was in fact what the witnesses claimed truly
happened. Besides, it has been held that the claim that "whenever a
witness discloses in his testimony in court facts which he failed to state in
his affidavit taken ante litem motam, then an inconsistency exists
between the testimony and the affidavit" is erroneous. If what were
stated in open court are but details or additional facts that serve to
supplement the declarations made in the affidavit, these statements
cannot be ruled out as inconsistent and may be considered by the court.
Thus, in light of the direct and positive identification of the petitioner as
one of the perpetrators of the crime by not one but two prosecution eye
witnesses, the failure to cite the motive of the petitioner is of no moment.
At any rate, we find it noteworthy that the lack or absence of motive for
committing the crime does not preclude conviction where there are

reliable witnesses who fully and satisfactorily identified the petitioner as

the perpetrator of the felony, such as in this case.
There
is
no
absolute
uniformity
nor
a
fixed
standard
form
of
human
behavior
The petitioner imputes error to the CA in giving credence to the
testimonies of Malana and Cuntapay on the claim that these are riddled
not only by inconsistencies and contradictions, but also by improbabilities
and illogical claims. She laboriously pointed out the numerous
improbabilities that, taken as a whole, allegedly cast serious doubt on
their reliability and credibility.
She alleged, among others: (1) that it was abnormal and contrary to the
ways of the farmers in the rural areas for Cuntapay to go home from his
corral at about 9:00 p.m., while everybody else goes home from his farm
much earlier, as working late in the farm (that is, before and after sunset)
is taboo to farming; (2) that the act of the petitioner of putting down her
gun in order to pull the victim away does not make any sense because a
criminal would not simply part with his weapon in this manner; (3) that it
is highly incredible that Malana, who accompanied Mallo, was left
unharmed and was allowed to escape if indeed he was just beside the
victim; (4) that it is unbelievable that when Malana heard the cocking of
guns and the opening of the door, he did not become scared at all; (5)
that Malana and Cuntapay did not immediately report the incident to the
authorities; (6) that it was highly improbable for Malana to turn his head
while running; and (7) that it was unusual that Cuntapay did not run away
when he saw the shooting.
We rule, without descending to particulars and going over each and every
one of these claims, that without more and stronger indicators, we
cannot accord them credit. Human nature suggests that people may
react differently when confronted with a given situation. Witnesses to a
crime cannot be expected to demonstrate an absolute uniformity and
conformity inaction and reaction. People may act contrary to the
accepted norm, react differently and act contrary to the expectation of
mankind. There is no standard human behavioral response when one is
confronted with an unusual, strange, startling or frightful experience. 19
We thus hold that the CA was correct in brushing aside the
improbabilities alleged by the petitioner who, in her present plight, can
be overcritical in her attempt to seize every detail that can favor her
case. Unfortunately, if at all, her claims refer only to minor and even
inconsequential details that do not touch on the core of the crime itself.
Public
documents
are
admissible
in
court
without
further
proof
of
their
due execution and authenticity
A public document is defined in Section 19, Rule 132 of the Rules of Court
as follows:
SEC. 19. Classes of Documents. For the purpose of their presentation in
evidence, documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last
wills and testaments; and
(c) Public records, kept in the Philippines, or private documents
required by law to be entered therein.
All other writings are private. [emphasis and underscore ours]
The chemistry report showing a positive result of the paraffin test is a
public document. As a public document, the rule on authentication does
not apply. It is admissible in evidence without further proof of its due
execution and genuineness; the person who made the report need not be
presented in court to identify, describe and testify how the report was
conducted. Moreover, documents consisting of entries in public records
made in the performance of a duty by a public officer are prima facie
evidence of the facts stated therein.20
In the present case, notwithstanding the fact that it was Captain
Benjamin Rubio who was presented in court to identify the chemistry
report and not the forensic chemist who actually conducted the paraffin
test on the petitioner, the report may still be admitted because the
requirement for authentication does not apply to public documents. In
other words, the forensic chemist does not need to be presented as
witness to identify and authenticate the chemistry report. Furthermore,
the entries in the chemistry report are prima facie evidence of the facts
they state, that is, of the presence of gunpowder residue on the left hand
of Johan and on the right hand of the petitioner. As a matter of fact, the
petitioner herself admitted the presence of gunpowder nitrates on her
fingers, albeit ascribing their presence from a match she allegedly
lighted.21 Accordingly, we hold that the chemistry report is admissible as
evidence.
On the issue of the normal process versus the actual process conducted
during the test raised by the petitioner, suffice it to say that in the
absence of proof to the contrary, it is presumed that the forensic chemist
who conducted the report observed the regular procedure. Stated
otherwise, the courts will not presume irregularity or negligence in the
performance of ones duties unless facts are shown dictating a contrary
conclusion. The presumption of regularity in favor of the forensic chemist
compels us to reject the petitioners contention that an explanation has
to be given on how the actual process was conducted. Since the
petitioner presented no evidence of fabrication or irregularity, we
presume that the standard operating procedure has been observed.
We note at this point that while the positive finding of gunpowder residue
does not conclusively show that the petitioner indeed fired a gun, the
finding nevertheless serves to corroborate the prosecution eyewitnesses
testimony that the petitioner shot the victim. Furthermore, while it is true
that cigarettes, fertilizers, urine or even a match may leave traces of

nitrates, experts confirm that these traces are minimal and may be
washed off with tap water, unlike the evidence nitrates left behind by
gunpowder.
Change
in
the
date
of
the
commission
of
the
crime,
where
the
disparity
is
not
great,
is
merely
a
formal
amendment,
thus,
no
arraignment is required
The petitioner claims that she was not arraigned on the amended
information for which she was convicted. The petitioners argument is
founded on the flawed understanding of the rules on amendment and
misconception on the necessity of arraignment in every case. Thus, we
do not see any merit in this claim.
Section 14, Rule 110 of the Rules of Court permits a formal amendment
of a complaint even after the plea but only if it is made with leave of
court and provided that it can be done without causing prejudice to the
rights of the accused. Section 14 provides:
Section 14. Amendment or substitution. A complaint or information may
be amended, in form or in substance, without leave of court, at any time
before the accused enters his plea. After the plea and during the trial, a
formal amendment may only be made with leave of court and when it
can be done without causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of
the offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court. The court shall state
its reasons in resolving the motion and copies of its order shall be
furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been made
in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the proper
offense in accordance with section 19, Rule 119, provided the accused
would not be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial. [emphasis and
underscore ours]
A mere change in the date of the commission of the crime, if the disparity
of time is not great, is more formal than substantial. Such an amendment
would not prejudice the rights of the accused since the proposed
amendment would not alter the nature of the offense.
The test as to when the rights of an accused are prejudiced by the
amendment of a complaint or information is when a defense under the
complaint or information, as it originally stood, would no longer be
available after the amendment is made, when any evidence the accused
might have would no longer be available after the amendment is made,
and when any evidence the accused might have would be inapplicable to
the complaint or information, as amended. 22

In People, et al. v. Borromeo, et al., 23 we ruled that the change of the date
of the commission of the crime from June 24, 1981 to August 28, 1981 is
a formal amendment and would not prejudice the rights of the accused
because the nature of the offense of grave coercion would not be altered.
In that case, the difference in the date was only about two months and
five days, which difference, we ruled, would neither cause substantial
prejudice nor cause surprise on the part of the accused.
It is not even necessary to state in the complaint or information the
precise time at which the offense was committed except when time is a
material ingredient of the offense. 24 The act may be alleged to have been
committed at any time as near as to the actual date at which date the
offense was committed, as the information will permit. Under the
circumstances, the precise time is not an essential ingredient of the
crime of homicide.
Having established that a change of date of the commission of a crime is
a formal amendment, we proceed to the next question of whether an
arraignment is necessary.
Arraignment is indispensable in bringing the accused to court and in
notifying him of the nature and cause of the accusations against him. The
importance of arraignment is based on the constitutional right of the
accused to be informed.25 Procedural due process requires that the
accused be arraigned so that he may be informed of the reason for his
indictment, the specific charges he is bound to face, and the
corresponding penalty that could be possibly meted against him. It is at
this stage that the accused, for the first time, is given the opportunity to
know the precise charge that confronts him. It is only imperative that he
is thus made fully aware of the possible loss of freedom, even of his life,
depending on the nature of the imputed crime.26
The need for arraignment is equally imperative in an amended
information or complaint. This however, we hastily clarify, pertains only
to substantial amendments and not to formal amendments that, by their
very nature, do not charge an offense different from that charged in the
original complaint or information; do not alter the theory of the
prosecution; do not cause any surprise and affect the line of defense; and
do not adversely affect the substantial rights of the accused, such as an
amendment in the date of the commission of the offense.

We further stress that an amendment done after the plea and during trial,
in accordance with the rules, does not call for a second plea since the
amendment is only as to form. The purpose of an arraignment, that is, to
inform the accused of the nature and cause of the accusation against
him, has already been attained when the accused was arraigned the first
time. The subsequent amendment could not have conceivably come as a
surprise to the accused simply because the amendment did not charge a
new offense nor alter the theory of the prosecution.
Applying these rules and principles to the prevailing case, the records of
the case evidently show that the amendment in the complaint was from
July 19, 1988 to June 19, 1988, or a difference of only one month. It is
clear that consistent with the rule on amendments and the jurisprudence
cited above, the change in the date of the commission of the crime of
homicide is a formal amendment - it does not change the nature of the
crime, does not affect the essence of the offense nor deprive the accused
of an opportunity to meet the new averment, and is not prejudicial to the
accused. Further, the defense under the complaint is still available after
the amendment, as this was, in fact, the same line of defenses used by
the petitioner. This is also true with respect to the pieces of evidence
presented by the petitioner. The effected amendment was of this nature
and did not need a second plea.
To sum up, we are satisfied after a review of the records of the case that
the prosecution has proven the guilt of the petitioner beyond reasonable
doubt. The constitutional presumption of innocence has been successfully
overcome.
WHEREFORE, premises considered, the appealed decision dated April 28,
2006, convicting the petitioner of the crime of homicide, is hereby
AFFIRMED. Costs against petitioner Leticia I. Kummer.
SO ORDERED.
ARTURO
D.
BRION
Associate Justice